IN RE: MARIO PERALTA and ROBERT GONZALEZ, Protestors.
Protest Decision 2006 ESD 396
Issued: November 28, 2006
OES Case No. P-06-367-111606-HQ
Mario Peralta and Robert Gonzalez, members of Local Union 805, 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 2 business agents and a staff employee of Local Union 805 improperly gained access to Harold Levinson & Associates (HLA) in order to campaign for the Leedham slate, in violation of the Rules.
Election Supervisor representatives Steven R. Newmark and Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
The protest alleged that the unidentified local union employees "on the morning of 10/7/2006, entered the H.L.A. warehouse … on the pretense of 'attending to a grievance,' they immediatly [sic] started to campaign for the LEEDHAM/POPE election slate, and distribute election parafinalia [sic] in spite of our strong protests. They continued on until they finished, and then they left."
The protest was received at the Office of the Election Supervisor, by U.S. mail, on November 16, 2006, some 6 weeks after the date the conduct is said to have occurred. Protestor Gonzalez told our investigator that he filed the protest on November 12. He further stated that he witnessed the activity that was protested but delayed filing while he sought out other witnesses.
Article XIII, Section 2(b) of the Rules states that protests "must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived." Precedent shows that this limitations period is a prudential restriction rather than a jurisdictional requirement.
Although we have waived the limitations period in the past, we decline to do so here. The protestors have presented no evidence that might excuse the lengthy delay in filing the protest. Further, as the tally of ballots for the election has been concluded, nothing suggests that the conduct alleged here - if true - may have affected the results of the election.
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. 20006-1416, 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 396
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
David J. Hoffa
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
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Robert Gonzalez
c/o Harold Levinson Associates
21 Banfi Plaza
Farmingdale, NY 11735
Mario Peralta
c/o Harold Levinson Associates
21 Banfi Plaza
Farmingdale, NY 11735
Sandy Pope, President
IBT Local Union 805
44-61 11th Street, 3rd Floor
Long Island City, NY 11101
Harold Levinson Associates
21 Banfi Plaza
Farmingdale, NY 11735
Steven Newmark
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com