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Office of the Election Supervisor for the International Brotherhood of Teamsters












October 4, 1995




Michael Ruscigno, et al.

October 4, 1995

Page 1



Michael Ruscigno

303 Summit Avenue

Jersey City, NJ  07306


James Jacob

1377 Sassaquin Avenue

New Bedford, MA  02745


Darryl Sullivan

2059 Richmond

Arlington, TX 76014

Teamsters Local Union 337

2801 Trumbull Avenue

Detroit, MI  48216


Paul Alan Levy, Esq.

Public Citizen Litigation Group

2000 P Street, N.W., Suite 700

Washington, DC  20036


Gerry M. Miller, Esq.

Previant, Goldberg, Uelmen, Gratz, Miller

  & Brueggeman, S.C.

1555 N. River Center Drive

Suite 202

Milwaukee, WI 53212

Michael Ruscigno, et al.

October 4, 1995

Page 1



Re:  Election Office Case No. P-144-LU337-MGN




A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (Rules). The protesters, Michael Ruscigno, a member of Teamsters Local 138, James Jacob, a member of Teamsters Local 251, and Darryl Sullivan, a member of Local Union 745, allege the May 1995 issue of Team 337, the official union publication of Local Union 337, has been used to support the candidacy of Local Union 337 President Lawrence Brennan, and to attack the candidacy of General President Ron Carey.[1] 

Michael Ruscigno, et al.

October 4, 1995

Page 1



Specifically, the protesters cite an article reporting on a "State of the Union" speech given by Mr. Brennan at a stewards meeting and an accompanying photograph with the caption, "President Brennan reported on a story which appeared in the May 15th edition of Time magazine entitled A Teamster Tempest:  Was a retired judge too soft in his handling of an investigation of labor boss Ron Carey?"


Local Union 337 responds that the protest is untimely, that the protested article constitutes a fair reporting of union business, and that Mr. Brennan was not a candidate at the time of the May 1995 publication of Team 337. 


Paul Alan Levy, the protesters attorney, responded to the local unions claim of untimeliness by stating that, while he could not remember when the publication had been brought to his attention, he believed he had filed the protest within two days of his receipt of a copy of the May 1995 issue from a third party.             


The investigation was conducted by Regional Coordinator William A. Wertheimer, Jr.  

The Rules, at Article XIV, Section 2(b), state, "Except as otherwise provided . . . all preelection protests . . . must be filed within two (2) working days of the day the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."


The requirement to promptly file protests is an important part of the election process.  The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Officer in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found.  Nevertheless, the Election Officer has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction.  A failure to file a timely protest has thus been treated as a defect that can be waived by the responding party.  Here, Local Union 337 has preserved its objection, and the timeliness issue must be resolved.


The publication in which the protesters allege Rules violations was mailed to Local Union 337's membership on May 30, 1995.  The instant protest was filed on June 19, 1995. While the time limitation for protest filing is generally liberally construed by the Election Officer, the 14 business days which elapsed between mailing and filing constitute a waiver under Article XIV, Section 2(b).  Since the protesters are not members of Local Union 337, they were not mailed copies of the publication by the local union.  A reasonable delay between the date the publication was first mailed and the date when the protesters could reasonably be expected to have seen it would naturally exist.  Fourteen days, however, exceeds the limit of this reasonable delay, especially since the protesters had found prior objectionable issues of the same publication for the same reasons.[2]


Michael Ruscigno, et al.

October 4, 1995

Page 1



The statement of the protesters counsel that he believed he had filed the instant protest within two days of his receipt of the publication is irrelevant.  The issue is when the protesting member became aware or should have become aware of the publication.  There was no evidence presented by counsel for the protesters which indicated when the protesters first became aware of the publication and/or why these members should be excused from the time limits set forth in the Rules.


For the foregoing reasons, the protest is DENIED.


Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal.  Requests for a hearing shall be made in writing and shall be served on:


Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue

New York, NY 10022

Fax (212) 751-4864


Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.






Barbara Zack Quindel

Election Officer


cc:               Kenneth Conboy, Election Appeals Master              

William A. Wertheimer, Jr., Regional Coordinator



[1]The allegations giving rise to the instant protest were offered by the protesters as support for an earlier protest, Ruscigno, Case No. P-070-LU337-EOH (August 23, 1995) in which they made similar allegations concerning the misuse of prior issues of Team 337.  In her decision, the Election Officer denied the protest.

[2]See Note 1, supra.