IN RE: VINCE TENUTO, Protestor.
Protest Decision 2006 ESD 285
Issued: May 30, 2006
OES Case No. P-06-242-032706-MW
Vince Tenuto, a member and delegate candidate from Local Union 726, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Local Union 726 election officer James Green refused to provide him with copies of the membership and worksite lists, that the worksite list he eventually was given was incomplete, and that a member was not given a secret ballot envelope, all in violation of the Rules.
Election Supervisor representatives Deborah Schaaf and Maria Ho investigated this protest.
Findings of Fact and Analysis
Each of the allegations Tenuto made in this protest concerned events or incidents that occurred and were known to him two weeks or more before he filed the protest. Tenuto 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 three 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 Tenuto raised.
1. Protestor denied access to the worksite list
Tenuto called Green on February 27, 2006 to request a copy of the worksite list; Tenuto stated Green allegedly refused to provide him with the list and hung up on him. Tenuto claimed he was able to eventually obtain a list from a fellow candidate, Joseph Vercillo. Green stated that he instructed Tenuto to obtain the list from the local union. He further stated that candidates were informed that lists were to be requested from the local union at the candidates' meeting. Tenuto waited several weeks before contacting the local union, and after doing so, was provided the worksite list.
Article VII, Section 1(b) of the Rules provides: "Requests for such worksite lists shall be made to the pertinent Local Union's Secretary-Treasurer or principal officer in writing and shall be honored within five (5) days." Green correctly directed Tenuto to the local union to obtain the list. Our investigation revealed that even though Tenuto's request was not made in writing, the local union still honored his request and provided a worksite list within 5 days of the request.
This protest was filed on March 21, over 3 weeks after Tenuto claimed this incident occurred. However, had Tenuto timely filed his protest, we would have denied it on the merits.
2. Protestor given incomplete worksite list
Tenuto alleged that the worksite list the local union supplied was "faulty" and incomplete. Our investigation revealed that all Local Union 726 delegate and alternate delegate candidates were provided the same list. Article VII, Section 1(b) of the Rules states in relevant part, "[e]ach delegate candidate, each alternate delegate candidate and each nominated or accredited International Officer candidate shall have the right to a current list of all sites, with corresponding addresses, where any and all Union members work." Tenuto presented no evidence that the list he was provided was not current.
Further, Tenuto was given the list weeks before the protest was filed. Had Tenuto timely protested, we would have denied the protest on the merits.
3. Member allegedly did not receive a secret ballot envelope
Tenuto alleged that Kelly Hobbs, a member of Local Union 726, did not receive a secret ballot envelope in her ballot package. Hobbs claimed she received her allegedly faulty election packet on March 13, 2006, 5 days before the ballots were due. Ballots were mailed on February 24, 2006. When members do not receive their ballots timely, they may request a duplicate ballot package. Rules, Article II, Section 7(d). Hobbs did not file a protest regarding the missing secret ballot envelope. She voted with the original ballot. A ballot mailed in the ballot return envelope but not in the secret ballot envelope will be counted, assuming the member is an eligible voter, and will be treated in a way that maintains secrecy of the voter's choices among the candidates.
Further, Tenuto learned of Hobbs' ballot package problem on March 13. This protest was filed untimely on March 21, 8 days later. Had the protestor filed timely, we would have denied the protest on the merits.
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 285
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
David J. Hoffa
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
Vince Tenuto
10940 South Kedzie
Chicago, IL 60655
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
Joe Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
William C. "Bill" Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Deborah Schaaf
8883 Douglas Circle
Helena, Montana 59602
dschaaf@bresnan.net
Maria Ho
1725 K Street, NW, Suite 1400
Washington, DC 20006
mho@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com