IN RE: MARY LANG and JOSH LACEY, Protestors.
Protest Decision 2011 ESD 68
Issued: January 12, 2011
OES Case No. P-069-010711-FW & P-070-010711-FW
Mary Lang, member of Local Union174 and candidate for delegate on the Members United slate, 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 has impermissibly deviated from long-standing practice of compensating the lost time of members who serve on the election committee that oversees the delegates and alternate delegates election.
Josh Lacey, member of Local Union 174 and candidate for delegate on the UPSers United slate, filed a similar protest.
These protests were consolidated for investigation and decision. Election Supervisor representative Rochelle Goffe investigated them.
Findings of Fact
The membership of Local Union 174 will elect 9 delegates and 6 alternate delegates to the IBT convention. The local union submitted its proposed plan for the election on August 30, 2010. The proposal stated that all facets of the election will be overseen by an election committee comprised as follows:
Pursuant to Local Union By-Laws the Election Committee will consist of six (6) rank and file members. Each slate will appoint an equal number of election judges. If the number of slates is four (4) or five (5), each slate shall appoint one (1) judge and name one (1) prospective judge. The final position will be filled by lot drawing with each slate appointing one (1) prospective judge for the drawing. No individuals have been selected pursuant to Local Union By-Laws.
The election judges preside over the counting of ballots. In addition, they oversee ballot design, printing of ballots, storage of ballots to be used for fulfilling lost and duplicate ballot requests, retrieval from the post office of ballots returned as undeliverable, remailing returned ballots, fulfilling duplicate ballot requests, and retrieval and security of voted ballots.
The language in the proposed plan was consistent with local union by-laws and longstanding practice in the local union. Although the proposed plan made no reference to payment of election judges, investigation showed that they have always been paid for the wages they lost on account of their committee service. Such payment encourages participation on the committee and promotes transparency by having appointees of each of the competing factions oversee the administration of the election.
Notice of the submission of the proposed plan was posted as required, and a number of members obtained copies of the plan. No comments were submitted on the composition, selection, function, or payment of the election committee.
While the proposed plan was pending our review and approval, principal officer Rick Hicks contacted us requesting to modify the proposed plan to eliminate payment of lost time for election committee members. His stated concern was that an anticipated multiplicity of candidates and slates competing in the election would require expansion of the committee beyond the 6 members proposed and that the local union would suffer financially by paying lost time for all of them. No notice of this proposed change was given to the membership.
We approved the proposed plan, as amended by Hicks' suggested language. The approved plan stated expressly that "[n]o member of the election committee will be reimbursed for time loss by the Local Union."
Notice of the approval of the local union election plan was posted as required. The notice did not include language advising that election judges would not be compensated.
At the nominations meeting held January 3, 2011, candidates comprising 3 slates were nominated. Hicks and other incumbent union officials lead 1 slate; the other slates are comprised of rank and file members. At the candidates' meeting held immediately following the nominations meeting, Hicks announced that the election judges would not be paid lost time. He further stated that the committee would meet at the union hall during normal business hours.
The election judges selected by the Hicks slate are salaried local union staff members who work at the union hall on a Monday through Friday schedule. The Members United slate selected 2 truck drivers as their election judges. One works Monday through Friday, 5 a.m. to 3 p.m., and is off on weekends. The other works Sunday, Monday, Tuesday and Friday from 11 a.m. to 9:30 p.m., off on Wednesday, Thursday and Saturday. The UPSers United slate also selected 2 election judges. Both work the twilight shift Monday through Friday, sorting, loading or consolidating, one starting at 4:30 p.m., the other at 5 p.m. In addition, one works Saturday during the day as a delivery driver.
When the multiplicity of candidates that Hicks cited when amending the proposed plan did not come to pass, we requested Hicks to submit an amendment to the plan, reverting to the long-held practice of paying lost time for election judges. He declined.
