Protest Decisions

November 17, 1995

VIA UPS OVERNIGHT

Peter Mastrandrea

November 17, 1995

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Peter Mastrandrea

November 17, 1995

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Re: Election Office Case No. P-208-LU550-NYC

Gentlemen:

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”) by

Peter Mastrandrea, an IBT member and trustee of Local Union 282.  The protester asserts that a mailing sent by Richard Volpe, the secretary-treasurer of Local Union 550, to the principal officers of all local unions constituted an endorsement by Local Union 550 of the candidacy of James P. Hoffa for general president in violation of Article XII, Section 1(b)(1) of the Rules.

The charged party responds that the protest is untimely and that no union funds were expended for the mailing.

The investigation was conducted by New York City Protest Coordinator Barbara Deinhardt.

Article XIV, Section 2(b) of the Rules requires that all pre-election protests 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 protest shall be waived.” 

Peter Mastrandrea

November 17, 1995

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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, Mr. Volpe has preserved his objection, and the timeliness issue must be resolved.

The protester received the mailing from Mr. Volpe at Local 282 on approximately

August 25, 1995.  He filed the instant protest through his attorney on October 24, 1995.  Thus, almost two months elapsed between the time the protester received the material he objected to and the date the protest was filed.  The protester’s attorney, Nathaniel Charny, states that

Mr. Mastrandrea, as a trustee for several local unions, is required to travel among these local unions.  Consequently, his mail piles up at Local Union 282 and he did not actually read

Mr. Volpe’s mailing until some point around mid-October.  At that time, Mr. Charny claims

Mr. Mastrandrea forwarded the material to Mr. Charny, who immediately filed the instant protest.

In Ruscigno, et al., P-144-LU337-MGN (October 4, 1995), aff’d, 95 - Elec. App. - 25 (KC) (October 18, 1995), the protest was filed 14 days after the material at issue, a publication of Local Union 337, was mailed to the local union’s membership.  Because the protesters were not members of Local Union 337, the Election Officer stated that “(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.”  However, the Election Officer found that a period of 14 days “exceeds the limit of this reasonable delay,” particularly in light of the fact that the protesters had objected to other aspects of the same publication in an earlier protest.

While the instant case represents Mr. Mastrandrea’s first protest regarding Mr. Volpe’s mailing, it is undisputed that the mailing was received at Local Union 282 at the end of August.  Applying the standard articulated in Ruscigno, the Election Officer finds that the circumstances surrounding the two-month period between the local’s receipt of the mailing and the filing of the protest exceeds the “reasonable delay” envisioned by the Rules.  Therefore, the protest is untimely.

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:

Peter Mastrandrea

November 17, 1995

Page 1

Kenneth Conboy, Esq.

Latham and Watkins

885 Third Avenue, Suite 1000

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.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Barbara Deinhardt, New York City Protest Coordinator