Protest Decisions

November 27, 1995

VIA UPS OVERNIGHT

Michael D. Torpey

November 27, 1995

Page 1

Michael D. Torpey

1017 S.E. 30th Avenue

Portland, OR 97214

Clair Ueltschi

Coe Manufacturing

7930 S.W. Hunziker Street

Tigard, OR 97223

Tony L. Andrews, Secretary-Treasurer

Teamsters Local Union 305

1870 N.E. 162nd Avenue

Portland, OR 97230

Michael D. Torpey

November 27, 1995

Page 1

Re:  Election Office Case No. P-162-LU305-PNW              DECISION ON

REMAND

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by

Michael D. Torpey, a member of Local Union 305, who was a candidate for alternate delegate on the “Working Teamsters” slate.  The Election Officer deferred the protest for consideration post-election pursuant to Article XIV, Section 2(f)(2).

This protest was investigated by Adjunct Regional Coordinator Julia Stern McCarty.

The protest alleges separate violations of the Rules by Local Union 305 and by the protester’s employer, Coe Manufacturing (“Coe”or the “Employer”).  The Election Officer decided this case on the merits by letter dated October 31, 1995, granting the protest in part, and denying the protest in part.  Both the protester and the Local Union 305 secretary-treasurer appealed the decision.  At the appeal hearing, the Election Officer was first advised that during the investigation of the protest, Local Union 305 had raised timeliness as a defense to the charges.  Accordingly, the Election Officer withdrew the decision for reconsideration. 

Michael D. Torpey

November 27, 1995

Page 1

The protester alleges that:  (1) he became aware on August 11, 1995 that “Team 305,” the slate opposing the Working Teamsters, used union resources to mail campaign literature to Local Union 305 members; (2) on August 14, 1995 and August 23, 1995, Team 305 slate member and Local Union 305 Secretary-Treasurer Tony Andrews campaigned for the support of two union stewards on union time; (3) Mr. Andrews removed a Working Teamsters flyer from a bulletin board at Coe on August 25, 1995; (4) the Employer’s manager, Clair Ueltschi, removed a Working Teamsters flyer from a bulletin board at Coe on August 29, 1995; (5) a Local Union 305 member passed out Team 305 campaign literature on company time;[1] and

(6) Mr. Andrews threatened the protester on August 18, 1995 due to his opposition to

Mr. Andrews in the delegate elections.

As to timeliness, the protester replies that he did not know about the time limit for filing a protest because he did not have a copy of the Rules.

The Rules, at Article XIV, Section 2(b), state, "Except as otherwise provided . . . all preelection protests . . . must be filed within two (2) working days of the day the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."

The requirement to promptly file protests is an important part of the election process.  The short time limit was designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found.  Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.  A failure to file a timely protest has thus been treated as a defect that can be waived by the responding party.  Here, Local Union 305 has preserved its objection, and the timeliness issue must be resolved.

The protest was received in the Election Office by U.S. mail on September 11, 1995, well beyond the two-day time limit applicable to the protest involving allegations in August 1995.  The Rules have been available since April 1995.  The failure of the protester to secure a copy of the Rules since that time is not an excuse for failing to file his protest within the required two-day period.  His protest has been waived.

Based on the foregoing, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:

Michael D. Torpey

November 27, 1995

Page 1

Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Christine M. Mrak, Regional Coordinator

Julia Stern McCarty, Adjunct Regional Coordinator