IN RE: KEVIN McNIFF, Protestor.
Protest Decision 2006 ESD 173
Issued: April 6, 2006
OES Case No. P-06-161-022106-NE
Kevin McNiff, member of Local Union 82 and candidate for alternate delegate on the Vote For Change slate, 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 John Perry, secretary-treasurer of the local union and candidate for delegate on the competing Team 82 slate, caused the ballot mailing date to be advanced, thereby denying the protestor's right to observe the mailing process and frustrating the effect of his campaign mailing to the members of the local union, in violation of the Rules.
Election Supervisor representative David F. Reilly investigated this protest.
Findings of Fact
Under the local union election plan ("LUEP") we approved, the local union executive board was responsible for conducting the delegate and alternate delegate election. The LUEP was completed and signed by Perry in his capacity as secretary-treasurer of the local union.
Shortly after the nominations meeting, Perry, as a member of the executive board, spoke with a representative of Shell Printing, the local printer responsible for printing and mailing ballots, and instructed him that ballots were to be mailed on February 16, the date specified in the LUEP.
Ballots were printed at the Shell Printing plant in Jamaica Plain, MA. Printing, ballot-package assembly, and addressing were completed on February 15, and the ballot packages were taken to the Roslindale, MA post office, where they were mailed that afternoon at about 4:00 p.m., one day ahead of the date specified in the LUEP. The Shell Printing representative told our investigator that he recalled speaking with Perry at the time the local union placed the printing and mailing order, but stated that he understood that the packages had to be mailed "by the 16th," a deadline he believed he met by mailing them on February 15. He professed no knowledge of the LUEP or the date sensitivity of the ballot mailing. No written contract or purchase order between Local Union 82 and the printer specified the mailing date of the ballots.
Earlier on February 15, McNiff mailed campaign literature to the local union membership. McNiff stated that he understood ballot packages were to be mailed on February 16 and chose February 15 to mail his campaign literature so that it would arrive at members' homes a day ahead of the ballots. On the morning of February 16 when he called Shell Printing to verify the time he should appear to observe the printing and mailing process, McNiff learned that ballots had been mailed the previous afternoon. McNiff immediately complained that his right to observe the mailing operation had been denied by the earlier mailing; the Shell Printing representative responded by expressing reservations about speaking with McNiff because McNiff was "not from the union hall."
This protest followed. The protestor asserted that the premature mailing effectively denied his right to observe the printing and mailing process, necessarily diluted the effect of his campaign mailing, and had the purpose or effect of aiding the delegate candidacy of Perry, the local union official who hired the printer.
Our investigation included interviews with representatives of the United States Postal Service in Washington, D.C., who asserted that there likely would be no difference in delivery dates between a bulk mailing dropped off at the post office after 4:00 p.m. on a given business day and another dropped off the next morning.
Ballots were tallied in the local union's delegate and alternate delegate election on March 22. Protestor McNiff was elected as alternate delegate.
Analysis
Article IX, Section 1(a) of the Rules grants each candidate for delegate or alternate delegate the right to observe "each and every phase of the election process," including the printing of ballots, preparation of ballot packages and/or mailing of ballots."
The premature mailing of ballot packages effectively denied McNiff's right to observe the printing and mailing operation. Further, the premature mailing violated the LUEP and potentially diluted the impact of McNiff's campaign mailing.
Nonetheless, we DENY this protest. In doing so, we exercise our authority under Article XIII, Section 2(f)(2) of the Rules to treat this matter as a post-election protest filed pursuant to Article XIII, Section 3(b). That section states that post-election protests such as this one "shall only be considered and remedied if the alleged violation may have affected the results of the election."
As noted, McNiff prevailed in his election for alternate delegate. Accordingly, the denial of his rights to observe printing and mailing of ballots and the arguable impact the premature mailing had on the effectiveness of his campaign mailing did not cause him to lose the election. Because McNiff did not suffer the harm identified in Article XIII, Section 3(b), no remedy is necessary.
Although the protest suggests that local union leadership was complicit in the premature mailing of ballots, investigation showed that it resulted from a misunderstanding between client and vendor. McNiff presented no other evidence of intentional misconduct by Perry, the local union, or the printer, and our investigation found none.
Accordingly we DENY this protest.
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
885 Third Avenue, Suite 1000
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
2006 ESD 173
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Kevin McNiff
16 Amherst Road
Braintree, MA 02184
ebrainm@comcast.net
John Perry, Secretary-Treasurer
IBT Local Union 82
330 Dorchester Street
South Boston, MA 02127
David F. Reilly
22 West Main Street
P.O. Box 457
North Kingston, RI 02852
dreilly@rooltd.com
Dennis Sarsany
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, N.W., Suite 1400
Washington, DC 20006
deesarincr@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com