Protest Decisions

ELECTION APPEALS MASTER

--------------------------------------------------------X

IN RE: TEAMSTERS UNITED,

Protestor.                                                                     2015-2016 EAM 18 (KAR)

                                                                                    DECISION RE 2016 ESD 157

---------------------------------------------------------X

The Decision addresses Protest Decision 2016 ESD 157 (ESD 157), issued on April 1, 2016, which was filed by Teamsters United (OES Case No. P-210-030716-SO).  The protest alleged that balloting irregularities in Local Union 2011’s delegates and alternate delegates election denied the slate supported by Teamsters United a fair election. 

Local Union 2011 is a statewide union of Florida Department of Corrections (FDOC) employees, including probation, parole, and correctional officers.

Two full slates competed for the five delegate and five alternate delegate seats up for election in Local Union 2011.  Protestor Teamsters United supported the FDOC Teamsters United slate, which was opposed by the FDOC Teamsters Strong slate.  Ballots were mailed in the local union’s delegates and alternate delegates election on February 5 and counted on March 3.  Of 4,545 ballot packages mailed, 548 valid ballots were returned and counted, a return rate of approximately 12%.  The Teamsters Strong slate received more votes than the Teamsters United slate for all contested positions.  The margin between the winning delegate candidate with the fewest votes and the losing candidate with the most votes was 26; the corresponding margin in the alternate delegates race was 42.

   The protest generally challenges the handling of ballot packages “returned as undeliverable,” and further alleges that:  (1) numerous members were not sent ballots in a timely manner despite repeated phone calls and requests made to the local union; (2) the ballots of numerous members who said they had returned their ballots by mail were not received in the post-office box as of the day of the vote count; and (3) voted ballots were received for members who did not mail in ballots on their own behalf, which strongly suggested that ballot collection occurred.

            Teamsters United filed an appeal on April 5, 2016.  Supplemental submission were received from the Election Supervisor, Local 2011, and TDU on April 8.  A telephonic hearing on the appeal was held on April 11.  This hearing was attended by Jeffrey Ellison, Esq., Delores Hall (OES), Julian Gonzalez, Esq., Kimberly Schultz, Bill Curtis, David Hoffa, Esq., Christy Bailey, Holly E. Van Horsten, Esq., and Barbara Harvey, Esq. 

 Handling of Ballot Packages “Returned as Undeliverable”

The following facts are undisputed except as specifically noted:

Pursuant to the approved local union election plan, the election was administered by a local union election committee as well as staff of the local union.  The local union office is in Tampa, FL.  Under the plan, the local union hired post office boxes in two separate branches of the United States Postal Service, one in Brandon, FL for voted ballots, the other in Mango, FL for ballot packages “returned as undeliverable” (RAU).  When the local union mailed ballot packages on February 5, the return address on the ballot package envelope was the Mango post office box; the address on the envelope for members to mail in their voted ballots was the Brandon post office box.  

The local union assigned Yasmine Rhodes to pick up RAUs from the Mango post office periodically and deliver them to Olesia Trobaugh, an office clerical employed by the union.  Ms. Trobaugh counted the packages received from Rhodes, noted the number of packages and the date of pickup, and then logged the names and addresses of the returned ballot packages.  Ms. Trobaugh then turned the information over to Idie Rodriguez, another office clerical, who checked the address information against a roster received from the FDOC.  FDOC employees are required as a condition of employment to maintain current addresses with the employer, so the FDOC employee roster, issued quarterly, is the most up-to-date source for address information.  If Ms.Rodriguez found that the address on the current FDOC roster was different than the address shown on the RAU for a particular member, she forwarded the different address to Ms. Trobaugh for remailing of a replacement ballot package to the member at the address drawn from the FDOC roster.  If the address on the RAU was the same as that shown on the FDOC roster, she asked a business agent to contact the steward at the facility where the member worked to ask for an updated address.^[1]  If the sources yielded a new address, Ms. Trobaugh would remail a replacement ballot package.[2]  The data of RAU pickup and remailing showed the following:

Ms. Rhodes told the OES Investigator that she went to the Mango post office box on the dates indicated above and retrieved the number of packages shown in the left column.  On the evening of March 1, she returned to the box one last time ahead of the March 3 count date and found 77 RAUs stacked neatly inside the box.  Each bore a yellow sticker applied by the USPS directing the postal service to “return to sender,” either because the addressee was unknown, the address did not exist, or a forwarding order had expired.  Most of the stickers on these 77 RAUs were dated prior to the date of the first pickup of RAUs at the Mango post office.  The following chart sets forth the March 1 evening RAU pickup:

A postal service supervisor at the Mango post office told the OES investigator that the date shown on the yellow sticker indicated the date the receiving post office returned the letter to sender as undeliverable.  The supervisor indicated that, under post office standards, the letter would have been received at the Mango post office within three days after the date shown on the sticker.  By this measure, 73 of the 77 RAUs picked up on the evening of March 1 should have been returned to the Mango post office by February 18, the date Ms. Rhodes made her first pickup of RAUs.  

 A Mango post office clerk told the OES investigator that she saw the stack of RAUs that included the 73 returned prior to February 18 sitting on a shelf behind the post office boxes, out of view and reach of the public, for “a good while” before they were finally picked up.  She stated that, if the box were full, post office personnel should have included a notice printed on yellow paper in the box advising that additional mail beyond the capacity of the box was available for pickup.  The clerk did not know whether such a notice was included with the RAUs, and Ms. Rhodes^[3], Ms. Trobaugh, and Ms. Rodriguez all denied discovering or seeing such a notice.  In any event, evidence showed the box was never full so as to require insertion of a notice.  The box on February 18, the date by which most if not all of the 73 RAUs should have been returned to the Mango post office, had only 13 pieces in it.  A week later, February 25, after the February 18 contents had been picked up, there were 40 more pieces.  The box capacity was at least 77, the number stacked neatly inside when Ms. Rhodes arrived on the evening of March 1, showing that there would have been no reason to insert a notice of excess mail on February 18 or 25. 

