IN RE: TIM ROBERTSON and BEN SIZEMORE, Protestors.
Protest Decision 2005 ESD 26
Issued: November 8, 2005
OES Case No. P-05-024-101805-ME
Tim Robertson and Ben Sizemore, members of Local Union 407, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local union failed to post notice of submission of the local union plan on union bulletin boards, as required by the Rules.
Election Supervisor representative William Kane investigated this protest.
Findings of Fact and Analysis
Local Union 407 submitted its proposed local union plan for the delegate and alternate delegate election to our office on September 26, 2005. "As soon as possible, but no later than five (5) days after" submitting its proposed plan to our office, the local union was required to post notice on all union bulletin boards stating it had submitted the proposed plan for approval, and advising members of their rights to review, obtain copies, and comment on the plan. Article II, Section 4(e).
The local union did not post the required notice within five days as required by the Rules. Indeed, it mailed the notice to its 67 stewards on October 4; under these circumstances, the earliest date the required notice could have been posted was October 5, nine days after the plan was submitted to our office.
However, the protestors contend that, as of October 27, 31 days after the plan was submitted to our office, the local union had yet to post the required notices at several worksites, including three Yellow Freight facilities that employed a combined workforce of 1,000 members. The local union asserts to the contrary that the notices had been posted, albeit untimely, but they had been torn down at work locations where the union bulletin boards are not glass-enclosed. The local union has to date not filed the affidavit required by Article II, Section 4(e), "attesting that the notice 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."
In Fahey, 2005 ESD 10 (September 8, 2005), we wrote:
Late notices or missing postings will not result in a Rules violation in the absence of bad faith on the part of the local union or disadvantage to any potential candidates. Lefevre, 2001 EAD 301 (April 12, 2001), citing Wenham, 2001 EAD 221 (March 7, 2001), Snow, P368, (March 6, 1996), and Young, P426 (March 29, 1996).
While we have declined to find Rules violations where a required posting is a day late at a single location, Williamson & Payne, 2005 EAD 20 (October 31, 2005), a local union's failure to post at multiple worksites that employ a large number of members is prima facie proof of bad faith that deprives members and potential candidates of substantial rights.
Here, the protestors do not claim that they have been prejudiced by the delayed posting. Indeed, they timely submitted to our office a detailed comment on the proposed plan.
Nonetheless, because of potential candidates at several work locations may be unaware that a local union plan has been submitted, we GRANT this protest. In balancing the competing claims of the protestors and the local union, we place emphasis on the local union's failure to present affidavit proof of posting, as required by the Rules.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
Where a failure to post violates the Rules, the Election Supervisor will order that the posting be completed. Further, if the local union plan has already been approved, the Election Supervisor will rescind such approval to permit members who were not notified of the submission of the plan to exercise their rights to review, obtain copies, and comment on the plan. DePietro, 2001 EAD 77 (January 3, 2001).
We direct Local Union 407 to post or repost notice of submission of its local union plan on all union bulletin boards under its jurisdiction. The local union shall complete this posting on the form attached to this decision by Tuesday, November 15, 2005. The notice shall state that members are permitted until Wednesday, November 30, 2005 to submit comments on the plan to our office. By Friday, November 18, 2005, the local union shall submit an affidavit to our office that complies with Article II, Section 4(e).
Because we have not yet approved the local union plan for Local Union 407, we order no further remedy.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 26
[IF YOU POST THIS NOTICE ON UNION LETTERHEAD, THE NAMES OF LOCAL UNION OFFICERS,
BUSINESS AGENTS, STAFF OR THE LIKE MUST NOT APPEAR ON THE STATIONERY.]
NOTICE OF LOCAL UNION PLAN SUBMISSION FORM
TO ALL MEMBERS OF
TEAMSTERS LOCAL UNION NO. 407
Check one of the boxes below, if applicable
GCC BMWE Division of IBT Rail Conference BLET Division of IBT Rail Conference
The proposed Local Union Plan to nominate and elect delegates to the 2006 IBT Convention to be held in Las Vegas, Nevada, in June 2006 was submitted to the Election Supervisor on September 26, 2005.
The Election Plan is available for inspection at the Local Union office at:
3701 Bosworth Road, Room 204, Cleveland, OH 44111 .
by any member of the Local Union, any candidate for International office, and by the International Union or any subordinate body. Upon request, each of the foregoing has the right to obtain a copy of the Plan at no cost. Inspection may be made during the usual hours of the Local Union office, which are:
________________________________________________________
Days and Times of Operation
Any interested Union member or body has the right to submit written comments to the Election Supervisor concerning the Local Union Plan by November 30, 2005. Written comments should be addressed to:
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1725 K Street, Suite 1400
Washington, DC 20006
202-429-8683
888-IBT-2006 (888-428-2006) Toll Free
202-429-0030 (Facsimile)
ElectionSupervisor@IBTvote.org
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Tim Robertson
2708 Graham Road
Stow, OH 44224
Ben Sizemore
25091 Garden Road
Oakwood Village, OH 44146
Local Union 407
3701 Bosworth Road, Room 204
Cleveland, OH 44111
John M. Masters
Masters & Associates
Eaton Center Building
1111 Superior Building, Suite 1300
Cleveland, OH 44114
William Kane
242 Old Haymaker Road
Monroeville, PA 15146
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com