REPORT TO T EXECUTIVE BOARD OF

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 18

This Report responds to some of the claims, comments, and protests raised in the September 21, 2005 letter to the 1TJOE, Local 18 Executive Board from Patricia Kohl. Bruce Bertle and Michael Lumbatis also submitted letters dated September 21, 2005 that mirror Ms. Kohl’s letter of that same date regarding their eligibility to be candidates. Several of Ms. Kohl’s points fall outside of the specific role assigned to us as counsel to the Election Committee, and in those cases, we understand that the Executive Board will address those without our assistance. RESPONSE: No where in the Rules for Nomination and Elections – 2005 General Election report that first appeared in the May issue of the Buckeye Engineer does it state that Mr. Rosenblat was hired by the Election Committee as Legal Council. It does list that they had engaged the services of Graff, Ballauer, Blanski, & Friedman, P.C., C.P.A.’s to assist in the conduct of the election. It further states that Pacific Election Systems would carry out the tallying of ballots. On September 12, 2005 in my many phone calls to Warren Wright, Mr. Blanski, Mr. Sink and others, I asked who hired Mr.Rosenblat. Mr. Wright said the Election Committee didn’t hire him but he thought Mr. Rosenblat worked for Mr. Blanski. I asked Mr. Blanski if Mr. Rosenblat worked for him and he said no, he was hired by the Election Committee. I asked Mr. Sink and he said Mr. Rosenblat worked for Blanski! At a later date I asked 14 year Election Committee member Glen Haught and he didn’t know for sure either. My question is who hired this man, who paid this man, and if no proof can be given, his response be thrown out and not considered!

We will focus on issues that directly deal with the conduct of the election and the Election Committee. First, however, we were asked to summarize the relevant protest procedures. RESPONSE: Who asked him to write this response and who is paying him?

The Local 18 By-Laws do not directly address election dispute procedures. However, the By Laws state: “matters not covered by the By-Laws shall be governed by the Constitution of the International Union of Operating Engineers.” (Article XXXV, Section 1, By-Laws.) Challenges to elections are covered by Article XXIV, Subdivision 1, Section (g) of the International Constitution. The Constitution requires protests to be filed ‘with the Local “within thirty (30) days after the election, setting forth in writing the specific reasons for such protest.” Members who have filed a timely protest “may appeal the decision of the Local Union thereon to the General Executive Board and the General Convention in accordance with Article XVII of this Constitution.”

Article XVII of the Constitution generally details procedures for appeals to the General Executive Board. A member challenging an election must file his or her appeal with the General Secretary-Treasurer within thirty (30) days of the decision being appealed. The appellant must file

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“a complete statement of the evidence, exhibits and decisions in the case of an appeal from the act of a Local Union or subdivision herein referred to, and at the same time file a copy of said evidence, exhibits and decisions with the said Local Union or subdivision affected.” The Local then has thirty (30) days to respond to the appeal. After the Local’s time to respond passes, the General Executive Board will hear the appeal, either on the record, upon retrial, or both, and make its decision. Once the General Executive Board rules, the appellant may the appeal to the General Convention within thirty (30) days of the General Board’s decision.

The Constitution requires exhaustion of internal remedies for a period not exceeding four months. Local 18 By-Laws contain a similar provision precluding court action for at least four (4) months (Article XXXV, Section 3). The Constitution subjects members who resort to outside remedies prematurely to “a fine equal to the full amount of the costs incurred in the defense of any such action by the Union, together with such costs additional as the court may fix or assess against said member.” RESPONSE: Could this be considered a form of intimidation?

Ms. Kohl’s first point is that the election results of the local-wide offices were not distributed to candidates and others broken down district by district. This observation is more a criticism than an actual protest of the election process or results. Neither federal law, the IUOE Constitution (hereafter, “Constitution”), the Local 18 By-Laws (hereafter, “By-Laws”), nor the Rules for Nomination and Election — 2005 General Election (hereafter, “Election Rules”) adopted by the Election Committee require, provide for, or in any way suggest that the results for local-wide offices should be broken down district by district and distributed. Election results for local-wide and district-wide office were widely distributed after they were certified by the Election Committee. Further, when the Department of Labor supervised Local 18 elections, it never directed the Local to

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certify and distribute results broken down by each office in the way suggested by Ms. Kohl. The election results were certified by the Election Committee. Those results report each candidate’s vote totals and for which office they received the votes. District-by results for local-wide offices were never requested or certified by or distributed to the Election Committee.

