Protest Decisions

ELECTION APPEALS MASTER

FOR THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS

            Protest Decision 2021 ESD 67, which addresses a pre-election protest filed by Jackie Spears, was issued on February 28, 2021 (OES Case No. P-090-022721-FW) by the Election Supervisor.  The protest alleged that the printed ballot for Local Union 2010’s delegate election incorrectly included the names of alternate delegates in violation of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (the “Rules”).    

On February 28th, the Office of Election Supervisor granted the protest and ordered that the ballots be reprinted without the names of the alternate delegates.  The next day, on March 1, 2021, Jason Rabinowitz, the Secretary-Treasurer of Local 2010, appealed the decision.  By Notice of Hearing, the Election Appeals Master ordered a telephonic hearing for March 1st because the incorrect ballots were scheduled to be mailed out to members that afternoon. 

Mr. Rabinowitz’s appeal, which was submitted by counsel, included a letter-brief that was previously provided to the Election Supervisor on February 28th that outlined Appellant’s position.  On March 1, 2021, the Office of Election Supervisor submitted supplemental written argument in support of its position.            

A telephonic hearing was held on March 1, 2021.  The following individuals attended the hearing:  Jeffrey J. Ellison, Esq., and Deborah Schaaf on behalf of the Office of the Election Supervisor; Jackie Spears, delegate candidate in Local 2010’s election for the “Fight the Good Fight” slate; Jason Rabinowitz, Secretary-Treasurer for Local 2010 and a delegate candidate for the opposing “Team 2010 Unity” slate; and Melissa Munio, Chief of Staff for Local 2010 and also a delegate candidate for “Team 2010 Unity.”  Due to the exigent circumstances associated with this appeal, the Election Appeals Master issued a decision at the conclusion of the telephonic hearing denying the appeal and affirming the Election Supervisor’s decision. 

             Background

            Local Union 2010 is based in California and has over 10,000 Teamster members.  On October 18, 2020, the Election Supervisor approved Local Union 2010’s Election Plan, which entitled the union to elect 14 delegates and 4 alternate delegates to the June 2021 IBT International Convention.  See Local 2010 Election Plan Summary at page 1.  On January 30, 2021, a nominations meeting was held to determine which members from the local would run for those positions.  At the meeting, the “Team 2010 Unity” slate nominated 14 members to run for all of the available delegate positions and 4 members to run for all of the available alternate delegate positions.  The opposing “Fight the Good Fight” slate nominated 3 candidates to run for delegate, but did not nominate any alternate delegates. 

Pursuant to of the Rules, the 4 alternate delegates nominated by the “Team 2010 Unity” slate were automatically elected to their positions at the nominations meeting on January 30th because there was no opposition to their candidacy.  The Rules state that, “…when the number of nominees for alternate delegate does not exceed the number of alternate delegates to be elected, there shall be no necessity for an election for alternate delegates and such nominees shall be declared duly elected.”  Article II, Section 8.  Thus, an election was not necessary for the alternate delegate positions. 

However, 3 of the 14 delegate positions were contested.  The Local Union was required to hold an election for these positions and have ballots printed and shipped out to members by March 1, 2021.  See Local 2010 Election Plan Summary at 1.  Approximately two weeks before the ballots were scheduled to be mailed, they were reviewed and approved by the candidates and the Office of Election Supervisor.  Once shipped, members would have until March 29th to return the ballots to the local so that they could be properly counted.  Id. 

On February 27, 2021, two days before the ballots were scheduled to be mailed, Ms. Spears became aware that the ballots contained errors that violated the Rules and immediately filed a protest.  Specifically, the ballot improperly listed the 4 alternate delegates that were previously elected at the January 30th nominations meeting.  The Rules state that election ballots, “shall not contain the name of any candidate for a position for which there is no contest, even if there is a contest for another position.” Article II, Section 8.  Despite this rule, the 4 alternates incorrectly appeared on the ballot under the “Teamster 2010 Unity” slate column with the heading “Alternate Delegate Candidates.”  Under their names, the ballot indicated that each candidate was “Elected by Acclamation.” 

Upon review, the Election Supervisor granted the protest and ordered the ballots re-printed immediately.  At the hearing and in his submission to the Election Appeals Master, the Election Supervisor stated that revised ballot packages with the proper ballot would be shipped to members by March 3, 2021 – two days later than originally planned.  In addition, the Office of Election Supervisor determined that it would cover the cost of re-printing the ballots because it had previously reviewed and approved the incorrect version of the ballot.    

