Protest Decisions

              June 12, 1998

VIA FACSIMILE OR UPS OVERNIGHT

C. Sam Theodus

June 12, 1998

Page 1

C. Sam Theodus

202 James Circle

Avon Lake, OH  44012

Robert A. Wenger

960 Bryn Mawr Avenue

Wickliffe, OH  44092

C. Sam Theodus

June 12, 1998

Page 1

Re:  Election Office Case Nos. PR-119-STC-EOH

    PR-121-LU836-EOH

Gentlemen:

C. Sam Theodus, a candidate for International vice president-at-large in the initial election and a declared candidate for general president in the rerun election, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Election Officer Michael G. Cherkasky alleging Rules violations pertaining to several aspects of the rerun supplemental nomination process.  Robert Wenger, a member of Local Union 836, filed a pre-election protest alleging that the notice of supplemental nominations was insufficient.  Because these protests raise similar issues, they were consolidated for decision. 

These protests were investigated by Deputy Election Officer Benetta M. Mansfield.

By letter dated June 8, 1998, Mr. Theodus alleged the following:  1) the Election Officer provided “improper and insufficient notification concerning the new nomination process which is substantially different from the process used at the convention;” 2) the Election Officer provided “improper, insufficient and late notice regarding candidates right to have an observer present at the printing, stuffing and mailing of ballots;” 3) the Election Officer’s observer notification created “confusion over [the] dates to have observers present for the mailing of ballots;” 4) that candidates are unable to get an updated and accurate delegate list; 5) that the Election Officer has improperly allowed any rank and file member to seek supplemental nomination without being “properly nominated first by a delegate and then receiving a second by another delegate;” 6) that the Election Officer is not allowing all rank and file members an equal opportunity to seek supplemental nomination by having their names appear on the supplemental nomination ballot; and 7) that the Election Officer has not allowed all rank and file members an equal opportunity to seek supplemental nominations because of improper notification of the supplemental nomination process.  Mr. Theodus submitted a supplemental position statement on June 10, 1998.  The final issue concerning the supplemental nominations notice is also protested by Mr. Wenger.

C. Sam Theodus

June 12, 1998

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On May 5, 1998, the Election Officer made Application XVIII to the United States District Court for the Southern District of New York for Approval of a Timetable for the Rerun Election.  On June 3, 1998, the Court issued a Memorandum and Order in United States v. IBT, 88 Civ. 4486 (DNE) approving the following rerun timetable:

Day 0                            June 15              Supplemental nomination ballots sent to Delegates

Day 14              June 29              Nominating ballots returned and tallied

Day 28              July 13              Deadline for slate declarations and withdrawals

Day 63              Aug. 17              Notice of Election posted at work sites and published in

magazine; ballots printed; hiatus on union publications

begins

Day 91              Sept. 14              Mailing of Rerun Election Ballots to IBT members

Day 121              Oct. 14              Deadline for return of ballots; begin Rerun Election count

On June 3, 1998, the Election Officer issued the Final Rerun Plan, which set forth the rerun election timetable.  The Rerun Plan, along with the “Notice of Nominations and Procedure for Supplemental Nominations” was sent, via overnight mail, to the IBT and each subordinate union body for posting on all bulletin boards, by Monday, June 8, 1998.  On the same date, all current and potential candidates[1] for supplemental nomination were sent a memorandum from the Election Officer detailing the observer rights for the supplemental nomination process.  That memorandum stated, in pertinent part,

Candidates in the rerun election and candidates seeking supplemental nomination, may have an observer present during the printing, processing, mailing and counting of the supplemental nomination ballots.  Any candidate who wishes to exercise these observer rights must complete the enclosed Certification and Observer Credential Form and return it to the Election Office by 2:00 p.m. on Monday, June 8, 1998.