The basis for any election protest is that something corrupted the election process in such a way that it may have affected the outcome of the election. Here, the election was already over before the complained-of conduct even took place. RESPONSE: Officers and Executive Board were on the same ballot and had to be counted that way. Each district was counted separately, therefore 6 different numbers had to be totaled (6 districts) to come up with the total count for Officers statewide. Checks and Balances! How do the members of Local 18 know those numbers equaled the numbers the Local printed at the end? Additionally, why are two different sets of results printed? (See 2002 Election Results that was included in appeal.) When the Business Manager and Officers of Local 18 try to hide results, it then calls to question the entire election process and all else they are able to manipulate. This definitely could have affected the outcome of the election since we do not know what numbers they used to add up to the results they gave the members. It should be noted that I began asking for the total results on the night of the vote count. I had a plane to catch and one of my Observers, Christopher Miller, remained and asked countless time for the results by district. John Ginley also asked for the results by district. Both were denied. On September 12, 2005 when Blanski and Sink were so adamant that I be denied the results by district, I was positive they had something to hide concerning this issue. It also confirmed all of the other issues I cite were indeed unfair and biased.

Included with her materials, Ms. Kohl provided a copy of the 2002 election results broken down by district. That is immaterial. Even if the results were provided to some in that way in prior elections, the decision of the Union in those circumstances does not bind the Union to adopt the same practices in subsequent elections. RESPONSE: This is a statement from an attorney who no one claims to have hired. Rosenblat refers to “the decision of the Union in those circumstances does not bind the Union to adopt the same practices in subsequent elections”. He admits that the union decides what results other candidates and members gets in what years and that they have the results. My point exactly, Sink has the results, he was given them by Blanski, and the results by district do not add up to the number they reported. OTHERWISE AN HONEST BUSINESS MANAGER, WHO HAS NOTHING TO HIDE AND BELIEVES IN DEMOCRACY, WOULD DEMAND THAT HIS MEMBERS BE GIVEN ANY AND ALL PROOF OF THEIR VOTES. Furthermore, this gives the incumbents and unfair advantage in all elections if they know in what district they are weak and what districts their opponents are strong. They did not make the 2002 results by district readily available to all candidates and therefore had an unfair advantage in this election.

Our review does not extend to investigate the accusations of Ms. Kohl regarding conversations and statements allegedly involving her, Election Committee Chairman Warren Wright, Election Committee Certified Public Accountant Michael Blanski, and Business Manager Pat Sink.

On page 2 of her letter, under letter ”E,” Ms. Kohl states that counsel’s opinion conflicts with the By-Laws. In fact, Ms. Kohl does not point to any by-law requiring reporting local-wide election results district by district because no such by-law exists. The conduct and counsel given by both Mr. Blanski and me is entirely consistent with all applicable rules. The Election Committee submitted a written report certifying the results as required by By-Law Article XII, Sections 10 and 15. RESPONSE: The By-Laws states results, not partial results per approval of Pat Sink. Any union member sitting in judgment of this issue would surely agree if he were to vote by district and he were a candidate, he would demand the results of his district.

At the bottom of page 2 of her letter, Ms. Kohl begins her second point regarding the interpretation of Article XXIV, Subdivision 1, Section (b) of the Constitution and Article XIII.,

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Section 12 of the By-Laws regarding attendance at membership meetings. Ms. Kohl fails to recognize that the election begins when the ballots are mailed, which was by 3:00p.m. on August 8, 2005. The membership meetings began later that evening. The meetings that took place on August 8 were after the election began. RESPONSE: This is absurd! The election begins when the ballots are counted not when they are mailed. The DOL will confirm this!

Therefore, attendance by candidates was not required at those meetings. RESPONSE: Attendance was required. We were required to sign in as candidates with the Election Committee and it was stated many times by the Committee and by the District Rep. that failure to sign in would result in disqualification. A sign posted that candidates must sign in. There are written records of signatures of candidates on August 8, 2005. I have been a candidate in four elections. The two district meetings between nominations and vote count are July and August and we always were required to sign in at both meetings.

In fact, our view is supported by General President J. C. Turner’s decision on October 31, 1983, a copy of which is enclosed. RESPONSE: Mr. Rosenblat sites that GP Turner’s “decision”. If you read the article, it was not a decision, it was an “opinion”. Furthermore, a General President does not have the power to make rules. It is further believed that the candidates that the opinion refers to were candidates supported by the officers of the Local making the request for an opinion.

