OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JAMES CURBEAM, ) Protest Decision 2021 ESD 66
) Issued: February 28, 2021
Protestor. ) OES Case No. P-071-020321-SO
____________________________________)
James Curbeam, member and delegate candidate in Local Union 480, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that the local union executive board violated the Rules by authorizing carryover of two weeks of paid vacation time from 2020 to 2021 so that board members could use the time to campaign in the delegates and alternate delegates election.
Election Supervisor representative Dolores Hall investigated this protest.
Findings of Fact and Analysis
Local Union 480 will elect four delegates and four alternate delegates to the IBT convention. A slate that includes protestor Curbeam is competing against a slate that includes local union executive board members. Ballots were mailed February 8, 2021 and will be counted March 5, 2021.
At an executive board meeting held December 20, 2020, the local union executive board unanimously approved a resolution to permit carryover of up to two weeks of paid vacation time from 2020 to 2021. The resolution approval was recorded in the minutes of the executive board meeting, which were read aloud at the next local union general membership meeting, held Saturday, January 23, 2021. Protestor Curbeam was present at the membership meeting and heard the executive board meeting minutes read. He filed this protest on Wednesday, February 3, 2021, eleven calendar days and eight working days after learning of the resolution.
Article XIII, Section 2(b) requires that protests be filed within two working days of the day the protestor becomes aware of the action protested or the protest shall be waived. Thomas, P811 (June 27, 1996) (protest denied as nine days late); Schwab, 2016 ESD 142 (March 15, 2016); Olsen, 2016 ESD 202 (May 6, 2016) (protest filed in February concerning threats made in December is denied as untimely).
Protests are sometimes considered on their merits even though untimely. Feeley, P810 (July 1, 1996) (protest decided on merits even though filed thirty days after violation where protestor reasonably was unaware of basis for violation until twenty-ninth day and seriousness of violation warranted prudential waiver of time limits); Bianchi, P307 (February 12, 1996) (continuing violation theory); Weronke, P306 (January 31, 1996) (four-day delay excused where conduct likely to recur); Ford, P217 (December 7, 1995), aff’d, 95 EAM 46 (December 20, 1995) (responding party waived timeliness defense); Schnider, P216 (November 15, 1995) (one-day delay in filing protest does not bar review of merits so that members can be educated concerning the breadth of protections afforded under the Rules); Ruscigno, P144 (October 4, 1995), aff’d, 95 EAM 25 (October 18, 1995) (time limits are a prudential restriction, not a jurisdictional requirement); Sole, P95 (September 20, 1995) (protest considered even though untimely because of heightened concern over subject matter of protest, which was retaliation). None of these exceptions apply to this protest.
Accordingly, we DENY the protest as untimely filed.
Were we to consider the protest on its merits, we would deny it. The basis of Curbeam’s untimely protest was that the local union executive board approved the carryover so its members, all of whom are candidates for delegate or alternate delegate, would be able to use paid vacation time to campaign. Investigation showed that local union bylaws grant vacation time on January 1 each year, that each executive board member employed on a full-time basis by the local union is credited with 4 to 6 weeks of vacation each year, the allotment depending on each individual’s years of service, that the bylaws require that vacation time be used within the calendar year or forfeited, except that an employee may take up to two weeks of vacation time as pay in lieu of paid time off, and that the purpose of the use-it-or-lose-it policy is to prevent a long-term employee from accumulating a vacation balance that is difficult for the local union to pay off. Investigation further showed that some members of the executive board expressed difficulty in taking the paid time off to which they were entitled, even after cashing in the two weeks’ vacation time, because of pressing concerns associated with the covid-19 pandemic. The board voted unanimously to allow any employee to carry over up to two weeks’ vacation time from 2020 to 2021 on a one-time basis. Investigation further showed that the banks of all local union employees were credited with their full complement of 2021 vacation time on January 1, 2021. Investigation further showed that of the board members voting on the vacation carryover resolution, all of whom are candidates, Lendon Grisham, Melvin Miller, and Tobey Patton had no carryover vacation days; Howard Boykin carried some vacation time over from 2020, was credited with an additional 6 weeks on January 1, 2021, and has used no vacation time to campaign; Len Hughes carried over 2020 vacation time, which he used for foreign travel in January 2021, and has not used any vacation time to campaign; and Tim McDonald carried over vacation time, received an additional 5 weeks on January 2, 2021, and used 2 days to campaign. These facts demonstrate that the vacation carryover the executive board approved did not have the purpose or effect of granting candidates who were local union employees an advantage in the form of additional paid time off with which to campaign.
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD #
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Kevin Moore
Mooregp2021@gmail.com
F.C. “Chris” Silvera
fitzverity@aol.com
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
James Curbeam
Teamsterspowercurb@gmail.com
Howard Boykin
howardboykin@tlu480.com
Lendon Grisham
lendongrisham@tlu480.com
Tim McDonald
timmcdonald@tlu480.com
Melvin Miller
melvinmiller@tlu480.com
Len Hughes
lenhughes@tlu480.com
Tobey Patton
tobeypatton@tlu480.com
Rod McClendon
Mcclendon_rod@yahoo.com
Dolores Hall
dhall@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com