C. Sam Theodus

June 12, 1998

Page 1

The printing and folding of the ballots and the printing of envelopes for the supplemental nomination process will begin at 9 a.m. on June 9, 1998, at Homart Press, 5221 Monroe Place, Bladensburg, Maryland.  The labeling, stuffing, processing, and mailing of supplemental nomination ballots will begin at 9 a.m. on June 11, 1998, at AccuMail, 3381-H 75th Avenue, Landover, Maryland.  Election Office Representative David Maus will be supervising the procedures at both locations.  After processing, all ballot packages for Canadian delegates will be sent via overnight mail on June 11 to Election Officer representative Gwen Randall in Canada, who upon receipt will meter stamp the Canadian ballots and will place the ballots into the Canadian mail system on June 15.  The ballots for delegates residing in the United States will be transported to the United States Post Office and mailed on June 15.

As the Election Office has been advised of additional candidates seeking supplemental nomination, the Election Office has provided the necessary information to these candidates and has provided observer information.  The Election Officer continues to accept observer credential forms from additional candidates so they may observe the supplemental nomination process.

On June 9, 1998, the Election Office transmitted to already nominated and potential candidates, including Mr. Theodus, a final list of delegates and upgraded alternates who will receive the supplemental nomination ballots.

1. Notification of the Nomination Process

In his June 10 submission, Mr. Theodus states the following:

Inclusion is the key word in all the statements I have read from the elections officer and the courts.  The hurried up process now in place does just the opposite.  Any rank and file member who may desire to seek office in the rerun election has not been given an equal or timely opportunity to do so.

Any rank and file member that may have been waiting for the final rerun election and nominating process to take place would not have been given ample opportunity or time to do so.  The process of trying to contact approximately 1,700 delegates in this country, Alaska, Canada, Hawaii, and Puerto Rico is quite time consuming and places an additional financial burden on these candidates seeking supplemental nomination that was not placed on candidates seeking nomination at the 1996 election.

C. Sam Theodus

June 12, 1998

Page 1

In a June 2, 1998 letter to Mr. Theodus, the Election Officer advised him that the supplemental nomination process was initially proposed and approved by the Court in the Election Officer’s Application X, submitted to the Court on August 21, 1997, and approved  by the Court on September 29, 1997.  United States v. IBT, 88 Civ. 4486 (S.D.N.Y.).  The provisions on supplemental nominations were widely disseminated.  The Election Officer sent a copy of the Proposed Rerun Plan to every local union on August 21, 1998, when she filed Application X.  Upon the Court’s September 29, 1997, decision, the Interim Election Officer sent on October 8, 1997, a copy of the 1996 IBT International Officer Rerun Election Plan to the IBT, the General Executive Board, all candidates, and all IBT subordinate union bodies.  The 1996 IBT International Officer Rerun Election Plan reads as follows regarding supplemental nominations:

1. NOMINATIONS FOR RERUN CANDIDATES

1. Declaration of Intent

Any candidate who was nominated and appeared on the ballot for the December 1996 International officer election shall be considered an eligible candidate for the same office in the rerun election without any requirement of renomination, provided the candidate declares to the Election Officer his/her intent to continue as a candidate no later than October 24, 1997.

2. Notice of Nominations

1. A “Notice of Nominations and Procedure for Supplemental Nominations” shall be prepared by the Election Officer.  The Notice shall list the previously nominated candidates who have declared their intent to participate as candidates in the rerun.  The Notice shall also set forth the procedure by which supplemental nominations shall be made and explain the mail ballot nomination procedure.

2. The Notice shall be posted by the International Union and all subordinate bodies, including Local Unions, on all Union bulletin boards on or before October 31, 1997.

3. Within three (3) days of such posting, the Secretary-Treasurer of the IBT, the principal officer of each subordinate Union body (except Local Unions), and the Secretary-Treasurer of each Local Union shall provide to the Election Officer an affidavit attesting that the Notice of Nominations was posted as required, identifying the bulletin board sites at which it was posted and the name and title of the individual with responsibility for posting the Notice at each site.

C. Sam Theodus

June 12, 1998

Page 1

3. Supplemental Nominations

1. The Election Officer shall mail supplemental nomination ballots to delegates elected for the 1996 Convention.  If an elected delegate is no longer active or is on suspension, the ballot will be sent to the highest ranking active, non-suspended alternate delegate.

