Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RONALD HICKS,                          )           Protest Decision 2016 ESD 77

                                                                        )           Issued: January 19, 2016

            Protestor.                                           )           OES Case No. P-104-011516-ME     

____________________________________)

            Ronald Hicks, member and secretary-treasurer of Local Union 776, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that the five candidates listed on the slate declaration form of the Teamsters United slate in the local union’s delegates and alternate delegates election failed to sign the form timely and therefore should be disqualified as candidates in the election. 

            Election Supervisor representative John Pegula investigated this protest.

Findings of Fact and Analysis

            Local Union 776 held its nominations meeting Sunday, January 10, 2016 for election of ten delegates and five alternate delegates.  The meeting was chaired by William Gross, director of the Bureau of Mediation for the Pennsylvania Department of Labor and Industry.  Two slates of candidates were nominated.  One slate, the Thompson/Hicks slate, consisted of ten delegate candidates and five alternate delegate candidates.  The other slate, Teamsters United, consisted of ten delegate candidates and four alternate delegate candidates.  No unaffiliated candidates were nominated.  Following the nominations meeting, Gross conducted a candidates meeting, where candidates were given instructions concerning observer rights, the ballot, ballot mailing and counting, and other issues.  Candidates were given forms to complete.  One of the forms given to the Teamsters United slate was the slate declaration form, OES Form 10 (the Thompson/Hicks slate came to the meeting with a completed and signed slate declaration for its slate).

            John White, leader of the Teamsters United slate, filled out the slate declaration with the names of all members of his slate.  Five members had accepted their nominations in writing and were not present at the candidates meeting.  He showed the completed form to Gross and asked if it needed to be signed by all slate members.  According to White, Gross replied that the form need be signed only by those present, because the absent candidates had accepted their nominations in writing. 

Marty Parsons, another Teamsters United slate member, overheard this exchange.  Parsons told our investigator that he heard White ask, “Do the other guys have to sign the roster?”  Parsons said that Gross replied, “No, we have their signatures here,” referring to the signed acceptances.  Parsons told our investigator that the question and answer held little importance to him at the time but became significant a few days later.

When contacted by our investigator and asked about the issue, Gross first replied by asking whether the slate form had to be signed by all slate members, even those not present at the candidates meeting.  Our investigator told him it did and then asked about the exchange between White and him at the candidates meeting.  Gross said White asked him a question about the slate form that “went something like, ‘Some people aren’t here, should I have everybody here sign?’”  Gross said he answered “yes.”  Gross denied that a specific question regarding the necessity of obtaining the signatures of the five absent candidates was raised by White or anyone else.  However, Gross volunteered to our investigator that White could have inferred that the “yes” answer he gave to White’s question about the absent slate members meant the candidates absent from the meeting were not required to sign the form.

White signed the slate declaration form and passed it around to the other members of his slate who were present and then returned the form to Gross.  Five signatures were lacking on the form.  It appearing that two slates were competing in the election, Gross then conducted a ballot placement lottery by coin toss.  Teamsters United won first position on the ballot; the Thompson/Hicks slate was awarded second position.  Gross did not preface the lottery by saying that it was contingent on Teamsters United turning in a fully signed slate declaration within three days.  Instead, he proceeded under the belief he had two fully formed and valid slates who were competing for ballot position, and his behavior in conducting the lottery evidenced his belief.

            The next day, Monday, January 11, 2016, Gross emailed White, representing Teamsters United, and protestor Hicks, representing Thompson/Hicks, the nominations meeting report, together with all documents submitted to Gross the previous day.  The 40 pages attached to the email included the Nominations Meeting Report.  Questions 8 and 9 were answered “yes.”  They were:

8.         Were any slate forms submitted?

9.         Did you conduct a lottery for ballot placement?

Also attached were the candidate information sheets for all candidates (10 delegate candidates and 5 alternate delegate candidates for one slate, 10 delegate candidates and 4 alternate delegate candidates for the other), the slate declaration forms for each slate (the Thompson/Hicks slate listing 15 candidates and containing 15 signatures; the Teamsters United slate listing 14 candidates and containing 9 signatures), the five written acceptances of nomination submitted by White for members of his slate, and the order of slates on the ballot as determined by the ballot placement lottery (as well as the order of names within each slate).  Gross’s email stated in its entirety, “Attached nominations meeting report.”  Gross said nothing by email or otherwise to indicate to White that he needed to obtain the five signatures missing from the Teamsters United slate declaration.

            Article VIII of the Rules governs slate formation.  Section 1(a) of that article grants each candidate “the right in conformity with this Article to seek nomination, be nominated, campaign and appear on the ballot for any delegate [or] alternate delegate … position as a member of a slate of candidates, regardless of whether the slate is full or partial.” Section 1(b) of the article states that “[t]o form a slate, there shall be mutual consent between and among all candidates running on the slate.  Such mutual consent shall be evidenced by the signing of a declaration by all members of the slate, giving the position that each candidate seeks and the name, if any, of the slate to be formed.  Slate declaration forms for delegate and alternate delegate nominations and elections shall be submitted to the Local Union’s Secretary-Treasurer (with a copy to the Election Supervisor).”  Section 1(c) establishes a deadline for submission of slate declaration forms.  Thus, “[i]n the case of delegate and alternate delegate nominations and elections, such slate declaration shall be filed at the earliest possible date but in no event later than three (3) days after the Local Union’s final delegate nominations meeting.”

