IN RE: TOM LEEDHAM RANK AND FILE POWER SLATE,
Protest Decision 2001 EAD 527
Issued: October 26, 2001
OEA Case No. PR101915NA
(See also Election Appeals Master decision 01 EAM 104)
The Tom Leedham Rank and File Power slate (the "Leedham slate") 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"). The protest alleges that International officer election ballots have not been sent to eligible members of Locals 115 and 763, and possibly other local unions, in violation of Article IV, Section 5 of the Rules.
Election Administrator representative and ballot count site coordinator Dennis Sarsany investigated the protest.
Findings of Fact and Analysis
On October 19, 2001, Local 115 Secretary-Treasurer James Smith sent a facsimile letter to the Election Administrator noting that the local union represents over four hundred school bus drivers employed by Laidlaw Transit, Inc. in the Philadelphia area. The letter states that the "vast majority of these members go on withdrawal status in June of each year and come off withdrawal status in September of each year." Smith noted that "[t]his year, Local 115 received their September dues in October, and that they were returned to active status on the Titan system."
The Election Administrator prepared the list of members who received International officer election ballots through the Ocotber 9, 2001 ballot mailing based on the membership rolls reflected on the IBT's Titan database on September 17, 2001, a date selected because of the requirements of our vendors. Those then on withdrawal status, as well as those not yet recognized as members on that date for other reasons, are not included in the list of those receiving ballots via the October 9, 2001 mailing, and thus did not receive ballots as part of that mailing. This is consistent with the practice of past Election Officers.
The Local 115 Laidlaw school bus drivers, and other similarly situated school bus drivers in Local 763, were not included in the data set including all those receiving ballots via the October 9 mailing. The same would be true for others whose IBT membership status change was not reflected by the snapshot date used to create the data set for the mailing of ballots on October 9.
Secretary-Treasurer Smith's October 19 letter notes his understanding of the timing issue that caused the Local 115 Laidlaw bus drivers non-receipt of ballots through the October 9 mailing. He states that the local union advised those members who had not received ballots to call the toll-free number published by the Election Administrator for members who had not received ballots from the October 9 mailing to request that a ballot be mailed to them.
Smith also reported that on October 18, 2001, some members who had called the toll-free Election Administrator number reported that they had been told that they would be sent a ballot but that they would not be eligible to vote. This led Smith to call the toll-free number that same day, report the information to a supervisor, and obtain a commitment that the alleged misinformation stop.[1]
The Leedham slate protest was originally not docketed as such, but was instead referred to count site coordinator Dennis Sarsany for response. Sarsany did so in writing on October 22 to Leedham slate counsel Betty Grdina. He noted that the Laidlaw school bus driver situation had been the subject of discussion by count site staff on October 18, 2001, including the staff supervising the toll-free information line.
Sarsany responded to Grdina by stating:
Whenever a ballot count is scheduled, there are groups of individuals who, because of job patterns, seasonal patterns, organizing drives or other considerations, have returned to work or recently joined the union but are not included on the ballot mailing. The Election Administrator has elected to follow the practices of past court-appointed Election Officers and require such new members or newly activated members to request a ballot by calling the "800" ballot information line, rather than make numerous supplemental mailings to groups he is advised have become eligible to receive a ballot.
While this practice may not be the most efficient way of getting ballots out to the members, it is even-handed. In this election, we have been advised of groups of newly organized members by officials and/or rank-and-file members of Locals 401, 628, 705, 710 and 979, a block of Local 890 members newly activated after the completion of a long strike, as well as the members of Locals 115 and 763 mentioned in your [October 19, 2001] letter and a letter [of the same date] from the Secretary-Treasurer of Local 115. In each case, a number of new or newly activated members were not placed on the active rolls in time to be included in the ballot mailing list. In each case, we responded by urging the local union to advise all of those members wishing to participate in the election to call 1-800-565-8683 and request a ballot from the Election Administrator.
If the Election Administrator were to respond to each request for a supplemental mailing, there would doubtlessly be similarly situated groups within the union whose needs were neither brought to our attention nor similarly remedied. Strict adherence to the policy of making one initial mailing to members identified as active by the local union affiliates of the International union and responding to individual requests for ballots thereafter, is the only way to address this and similar situation in an unbiased and even-handed fashion.
Grdina responded with a lengthy submission on October 25, 2001. She claims that the approach outlined in the October 22 Sarsany letter is contrary to the requirement of Article IV, Section 5 of the Rules which provides that "[t]he mail ballot package shall be mailed by the Election Administrator from a single location in the United States to all ballot-qualified members residing in the United States and its territories and possessions and from a separate, single location in Canada to all ballot-qualified members residing in Canada."
The term "ballot-qualified member" is defined in the Definitions set forth in the Rules as "a person entitled to receive a ballot and shall include the following: active members (including those classified in the Titan system under status codes 00, 01, 02, 04, 09, 10, 11, 12, 15, 18 and 19, or their equivalents in Local Unions which do not participate in the Titan system) and members who, by virtue of employment in the seasonal food industry and membership in a seasonal Local Union (as defined below), may be eligible to vote."[2]
Article IV, Section 7 of the Rules establishes the procedure by which a member not receiving a ballot may obtain one. It states in relevant part:
Any member not receiving a ballot should contact the Election Administrator immediately if he/she wishes a ballot. … The Election Administrator or a representative of the Election Administrator shall immediately send such person a mail ballot package, regardless of any question(s) concerning the individual's eligibility to vote. Any such ballot cast shall be treated as a challenged ballot.
