IN RE: TRES PEEL, Protestor.
Protest Decision 2006 ESD 277
Issued: May 28, 2006
OES Case No. P-06-237-032206-MW
(See also Election Appeals Master decision 06 EAM 51)
Tres Peel, a member and delegate candidate from Local Union 726, filed a post-election protest pursuant to Article XIII, Section 3(a)(1) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged several Rules violations with respect to the manner in which the local union administered the delegate and alternate delegate election.
Election Supervisor representatives Deborah Schaaf, Maria Ho, Johahna Johnson, and Steven R. Newmark investigated this protest.
Findings of Fact and Analysis
Each of the allegations Peel made in this protest concerned events or incidents that occurred and were known to him a month or more before he filed the protest. Peel offered no excuse or justification for his delay in filing the protest. Article XIII, Section 2(b) of the Rules requires that protests "must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived." The protest's allegations center principally on pre-election activity and properly should have been filed as a pre-election protest. Inexplicably, the protest was filed four days after the tally of ballots in the delegate and alternate delegate election.
Precedent establishes that the protest time limit is a prudential restriction rather than a jurisdictional requirement. Ruscigno, P144 (October 4, 1995), aff'd, 95 EAM 25 (October 18, 1995). Accordingly, we may, in the exercise of discretion, waive the time limit if circumstances warrant that we do so.
No circumstances justify waiver of the time limits in this case. Accordingly, we DENY the protest as untimely filed.
To substantiate that no justification exists for waiver of the time limit for filing protests, we briefly discuss each of the issues Peel raised.
I. The number of ballots does not conform to the number of members in the Local
Peel alleged that 4,648 ballots were mailed to Local Union 726 members on February 24 and that the membership list he received from the local union on February 21 showed 4,275 members, a difference of 373 members.
Investigation showed that the difference was explained by seasonal employees, fluctuations in employment, and receipt of tardy dues check-off payments.
Peel waited nearly a month before filing this protest and has not explained his delay. However, had he filed it timely, investigation shows that we would deny this aspect of the protest for lack of merit.
2. The membership list is not divided by "departments."
The membership list Peel received on February 21 was sorted by employer but not by departments of each employer, which Peel alleged violated the Rules.
Article VII, Section 2 of the Rules permits candidates to inspect the membership list; it further states that if any candidate is permitted a copy of the list, all candidates must be afforded the same right. The provision does not specify that the list be sorted by employer departments, as Peel requested. Investigation showed that no candidate receive a list sorted by employer department.
Had Peel timely protested that the local union failed to provide a list sorted as he requested, we would have denied the protest on the merits. Instead, he waived his protest right by delaying his filing more than a month.
3. Slate placement on the ballot did not conform to the lottery results.
Peel alleged that the arrangement of slates on the ballot did not conform to the results of the lottery conducted for that purpose. We decided this precise issue in Peel, 2006 ESD 120 (February 27, 2006). The Election Appeals Master affirmed our decision in 06 EAM 19 (March 8, 2006). On March 22, the protestor repeated his objection in a new protest.
The protestor's slate won the lottery, and got the benefit of its win - the first slot on the ballot. As such, we find no evidence of fraud or bias on the part of the person who conducted the lottery.
Were we to consider this claim on the merits, we would deny it. Instead, we hold it untimely filed.
4. The ballot printing and mailing schedule was not followed and the protestor was not notified of the change.
Peel alleged that the local union did not follow the schedule it established for printing, stuffing, and mailing the ballots. According to the schedule, printing was to occur February 22, ballot processing on February 23, and stuffing and mailing on February 24. Because of a delay due to an eligibility protest investigation, printing and ballot processing both occurred on February 24, the date previously reserved solely for ballot processing; stuffing and mailing occurred as scheduled.
Peel went to the printer on February 22 and was told ballot printing would not occur until the eligibility protest was decided. Peel did not visit the printer on February 23 or 24, although he claimed that he called on February 23 and was told by an unknown person that printing would not occur that day. Peel did not produce his telephone records to document the claimed call.
Although printing did not occur as scheduled on February 22, Peel knew that activity was scheduled on February 23 and 24, yet he did not pursue his observer rights on either date.
Peel waited until March 22 to allege that his observer rights were denied. As noted previously, the protest is untimely. Had Peel timely protested, we nonetheless would deny the protest on the merits, as Peel did not seek to exercise his observer rights on February 23 or 24.
5. Campaign literature and ballots were mailed at the same time by the same printer.
Peel alleged that the printer that printed and mailed ballots simultaneously printed and mailed campaign literature for Peel's opponents, the Fair and Equity Slate.
Not only is Peel's protest nearly one month untimely, it is wrong on the facts. Ballots were printed and mailed by Sommers & Fahrenbach, Inc. The Fair and Equity slate's campaign mailing was done by SVC Printers.
Accordingly, had Peel timely filed his protest, we would have denied it on the merits.
6. The Election Supervisor did not provide a timely decision to a protest.
Peel's next claim is that Eligibility of Delegate and Alternate Delegate Candidates of Local Union 726, 2006 ESD 91 (February 22, 2006), was not timely decided. Peel's protest, filed March 22, is untimely.
7. The number of delegates for Local 726 is incorrect.
Peel's final claim is that Local Union 726 is entitled to 6 rather than 5 delegates because its membership is 4,648.
Article III, Section 2 of the IBT Constitution grants "[e]ach Local Union having one thousand (1000) members or less … one (1) delegate, and one (1) delegate for each additional seven hundred fifty (750) members or major fraction thereof …" Under Article VII, Section 5(a) of the IBT Constitution, the number of delegates is calculated "by averaging the per capita tax paid on members by said Local Union for a two-year period ending eighteen (18) months prior to the first day of the month in which the Convention is convened." Local Union 726's average membership during that period was 4,204 members, granting it 5 delegates. The local union's average membership was 171 less than the number required for 6 delegates.
The subsequent calculation required by Article VII, Section 5(b) of the IBT Constitution did not change this result.
The initial calculation that Peel protested was performed in June 2005; Peel's March 22, 2006 protest is untimely filed. Had he filed it timely, we would deny it on the merits.
We conclude with these observations. Article XIII, Section 1 of the Rules grants each member the right to "file a protest with the Election Supervisor alleging noncompliance with these Rules." However, "it shall be the burden of the complainant to present evidence that a violation has occurred." Here, Peel's allegations either did not state violations of the Rules or had no bases in fact. Peel told our investigator that he filed the protest to "embarrass[] the opposition for next year's local union elections."
Peel's protest was untimely, frivolous, and an abuse of his right to file a protest under Article XIII of the Rules. We order him to cease and desist from filing frivolous protests. We will scrutinize carefully any protest Peel files and, if we find it to be frivolous in violation of our cease and desist order, we will order an appropriate remedy.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 277
1 In Eligibility of Delegate and Alternate Delegate Candidates of Local Union 726, 2006 ESD 91 (February 22, 2006), we denied a protest alleging that none of the 26 candidates nominated for delegate and alternate delegate, and none of their nominators and seconders, was eligible under the Rules.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Tres Peel
12207 S. Stewart
Chicago, IL 60628
trespeel@aol.com
James W. Green, Jr.
Election Officer, Local 726
230 W. Monroe Street, Suite 2600
Chicago, IL 60604
Thomas Clair
Secretary-Treasurer, Local 726
1645 West Jackson
Chicago, IL 60612
William C. "Bill" Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com