From the above evidence, the Election Supervisor concluded that the failure, prior to February 18, to return 73 of the 77 RAUs to the box when they arrived at Mango was postal service error that the local union knew nothing of and had no reason to suspect prior to the placement in the box of the 77 RAUs at some time during the day on March 1.  Accordingly, the Election Supervisor held that the local union had no obligation under the Rules or the local union election plan to attempt remailing of these RAUs. 

The Election Supervisor observed that Article XIII, Section 3(b) requires as a condition preceding any inquiry as to whether conduct may have affected the outcome of an election that the conduct constitute a Rules violation.  Because the Election Supervisor found no Rules violation associated with the postal service’s error in failing timely to deliver the 73 RAUs to the post office box hired by the local union, the Election Supervisor did not address whether that error may have affected the outcome of the election.

It is well-established that the standard of review of the Election Supervisor’s factual findings, including his credibility determinations, is abuse of discretion.  See, e.g., Taylor & Fabiano, 2011 EAM 34 (April 13, 2011); Eligibility of Swain, 2011 EAM 20 (February 22, 2011); Hailstone & Martinez, 2010 EAM 7 (September 14, 2010).  Courts have held that a tribunal abuses its discretion when the facts found are “clearly erroneous.”  Arista Records, LLC v. Doe, 604 F.3d 110, 117 (2d Cir. 2010).  Based upon the undisputed facts, I find that the Election Supervisor’s decision with respect to the handling of the RAUs is supported by substantial evidence.

Requested Ballots Not Sent

The notice of election, which was required to be posted on all union worksite bulletin boards, directed members who did not receive a ballot, or had made a mistake on or lost a ballot they received, to phone the local union to request that a new ballot package be sent to them.  The local union maintained logs for each member who called saying he/she never received a ballot (denoted “new” on the log) and for each member who called saying he/she needed a replacement ballot (denoted “duplicate” on the log).  Each of these logs identified the member by name, address, phone, social security number, date of call, and reason for the request.  In addition, the local union maintained weekly logs that summarized the daily activity of new and duplicate ballot requests.^[4]  These showed that during the week beginning February 15, the first week of activity for phoned requests for ballots, the local union filled two requests for duplicate ballots and nine for new.  During the week beginning February 22, zero requests for duplicates were received, and the local union received and filled four requests for new ballots.  During the week of February 29, no requests for duplicate or new ballots were received or filled.

Jeffrey Kozlowski was the only person identified by Teamsters United who both responded to the OES investigator and reported that he had requested a ballot but did not receive one.  Mr. Kozlowski submitted a sworn statement that when he did not receive a ballot he phoned the local union twice to request he be sent one.  Mr. Kozlowski’s name does not appear on local union logs indicating that he called or that a ballot was mailed to him (other than through the original mailing).  At the count held March 3, the ballot sent to Mr. Kozlowski in the original mailing was received, opened, and counted.^[5]  The protestor presented no additional evidence of members who said they requested ballots and did not receive them. 

Based upon the above facts, the Election Supervisor found no evidence to support the allegation that “numerous” members requested ballots from the local union and did not receive them.  The Election Supervisor rejected Mr. Kozlowski’s claim based upon the lack of substantiation in the business records of the local union.  This determination is not clearly erroneous. 

Voted Ballots Not Found at the Brandon Post Office Box on March 3

With respect to the allegation that “numerous” ballots of members who said they voted were not found in the Brandon post office box on March 3, the Election Supervisor found as follows:

Latreace Ashford stated she did not receive a ballot and called the union to request one.  Local union logs show that her phone call was received on February 22 and that a replacement ballot package was mailed to her on February 23.  No ballot was received from Ms. Ashford by the March 3 pickup of voted ballots at the Brandon post office box.  However, Ms. Ashford’s ballot was found in the Brandon post office box when it was emptied of late arriving ballots and closed out on March 9.  Second, William O’Steen said he received his ballot and mailed it back on February 11 by placing it in his mailbox at the end of his driveway in a rural area.  No ballot was received from Mr. O’Steen by March 3; nor there any ballot in the Brandon post office box when it was closed out on March 9.

I find that the Election Supervisor properly concluded that the above evidence does not establish a violation of the Rules or the local union election plan.

Ballots Received for Members Who Did Not Themselves Cast Ballots

With respect to the protestor’s third allegation that voted ballots were received for members who did not cast the ballots themselves, the sole evidence offered by was provided by Mr. Kozlowski, who stated that the address for him on the list used to mail ballots was incorrect and that he had moved his residence eighteen months ago.  He further stated that he did not receive a ballot after the initial mailing, phoned the local union twice to request one, but never received one.  Nonetheless, a ballot return envelope bearing his name and member information was returned to the Brandon post office box designated for voted ballots. According to the OES investigator, this ballot was mailed from a post office near Mr. Kowalski’s current address. 

No additional evidence was presented or found of members whose ballots were received yet claimed they did not vote them. 

I find that the Election Supervisor correctly determined that this evidence does not demonstrate a violation of the Rule or the local election plan.  In any event, assuming that the ballot mailed to Mr. Kozlowski was somehow intercepted and voted by someone other than Mr. Kozlowski, Teamsters United has not demonstrated that this may have affected the outcome of the election.

For the above-stated reasons, the appeal is DENIED, and the decision of the Election Supervisor is AFFIRMED. 

SO ORDERED.

/s/__________________________________

KATHLEEN A. ROBERTS

ELECTION APPEALS MASTER

April 25, 2016