The Election Administrator's practice, as described in the October 22 Sarsany letter, to which we adhere, follows the provisions of Sections 5 and 7 and other sections of Article IV. Since Section 5 implicitly provides for one single location mailing each in the United States and Canada for ballots union-wide, and since the Guidelines[3] adopted pursuant to Article IV, Section 9 provide that this mailing shall occur on October 9, 2001, it is obvious that a mailing list based upon the Titan data referred to in Section 5 (and comparable data for non-Titan locals) must be created at some point in time. The point in time selected should be as close to the ballot mailing date as possible, while still allowing sufficient time for the printing, sorting and mailing of ballots by the ballot mailing date. A line must thus be drawn at some date, as it was here, and as it has been by past Election Officers.
Since a line must be drawn, it is inevitable that some new and newly activated members, like the Laidlaw school bus drivers and others will fall on the side of that line which results in their exclusion from the uniform ballot mailing date. That will always be the case, since the IBT membership is not static. Moreover, it will also always be the case that there will be a number of definable groups of new or newly activated members who, because they attain that status at a time that means they are excluded from the master ballot mailing list, do not receive ballots with other members.
For such members, the Rules prescribe the manner in which they are to obtain ballots, and it is not that urged by the Leedham slate. Such members are to obtain ballots as set out in Article IV, Section 7, by telephoning the Election Administrator and requesting that a ballot be mailed to them. There is simply no provision in the Rules for a supplemental mailing to groups of members who attained active membership status after the finalization of the ballot mailing data.
Moreover, other provisions of the Rules assure that new or newly activated members will receive notice of the International officer election and of the opportunity to request a ballot if they have not received one. Thus, Article IV, Section 2 of the Rules provides that a notice of the International officer election shall be posted on all union bulletin boards beginning sixty days before the ballot receipt deadline, as well as published in the IBT's magazine. Thus, even if the new or newly activated member does not receive a notice of election in the magazine because his status means it is not mailed to him, he will have access to the notice of election placed on the union bulletin board in his workplace. That notice states, inter alia:
If you do not receive a ballot by October 21, 2001, if your address has changed recently, or if you have any questions about this election process, call 1-800-565-VOTE (in Washington, D.C., 454-1500) immediately.
The same provision of the Rules that requires this notice also makes clear that member requests for ballots pursuant to Article IV, Section 7 are the only method available for mailing of additional ballots once the initial ballot mailing occurs. Thus, Article IV, Section 2 provides that the notice of election "shall specify the method for members who do not receive a ballot to obtain a ballot or duplicate ballot." (Emphasis supplied.) The method is that provided for in Article IV, Section 7. Under that rule, following the initial mailing of ballots only members may request the supplemental mailing of a ballot, and then only for themselves alone. Because of this, the Election Administrator will not honor ballot requests for others on behalf of a member, whether their spouse, steward, friend, or an attorney or representative of a candidate.
The Leedham slate claims that the Election Administrator's position improperly delegates to local unions the "Election Administrator's responsibility for informing members who have not received ballots that were mailed to them or who lost or spoiled their ballots of their rights under the Rules to obtain a new ballot." In support of the claim that such a delegation has occurred, Grdina points to the fact that the October 22 Sarsany letter notes that in each case where the Election Administrator has learned of the existence of new or newly activated members not receiving ballots through the October 9 mailing, he and his staff have urged local unions to advise such members to call the Election Administrator's toll free number if they wish a ballot. This, however, is in no way a delegation of the Election Administrator's responsibility to so inform such members. That responsibility has been accomplished through the Election Administrator's directives concerning publication and posting of his Notice of Election throughout the IBT and in every IBT workplace. Rather, the suggestion to local unions that they also notify members serves merely to increase the possibility that those who wish to vote have the opportunity to do so.
At bottom, the Leedham slate protest expresses a concern that members have been left off the October 9 ballot mailing list for politically motivated reasons. There is, however, no evidence that this has occurred.[4] By contrast, the position adopted by the Election Administrator here, like that adopted by past Election Officers, guards against political manipulation by assuring equal treatment with respect to the acquisition of ballots by all new and newly activated members excluded from the initial ballot mailing. To do as the Leedham slate urges would create a risk, which we are not prepared to take, that similarly situated members would be treated dissimilarly with respect to the manner in which they receive ballots.
For the above reasons, we 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 (facsimile: 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 527
DISTRIBUTION LIST VIA FAX AND 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
3060 Penobscot Building
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
Hoffa Unity Slate
Todd Thompson
209 Pennsylvania Ave. SE
Washington, DC 20003
Matt Ginsburg
Tom Leedham Campaign
P.O. Box 6678
Arlington, VA 22206
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
IBT Local 115
2833 Cottman Ave.
Philadelphia, PA 19149
IBT Local 763
553 John Street
Seattle, WA 98109
Dennis Sarsany
1829 Eddy Street
Chicago, IL 60657
[1] Sarsany responded to Secretary-Treasurer Smith's letter of October 19 on October 22. He advised that the toll-free phone line staff was instructed to "accept all requests for ballots from recently returned Laidlaw drivers from all locals, including Local 115…" and that the phone line staff was further instructed to decline to answer eligibility inquiries except for the statement that all eligibility determinations would be made at the time of the ballot count.
[2] The Laidlaw school bus drivers are not "seasonal" within the meaning of the Rules, since they are not employed in "the seasonal food industry." See Article V, Section 1(d) of the Rules.
[3] See Supplemental Guidelines for the Conduct of the 2001 IBT International Officer Mail Ballot Election (October 2, 2001).
[4] Evidence of intentional delay in the processing onto the Titan system of groups of new or newly activated members for political reasons would, of course, present a serious question. No such evidence has been presented here.