Bruce Bertle and Michael Lumbatis were found to be ineligible to be candidates based on the Election Committee’s review of the facts, and applicable law, including the Constitution, By-Laws, and Election Rules. Ms. Kohl admits that the action of Steve DiLoreto was “legally within the rules” of the Election Committee (page 3 of her letter), but complained of the results, the disqualification of candidates she supported. Her other comments fail to amount to protests as much as criticism of the Rules and even the United States Postal Service. It is worth noting here that the Election Rules were published in the May2005 and June 2005 issues of the Buckeye Engineer, which, regardless of the July2005 issue, should have reached both Mr. Bertle and Mr. Lumbatis in time for them to request relief from the Election Committee. The Election Committee consistently treated all nominees and candidates equally and fairly, and consequently, gave no advantage to any candidate. On page 3 of her letter, Ms. Kohl wrote that “ Election Committee formulated a rule that was not consistent with the International Constitution or By-Laws of Local 18 and placed an added burden on Bruce Bertle and Michael Lumbatis’ as candidates” However, Ms. Kohl fails to demonstrate how the Election Rules are inconsistent with the Constitution or By-Laws. RESPONSE: The International Constitution and By-Laws of Local 18 states that a candidate must notify, which they did. It does not state that they must notify the committee in writing.

Bertle and Lumbatis had the same obligation to attend meetings as every other candidate and the same opportunity as every other candidate to appeal to the Election Committee for relief. They simply failed to do so.

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Ms. Kohl’s most interesting point is found on page 4 of her letter. She points out that the July issue of the Buckeye Engineer should have included the names of all eligible candidates. RESPONSE: This is clearly stated in the By-Laws of Local 18, Article XIII, Section 13. Furthermore, Article XIII, Section 11 states that “the Election Committee Shall conduct the election in accordance with these By-Laws, the International Constitution, such rules and regulations as may be promulgated by the Executive Board of this Local Union, and in strict conformity with applicable law. Any question or dispute arising regarding the election procedures shall be referred tot the Local Union’s Executive Board for a ruling”. This was not done.

The Election Committee, though, did not rule on candidate eligibility until the July 16, 2005 meeting, which was after the July Buckeye Engineer was published. The August 2005 issue did list the eligible candidates Ms. Kohl states that had the July Buckeye Engineer listed eligible candidates, Bruce Bertle and Michael Lumbatis would have been listed. At that time, the Election Committee had still not had an opportunity to declare them ineligible, but that does not mean that they were eligible candidates when the July Buckeye Engineer was published. In fact, no nominee was declared eligible or ineligible as a candidate until the July 16, 2005 Election Committee meeting. RESPONSE: Rosenblat states they did not have the opportunity to declare them ineligible. Opportunity????? What about the By-Laws? Again this is a clear violation of the By-Laws, Article XIII, Section 13.

In the 1993 Local 18 election sponsored and supervised by the United States Department of Labor, a similar timeline to the one adopted by the Election Committee in 2005 was utilized. The Department of Labor did not object to the 1993 timeline. RESPONSE: This practice was not “approved” by the Department of Labor in 1993. That election was monitored; this issue was not one of the protests of the 1990 election which was the cause of the monitoring of the 1993 election.

Further, there was no prejudice to any nominee or eligible candidate by the failure to publish eligible candidates in the July 2005 Buckeye Engineer. RESPONSE: Had the Committee abided by the By-Laws, Bertle and Lumbatis would have been “eligible” in the July issue of the Buckeye Engineer.

The July Buckeye Engineer did include a list of all nominees, with the note that “the time this list was prepared, the Election Committee had not determined the eligibility of any nominated candidates.” RESPONSE: The By-Laws state that a list of eligible candidates not nominated candidates will be printed in that issue.

On page 5, Point 3, item 1, Ms. Kohl accurately states that the Business Manager appoints the Chairman of the Election Committee. That appointment is consistent with the International Constitution, Local By-Laws, Election Rules, and federal law. Ms. Kohl fails to identify any instance of corruption, abuse, or prejudice as a result of the Business Manager appointing the Chairman of the Election Committee

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Point 3, item 2, on page 5 expresses Ms. Kohl’s displeasure with the refusal of the Election Committee at the Post Office to have the Post Office count the pieces of mail which were delivered to the Committee on August 27, 2005. First prior to arrival at the Post Office, the Committee had already determined what procedures to follow. Those procedures did not include securing a count by the Post Office at that time. The accurate count of ballots is the count that was prepared by the Election Committee and those assisting in the counting process. Finally, Ms. Kohl does not suggest that the failure to secure the count at the Post Office, as she requested, prejudiced any candidate or compromised the integrity of the election. She just expressed some displeasure that the Committee reaffirmed its decision to proceed along the lines to which it had previously agreed. RESPONSE: This is the right of all candidates to ask for checks and balances. I would think I would not have had to ask, that the Committee would have demanded a count of what they were getting. The Election Committee Rules states a quorum is 7, there were only a total of nine Election Committee members who appeared for the vote count, therefore, all did not go to the post office and I question if there was a quorum. Again, this was not a count of ballots; it was a count of pieces of mail received. Patrick Sink, a candidate, wrote a letter to the post office for the Election Committee. In his letter, Sink refers to the number of the box which means the box was rented prior to the letter. Who rented the box and when? Who got the keys? Sink also directs the box be plugged on August 8, 2005. Since we don’t know who rented the box, when it was rented, or who has the keys, how do we know what was put into that box prior to August 8, 2005?

