Protest Decisions

IN RE: DUANE TEWS, Protestor.
Protest Decision 2011 ESD 154
Issued: March 7, 2011
OES Case No. P-160-022211-FW

Duane Tews, member of Local Union 763 and candidate for delegate, 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 Local Union 763's nominations process was unfair in the manner in which Tews' nomination for delegate was processed.

Election Supervisor representative Rochelle Goffe investigated this protest.

Findings of Fact

Local Union 763 will elect six delegates and two alternate delegates to the IBT convention. It conducted its nominations meeting for this election on February 16, 2011. A full slate of candidates that included incumbent local union officials was nominated. In addition, protestor Tews sought nomination for delegate.

On February 11, five days before the nominations meeting, Tews submitted documents to the local union by which he sought nomination. Written nomination is permitted by Article II, Section 5(f) of the Rules, viz.

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.

Tews secured a written nomination from Local Union 763 member John Lidstrom on a form Tews prepared. The form stated, "I wish to nominate Kenneth Duane Tews for delegate to the June 2011 International Brother Hood Convention for Local Union 763." Beneath this sentence on the typewritten form were labeled blanks on which Lidstrom handwrote the date (February 7, 2001), his name, address, phone, and the last four digits of his Social Security number.

Tews also secured a written second for his nomination from member Cliff Weatherbee. The typewritten form read, "I wish to second the nominate [sic] Kenneth Duane Tews for delegate to the June 2011 International Brother Hood Convention for Local Union 763." As Lidstrom had on the nomination form, Weatherbee handwrote the date, his name, address, phone, and the last four digits of his Social Security number on the form. The form was dated February 7, 2011.

Tews also prepared and signed a written acceptance of nomination for delegate. It too was dated February 7.

Tews delivered an envelope to Local Union 763 on Friday afternoon, February 11, addressed to "763 Delegate Election; c/o Linda Baker, Administrative Coordinator." The envelope contained three pages: Tews' completed acceptance of nomination and two copies of Lidstrom's completed nomination form. The envelope did not contain Weatherbee's completed second of Tews' nomination.

Linda Baker has been administrative coordinator for Local Union 763 for six years. She was responsible for handling the paperwork associated with the local union's delegates and alternate delegates election. When Tews delivered his envelope to the local union hall, Baker date-stamped the envelope February 11, 2011, the date it was received, and date-stamped each of the pages in the envelope as well. She noticed immediately that the envelope contained two copies of the nomination form and no second. She notified Dan Grage, local union secretary-treasurer, that Tews' envelope did not contain a second. Grage is a candidate for delegate and had no administrative role concerning the election. Baker told our investigator that she informed Grage that Tews' envelope contained no second because "it was his place to know." Grage told Baker, "We will deal with it next week."

Baker also told her boss, Scott Sullivan, that Tews' envelope did not contain a second. Sullivan is local union president, executive director, and candidate for delegate.

Baker also told Tim Sullivan, Scott's brother. Tim, now retired, ran the previous election for the local union with Baker assisting; this time, he was assisting Baker. Tim told our investigator that he spoke with Baker and Scott Sullivan several times on Monday, February 14, concerning Tews' missing second. Tim suggested that Baker contact Tews, tell him the envelope was unsealed, and ask him to come to the hall to initial the envelope and its contents. Tim also suggested that they contact OES regional director Chris Mrak for guidance.

Baker called Mrak on Monday, February 14; Scott Sullivan was in Baker's office when Mrak returned the call. Baker told Mrak she received a written nomination from a member and asked if it was a good idea to have him come in to the hall and initial the documents he submitted.  Mrak told her that this was not required but would avoid a dispute about what was filed.  Mrak said she would not put the member to the trouble if he had to make a significant trip to come into the hall.  Baker replied that the member lived or worked within a few blocks of the hall so it would not inconvenience him.  At this, Mrak agreed that Baker's suggestion was acceptable.  Mrak told our investigator that she thought Baker was just being conscientious. However, Baker did not disclose to Mrak that the member "had inadvertently filed two copies of a nomination from the same guy and no copy of the second from a different guy."  

