Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ROGER KOHLER,                                    )           Protest Decision 2016 ESD 90

                                                                        )           Issued: January 28, 2016

            Protestor.                                           )           OES Case No. P-087-011116-MW   

____________________________________)

            Roger Kohler, member of Local Union 673, 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 local union failed to mail the notice of nominations meeting to members at least 21 days in advance of the meeting, as required by the Rules.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

Article II, Section 5(d) of the Rules states that “[n]otice of nomination meeting(s) shall be given on a form promulgated by the Election Supervisor by mailing a copy of the notice to each member at his/her last known home address by first class mail at least twenty-one (21) days prior to the first nomination meeting.”  The purpose of the notice is to state the date, time, and location of each nominations meeting, the number of delegate and alternate delegate positions to be elected, the procedures by which written nominations, seconds, and acceptances may be made in lieu of personal appearance at the meeting, information about slate formation, and a statement that retaliation for exercise of rights protected by the Rules is prohibited.

In addition to mailing the notice to all members’ homes, the local union is required to post the notice on all union worksite bulletin boards at least 21 days prior to the nominations meeting.  Id.

The nominations meeting for Local Union 673’s delegates and alternate delegates election was scheduled to take place January 15, 2016.  By rule, notice of the meeting had to be posted and mailed no later than December 25, 2015.  However, according to the Local Union Election Plan approved by the Election Supervisor, the local union was required to make the mailing no later than December 10, 2015.

The protest alleged that mailed notices first appeared in members’ mailboxes on January 8, 2016, some 29 days after the date notices were required to be mailed to comply with the local union election plan.  The protest stated that mail delivery in greater Chicago typically runs one to two days after mailing.  The protest asserted that the local union did not mail the notices timely and thereby violated the Rules.

Evidence supporting the protest’s claim of a late notice mailing consisted of nine members (protestor included), who told our investigator they received the notice on on January 7 and 8, 2016.  In addition, the local union produced envelopes returned by the post office as undeliverable because of incorrect addresses; the first of these returned letters were stamped “returned to sender” by USPS on January 5, 2016 and received by the local union on January 11, 2016.

The local union claimed that the notices were mailed December 10, 2015, timely under the election plan.  Debbie Underdonk, an office clerical employed by the local union, told our investigator that she began preparing the labels and envelopes shortly after the Thanksgiving holiday, and was assisted in stuffing the envelopes for the mailing by Debbie Simmons, another office clerical.  The local union membership is approximately 2,000, and Underdonk stated that she applied postage to envelopes using the local union’s postage meter in batches of about 250 on the days she worked on the mailing.  Although a first class stamp costs 49¢, use of the postage meter allows the local union to send first class mail for 48¢ per item. 

As batches of stamped, stuffed envelopes were completed, Underdonk stated she placed them in carrier trays provided by the post office.  She said the mailing was fully prepared by the December 10 mailing date.  That day, she said she had local union business agent Ben Assell take the trays to the post office for mailing.

Assell told our investigator that he started working for the local union on November 1, 2015.  He confirmed that he took four trays of envelopes to the West Chicago post office.  However, he could not recall the date he delivered the trays, except to say that it was before the Christmas holiday.  He said he placed the trays on the service counter, as directed by a postal service employee.  As the letters already had postage applied to them, Assell did not have to pay for the mailing at the time he dropped the letters off.  Consequently, he had no receipt to establish the date he delivered the letters to the post office.

Simmons, the second office clerical who worked on the mailing, told our investigator she is responsible for the local union’s postage meter.  To use the machine, the operator adds a dollar value to the machine, which the machine then debits as postage imprints are made on the envelopes run through it.  The machine is connected to the web, and it accesses the local union’s bank account directly in order to add postage value to the machine when authorized by the operator.  The machine will not allow postage imprints to be made if insufficient value is available on it. 

The approximate cost of the notice mailing was $1,000 (some 2,000 members at 48¢ per envelope).  Because all postage used in the mailing was applied using the local union’s postage meter, and because that meter does not run without sufficient postage, we sought to determine whether sufficient value to fund the mailing was available on the machine in the late-November/early-December time frame local union employees said the notice mailing was prepared.  The investigation was hampered by the fact that, although the machine is capable of displaying its current available funds, it apparently does not record the balances that existed on any given date in the past.  Accordingly, we attempted to reconstruct the postage meter balance over the past two months using other records. 

To this end, our investigator obtained bank records showing that $575.00 was added to the machine on November 13, 2015.  No value was added in December.  The amount added November 13 could have been sufficient to cover the notice mailing and the local union’s remaining postage needs through year-end only if the machine held a substantial balance – likely $500 or more – at the time the additional credit was added.  No local union witness was able to recall the machine balance at the time of the November addition.

On January 5, 2016, $1,000.00 was added.  The balance on January 13, 2016, two days after this protest was filed, was $57.45⁵, demonstrating that in the eight days between January 5 and 13, the machine used at least $940.00 in postage value (and likely more, assuming a balance greater than $0 existed on the machine when the $1,000 value was added on January 5).  Local union staff was unable to explain how this volume of postage was used for regular business needs over eight days, if it was not used to process the notice mailing which is the subject of this protest.

On these facts, we are skeptical that Local Union 673 mailed the nominations notice December 10, 2015, as its staff members claim. The evidence prompting our skepticism includes receipt of the notices by the protestor and other members on or around January 8 and the addition of $1,000 of postage to the machine on January 5 and use of at least $940 of that balance within the following eight days, with the local union staff unable to rationalize how such a volume of postage was used, if not for a mass mailing.  On the other hand, evidence supporting the conclusion that the mailing was made on December 10 includes witness statements from three local union employees.  In addition, if the mailing was done January 5, as the date the postage was added to the machine and the date the mailing was received might suggest, we are unable to reconcile that mailing date with the January 5 date that appears on the “return to sender” stamp the postal service applied to the letters returned as undeliverable.

An additional possibility is that the notices were mailed timely but were not handled properly by the postal service. 

Whether or not the notices were mailed timely, we conclude they were not received by members within the timeframe the Rules deem sufficient to put them on notice of the nominations meeting.

            As we said in Johnson, 2011 ESD 63 (December 28, 2010), “timely posting of notices promotes participation in the electoral process, a key goal of the Consent Order and the Rules.”  Where untimely notice has been given, “we look to determine whether the local union acted in bad faith and whether members suffered substantial prejudice as a result.  Williamson & Payne, 2005 ESD 20 (October 30, 2005); King, 2005 ESD 42 (December 28, 2005).” 

            Local Union 673 conducted its nominations meeting on Friday, January 15, 2016, about a week after the protestor and many other members received the mailed notice.  The slate of candidates protestor helped to nominate were successfully nominated, as were another slate of candidates.  To date, neither the local union nor the protestor has reported any complaint from a member that he/she failed to attend or be nominated at the meeting because of lack of notice.  Neither have we heard such a complaint.

On the facts presented, we cannot conclude that the local union acted in bad faith.  This case contrasts with Theodore, 2011 ESD 71 (January 20, 2011), involving the same local union, where the local union failed altogether to mail the notice of nominations meeting.  The protest there came the day after the nominations meeting was held.  As a result, we ordered an amendment to the local union election plan to give an additional opportunity for nominations, with notice of the second nominations meeting to be mailed to all members. 

Here, whenever the notice was mailed, it was received well after the delivery time anticipated by the local union election plan.  Despite the late receipt, competing slates were nominated at the nominations meeting.  We therefore find no prejudice to any candidate resulting from the untimely receipt of notice.  We note that timely notice of the nominations meeting was also provided on worksite bulletin boards.

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 90

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