IN RE: NORMAN JOHNSON, Protestor.
Protest Decision 2005 ESD 36
Issued: December 14, 2005
OES Case No. P-05-035-112305-AT
Norman Johnson, a member of Local Union 822, 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"). He alleged that James Wright, president of Local 822, failed to post the required notice concerning the local union plan and, further, failed to produce the plan upon request, in violation of the Rules.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
The protest alleged that local president Wright failed to post a notice that the local union plan for election of delegates and alternate delegates had been submitted to our office for approval. The protest further alleged that the local president failed to honor two requests protestor Johnson made for a copy of the plan.
Local president Wright admitted each of these facts to our investigator. He offered no explanation for not posting the notice advising that the local union plan had been submitted to our office. On his failure to produce the local union plan upon request, Wright explained that he did not believe he was required to do so until the plan was approved by our office. Wright further indicated that he was new to his position and was still learning his responsibilities.
In response to our investigator's request, local president Wright posted the required notice, submitted the required affidavit of posting, and produced the local union plan to Johnson. He took these actions on November 28, 29, and 30, respectively.
Analysis
Article II, Section 4 of the Rules provides:
(c) Once a Local Union Plan is submitted to the Election Supervisor, the Local Union shall make the complete Plan available for inspection by the International Union, any subordinate body, any member of the Local Union submitting the plan and any candidate for International office. In addition, each of the foregoing shall have the right to obtain, upon request, a copy of the plan from the Local Union at no cost.
***
(e) As soon as possible, but in no event later than five (5) days after the Local Union has submitted its Plan to the Election Supervisor, the Secretary-Treasurer of the Local Union shall post a notice (on a form promulgated by the Election Supervisor) on all Local Union bulletin boards advising that the Local Union Plan has been submitted to the Election Supervisor and further advising members of their rights under Subsections (c) and (d) above and shall maintain such posting until replaced by a posting of the Plan Summary.
As we said in Fahey, 2005 ESD 10 (September 8, 2005), "[l]ate 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).
Here, because the required notice has been posted and the plan produced to the protestor, we consider these aspects of the protest RESOLVED. Specifically, we decline to find that the local president's failures on these points were the result of bad faith on his part; instead, we conclude that he had a misunderstanding of his obligations under the Rules because of his failure to familiarize himself with them.
We note, however, that the Rules rely upon local union officers to provide information to the membership, and we do not countenance conduct - even if innocent - that undermines "fair, honest, open, and informed elections." Article I (emphasis supplied). By his omissions, the local president deprived his membership, and protestor Johnson in particular, of the opportunity to comment on the local union plan. Accordingly, we GRANT the protest in this regard. As remedy for this violation, we have extended the comment period on Local 822's local union plan the required fifteen days from November 28, the date the notice was actually posted. As further remedy, we order local president Wright, within five (5) days of the issuance of this decision, to read and familiarize himself with his obligations under the Rules, including those set forth in Articles II, V, VI, VII, IX and XI, and to submit an affidavit of compliance to our office upon completing this remedy.
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 36
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski, Esq.
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
Email: pszymanski@teamster.org
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334-1567
Email: braymond@fwslaw.com
Barbara Harvey, Esq
Penobscot Building, Suite 3060
645 Griswold
Detroit, MI 48226
Email: barbaraharvey@comcast.net
David Hoffa
c/o Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48334
Email: david@hoffapllc.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
Email: jchomsky@igc.org
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
Email: saostrach@gmail.com
Norman Johnson
403 Railway Road
Yorktown, VA 23692
lngguru@aol.com
James Wright, President
Local Union 822
P.O. Box 12673
5718 Bartee Street
Norfolk, VA 23502
J. Griffin Morgan.
Elliot, Pishko, Gelbin & Morgan
500 West Fourth Street
Winston-Salem, NC 27120
jgmorgan@epgm.com
Jeffrey J. Ellison
510 Highland Avenue, #325
Milford, MI 48381
Email: EllisonEsq@aol.com