            
             Decision of the Election Appeals Master

            There is no dispute that the original ballots contained errors that violated the Rules.  Ballots should not list candidates that have been previously elected.  See Article II, Section 8.  Appellant, however, claims that the incorrect ballots should have nevertheless been sent to members for three reasons:  (1) the protest was untimely; (2) the protestor contributed to the violation and, therefore, should be estopped from filing the protest; and (3) members and candidates would be harmed by the two-day delay in mailing the ballots.  For the reasons discussed below, Appellants claims are denied.

            Time Limits

            Under Article XIII, Section 2(b), protests must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or the protest shall be waived.  This time limit is construed liberally and is not treated as an absolute jurisdictional requirement, but rather as a prudential restriction.  See Ruscingo, P144 (October 4, 1995), aff’d, 95 EAM 25 (October 18, 1995); see also Curbeam, 2021 ESD 66 (February 28, 2021) (collecting and analyzing cases).  The Election Supervisor can consider protests on their merits even though they are untimely if protestors are reasonably unaware that a Rules violation has occurred or when the nature of the violation is serious.  See Feeley, P810 (July 1, 1996) (protest decided on the merits even though filed 30 days after violation occurred due to the seriousness of the conduct).

            Here, the protest was filed approximately two weeks after the incorrect ballots were initially reviewed and approved by the parties.  While the protest was submitted beyond the 2 day requirement, the delay here was reasonable.  See Ruscingo.  First, the subject matter of the protest involved the accuracy of a ballot that was set to be distributed to over 10,000 local union members – an issue of heightened concern implicating the election process.  Furthermore, all parties, including the Election Supervisor, approved the incorrect ballot, which contributed to the delay in discovering the issue.  Accordingly, the Election Supervisor was well within his authority to review and grant the protest under these circumstances.    
  

Estoppel

            Pursuant to Article XII, Section 1, no protest of any person shall be considered if such person caused or significantly contributed to the situation giving rise to the protest.  While the protestor may have reviewed the draft ballot, she did not cause the incorrect ballots to be printed or otherwise significantly contribute to the issue.  Thus, Ms. Spears retained the right to file the protest.

            Harm Caused by the Delay in Mailing the Ballots     
        

            Under Article II, Section 7(d), ballots should be mailed to members no less than 24 days before the date set for counting ballots.  According to Local 2010’s Election Plan, ballots were scheduled to be mailed by March 1, 2021, and counted by March 29, 2021.  After discovering and correcting the inaccuracy, the revised mailing date was March 3rd.  Appellant contends that this delay harms the democratic process, causes confusion among the voting members and disrupts the campaigns of both candidates.  Under the circumstances here, I disagree.  In elections where mail-in ballots are used to elect candidates, they must be accurate in order to maintain the integrity of the elections process.

            Pursuant to the Rules, the alternate delegates should not have been listed on the ballot.  Article II, Section 8.  In addition, the 4 alternate delegates on the “Team 2010 Unity” slate were categorized as “Candidates,” which was inaccurate because they were no longer running for election.  Further, the phrase “Elected by Acclamation” beneath each alternate’s name on the ballot could be construed by members as campaign material or some other form of endorsement, which is also prohibited.  See Kelly, 2021 ESD 48 (January 26, 2021), aff’d, 2021 EAM 8 (February 8, 2021) (ballots should not contain slogans or other promotional material).

The Rules were designed to ensure that members receive accurate ballots.  The original ballot listed the wrong candidates and contained inaccuracies and endorsements that could impact or confuse members when they decide to cast their votes.  An accurate ballot prevents these issues and helps ensure the integrity of Local 2010’s election.  In addition, I find that the two-day delay did not harm either of the campaigns that would otherwise warrant mailing a ballot to members that clearly violated the Rules.   Finally, by issuing the ballots on March 3rd, the mailing complied with the 24 day timeline requirement prescribed by the Rules.  See Article II, Section 7(d).

For the foregoing reasons, the Election Supervisor’s decision is AFFIRMED.

SO ORDERED,

Hon. Barbara S. Jones (Ret.)

Election Appeals Master

DATED:         March 15, 2021





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