Analysis
Our interest in whether election judges at this local union are paid their lost time is tied directly to our responsibility under Article I of the Rules to insure fair, honest, open and informed elections. While many local unions hire agencies to run their elections for them, we encourage local unions to have their members run their elections because such service promotes democracy at the local union level. Perhaps more importantly, such service adds integrity to the process by insuring that those with competing political interests are not only present but taking action at critical events in the administration of the election. With such participation, the candidates who ultimately lose the election cannot credibly charge fraud or manipulation, for their representatives were on the scene to witness the events and attest to the outcome.
Local Union 174 has seen over many years the benefit of members serving as election judges. Member participation in this responsibility has been driven by their interest in union democracy and, in no small part, by the fact that they have not had to make financial sacrifice of their pay for the half day or full day such service periodically requires.
The local union also has an interest in and a responsibility to insure a fair election. If member participation on the committee suffers because election judges are put to the choice between insuring election integrity or earning a day's pay, the local union may find itself unable to fulfill its obligation under the Rules or the approved election plan to insure that the election is conducted fairly because it will not have the election committee to do it.
In retrospect, we were incorrect to approve the election plan that ruled out payment of lost time for service as election judges for this local union, which has a strong history of paying such time, especially where the announcement of the change in this practice came after slates selected the individuals who would serve as their judges. This is not to say that all local unions who have committees of members run their elections must pay lost time. But for Local Union 174, with its tradition of paying lost time to its election committee, the abrupt ending of that practice has a potentially negative impact on member confidence in the integrity of the electoral process, as the protests filed here demonstrate.
However, with the plan now approved, we will not at this time require a modification, absent some evidence that the committee cannot function effectively because of lack of participation by those who must attend to the jobs by which they earn their livelihood. Accordingly, we will monitor the election committee to insure that it operates in accordance with the plan and fulfills its purpose under the Rules.
The committee must understand that, except for the date and time of the ballot count, all other meetings dates and times and the locations of those meetings are to be determined by the committee and cannot be imposed on the committee by Hicks or any other non-committee member. Further, the committee is governed organizationally by Roberts' Rules of Order, which sets a quorum for committee action at a majority of the members. Accordingly, where a quorum of 4 members is not present, the committee cannot function. In addition, meeting dates, times and locations will be set by majority vote of the committee, a quorum first being present.
We are also concerned that, because the members who serve as election judges for the Hicks slate are salaried employees of the local union, the local union may pay them their regular pay for attending committee meetings, if those meetings occur during the normal business hours of the union hall. But as the approved plan declares that service on the committee will not be compensated by the local union, neither can the local union staff employees who serve on the committee be compensated by the local union, except by using banked vacation time to do so. As such, if a given committee meeting lasts 2 hours and falls during the local union staff members' regular work hours, those employees will suffer a loss of the equivalent of 2 hours' pay, calculated by dividing annual salary by 2,080. If local union employees seek to use vacation time to continue their salary for the meeting, such time can only be taken in the smallest increments of time permitted by local union policy or practice. (For example, if employees are permitted to take vacation time in increments no smaller than a half day, an employee seeking to use vacation time for a 2 hour committee meeting will be required to use a half day of vacation.)
If the committee cannot function for lack of a quorum, we reserve the right to exercise our authority under Article XIII, Section 4(v) to "conduct … [the] election, or any portion thereof" ourselves, at local union expense.
With these cautionary instructions, we DENY this protest. However, we will grant a request by Hicks to amend the election plan to pay lost time for election committee members, should he offer it.
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
2011 ESD 68
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 Hall 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
kirchmanb@yahoo.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
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Mary Lang
P.O. Box 46183
Seattle, WA 98146
Mplibra1251@comcast.net
Josh Lacey
28024 142nd Street SE
Kent, WA 98042
(by UPS overnight)
Rick Hicks, Secretary-Treasurer
Teamsters Local Union 174
14675 Interurban Ave. So., #303
Tukwilla, WA 98168
rhicks@teamsterslocal174.org
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
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