Protest Decisions

IN RE: LORNE SMITH, Protestor.
Protest Decision 2011 ESD 106
Issued: February 9, 2011
OES Case No. P-093-012411-NE

Lorne Smith, member of Local Union 340 and 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 the local union secretary-treasurer prepared and submitted the proposed local union election plan without approval of the local union's executive board, that he submitted affidavits of posting to OES without verifying that the notices required to be posted actually were posted, and that he did not respond timely to the protestor's request for a complete copy of the local union election plan.

Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

Local Union 340 will elect 5 delegates and 2 alternate delegates to the IBT convention. It held its nominations meeting for that election on January 9, 2011. Protestor Smith was nominated for delegate as part of a full slate of candidates. The local union's secretary-treasurer, Carl Guinard, is a delegate candidate on an opposing slate.

Smith filed this protest on Saturday, January 22, 2011, thirteen days after the nominations meeting.

Protestor Smith alleged that when Guinard submitted the proposed local union election plan to OES on September 20, 2010, he did so without the knowledge or approval of the local union executive board. Smith told our investigator he discovered the facts supporting this aspect of the protest at the nominations meeting on January 9 but did not file the protest until nearly two weeks later. We deny this aspect of the protest as untimely filed. Article XIII, Section 2(b) of the Rules require that pre-election protests be filed within two working days of the date the protestor "becomes aware or reasonably should have become aware of the action protested."[1]

Smith's protest objected to two aspects of the plan. First, he argued that dates for nominations and for mailing and counting of ballots were too early to permit him to organize his campaign effectively. In addition, he claimed that Guinard had chosen all members of the election committee designated to administer the election. Smith did not raise these objections until he filed this protest, well after the time for comment on the proposed plan had passed. Even if he had not seen postings related to the plan submission and plan approval, Smith acknowledged receiving notice of the nominations meeting by first class mail at his residence in mid-December 2010. That notice also specified the dates for mailing and counting of ballots. He offered no excuse for his delay in filing a protest until more than a month later.

We note that Smith is a member of a full slate that was successfully nominated and is competing in the delegates and alternate delegates election, showing that the schedule has not hindered his full participation in the election as a candidate. We also note with respect to the composition of the election committee that all of its activities - overseeing ballot design, printing of ballots, storage of ballots to be used for fulfilling lost and duplicate ballot requests, retrieval from the post office of ballots returned as undeliverable, remailing returned ballots, fulfilling duplicate ballot requests, retrieval and security of voted ballots, and counting of ballots - are events that Smith or one or more members in good standing whom he designates may observe under Article IX of the Rules. The protest procedure may be used to challenge any action or omission by the election committee that the protestor contends violates the Rules.

Smith next alleged Guinard failed to insure that the notice of proposed plan submission and the notice of approved local union election plan were posted on all worksite bulletin boards, despite affidavits Guinard submitted stating they were. Again, as of the January 9 nominations meeting Smith knew the facts he cites to support this aspect of the protest, but he did not file his protest timely. Accordingly, we deny this aspect of the protest as untimely filed.

Smith provided our investigator with names and phone numbers of eight members he said could substantiate the allegation that the required notices were not posted. Our investigator contacted all eight, spoke with two and left messages that were not returned for the others. Vianney Soucey, a candidate for delegate on Smith's slate, is employed at the UPS facility in Bangor. He said neither the notice of proposed plan submission nor the notice of approved plan was posted in UPS-Bangor, but both were posted in UPS-Waterville, which Soucey visits frequently as part of his duties. Ray Cote, another member Smith's slate, said both notices were posted at UPS-Auburn where he works. Cote said a member of the executive board called the steward there to make sure it was done. Soucey and Cote both told our investigator that they learned from other stewards who attended the nomination meeting that notices were not posted or maintained at UPS facilities in Presque, Rockland, or Wells. Soucey was not prejudiced by the failure to post notices at UPS-Bangor, as he had actual notice from the UPS-Waterville postings that the election plan was submitted and approved. Finally on this point, the local union mailed the notice of nominations meeting to all members, as the Rules required, providing comprehensive notice of that event.