            On Wednesday, January 13, 2016, the third day following the nominations meeting, John Pegula, OES regional director for the region that includes Local Union 776, phoned White to ask whether White had obtained the remaining signatures on the slate declaration form and submitted the fully signed form to the local union.  Pegula was not present at the nominations meeting but had received the Gross email to which the slate declarations of both slates were attached.  His phone call to White on January 13 was the first information White received that the remaining signatures were in fact necessary.  The information Pegula communicated to White in the phone call contradicted Gross’s statement at the candidates meeting on Sunday, January 10, that the remaining signatures were unnecessary because the five absent candidates had accepted their nominations in writing.  Immediately after the phone call with Pegula, White swung into action with fellow slate member Marty Parsons, first obtaining email addresses for the five slate members, then emailing the form to them and requesting it be signed and returned immediately.  In some cases, phone calls were made to explain to and implore the candidates to get the signed form back promptly.

            All five candidates responded that same day, January 13, and within a few hours of the start of White’s initiative.  One slate member, Troy Brumbach, candidate for alternate delegate, went to considerable effort to comply.  After staff at Staples in Mechanicsburg was unable to assist him, Brumbach went to OfficeMax in Carlisle to print and sign the form.  He was unable to forward the form from his phone to an email address at OfficeMax, so he called Parsons and asked him to email the form directly to OfficeMax.  Parsons did so and OfficeMax staff printed the form, Brumbach signed it, and the staff then scanned and returned the form to Parsons, who in turn sent it to White.  Brumbach also emailed White directly to tell him that the signed form had been emailed to Parsons.  Brumbach’s email to White was a reply to White’s email to him that contained the unsigned slate form.  White downloaded the attachment from Brumbach’s email to him, apparently not recognizing that it was not the signed version that OfficeMax staff had emailed to Parsons.

            When Parsons received the email before 8 p.m. on January 13 to which Brumbach’s signed declaration was attached, he immediately forwarded it to White.

            As White received the signed forms from the slate members who had not attended the nominations meeting, he forwarded them piecemeal to the local union.  Thus, the form signed by Jim Hollingshead was submitted at 6:40 p.m. on January 13, the form signed by Dave Gregory at 9:12 p.m., and the form signed by Scott Muth and Brad Hockenberry at 9:19 p.m.  With respect to Brumbach’s form, White received the signed version around 8 p.m. on January 13 from Parsons.  He submitted what he thought was the signed Brumbach form to the local union at 8:50 p.m. that evening.  Events would show, however, that White had mistakenly sent the unsigned Brumbach form to the local union that he had downloaded from the Brumbach email informing him that the signed form had been sent by OfficeMax to Parsons.

            The next day, Pegula reviewed the forms White had submitted to the local union, which had also been sent to Pegula.  He noticed that Brumbach’s signature was missing from the forms White submitted to the local union.  He contacted White to inquire.  White reported that all signed forms, including one for Brumbach, had been submitted.  Then, checking his sent email, White realized that he had forwarded to the local union the unsigned form he received back from Brumbach and failed to send the signed version, even though he had received it that evening.  White emailed the local union the form signed by Brumbach at 12:03 p.m. on January 14, the fourth day following the nominations meeting.  At that point, the form signed by all members of Teamsters United was received by the local union.  Nine of the signatures were obtained on January 10 at the candidates meeting; the remaining five signatures were obtained between 6 and 9 p.m. on January 13.

            On these facts, we find that Teamsters United formed a slate when it obtained the last signature of a member of its slate, which occurred Wednesday evening, January 13, 2016.  We also find that, despite White’s best efforts and intentions, the final signature of a Teamsters United slate member was not submitted to the local union secretary-treasurer until January 14, 2016, the fourth day after the nominations meeting.

            We hold that Teamsters United may run as a slate of ten delegate candidates and four alternate delegate candidates.  In so holding, we reject the protest’s contention that a slate was not validly formed or that the filing of the form completed in counterpart was untimely.  We conclude that Gross – innocently – gave misleading information to White that led White to believe that the remaining five signatures were not necessary in order to form a valid slate.  The proof of this is found in several facts.  First, Gross apparently did not know all slate members were required to sign the slate form, a fact he made clear to our investigator when he asked him whether all signatures were necessary.  Second, we find that Gross either expressly told White the additional signatures were unnecessary or communicated in terms that reasonably led White to believe they were unnecessary.  Third, Gross conducted a slate lottery at the candidates meeting, further leading White to believe that Teamsters United had formed a slate.  When Teamsters United did not produce a fully signed slate declaration form at the candidates meeting and Gross proceeded with the slate ballot placement lottery nonetheless, he should have stated explicitly that the right of Teamsters United to appear as a slate was dependent entirely on submitting a fully signed slate declaration timely and, absent a fully signed form, only the Thompson/Hicks slate would appear in the slate section of the ballot, with the Teamsters United nominees appearing as individual candidates in the unaffiliated section of the ballot.[1]  It is undisputed that Gross did not spell these requirements out.  Instead, he accepted the partly signed slate declaration form of Teamsters United and conducted the slate ballot placement lottery as if Teamsters United had done all that was necessary to form a slate.  When White learned for the first time at 3:30 p.m. on the third day following the nominations meeting that the signatures of all slate members were required, he obtained them, demonstrating that he likely could have done so earlier had he known the signatures were necessary.

Finding an innocent misrepresentation about the slate rule requirements caused White reasonably to conclude he had met all slate requirements, we will not penalize the Teamsters United slate by barring them from appearing on the ballot as a slate or granting the alternative relief the protestor requests.  Accordingly, 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 77

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