Scott Sullivan corroborated that Baker did not disclose the real reason for having Tews return to the hall or for seeking Mrak's approval of it. Sullivan told our investigator that, in addition to the envelope being unsealed, the contents were not date-stamped. This statement was contradicted by the Tews documents themselves, which showed the February 11 date-stamps that Baker said she had applied to them.

Following the phone call with Mrak, Baker contacted Tews and asked him to return to the hall. She said she asked him to come in to initial the paperwork he had submitted. Tews previously submitted written nomination documents in the 2006 delegates election (written nomination, written second, and written acceptance) and told our investigator that he had never been asked to initial the documents he submitted. Baker agreed that she could not recall in instance in previous elections she had been involved in where a member was asked to initial documents he/she had submitted.

Tews returned to the hall on February 14 and initialed the three pages he had submitted. He said he did not check the documents; instead, he simply affixed his initials in the lower right corner of each page beneath the date-stamp. Tews did not notice that he had submitted two copies of his nomination and no second. Baker did not point that fact out to him. She told our investigator that "it was not [her] place" to do so.

The nominations meeting was conducted on February 16 by business agent Doug Henderson, who is not a candidate in the election. Henderson said he met with Baker and Tim Sullivan the day before the meeting to review a script for running the meeting and to discuss the written documents. Henderson said he was aware that Tews had submitted two copies of his nomination and no second. Henderson said that he, Baker and Sullivan discussed whether he should ask for a second to Tews' nomination and that all agreed that he should do so. Baker told our investigator that there was no discussion of Tews' nomination at the meeting with Henderson; she specifically denied any conversation as to whether Henderson should ask for a second to the nomination. Sullivan told our investigator that he did not recall any discussion at the meeting with Henderson concerning Tews' nomination or whether Henderson should ask for a second.

Henderson had not previously run a nominations meeting. He read a two-page script that contained eligibility rules and nominations procedures, and then opened the floor to nominations, dealing with written nominations first. The only written nomination was that of Tews. Henderson read the written nomination of Tews by Lidstrom, read the second written nomination of Tews by Lidstrom, and read the written acceptance of nomination by Tews.

Henderson told our investigator that he thought he called for a second of Tews' nomination. However, he stated he could not recall with certainty that he had done so. He stated that a check mark on his script next to the phrase "Seconded by" was what prompted him to believe he had asked for a second. In contrast, Baker told our investigator she could neither confirm nor deny that Henderson had asked for a second to the nomination. Tim Sullivan, also present for the entire meeting, said he could not recall whether Henderson asked for a second. Scott Sullivan, also present, likewise could not recall that Henderson asked for a second. Jason Powell, a member assigned to nominate all the other candidates, also told our investigator that he could not recall whether Henderson asked for a second; Powell said that during the first few minutes of the meeting he was focused on making sure all of his candidates were present to accept their nominations.

Greg MacDonald, a shop steward, told our investigator that he was present for the entire meeting. He recalled three statements being read concerning Tews. Two were nominations and one was an acceptance. He told our investigator he was "pretty definite" that Henderson did not call for a second of Tews' nomination.

Tews denied that Henderson asked for a second to his nomination.

Other witnesses either arrived late to the nominations meeting or had no recollection of Tews' nomination.

After reading the documents related to Tews' nomination, Henderson proceeded with floor nominations for delegates and alternate delegates. At the end of the nominations period for each office, he called three times for any more nominations.

A candidates meeting was conducted after the nominations meeting had concluded. Tews attended the candidates meeting. Tim Sullivan ran the meeting. Following the meeting, Sullivan told Tews that his nomination was in jeopardy for lack of a second.

Tews contacted Mrak and told her what had happened. Mrak contacted Baker and Henderson and learned what Baker had previously withheld from her - that Tews' written submission did not include a written second. Mrak followed up the phone call with an email memorializing her conversation with Baker and Henderson. Mrak noted that the local union received written nominations as neutral administrator of the election. Mrak questioned whether, as a courtesy, the local should have notified Tews that he had submitted a duplicate nomination and so afforded him a chance to correct the mistake.

