April 23, 1999___VIA FIRST-CLASS MAIL
Brad Swannie Bradley T. Raymond, Esq.
10823 85A Avenue Finkel, Whitefield, Selik,
Delta, BC V4C 2V2 Raymond, Ferrara & Feldman
CANADA 32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
Tom Baldwin
6566 Hawthorne Drive Murray Ballard, Sec. - Treas.
Windsor, ON N8T 1J9 Teamsters Local Union 31
CANADA 1 Grosvenor Square Delta, BC V3M 5S1
Garnet Zimmerman, President CANADA
Teamsters Local Union 31
1 Grosvenor Square
Delta, BC V3M 5S1
CANADA
Re: Post-73-EOH
Gentlemen:
Brad Swannie, a member of International Brotherhood of Teamsters (“IBT”) Local Union 31filed a protest on March 15, 1999 alleging that Garnet Zimmerman, Tom Baldwin and “Mr. James P. Hoffa, et al.” violated the Rules for the 1995-1996 IBT International Union and Delegate Officer Election (“Rules”): 1) by holding election campaign-related meetings in the offices of IBT Local Union 31; 2) by taking Local Union 31 staff away from union-related work during the day to perform campaign work; and 3) by selling campaign paraphernalia from Local Union 31 offices. For the following reasons, the protest is DENIED.
I. Facts
Mr. Swannie filed this protest in March, 1999, three months after the completion of ballot count in the 1996 IBT International officer rerun election. The misconduct alleged in the protest occurred before the ballot count, and was known to Mr. Swannie at that time. When Canadian Regional Coordinator Gwen K. Randall asked Mr. Swannie why he had not protested earlier, he stated that he had trouble finding corroboration. Mr. Swannie had at least heard of the alleged pre-election misconduct as it occurred, and made no claim that he learned of it only in March 1999.
Since the filing of this protest, the Election Officer issued a ruling in Zimmerman, PR-429-LU987-EOH (March 31, 1999), which certified the results of the balloting for Teamsters Canada Vice-President, subject to the right of interested parties to seek review by the Election Appeals Master. Larry McDonald and Joe McLean, not Mr. Zimmerman and Mr. Baldwin, won the Teamsters Canada Vice-President race.
II. Analysis and Conclusion
Mr. Swannie’s protest is denied as untimely. Even if it were to be considered and substantiated, the protest involves conduct committed by or on behalf of candidates that lost the rerun election for Teamsters Canada Vice-President. Thus, the alleged misconduct did not affect the outcome of the election.
The Rules provide that pre-election protests “must be filed within two (2) working days of the day when the protester becomes aware or reasonably should have been aware of the action protested or such protests shall be waived.” Rules, Art. XIV, § (2)(b). Mr. Swannie described the conduct as occurring before the date of the ballot count (pre-election) and was aware of the alleged violations when they were occurring. The conduct as described by Mr. Swannie was not concealed. Had a timely protest been filed, the Election Officer would have had the opportunity to investigate promptly, determine the facts and, if appropriate, impose a remedy to protect the conduct of the rerun election. That opportunity has been lost. That Mr. Swannie chose not to file at the time he knew of the alleged misconduct because he was seeking what he wanted for corroboration does not excuse the late filing.
Even if the matter were considered to be within the scope of the post-election protest provision – and the conduct alleged is not – the protest would be untimely. The longest period allowed for International officer post-election protests is “within fifteen (15) days of the announcement of the election results,” Rules, Art. XIV, § 3(a)(2). All of the 1996 IBT International officer rerun election results were announced by December 9, 1998, and Mr. Swannie’s March 1999 filing is far outside that deadline.
Finally, even if Mr. Swannie’s allegations were established, no remedy would be imposed. In the post-election context substantiated protests are remedied if the violation “may have affected the outcome of the election . . ..” Rules, Art. XIV, § 3(b). Assuming the violations occurred, they had no effect on the outcome of the election because Mr. Zimmerman and Mr. Baldwin were losing candidates. The Election Officer has proposed certification with Mr. McDonald and Mr. McLean as the winners and, if affirmed, that determination will be final. There is, therefore no need for further investigation or consideration of the protests alleging misconduct involving the losing candidates.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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 & 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, 444 N. Capitol Street NW, Suite 445, Washington, D.C. 20001, facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc:
Patrick. J. Szymanski, Esq.
Kenneth Conboy, Esq.
Gwen K. Randall, Esq.
Brad Swannie