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Office of the Election Supervisor for the International Brotherhood of Teamsters




            PROTESTOR.                                                                        2015-2016 EAM 10 KAR)                                                                                                                 DECISION RE 2016 ESD 90


Protest Decision 2016 ESD 90 (ESD 90), regarding a protest by Roger Kohler, a member of Local Union 673, was issued on January 28, 2016 (OES Case No. P-087-011116-MW). 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 for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  

 Mr. Kohler filed an appeal of ESD 90 on January 31, 2016.   By Notice of Hearing sent to all distributees of ESD 90, a telephonic hearing was scheduled for February 17, 2016.  On February 16, 2016, the Election Supervisor submitted a written response to the appeal (OES February 16 Letter).  On February 17, 2016, Mr. Kohler filed a supplemental submission.


A telephonic hearing was held on February 17, 2016.  The following individuals attended the hearing:   Mr. Kohler, and Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor (OES).   Following the hearing, in response to the request of the Election Appeals Master, the Election Supervisor provided documentation regarding the posting of the notice of the results of the nominations meeting.  Mr. Kohler responded to this submission on February18, 2016.


            For the reasons set forth below, Mr. Kohler’s appeal is DENIED, and the decision of the Election Supervisor is AFFIRMED.


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.  It is undisputed that timely notice of the Local Union 673 nominations meeting was provided on worksite bulletin boards.


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, Local Union 673 was required to make the mailing no later than December 10, 2015.

The Protest


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 statements by nine members (including Mr. Kohler), who told the OES investigator that they received the notice 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 the United States Postal Service (USPS) on January 5, 2016 and received by the local union on January 11, 2016.


Investigation and Determination of the Election Supervisor


            The following facts are substantially drawn from ESD 90.


            The local union asserted that the notices were mailed December 10, 2015, timely under the election plan.  Debbie Underdonk, an office clerical employed by the local union, told the OES 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 Ms. 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, Ms. 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.


Mr. Assell told the OES 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 USPS employee.  As the letters already had postage applied to them, Mr. 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.

Ms. Simmons, the second office clerical who worked on the mailing, told the OES investigator that 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, the OES investigator 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, the OES investigator attempted to reconstruct the postage meter balance over the past two months using other records.  

The OES 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 the protest.



            Based upon the above facts, the Election Supervisor was “skeptical that Local Union 673 mailed the nominations notice December 10, 2015, as its staff members claim.”   The Election Supervisor cited the 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.  At the same time the Election Supervisor noted the statements from three local union employees that the mailing was made on December 10.  The Election Supervisor further noted that 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, it is difficult 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. The Election Supervisor also considered the possibility is that the notices were mailed timely but were not handled properly by the USPS.  

The Election Supervisor concluded that whether or not the notices were mailed timely, they were not received by members within the timeframe the Rules deem sufficient to put members on notice of the nominations meeting.

The Election Supervisor observed that “timely posting of notices promotes participation in the electoral process, a key goal of the Consent Order and the Rules.”  Johnson, 2011 ESD 63 (December 28, 2010), and that 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).  

            The Election Supervisor noted that 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 that Mr. Kohler helped to nominate was successfully nominated, as was another slate of candidates.  The Election Supervisor observed that “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.”   

Based on the above facts, the Election Supervisor was unable to conclude that the local union acted in bad faith.  The Election Supervisor contrasted 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, the Election Supervisor 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.  



The Election Supervisor found that despite the late receipt of the notice in this case, competing slates were nominated at the nominations meeting.  Accordingly, the Election Supervisor could find no prejudice to any candidate resulting from the untimely receipt of notice.  The Election Supervisor also noted that timely notice of the nominations meeting was also provided on worksite bulletin boards.


 Appeal by Mr. Kohler

            Mr. Kohler’s appeal is based substantially on the evidence set forth above that the notice of nominations meeting was not mailed until January 5, 2016.  He also asserts that “there is reason to believe that the vast majority of members never received notices due to lack of postmark.”  He also asserts that the investigation by the Election Supervisor was inadequate because the OES investigator did not interview the principal officer of Local 673, USPS personnel, or a union steward whose name was given to the investigator by Mr. Kohler.  Mr. Kohler also complains that the Election Supervisor rendered his decision prior to the completion of a USPS investigation initiated by Mr. Kohler.           

                        Mr. Kohler’s appeal argues for strict enforcement of the 21-day rule. With respect to the Election Supervisor’s finding that no member was prejudiced by untimely receipt of the notice, Mr. Kohler asks, “How do the members know to protest if they never received a notice?”  He further observes that “[l]ess than half of the members have ‘Union Boards’ at their facilities and those that do are usually in obscure locations.”  He objects that “the statement that I never produced anyone that wanted to attend or be nominated at the meeting is just laying the burden of proof on the members.”

Decision of the Election Appeals Master

Based upon the facts set forth above, and consideration of the arguments presented by Mr. Kohler in his submissions and at the hearing, I find that the Election Supervisor conducted a reasonably thorough investigation and did not abuse his discretion in finding an absence of prejudice resulting from the untimely receipt of notice of the nominations meeting.  Significantly, based upon the post-hearing submission of the Election Supervisor, notice of the results of the nominations meeting was timely posted.  If, as Mr. Kohler asserts, the “vast majority” of members never received a notice, that notice would prompt a “disenfranchised” member to come forward.  Yet it is undisputed that not a single member has complained of non-receipt of notice, or that the untimely receipt of notice prevented their participation in the nominations meeting.






 For the reasons set forth above and for substantially the reasons set forth in ESD 90 and the OES February 16 Letter, Mr. Kohler’s appeal is DENIED, and ESD 90 is AFFIRMED.