Beginning on page 5 of her letter, under Point 4, Ms. Kohl recounts a story of a caller identifying himself as a Local 18 Business Agent leaving a phone message for Glenn Haught, a Local 18 member, eligible voter, and Election Committee member. The telephone message allegedly asked Mr. Haught to support the incumbent candidates. From the Election Committee perspective, the Committee this election cycle and historically, has agreed to maintain a publicly non-partisan posture. Committee member Haught, based on what Ms. Kohl reported, did not act improperly, although he apparently did reach out to one of the candidates, Ms. Kohl, to advise her that the Sink/Triplett campaign was phone-banking Local 18 members. As far as the call to Committee member Haught is concerned, no rule, law or practice prohibits candidates from soliciting any Local 18 member, including Election Committee members, for their vote. The detail described by Ms. Kohl does not support the conclusion that Committee member Haught was “pressured.” In fact, Committee member Haught never mentioned this event at any of the Election Committee meetings. RESPONSE: Mr. Haught also is an honest man who I believe will tell the truth. He told me it wasn’t his place to say anything. Members have fear of retaliation.

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Regarding Point 5 on page 6 of her letter, in spite of Ms. Kohl’s accusations, there is no evidence that anyone improper had access to the Post Office box. The Post Office was instructed not to discuss the contents of the box with anyone. The July 16, 2005 letter from the Business Manager and Election Committee to the Postmaster enclosed herein, requests that information regarding the number of ballots be released only to the Certified Public Accountants. The Post Office may have failed to follow those instructions; however, again, Ms. Kohl fails to suggest what prejudice this may have caused any particular candidate. She was also mistaken in understating Mr. Blanski ‘s and his firm” s role in the election process. The Election Committee is authorized to retain professionals and any other assistance necessary in order to assure the smooth conduct of the election. Mr. Blanski and his firm acted in just that way with the authorization of the Committee. The Election Committee and their Chairman are made up of working operating engineers. These members serve as volunteers. It would be impossible to conduct an election without the assistance of fill-time professionals. RESPONSE: No where in Local 18 By-Laws, The Election Rules, or the International Constitution does it give Blanski this privilege. The By-Laws specifically states in Article XIII, Section 15, Item C, that “No one will have access to the post office box until the specified time and date”. Patrick Sink, a candidate, gives Blanski this privilege in his letter. This brings up the question that, as a candidate, why is Pat Sink writing letters for the Election Committee? Furthermore, in his letter, Sink refers to the number of the box which means the box was rented prior to the letter. Who rented the box and when? Who got the keys? Sink also directs the box t be plugged on August 8, 2005. Since we don’t know who rented the box, when it was rented, or who has the keys, what was put into that box prior to August 8, 2005? A letter from Patrick Sink representing the Election Committee is a violation of election laws. The Committee did not authorize Mr. Blanski, Mr. Sink did.

Regarding Point 6 in Ms. Kohl’s letter, in the 1993 supervised election, the Department of Labor approved mailing of the Local 18 ballots from the same Post Office in Illinois as has been used for each Local 18 officers’ election since that time, including the 2005 election. No candidate has demonstrated any prejudice based on the location of the mailing Post Office. Ms. Kohl’s final point, 7, also fails to meet the standard of a bona fide protest in that she alleges no specific misconduct or prejudice. As she stated, in the midst of the counting process, several candidates gave a written request to have a portion of the ballots hand-counted to the Election Committee Chairman. That request was denied. The Executive Board should know that the counting machine was tested before the count began, and after the count was completed. Both tests were done under the

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observation of candidates and observers, and that there is no evidence or suggestion of evidence by Ms. Kohl that a hand-count would have been more accurate than the machine count. RESPONSE: It was not stated that a hand count was more accurate. I and other candidates requested a sample number of ballots be hand counted to assure accuracy. This procedure should have been demanded by the Election Committee for the purpose of checks and balances.

In conclusion, the matters presented by Ms. Kohl, Mr. Bertle, and Mr. Lumbatis do not rise to the level that the Executive Board should grant the relief they seek, overturn the certification of the result of the August 27, 20054 election, or to re-hold the election.

Respectfully submitted,

Stephen J. Rosenblat

BAUM SIGMAN AUERBACH & NEUMAN, LTD.