IN RE: RALPH COOK, Protestor,
Protest Decision 2010 ESD 34
Issued: October 12, 2010
OES Case No. P-037-100710-ME
Ralph Cook, member of Local Union 377, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local union did not post the required notice that it had submitted its proposed local union election plan to the Office of the Election Supervisor for consideration.
Election Supervisor representative Denise Ventura investigated this protest.
Findings of Fact and Analysis
Under Article II, Section 4 of the Rules, local unions conduct their delegates and alternate delegates elections in accordance with election plans approved by the Election Supervisor. When a local union submits its proposed plan to the Election Supervisor for consideration, it is required by Article II, Section 4(e) to post a notice on all local union bulletin boards to alert members that the plan has been submitted. Once the plan is submitted, local union members (and others specified by the rule) have the right to inspect and obtain a copy of the proposed plan from the local union, including worksite lists attached to it, at no cost. Article II, Section 4(c). In addition, any member has "the right to submit written comments to the Election Supervisor, with a copy to the Local Union, concerning a proposed Local Union Plan, within fifteen (15) days of the submission of the Plan to the Election Supervisor." Article II, Section 4(d).
To facilitate these rights, local unions are required, "[a]s soon as possible, but in no event later than five (5) days after the Local Union has submitted its Plan to the Election Supervisor," to post a notice "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" to inspect and obtain a copy of the plan and to submit written comments on it. Article II, Section 4(e).
Local Union 377 submitted its proposed local union election plan to the Election Supervisor on September 27, 2010. Under the Rules, it was required to post notice of that fact as soon as possible but not later than 5 days after doing so. Accordingly, notice posting had to be completed by October 2. The local union did not do so. Posting apparently began but was not completed on October 6, some 9 days after the plan was submitted and 6 days before the close of the comment period on the plan.
Protestor Cook filed the instant protest stating that as of October 7, he had not seen the required notice despite diligent effort, and his telephone survey of several worksites showed that it had been posted only at one.
Our precedents establish that the posting requirement is an important means of promoting democracy and insuring a fair election. The notice is the first written announcement members receive from their local unions that an election is approaching and alerts them to begin recruiting candidates and developing campaign strategy. Further, it notifies them that a plan for the election has been submitted and gives them opportunity to comment on whether the elements of the plan are likely to produce a fair election. Recognizing the importance of the notice and comment period, the Election Supervisor in Johnson, 2005 ESD 36 (December 14, 2005), extended the comment period to remedy the local union's failure to post. In King, 2005 ESD 42 (December 28, 2005), another instance in which the local union failed to post the required notice of plan submission, the Election Supervisor found that the protestor was unable to recruit other candidates and develop campaign strategy. Accordingly, the Election Supervisor rescheduled all dates for nomination, ballot mailing, and ballot counting to remedy the violation. An untimely posting will not always result in rescheduling of dates. See Williamson & Payne, 2005 ESD 20 (October 31, 2005) (posting untimely by 1 day was excused where members suffered no substantial prejudice and the local union acted in good faith).
In the instant case, the local union recognized its error in not posting promptly and sought to amend the required notice to give members the 15 day comment period the Rules require. Accordingly, a notice was distributed to stewards on October 8 for immediate posting stating that the 15 day comment period commenced on October 8 instead of September 27. This solution was presented to and accepted by protestor Cook. Accordingly, we deem this aspect of the protest RESOLVED on this basis.
Separately, when protestor Cook requested a copy of the proposed local union election plan from the local union, the copy he received did not include the worksite list required to be part of the plan by Article II, Section 4(b)(10). In Evans, 2005 ESD 4 (August 12, 2005), we held that a local union must produce the worksite list when producing the plan, viz.
The worksite list is an integral element of a local union plan because it informs members and candidates of the locations where potential voters may be found. When a member requests a copy of the local union plan, the Rules require that the worksite list also be produced.
When the failure to produce the worksite list was brought to the local union's attention here, it promptly produced the list. Accordingly, we deem this aspect of the protest RESOLVED as well.
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
2010 ESD 34
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
Fgegare663@new.rr.com
Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Ralph Cook
803 Presidenti
Boardman, OH 44512
rcook@rothbros.com
John Lesicko, Secretary-Treasurer
Teamsters Local Union 377
1223 Teamsters Drive
Youngstown, OH 44502
teamsterslocal@new.rr.com
Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com