Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HAROLD JOHNSON                     )           Protest Decision 2011 ESD 227

                                                                        )           Issued: April 21, 2011

             Protestor.                                           )           OES Case No. P-239-033111-MW

____________________________________)

Harold Johnson, member of Local Union 743, filed a post-election protest pursuant to Article XIII, Section 3 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules").  The protest alleged that Local Union 743 failed to maintain an accurate membership roster, thereby depriving a significant number of members of the right to cast a ballot in the recently completed delegate election.

Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

Local Union 743 conducted the ballot count for its delegates and alternate delegates election on March 28, 2011.  Three days later, the protestor filed this protest, alleging that the local union's membership list was inaccurate and that some one thousand three hundred ballot packages were returned as undeliverable. 

Investigation showed that Local Union 743 mailed 9,941 ballot packages on February 23.  At the first pickup of ballot packages returned as undeliverable on March 3, 717 pieces were retrieved.  The second pickup, on March 11, netted another 561 pieces.  The final pickup on March 17 yielded 66.  The total number returned as undeliverable was 1,344.

After the first and second pickups, the local union worked diligently to obtain corrected addresses for the members whose ballot packages were returned as undeliverable.  On March 17, 350 ballot packages were remailed to members whose original packages had been returned.  On March 21, another 329 were remailed.  In addition to these remails, ballot packages were mailed to 28 members who phoned or emailed to say they had not received ballots.  The total number of remails was 707.

Protestor Johnson exercised his observer right on at least two of the three trips to the post office to pick up ballot packages returned as undeliverable. 

We find this protest is untimely filed.  Article XIII, Section 3 of the Rules defines post-election protests as those "concerning election day or post-election day conduct."  The allegation Johnson made concerning the alleged inaccuracy of the membership list the local union used to mail ballots concerned pre-election acts or omissions by the local union.  Johnson's post-election protest, filed March 31, came far too late to address that issue. 

This precise issue of Local Union 743's mailing list was raised in Berg, 2006 ESD 296 (June 4, 2006), aff'd, 06 EAM 44 (June 15, 2006), involving the same local union.  We said there:

Post-election protests are properly addressed to actions occurring at or after the ballot count itself.  They are not to be used to assert violations based on matters that the protestor knew (or should have known) about in the pre-election period.  A protestor cannot sit on a pre-election allegation, wait for the outcome of the election, and then seek to upset the entire result based on pre-election conduct that, if a violation, could have been addressed earlier.

See also, Wood, 2011 ESD 202 (April 4, 2011).

Johnson had the means to challenge the membership list pre-election.  Pursuant to Article II, Section 4(d) of the Rules, he had the right to comment on the proposed local union election plan, which included its plan for improving the accuracy of its membership list.  Likewise, Johnson as a candidate had the right under Article VII, Section 2 to inspect the membership list before ballots were mailed.  Finally, he had the right under Article IX, Section 5 to observe the pickup, inspection and counting of ballots returned as undeliverable.  Had he commented or filed a protest at any of these times pre-election and a Rules violation was found with respect to the membership list, an appropriate pre-election remedy could have been ordered.  Waiting until after the election has concluded to protest the accuracy of the membership list rendered that protest untimely.

Accordingly, We DENY this protest as untimely filed. 

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 227

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