December 5, 1995
VIA UPS OVERNIGHT
James N. Brinkmann
December 5, 1995
Page 1
James N. Brinkmann
8535 S.W. 80th Avenue
Portland, OR 97223
Tony L. Andrews, Secretary-Treasurer
Teamsters Local Union 305
1870 N.E. 162nd Avenue
Portland, OR 97230
James N. Brinkmann
December 5, 1995
Page 1
Re: Election Office Case No. P-235-LU305-PNW
Gentlemen:
A pre-election protest was filed on November 13, 1995 pursuant to Article XIV, Section 2(b) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by Jim Brinkmann, a member of Local Union 305 who was a candidate for alternate delegate on the Working Teamsters slate in the Local Union 305 delegate election. The protest is filed against Team 305, the slate opposing the Working Teamsters, and
Tony Andrews, a member of Team 305 who is also Local Union 305's secretary-treasurer.
Mr. Brinkmann contends that Team 305 violated the Rules by distributing a campaign flyer on August 22, 1995 that allegedly misrepresented positions taken by the Working Teamsters on certain issues. The protester alleges that the misrepresentations could have affected the outcome of the delegate election in which the Team 305 slate was declared the victor after the ballots were counted on September 21, 1995.
Mr. Andrews responds that the protest is untimely.
The protester admits that he knew of the August 22 flyer within three days thereafter, but replies that he did not appreciate the impact of the misrepresentations until November 5, 1995, when a co-worker told him that hearing one of the alleged misrepresentations prior to the election motivated the member to campaign against the Working Teamsters.
James N. Brinkmann
December 5, 1995
Page 1
This protest was investigated by Regional Coordinator Christine M. Mrak.
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 limit was designed to ensure that alleged violations of the Rules are 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, Team 305 and Mr. Andrews have preserved its objection, and the timeliness issue must be resolved.
The flyer that is the subject of this protest summarizes and compares the positions of Team 305 and the Working Teamsters on maintaining a local union strike fund, control of the pension fund providing benefits to Local Union 305 members, and other issues. The protester claims that the flyer misrepresented the position of Local Union 305 on the strike fund and the pension fund. The protester admits that he was aware of the flyer within three days of its
August 22, 1995 distribution. The protester has provided no reason why he was not able to protest the flyer within the two-day limit required by the Rules. The protest was therefore waived.
Based upon the foregoing, 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, Suite 1000
New York, NY 10022
Fax (212) 751-4864
James N. Brinkmann
December 5, 1995
Page 1
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
Christine M. Mrak, Regional Coordinator