Protest Decisions

IN RE: MIKE WEBB, Protestor

Mike Webb, member of Local Union 391, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Claude Gray, protestor in 2010 ESD 26 (September 13, 2010), improperly withdrew his protest and that the Election Supervisor improperly approved the withdrawal of the protest.

Election Supervisor representative Maureen Geraghty investigated this protest.

Findings of Fact and Analysis

In Gray, the protestor alleged that Donald Wayne Gibbs and Karen Sue Matthews used employer fax equipment for a campaign purpose prohibited by the Rules. The specific allegation was that Gibbs and Matthews used an employer fax to notify our office that they were candidates for delegate and that they were not part of the protestor's slate. The notice was also apparently faxed directly to the protestor. The protest was filed September 10, 2010; on September 12, protestor Gray notified our office that he wished to withdraw the protest. We approved the withdrawal on September 13 in Gray, 2010 ESD 26 (September 13, 2010). We posted the decision to our website at www.ibtvote.org the same day.

Two weeks later, on September 27, protestor Webb filed the instant protest, alleging that Gray violated the Rules by requesting withdrawal of the underlying protest. Webb asserted that the facts alleged by Gray proved a violation of the Rules without question and that Gray had a duty as an officer of the local union to protest - and maintain protests on - what Webb characterized as "obvious" Rules violations.

Webb's protest also "question[ed] the Election Supervisor's decision allowing this protest to be withdrawn. * * * A rules violation should not be allowed to be withdrawn by anyone once it becomes obvious it occurred."

We deny Webb's protest for several reasons. First, although the protest asserts that Webb learned of the withdrawal on September 23, he conceded to our investigator that he knew of the withdrawal prior to that date. Webb waited until September 27 to file the instant protest, and it is untimely filed under Article XIII, Section 2(b). He has offered no excuse for the delay in filing. He has requested a prudential waiver of the time limits (Reyes, 2010 ESD 9 (July 27, 2010)), asserting that his "interest in the current politics and leadership in Local 391" should excuse the untimely filing. We find this to be an insufficient reason for waiving of time limits and hold his protest untimely filed.

Further, Webb's protest asserts he is aggrieved by the Election Supervisor's determination of Gray's protest. Under such circumstances, Webb's remedy is not to file a new protest; instead, his only recourse is to appeal the Election Supervisor's decision to the Election Appeals Master. Article XIII, Section 2(i). Webb has not done so. The appellate process laid out in the Rules requires written appeal to be filed within 2 working days. As Webb knew of the decision on an unspecified date prior to September 23 and has yet to file an appeal, the Election Supervisor's decision in Gray is "final and binding." Article XIII, Section 2(j).

Finally, the Election Supervisor has broad discretion to permit withdrawal of protests. The Election Supervisor has authority to "take all necessary actions, consistent with these Rules, to ensure fair, honest, open and informed elections." Article I. The protest procedure is in place as the formal mechanism by which members may bring to the Election Supervisor's attention instances of alleged noncompliance with the Rules. Although the Election Supervisor has authority to investigate matters in the absence of a protest (see, e.g., Certain Campaign Contributions by Officers and Employees of Local Union 726, 2006 ESD 143 (March 16, 2006)), member-filed protests represent a significant means by which the goal of fair elections can be attained. A member who files a protest may subsequently determine that the protest should be withdrawn. The Election Supervisor has discretion to grant or deny the withdrawal request.

Contrary to Webb's assertion, the violation alleged in Gray was by no means "obvious." Case law shows that, in one instance, use of an employer fax for a campaign purpose violated the Rules. Golubovic, P268 (February 12, 1996) (violation to use employer fax to distribute campaign materials). However, the decision in Lally, P167 (January 4, 1991), aff'd, 91 EAM 36 (January 14, 1991), found no violation for a member to use an employer fax to transmit a protest. Further, use of an employer fax was found not to violate the Rules in Walker, 2006 ESD 185 (April 15, 2006), where a member used an employer fax to transmit a slate declaration and the employer routinely extended fax privileges for small fax jobs to employees at no cost. Assessing the faxes sent in Gray against this decisional authority, it is important to note that the faxes did not transmit campaign materials or literature. Instead, they sent notice of Gibbs' and Matthews' candidacy to the Election Supervisor and to the local union. Leaving aside the particulars of how a specific employer allows employees to use that employer's fax machine, it is not clearly established that using an employer fax to transmit a notice of candidacy to the Election Supervisor and to the local union that potentially may be motivated to discriminate or retaliate against the candidates, without more, violates the Rules. Gray told our investigator that he requested to withdraw the protest on September 12 because, after reflection and further investigation, he did not believe that the conduct violated the Rules. Under these circumstances, we exercised discretion to permit the withdrawal.

Webb denies that he is asserting we were unduly influenced to permit the withdrawal of Gibbs' protest. For this and for the additional reasons cited, we DENY his protest.

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
Suite 1000
885 Third Avenue
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, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, 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
        2010 ESD 30

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Mike Webb
1200 Oak Grove Ch Rd
Wake Forest, NC 27587
d2h2w2@yahoo.com

Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray@teamsterslocal391.org

Wayne Gibbs
P.O. Box 303
Colfax, NC 27235
wgibbs@teamsterslocal391.org

Karen Matthews
240 Shady Brook Lane
Louisville, NC 22023

Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com