2. Delegates will be provided with a listing of previously nominated candidates who have declared their intent to run as candidates in the rerun for the office for which they were previously nominated.  The supplemental nomination ballot will provide a space to write in supplemental nominations for a particular office.  A delegate may write in a number of names for nomination equal to the number of candidates to be elected for that office.

3. To be eligible for supplemental nomination, the member must be eligible to be nominated pursuant to Article VII of the Rules.  For this purpose, nomination shall be deemed to occur on November 7, 1997, the date the supplemental nomination ballots are placed in the mail to delegates.

4. Tally of Returned Supplemental Nomination Ballots

1. In order to receive supplemental nomination to run in the rerun election for General President, for General Secretary-Treasurer, for any of the five At-large Vice President positions or for any of the three Trustee positions, supplemental nominees must receive at least five percent (5%) of the delegate votes cast in the supplemental nomination vote.  In order to receive supplemental nomination to run in the rerun election for the position of Regional Vice President, supplemental nominees must receive at least five percent (5%) of the delegate votes cast from the relevant delegate pool.  In calculating the number of votes necessary for supplemental nomination, any fraction shall be rounded to the next larger whole number.

2. The Election Officer shall receive and tally the return ballots.  Following the tally, the Election Officer shall determine the eligibility of all supplemental nominees who achieve the requisite five percent (5%) of the votes.  These nominees shall be notified and successful supplemental nominees must provide written acceptances of their nominations to the Election Officer which are received no later than December 2, 1997.

C. Sam Theodus

June 12, 1998

Page 1

As a result of the investigation into the disqualification of Ron Carey and the subsequent investigation into James P. Hoffa and his slate, the dates for supplemental nomination were changed and suspended prior to the issuance of the Final Rerun Plan on June 3, 1998.  Nevertheless, in each subsequent version of the Rerun Plan issued to the IBT, the General Executive Board, all candidates, and all IBT subordinate union bodies, the language describing the procedure for supplemental nominations did not change.  See Revised 1996 IBT International Officer Rerun Election Plan (October 21, 1997); First Supplement to the 1996 IBT International Officer Rerun Election Plan (March 30, 1998); and Final 1996 IBT International Officer Rerun Election Plan (June 3, 1998).  Moreover, in the Election Officer’s Report in the Teamster, the Election Officer reminded members that they could call the toll-free number or write the Election Office for a copy of the Rerun Plan.  See Teamster (January/February 1998) at 28; Teamster (March, 1998) at 19.  Therefore, the process for supplemental nominations was frequently and widely disseminated. 

If the protester disagreed with the process, he had ample opportunity to make his arguments before the Court in Applications X, XI, XII, XV, XVI and XVII.  He did not do so.  As the Election Appeals Master has stated, “It is improper . . . to attempt to rewrite the Rules at the present time, after the Rules have been debated and formally adopted and promulgated by the Court.” In re Jagodsinski, 95 - Elec. App. - 22 (KC) (October 10, 1995); Fahling, P-541-LU320-NCE (March 18, 1996), aff’d, 96 - Elec. App. - 145 (KC) (March 29, 1996).

2. Rights of Observers to the Supplemental Nomination Process

Mr. Theodus argues that the Election Officer provided “improper, insufficient and late notice regarding candidates right to have an observer present at the printing, staffing and mailing of ballots;” and that observer notification created “confusion over [the] dates to have observers present for the mailing of ballots.”

C. Sam Theodus

June 12, 1998

Page 1

As previously stated, on June 3, 1998, the day the Court approved the rerun schedule now in place, the Election Officer sent a “Memorandum on Observers for the Supplemental Nomination Process” (“Observer Memo”) to all nominated candidates and candidates which had advised the Election Office that they are seeking supplemental nomination.  The Observer Memo, and an attached form, were sent to candidates by facsimile and therefore delivered to candidates on June 3 -- six days prior to the printing of the supplemental nomination ballots, eight days prior to the processing of the mail packets and 26 days prior to the supplemental ballot count.  The Rules at Article X, Section 5 and 6 afford observers the right “to observe the entire mailing process” and “to observe the election count.”  The Election Officer believes that the Observer Memo was delivered to candidates sufficiently before the observable events and was in full compliance with the Rules.  Moreover, as previously stated, as the Election Office is advised of additional supplemental nomination candidates, it has continued to accept observer credential forms from additional candidates so they may observe the supplemental nomination process.  Although several candidates have filed credential observer forms, Mr. Theodus has not filed any credential observer form with the Election Office.

