IN RE: JOHN YOUNGERMANN and MICHAEL GOEBEL, Protestors.
Protest Decision 2011 ESD 158
Issued: March 7, 2011
OES Case Nos. P-186-020711-GP & P-196-030411-GP
John Youngermann, member of Local Union 688, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local union deemed Steve Mueller nominated for alternate delegate even though he was not present at the nominations meeting to accept the nomination and did not submit a written acceptance that was presented at or before the nominations meeting.
Michael Goebel, member of Local Union 688, filed a pre-election protest alleging that Youngermann violated the Rules by failing to serve the local union with a copy of his protest.
These protests were consolidated for investigation and decision. Election Supervisor representative Mary Ann Campbell investigated them.
Findings of Fact and Analysis
Local Union 688 conducted its nominations meeting on Saturday, February 5, 2011 at 9 a.m. Stephen Mueller was to be nominated for alternate delegate at that meeting as part of the Team 688 slate that includes incumbent local union officers. Severe weather made the roads icy that morning, and Mueller left his home at 7:30 a.m. for a drive to the hall that normally takes 45 minutes. Enroute, he slid off the road and into a ditch.
Lacking a mobile phone, Mueller walked to a nearby residence and called a tow truck to the scene. He also contacted John Becker to advise that it was unlikely he would arrive at the union hall in time to accept nomination. Becker replied that if Mueller could make it to the OfficeMax in O'Fallon, a faxed written acceptance would be waiting that he could sign and fax back.
The tow truck pulled Mueller's vehicle from the ditch and he drove to OfficeMax, signed the written acceptance, and faxed it to the hall. No witness could state with precision the time the fax arrived at the local union hall, although Mueller believed it was around 9:30 a.m. The fax header indicated that the fax was sent at 10:45 a.m. However, our investigator requested OfficeMax personnel to run a time-check on the fax machine which showed that the fax clock was 1 hour and 3 minutes ahead of actual time. If the time discrepancy our investigator found was the same as existed on February 5, the fax was transmitted at 9:42 a.m.
According to witnesses, the nominations meeting commenced promptly at 9 a.m. Brian Spector, the local union's attorney, conducted it. Spector read aloud to the members assembled (some 100 to 150) the rules and procedures applicable to the nominations process. He then opened the floor for nominations for the nine delegates the local union is electing. Team 688 nominated its candidates; Teamsters for Change (protestor Youngermann's slate) nominated its candidates. Following the close of delegate nominations, Spector opened the floor for nominations for the three alternate delegate positions. Team 688 nominated its candidates, including Mueller; Teamsters for Change followed with its nominations.
Article II, Section 5(h) states that a nominated candidate for delegate or alternate delegate "must accept his/her nomination at the time made either in person, or, if absent, in writing. If acceptance is made in writing, the document must be presented to the presiding Local Union officer no later than the time the member is nominated."
Spector, informed that Mueller's travel problem caused him to be absent from the meeting, announced to the assembly that he would permit Mueller until the end of the meeting either to appear and accept orally or to provide a written acceptance. No complaint or objection was made to this announcement. At the conclusion of nominations for alternate delegate, Spector closed the nominations. He then proceeded with instructions for candidates, and candidate information sheets were distributed. Investigation found that Mueller's faxed acceptance of nomination arrived while candidates were completing their information sheets. The acceptance was given to Spector at the podium. Mueller was thereby deemed nominated.
On these facts, we conclude that Mueller was validly nominated. Mueller, unable to attend the meeting because of a vehicle accident, nevertheless acted promptly to submit his written acceptance and communicated to the local union about his extenuating circumstances. Spector, informed of Mueller's problem, announced that the expected acceptance from Mueller would be valid if received before the end of the meeting. Mueller met that condition. The lack of any contemporaneous objection to Spector's reasonable response to Mueller's situation precludes raising that issue now. Had objection been made, for example, Spector could simply have delayed the start of the candidate meeting for a few minutes until the fax arrived. Article I of the Rules states that the Election Officer is charged with "the conduct of fair, honest, open and informed elections," and has the authority "to take all necessary actions in supervising the election process to insure fair, honest, open and informed elections." Measured against the scope of this authority, Spector acted reasonably and appropriately to accept Mueller's written acceptance and declare him a candidate. We will not so narrowly construe the requirement that a member accept nomination "at the time made" to invalidate Mueller's acceptance here, where it arrived during the meeting and within the time frame Spector announced would be acceptable, albeit after the close of nominations. Accordingly, we DENY Youngermann's protest.
Goebel's protest alleged that Youngermann violated Article XIII, Section 2(d) by failing to provide a copy of his protest to the local union at the time he filed it. Youngermann emailed his protest to OES on February 7, but OES failed to acknowledge and serve it on all interested parties, including the local union, until March 2. Goebel seeks dismissal of Youngermann's protest on this procedural ground. We have found no precedent for dismissing a protest that was not served on the local union, and we have previously rejected the argument Goebel now advances. Quezada, 2006 ESD 50 (January 24, 2006). Accordingly, we DENY Goebel's 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 bnasis 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 158
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
John Youngermann
2374 Chad Crossing
St. Charles, MO 63303
groundhog1995@sbcglobal.net
Michael Goebel, Secretary-Treasurer
Teamsters Local Union 688
4349 Woodson Road, Suite 200
St. Louis, MO 63134
mgoebel@688online.org
Brian Spector
117 West Woodbine Avenue
Kirkwood, MO 63122
gary@spectorwolfe.com
Mary Ann Campbell
13859 State Road E.
DeSoto, MO 63020
scdennis@aol.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
