IN RE: LARRY HART,
Protest Decision 2001 EAD 242
Issued: March 20, 2001
OEA Case No. PR022611MW
See also Election Appeals Master decision 01 EAM 57 (KC)
Larry Hart, a delegate candidate on the 705 Independent Delegate slate at Local 705, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that by altering members' names on the envelopes in which members place and return their marked ballots, Gerald Zero and the Jerry Zero Unified Delegate slate (collectively, the "Jerry Zero slate") are attempting to eliminate members' votes and are engaging in "harassment and intimidation."
Election Administrator representative Dennis Sarsany investigated the protest.
Findings of Fact
It is undisputed that much of the ballot mail for Local 705's delegate election had incorrect last names for Local 705 members. Specifically, many members with middle initials received materials, including return ballot envelopes, on which their middle initial was transformed into the first letter of their last name. No middle initial appears on such envelopes.
Signed, Sealed and Delivered, Inc. ("SSD") was hired to mail ballot materials for Local 705's delegate election. SSD's responsibilities included the production of labels for ballot return envelopes. To create the labels, SSD worked from a file sent electronically by Local 705's manager of its local membership department, Joan Somer. Somer sent the file in the same format that was used by SSD, without incident, in Local 705's November 2000 officer election. Somer stated that before the ballot mailing, Murray Mizock, the owner and manager of SSD, contacted her because he was having some difficulty with the information. Somer believes that Mizock may have incorrectly split the data fields for middle initial and last name. Mizock admits that SSD did not catch the problem and speculates that the file field with the middle initial was corrupted in the electronic transmission. Aside from members' names, SSD printed the address label correctly. In addition, the error did not change any data sent by the membership department to SSD, only the manner by which the data was printed on the envelopes.
Bruce Boyens is the independent election officer for Local 705's delegate election. Nancy Abell, an independent contractor employed by Boyens, has worked with the Election Administrator's representatives to address concerns shared by her office, the Election Administrator's office, and Local 705 members about the misspelling of their last names. Members who have called the independent election officer regarding the problem have been advised that their ballot will count and have been instructed to correct the address information to reflect the correct spelling of their names. Whether they do so has not interfered with their right to cast a vote if they have meet the requirements for eligibility.
Upon hearing of the problem, the Election Administrator's staff inquired whether members whose ballot packages contained misspelled names would not receive ballots. In response, ballot mail returned as undeliverable has been monitored daily, and the number of pieces returned as undeliverable has been compared against similar returns made during the November 2000 officer election. As of March 7, 2001, 13 days after the mailing of ballots, 397 ballot packs had been returned as undeliverable. As of November 22, 2000, 13 days after the mailing of the Local 705 officer election ballots, 537 ballot packages were returned as undeliverable. From this comparison, it appears that the misspelled names have not caused an increase in ballot packages returned by the U.S. Postal Service as undeliverable.
As an additional check, every ballot package returned as undeliverable has been inspected. Every ballot package addressed to a member with a misspelled last name has been manually corrected, and even if an updated address is unavailable, the corrected ballot pack has been remailed to assure that the corrupted last names do not deny any member the opportunity to exercise his or her political rights. As of March 7, 2001, nearly every one of the 254 amended and remailed ballot packages that were initially sent with the wrong last names were again returned as undeliverable.
Analysis
The middle initial and last names of many Local 705 members were inadvertently merged in the process of printing mailing addresses on ballot mail. It is clear that this widespread problem did not affect the actual data, but only how that data was depicted on the mailing label.
Hart offered no evidence that the Jerry Zero slate had any involvement in the error, much less intended to intimidate members or disenfranchise them. Likewise, we have received no evidence or rational explanation as to how the error benefits one slate of candidates over another. Finally, the error does not interfere with the right of individual members to cast their vote and have it tallied.
We, therefore, DENY the protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 242
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Larry E. Hart
2751 N. Oxford Dr.
Markham, IL 60426
IBT Local 705
Attn: Gerald Zero
1645 W. Jackson Blvd.
Chicago, IL 60612
Dennis M. Sarsany
1829 Eddy St.
Chicago, IL 60657