As to the dates for mailing the ballots, the Election Officer made clear that all ballots will be place in the United States and Canadian mail systems on June 15, 1998.  The Observer Memo read, in pertinent part, as follows:

After processing, all ballot packages for Canadian delegates will be sent via overnight mail on June 11 to Election Officer representative Gwen Randall in Canada, who upon receipt will meter stamp the Canadian ballots and will place the ballots into the Canadian mail system on June 15.  The ballots for delegates residing in the United States will be transported to the United States Post Office and mailed on June 15.

3. The Delegate List

Mr. Theodus contends that candidates have been unable to get an updated and accurate copy of the delegate list.  Since October 1997, upon request, the Election Office has supplied a delegate list to candidates.  Mr. Theodus first requested and received a delegate list on May 13, 1998.  Mr. Theodus was advised by the Deputy Election Officer that a final list of delegates and upgraded alternates who would receive supplemental nomination ballots would be available on June 9, 1998.  Mr. Theodus and all other candidates were sent a printed and computer disk copy of the list by overnight mail on that date.

4. Allegations Involving the Supplemental Nomination Write-in Ballot

Mr. Theodus argues that the Election Officer has improperly allowed any rank and file member to seek supplemental nomination without being “properly nominated first by a delegate and then receiving a second by another delegate;” and that the Election Officer is not allowing all rank and file members an equal opportunity to seek supplemental nomination by having their names appear on the supplemental nomination ballot.

In a letter to the Election Officer dated May 23, 1998, Mr. Theodus asked the Election Officer to revise the supplemental nominations process from the Court-approved write-in ballot to a process whereby supplemental candidates are nominated and seconded by delegates and thereafter would appear on a ballot which would include the names of supplemental nominees.

On June 2, 1998, the Election Officer denied Mr. Theodus’ request and responded, in pertinent part, as follows:

C. Sam Theodus

June 12, 1998

Page 1

The supplemental nomination write-in ballot was originally proposed by Election Officer Barbara Zack Quindel in Application X which was submitted to the United States District Court for the Southern District of New York on August 21, 1997.  The “Proposed 1996 IBT International Officer Rerun Election Plan” submitted by Ms. Quindel contained the following language regarding the supplemental nomination ballot:

Delegates will be provided with a listing of previously nominated candidates who have declared their intent to run as candidates in the rerun for the office for which they were previously nominated.  The supplemental nomination ballot will provide a space to write in supplemental nominations for a particular office.  A delegate may write in a number of names for nomination equal to the number of candidates to be elected for that office.

Id. at I.C.2.  In approving the proposals for supplemental nominations, the Court reviewed the Election Officer’s plan and alternative plans proposed by the Hoffa Slate.  The Court endorsed the Election Officer’s plan:

The purpose of the Rerun Election is not to restart the entire election process.  The goal is to repeat only those parts of the process necessary to run an honest and fair election.  The Election Officer’s plan providing for supplemental nominations meets this goal, and does so without adding pressure to the already precarious issue of funding the Rerun Election.  In addition to the extra costs of the Hoffa Slate proposals [for a one-day nominating convention or affidavits from candidates with a qualified nominator and seconder], such a nomination process would most certainly delay the Rerun Election for months.

