Protest Decisions

January 18, 1996

VIA UPS OVERNIGHT

Frank A. Marino

January 18, 1996

Page 1

Frank A. Marino

8 Sumpter Street

Albany, NY 12205

Irving Wood, Secretary-Treasurer

Teamsters Local Union 669

Labor Temple, 890 3rd Street

Albany, NY 12206

Richard C. Richardson

Election Office Field Representative

526 Centennial Avenue

Trenton, NJ 08628

Frank A. Marino

January 18, 1996

Page 1

Re: Election Office Case No. P-292-LU669-PGH

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

Frank A. Marino, a member of Local Union 669, against Local Union 669 Secretary-Treasurer Irving Wood, and Richard C. Richardson, a representative of the Election Officer who supervised the local union's nominations meeting for delegates to the International convention.  The protester alleges that the nominations meeting began prior to its scheduled starting time of 7:00 p.m., denying him the right to be a candidate for delegate.  Furthermore, the protester asserts that the meeting should have been canceled or at least delayed due to adverse weather conditions.

The charged parties respond that the nominations meeting began at 7:00 p.m., but that the protester arrived late.  They state that a light snow was falling that evening, but the roads were clear and the parking lot of the union hall had been plowed.

Regional Coordinator William B. Kane investigated the protest.

Frank A. Marino

January 18, 1996

Page 1

Local Union 669 held its nominations meeting on January 3, 1996, with Secretary-Treasurer Wood presiding.  When Mr. Wood opened the meeting, three other individuals were present:  Members Oswald Martucci and William Anthony, and Mr. Richardson, representing the Election Officer.  According to the minutes taken by Mr. Richardson, the meeting began at its scheduled starting time of 7:00 p.m.  Mr. Richardson presented a brief outline of the Rules and discussed their purpose, followed by nominations for delegate, which were opened at approximately seven or eight minutes after 7:00.   Mr. Martucci nominated Mr. Wood for delegate; the nomination was seconded by Mr. Anthony.  After accepting the nomination,

Mr. Wood asked three times whether there were any other nominations for delegate.  As none were made, Mr. Wood closed the nominations.

Mr. Wood then announced nominations for alternate delegate.  Mr. Anthony nominated Mr. Martucci, Mr. Wood seconded the nomination, and Mr. Martucci accepted.  At that point, five members of the local union entered the hall:  Frank Marino, Donald Stewart,

John Panetta, Donald Kenelly and Brian Koehler.  Mr. Marino and Mr. Koehler stated that they wished to make a nomination for delegate.    Mr. Wood stated that nominations for delegate were closed.[1]  His ruling was supported by Mr. Richardson.  Mr. Wood told

Mr. Marino and Mr. Koehler that the Rules prohibited reopening nominations and they should have been on time if they wished to nominate a candidate.

Mr. Marino then stated that he wished to make a nomination for alternate delegate and nominated himself.[2]  Mr. Steward seconded the nomination and Mr. Marino accepted.  When Mr. Wood asked whether there were any more nominations for alternate delegate, Mr. Panetta nominated Mr. Koehler; the nomination was seconded by Mr. Kenelly and Mr. Koehler accepted.  Mr. Wood closed the nominations for alternate delegate after repeating his question and receiving no response.   The nominees were each given a Candidate Information Sheet to complete.   

The protester states that he drove to the nominations meeting with Mr. Panetta.  Outside the union hall, they met Mr. Koehler, Mr. Stewart and Mr. Kenelly and the five men entered together.  As they went into the meeting, Mr. Marino states, he asked Mr. Stewart for the time and the latter's watch indicated it was 6:59 p.m.  When they entered the room, nominations were being taken for alternate delegate.  According to the protester, when one of the members in Mr. Marino's group inquired about delegate nominations, Mr. Richardson replied that those nominations were closed at 7:03 p.m.  Asked for the time by Mr. Marino, Mr. Richardson stated that it was 7:07 p.m.  

Mr. Marino claims that it was snowing at the time of the nominations meeting and there were nine or ten inches already on the ground.

Frank A. Marino

January 18, 1996

Page 1

Mr. Wood states that while it was lightly snowing the night of January 3, the roads were not affected.  According to Mr. Wood, he arrived at the meeting site around 5:45 p.m., followed by Mr. Martucci, Mr. Anthony and Mr. Richardson at approximately 6:00 p.m.  He opened the meeting at 7:00 p.m., according to his watch, after checking the time with

Mr. Richardson.  Mr. Wood estimated that Mr. Marino and his supporters entered the meeting about 7:10 or 7:11.

In the view of the Election Officer, the instant protest hinges on the question of whose watch provided the correct time on the evening of January 3, 1996.  Mr. Marino asserts that he entered the meeting room at 6:59 p.m., according to Donald Stewart's watch.  However, Mr. Stewart advised the Regional Coordinator that his watch always runs between five and ten minutes slow.  Mr. Stewart's statement is reinforced by the protester who states that when he left the meeting he asked Mr. Richardson for the time and Mr. Richardson replied that his watch showed 7:45 p.m.  According to Mr. Marino, he checked this against Mr. Stewart's watch, which indicated a time six or seven minutes earlier.

The evidence shows that Mr. Stewart's watch was indisputably slow the night of the nominations meeting.  Therefore, the Election Officer credits the statements of

Mr. Richardson and Mr. Wood that the nominations meeting commenced at 7:00 p.m. and the protester and his supporters entered the meeting between 7:07 and 7:10 p.m.  As only three members were present at 7:00 p.m., and one nomination was made for delegate, it is not surprising that delegate nominations were concluded by 7:10 p.m.   

In regard to the weather on the night of January 3, Mr. Marino described it as "inclement" and told the Regional Coordinator that nine or ten inches of snow had fallen.  The protester, however, does not claim that the snow delayed his or his supporters' timely arrival at the nominations meeting.  On the contrary, Mr. Marino stated that he and Mr. Panetta arrived at the meeting several minutes before the scheduled starting time and met Mr. Koehler, Mr. Stewart and Mr. Kenelly, who were outside the hall smoking cigarettes.  Thus, the Election Officer finds that the weather is not a factor in determining the instant protest.

For the reasons set forth above, 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

Frank A. Marino

January 18, 1996

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

William B. Kane, Regional Coordinator