Protest Decisions

IN RE: KEVIN BARRY, Protestor.
Protest Decision 2011 ESD 214
Issued: April 15, 2011
OES Case No. P-206-030711-AT

Kevin Barry, member of Local Union 82, 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 deficiencies in the local union election plan, failure to post required notices timely, and failure to produce local union by-laws upon request.

Election Supervisor representative Peter M. Geraghty investigated this protest.

Findings of Fact and Analysis

Local Union 82 was placed under emergency trusteeship on September 27, 2010.   On the same date, General President Hoffa appointed Denis Taylor as Trustee.   Taylor serves as president of Local Union 355 in Baltimore, Maryland, in addition to his duties as Trustee of Local Union 82.

Local unions in trusteeship are permitted by Article III, Section 5(a)(3) of the IBT constitution to send delegates to the IBT convention provided those delegates are elected by secret ballot.   Based on its membership size, Local Union 82 is entitled to one delegate to the IBT convention.   At the nominations meeting held February 20, 2011, Leif Thornton, Kevin McNiff, and Joseph Previti were nominated for this position.  

Ballots were mailed March 23 and are to be counted April 15.   The protest here was filed March 7.

Allegation concerning untimely submission of local union election plan

Article II, Section 4 of the Rules required Local Union 82 to submit a proposed local union election plan by September 30, 2010.   The protest alleged that the plan was submitted on October 7, 2010 and was not signed.   It further alleged that the worksite list attached to the proposed plan showed fewer employers than currently employ local union members.   To remedy these alleged violations, the protest requested that OES assume responsibility for administering the election and that the entire process be restarted "from scratch."

Investigation showed that the local union timely submitted its proposed plan on September 13, 2010.   OES requested changes in the proposal, and a revised plan was submitted on October 7.   Both plans carried electronic signatures.  

The proposed plan listed sixteen employers.   Trustee Taylor stated that the employers listed have physical worksites where members are actively employed.   The employers the protestor claimed were not included on the list are exhibitors that employ members only when erecting, maintaining and tearing down exhibitions; their worksites typically are temporary and are located in the space where the exhibits take place.

Article II, Section 4(d) permitted interested members to comment on the proposed election plan within fifteen days of its submission to the Election Supervisor.   Protestor Barry did not do so.   Article XIII, Section 1 permitted any member alleging noncompliance with the Rules to file a protest.   Section 2(b) of the same article required that the member file within two working days of the date he became aware or reasonably should have become aware of the action protested; failure to do so timely serves as waiver of the right to protest.   Barry did not file a protest concerning the plan until March 7, 2011.

If Barry did not know of the alleged deficiencies with respect to the proposed local union election plan in September and October when the plan was submitted to and being considered by the Election Supervisor, he had the means to learn of the plan's contents merely by requesting a copy from the local union.   He first requested a copy on March 3, 2011, more than five months after the proposed plan was first submitted.   His protest now is untimely filed under Article XIII, Section 2(b).   Were we to consider his protest as comments on the plan, the time for submission of comments expired in October 2010 and are untimely now.

Were we to consider the aspects of his protest discussed here on the merits, we would conclude that the local union complied with the Rules by submitting the proposed plan timely and by listing in it the worksites where members were employed.

Accordingly, we DENY the aspects of the protest discussed here as untimely filed. 

Allegation concerning local union bylaws

Protestor Barry also alleged that the bylaws appended to the proposed local union plan "must be suspect" because Trustee Taylor has refused to produce the bylaws to Barry.   Investigation showed that Taylor, after assuming his position as Trustee and submitting the amended election plan, discovered multiple versions of local union bylaws.   As he did not know which, if any, had been approved by the IBT as required by Article VI, Section 4 of the IBT constitution, he sent them to the IBT for review and was awaiting reply.   He declined Barry's request to produce the bylaws because, at the time of the request, he had not learned which version was duly in effect, if any was.

Our jurisdiction concerning this issue relates only to the accuracy and completeness of the proposed local union election plan submitted for our review and approval.   The Rules require that the current bylaws be appended to the proposed plan.   Barry's protest seeks to test the accuracy of the contents of the plan by determining whether the bylaws attached to it were the current ones.   As such, the protest is a challenge to the plan the local union submitted.   The time has long since passed for such a challenge, and for the reasons stated previously, we DENY the protest as untimely filed.

Allegation concerning enforcement of collective bargaining agreements

Protestor Barry alleged that Trustee Taylor has not enforced collective bargaining agreement provisions with respect to worksite bulletin boards on which required election notices were to be posted.   Taylor denied the allegation.   Barry produced no evidence to substantiate his allegation.   Accordingly, we DENY this aspect of the protest for lack of evidence.

Allegation concerning failure to post required notices

Protestor Barry alleged that Trustee Taylor failed timely to post the notice of submission of proposed local union election plan on all worksite bulletin boards as required by Article II, Section 4(e) of the Rules.   Taylor conceded the failure as an oversight.   Nonetheless, we find the protest on this point untimely filed.   Barry knew that submission of the proposed plan was required by September 30, 2010, and did not inquire of the local union or request a copy of the proposed plan on or around that date, nor did he file a protest on or after September 30 alleging that the notice of plan submission had not been posted.   

Barry further alleged that the plan summary and notice of nominations meeting results were not posted timely.   Investigation showed that both notices were first sent to shop stewards for posting on March 2, 2011.   The plan summary was required to be posted within seven days after the plan was approved by the Election Supervisor, here by December 21, 2010.   Posting of the nominations meeting results was required within five days following that meeting, or by February 25, 2011.

We DENY the protest as untimely filed with respect to both notices.   Barry knew or should have known that the election plan had been approved at the latest by the time he received notice of the nominations meeting by U.S. mail in January 2011.   Likewise, he knew or should have known that the notice of nominations meeting results was not posted by February 25, as required.   In each instance, however, he waived his right to protest by waiting until March 7 to file.  

We nevertheless direct Trustee Taylor to submit affidavits of posting for all required notices within five days of the date of this decision.

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, NY 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 214

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