Smith further alleged that Guinard has failed to produce the complete local union election plan and related documents in response to Smith's requests. Investigation showed that Smith requested a worksite list on January 9. On January 13, the local union sent Smith "a current list of all worksites, with corresponding addresses" by certified mail. This response was timely under Article VII, Section 1 of the Rules.

On January 12, Smith requested a "complete Local Union Election plan with the full and complete list of all email addresses which was attached to the plan, the bulletin board list which was attached to the plan with the employer name, worksite address, location of the bulletin board and name of person responsible for posting, and any and all other attachments, lists [sic] which were submitted to the Election Supervisor." On January 13, by certified mail, the local union sent Smith the list, by employer, site and location, of all local union bulletin boards and the individuals responsible for posting. This list was identical to the one submitted to the Election Supervisor with the local union plan, and was the only attachment or list submitted to the Election Supervisor. Smith had previously been supplied with the local union election plan that did not include attachments. In the same letter, the local union properly declined to provide email addresses.

Smith alleged that the bulletin board list did not include the names and phone numbers of the stewards who actually do the postings. Instead, the list identified the business agents responsible for the postings, and no contact information. We find that the list the local union supplied met the requirements of the Rules. Accordingly, we deny this aspect of the protest.

Finally, although not stated in the protest, Smith raised a new issue with our investigator, challenging the local union's response to his request for a mailing to all local union stewards and alternate stewards. Smith asked the local union for a cost estimate of that mailing; the local union replied that it would charge $40.43 per hour for labeling the 312 envelopes involved. Smith asked to label the envelopes himself; the local union denied the request. Under Article VII, Section 7 of the Rules, each candidate is permitted to have his/her literature distributed by the union at the candidate's expense. Further, the union shall honor requests for distribution of literature to only a portion or segment of the membership, as determined by the candidate, unless the union can show that such distribution is impracticable. Under these standards, Smith may request a mailing to stewards and alternate stewards only, as the local union maintains a list of those members. The cost estimate the local union provided assumed that its clerical staff would perform the function of labeling the envelopes. Smith, the other members of his slate, and their supporters may perform the work themselves by going to the local union hall with pre-stuffed envelopes and applying labels supplied to them by local union staff. The local union staff member may dispense the labels to each slate member or supporter one sheet at a time and must remain present to insure that the labels are not copied or used for any purpose other than labeling the campaign mailing. The candidate's cost of this method is the hourly wage and benefit rate for each hour (or fraction thereof calculated to 1/10^th of the hour) that the local union employee must remain present, plus the cost of the labels.

However, Smith's stated intention is that the stewards and alternate stewards will post the campaign literature they receive from his mailing on all bulletin boards under the jurisdiction of the local union. Generally, union bulletin boards may not be used for a campaign purpose. The Rules provide two exceptions to this blanket prohibition. The first, under Article VII, Section 7(h), is for the literature table or bulletin board in the local union hall that is designated expressly for display of campaign literature. Each local union is required to maintain such a table or board and to display campaign literature submitted to it by candidates on a non-discriminatory basis. This right does not extend to bulletin boards outside the local union hall. The second exception, under Article VII, Section 12(d), permits candidates and members to use worksite union boards for campaign publicity if there is a pre-existing right to do so. Determining whether a pre-existing right exists requires assessment of the historic use of each board and whether it has been used for campaigning in the past or otherwise used as a general purpose board. Such assessment must be done on a board-by-board basis. Without extensive evidence and investigation, no determination can be made that Smith's request to post his campaign literature on all union worksite bulletin boards would either be permissible or would be barred by the general rule prohibiting use of union resources to campaign.

For the reasons stated above, we DENY this 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
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 106

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

Lorne Smith
91 Windham Center Road
Windham, ME 04062
lwsmith25@yahoo.com

Carl Guinard, Secretary-Treasurer
Teamsters Local Union 340
144 Thaddeus Street
South Portland, ME 04106
carl@teamsterslocal340.org

Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com

David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

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