IN RE: DON McGILL, Protestor.
Protest Decision 2011 ESD 105
Issued: February 8, 2011
OES Case No. P-091-012111-CA
Don McGill, member and secretary-treasurer of Local Union 213and delegate candidate in the local union's delegates and alternate delegates election, 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 Marnie Davis was not validly nominated for delegate.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact
Local Union 213 will elect 12 delegates to the IBT convention. It held its nominations meeting on January 19, 2011. Thirteen candidates were nominated for delegate. This protest contests the nomination of one of those delegate candidates, Marnie Davis.
Davis was nominated in writing by a forwarded email from Susan Toll to local union secretary-treasurer Don McGill. The original email was from "'Susan Toll' <sue@telus.net>" and was addressed to candidate Davis, who forwarded it to the local union's general email mailbox with a copy to McGill. The text of the email stated, "I would like to nominate Marnee Davis[1] for the position of delegate for the Teamsters Union." Beneath that sentence appeared the name and last 4 digits of Toll's SIN. The Toll email was time-stamped January 13, 2011 at 4:06 p.m., six days ahead of the nominations meeting. Davis forwarded the email the same date at 4:48 p.m.
At the nominations meeting, the written nomination by Toll of Davis was read aloud by the presiding officer. Davis then handed the presiding officer a written second from Peter Reid that read: "Dear Don McGill: I would like to second the nomination for Marnie Davis for Teamsters 213." This writing bore the handwritten name of Reid and the last 4 digits of his SIN.
Davis told our investigator that she obtained the second from Reid on January 14, five days before the nominations meeting. She said she emailed McGill that day, stating, "Hi Don, Peter Reid has seconded my nomination. His SIN is [redacted]. I can fax the hard copies to you or bring them to the meeting." Davis did not receive a reply to this email.
When our investigator asked McGill about the email from Davis informing him of Reid's second, McGill denied receiving it unless Davis could produce it. Our investigator replied that it had been produced and read its contents to McGill. McGill responded, "I'm floored." He then asked his secretary to review email he and the local union had received; that search reportedly found no email from Davis concerning a second for her nomination.
Receiving no reply to her email, Davis did not fax the second to the local union; instead, she brought it to the nominations meeting.
Local Union 213 published information in its newsletter in advance of the nominations meeting, including specifics on the requirements for written nominations.[2] Davis told our investigator that this published information sparked her interest in running for delegate. In pursuit of that candidacy, she requested an eligibility determination from OES, and she spoke with McGill about the nominations process. Specifically, she said McGill told her that she needed "two nominators." When she told him she had one lined up but that person could not attend the nominations meeting, she said McGill told her that she could submit the nomination by email. McGill differed on this point, telling our investigator that he advised Davis that "if they can't be there they can write me a letter." McGill said he told Davis that the requirements for written nominations were printed in the local union newsletter. Davis denied that McGill told her that, but she told our investigator she had seen the article about the nominations meeting.
Analysis
Article II, Section 5(f) of the Rules permits the written nomination and second of a candidate for delegate, viz.
Any member eligible to nominate or second a nomination may do so by a writing submitted to the Local Union Secretary-Treasurer. A written nomination or second must be received by the Local Union Secretary-Treasurer no later than 5 p.m. of the day immediately prior to the day of the relevant nomination meeting. The writing shall state whether it is a nomination or a second, the name of the member being nominated or seconded and whether the nomination or second is for delegate or alternate delegate. It shall be signed by the member submitting the nomination or second and shall contain the last four digits of his/her Social Security number. At the nomination meeting, the presiding Local Union officer shall announce and treat the written nomination or second as if it had been made from the floor of such meeting.
Protestor McGill first challenges the sufficiency of Toll's written nomination of Davis because the email was not signed by Toll. We reject this challenge. The purpose of the signature requirement is to provide prima facie proof that the written nomination is authored or authorized by the member purportedly making it. The requirement that the writing also include the last 4 digits of the Social Security number or Social Insurance number of the member making the nomination or second goes to the same purpose[3]. Here, Toll's email did not include her signature, but the "To/From" portion of the email identified her by name and email address. The use of her name and email address in an email communication in the manner presented here provided prima facie proof that the email was authored or authorized by Toll equivalent to a handwritten signature. Toll included the last 4 digits of her SIN, presenting the corroborative proof the rule requires that the writing was indeed from her. For these reasons, we find that Toll's email satisfies the signature requirement in the rule. It was timely submitted by email to the appropriate local union official. Accordingly, Toll's written nomination of Davis was valid.
Protestor McGill also challenged Reid's second of Davis' nomination, arguing that it did not meet the requirements of the rule and therefore was invalid. We agree. The writing did not specify the position for which Davis was nominated, as the rule requires. Further, the writing was presented for the first time at the nominations meeting itself; it was not submitted to McGill "no later than 5 p.m. of the day immediately prior to the day of the relevant nomination meeting" as the rule requires. Davis was on notice of the deadline for submitting the second, as the local union published the requirements in its newsletter. While Davis denied that McGill referred her to those rules, she acknowledged that she had seen the newsletter article about the nominations meeting, which motivated her to pursue her delegate candidacy. But even if she had received no notice of the requirements for written nominations, the Rules require that candidates and members be familiar with their contents. In this regard, we note that Davis submitted the written nomination by Toll six days before the meeting instead of merely bringing it to the meeting. This action suggests she understood that written nominations and seconds had to be submitted in advance of the meeting. For these reasons, we are compelled to the conclusion that Reid's second of Davis' nomination was invalid. As no other member seconded Davis' nomination, it failed for want of a valid second.
Accordingly, we GRANT the protest. Davis was not validly nominated for delegate and shall not appear on the ballot. The result of our decision is that the number of nominees for delegate does not exceed the number of delegates to be elected. Therefore, there is "no necessity for an election for delegates and such nominee(s) shall be declared duly elected." Article II, Section 8. We direct the local union promptly to conduct a lottery in accordance with Article II, Section 13 to rank the delegates.
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, 1801 K Street, N.W., Suite 421 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
2011 ESD 104
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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Susan Toll
30866 Keystone Avenue
Mission, BC V4S 1G5 Canada
sue@telus.net
Marnie Davis
6-4957 57th Street
Delta, BC V4K 3E7 Canada
mdavis@dccnet.com
Peter Reid
5425 Chamberlayne Avenue
Delta, BC V4K 3T4 Canada
Don McGill, Secretary-Treasurer
Teamsters Local Union 213
28-5300 Admiral Way
Delta, BC V4K 5G6 Canada
lmcgill@dccnet.com
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
Gwen Randall
Davis, LLP
Livingston Place
1000-250 2nd Street SW
Calgary, AB T2P 0C1 Canada
grandall@davis.ca
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com
[1] So in original.
[2] The published information stated that a written nomination or second must 1) be submitted no later than 5 p.m. the day before the nominations meeting, 2) state whether it was a nomination or a second, 3) identify the member being nominated or seconded, 4) identify whether the position sought was delegate or alternate delegate, 5) be signed and include the last 4 digits of the member's SIN.
[3] This requirement also allows the local union to verify that the member making the nomination or second is eligible to do so. For the purposes of this decision, the requirement that this number be included serves to validate that the writing was authored or authorized by the person purportedly making it, the presumption being that that person - and no other - would know the number.