C. Sam Theodus

June 12, 1998

Page 1

United States v. IBT, 981 F. Supp. 222 (S.D.N.Y. 1997).  After the Court’s ruling, on October 8, 1997, the Election Officer sent a copy of the Rerun Plan as approved by the Court to all candidates in the International Officer election, the International Brotherhood of Teamsters, IBT General Executive Board, and all IBT subordinate bodies.  This Rerun Plan, and subsequent revised Rerun Plans provided for the supplemental nomination process by write-in ballot.  Moreover, in Applications XI, XII, XV, XVI, and XVII, the Election Officer sought some modification to the rerun election plan, either to the timetable or the substantive provisions of the plan.  At no point after Application X, however, did any interested party contend that the supplemental nomination process should be changed. 

Thus, the Hoffa Slate proposed a pre-ballot nomination process in Application X and the Court rejected the idea.  Over the eight-month period since Judge Edelstein issued his decision on Application X, no member had proposed a different supplemental nomination process to the Court.

After reviewing the matter, I disagree with the premise that Convention delegates will have difficulty nominating supplemental candidates by write-in ballot.  First, any candidate for supplemental nomination(s) is entitled to a copy of the delegate list.  Several individuals have requested the list and the Election Officer has provided it to them.  From that list, a candidate seeking supplemental nominations can contact delegates by telephone or mail seeking a commitment to write in his or her name.  Second, as you know, the threshold for a supplemental nomination is quite low; only five percent (5%) of the delegates voting in the relevant pool.  Thus, a candidate seeking supplemental nomination for a union-wide office (e.g., general president) need obtain only approximately 90 write-in votes.  Needless to say, the threshold for regional candidates ranges is extremely low (e.g., approximately five votes for Teamsters Canada, six votes for the Southern Region, 21 votes for the Western Region, and 27 for the Eastern Region).  Third, the delegates will be advised of the write-in ballot through posted notices and the notice and instructions included with the ballot.  Fourth, I believe that candidates seeking supplemental nomination have had adequate time and opportunity to educate the delegates about the process.

Finally, adding a pre-ballot nomination process would delay completion of the rerun election.  The delay would occur due to the time needed for the process itself, the time needed to obtain Court approval, an unlikely prospect (particularly in light of the Court’s prior decision), and the time needed to disseminate new information to the members before a nominating and seconding process could begin.

C. Sam Theodus

June 12, 1998

Page 1

As previously stated, Mr. Theodus had ample opportunity to voice his opposition to the supplemental nomination process and did not do so.  It is improper to do so now.  In re Jagodsinski, supra, Fahling, supra.

5. Notice of Supplemental Nominations

Both Mr. Theodus and Mr. Wenger argue that the Notice of Nominations was improper.  Mr. Theodus argues it is improper because the members at the locations where the notices are posted “will not be made aware of the fact that any rank and file member can seek nomination for any International office in a timely fashion . . . .”  Mr. Wenger makes a similar argument but specifically states that the Notice had to be sent to members at their home addresses and such notice had to be at least 20 days prior to nominations. 

The supplemental nominations are an extraordinary procedure, which, as the Court in initially approving a Rerun Plan, stated, “The goal is to repeat only those parts of the process necessary to run an honest and fair election.”  United States v. IBT, 981 F. Supp. 222 (S.D.N.Y. 1997).  As previously stated, the information that any active member may seek supplemental nomination has been available for several months.  The Labor Management Reporting and Disclosure Act does not require that notice of nominations be provided to each member.  Indeed, the regulations at 29 C.F.R. § 452.56 state:

Notice of nominations need not necessarily be given at least 15 days before nominations are held, nor is it required to be given by mail.  In an election which is to be held by secret ballot, accordingly, notice of nominations may be given in any manner reasonably calculated to reach all members in good standing and in sufficient time to permit such members to nominate the candidates of their choice . . . .[2]

The Election Officer believes that posting the notice at work sites prior to the mailing of the supplemental nomination ballots[3] was sufficient notice to the members.  Moreover, the only members entitled to vote in this election are the delegates.  In addition to the posting, delegates will receive a copy of the notice on the back of their supplemental ballots.  In these circumstances, the Election Officer believes that the notice was proper.

C. Sam Theodus

June 12, 1998

Page 1

Based on the foregoing, the protests are DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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:

Kenneth Conboy, Esquire

Latham & 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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master

Nominated and Potential Candidates