This protest followed.

Analysis

A member seeking nomination for delegate must secure from other members a nomination and a second. This requirement is found in Article II, Section 5(h) of the Rules. Tews knew those requirements. Tews also knew how to achieve nomination by submitting materials in writing in advance of the nomination meeting. He was nominated for delegate in 2006 by submitting a written nomination and a written second, and he sought to secure nomination by that procedure in the current cycle. To that end, he secured a written nomination from Lidstrom and a written second from Weatherbee.

Tews then failed to submit both the written nomination and written second to the local union. Having obtained the necessary paper in advance of the meeting, it seems he simply made a mistake when he submitted two copies of a nomination from the same person and no second. In this case, however, the failure does not preclude his achieving nomination.

We find that Henderson, who chaired the nominations meeting, announced Tews' nomination - indeed, he read both of the written nominations Tews submitted - but never called for a second to the nomination. When a nomination is announced, the chair must ask the meeting if there is a second. Henderson did not do so with respect to Tews' nomination and, instead, proceeded to the next delegate nomination. Ultimately, Henderson closed nominations without asking if anyone present would second Tews' nomination. In this regard, we credit Tews and MacDonald, both of whom told our investigator that no second was requested. We also find that Baker and both Sullivans, who were aware of the problem with Tews' second and we presume were listening to Henderson carefully at this juncture, could not state either way that Henderson asked for a second to the nomination.

Whether a second of Tews' nomination would have been made from the floor is a question that cannot be answered now, and we will not presume on these facts that no second would have been forthcoming. No one at the meeting sought to rectify the procedural error of failing to ask for a second at the time, when it could have been confronted and corrected.[1] On these facts, we find that the challenge to this procedural error has been waived.

The conduct of the local union representatives towards Tews reinforces the conclusion that the procedural flaw of the lack of a second is waived in this case. The local union representatives administering the nomination process knew Tews had made a mistake. They shared that information among themselves and considered calling it to Tews' attention, but did not.

As a general proposition, a local union has no duty to review a member's nomination submission and advise whether it is in proper form. Here, however, Baker reviewed the paper, noticed the error and embarked on a peculiar course of action. She took the unprecedented step of bringing Tews in to initial the documents submitted, and chose not to draw Tews' attention to his mistake. Baker also purposely withheld from Mrak the information that the documents contained two copies of the nominations and no second. Baker's behavior with Mrak and Tews was in sharp contrast to her actions in promptly and freely informing candidates opposing Tews that his nominations papers were deficient. Baker had no obligation to review the submitted paper and determine whether it conformed to the Rules. But, having done so, she did not appear to act as a neutral overseer of the process. Had the local union called the mistaken omission of the written second to Tews' attention or sought advice on that situation from Mrak, or had Henderson called for a second to the nomination at the meeting, Tews would have had an opportunity to meet the seconding requirement. Because the local union's actions in conducting the nomination meeting deprived him of that opportunity, we conclude that the requirement of a second is, in this case, waived.

Accordingly, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.

We order Local Union 763 to treat Duane Tews as validly nominated for delegate and to grant him all the rights and privileges accorded to that nomination. We further order the local union, within two days of receipt of this decision, to post on all worksite bulletin boards a Notice of Nominations Meeting Results listing all candidates, including Tews, who were nominated at the February 16 nominations meeting, in accordance with Article II, Section 6, and to undertake all necessary actions to proceed with the mail ballot election required by the Rules.

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 154

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 Hall 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

Duane Tews
7210 122^nd Ave., SE
Newcastle, WA 98056
duanetews62@clear.net

David Grage, Secretary-Treasurer
Teamsters Local Union 763
14675 Interurban Avenue S, Suite 305
Tukwila, WA 98168-4652
l.baker@teamsters763.org

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Rochelle Goffe
1234 22^nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com

Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

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