IN RE: ERIC KING, Protestor.
Protest Decision 2006 ESD 225
Issued: May 4, 2006
OES Case No. P-06-238-032306-SO
Eric King, member and alternate delegate candidate from Local Union 767, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that undeliverable ballots were untimely processed with the result that members were denied their right to vote; further, the protest claimed that candidates were not afforded the opportunity to observe the election process.
Election Supervisor representative Dolores C. Hall investigated this protest.
Findings of Fact
In the proposed local union election plan Local Union 767 submitted on September 26, 2005, the local union designated True Ballot, Inc. to run its delegate and alternate delegate election. The proposed plan designated the local union's TITAN operator as the person responsible for obtaining correct addresses for ballots returned as undeliverable, while True Ballot would mail duplicate ballots to the members.
On November 30, 2005, we required local union secretary-treasurer Gerald Thompson to sign an agreement with True Ballot providing that the local union would be responsible for ensuring that True Ballot issue daily reports reflecting the parties' handling of undeliverable ballots and duplicate ballot requests, and providing further that such reports be made available to candidates and observers.
On December 16, 2005, a protest was filed alleging that Thompson failed to post the notice of submission of the local union election plan on union bulletin boards as required by the Rules. We granted the protest to allow members to comment on the proposed plan. King, 2005 ESD 42 (December 28, 2005). Granting additional time to comment on the proposed plan required the rescheduling of dates for the nominations meeting and mailing and counting of ballots.
Ballots were mailed on March 1, 2006, and the tally of ballots was set for March 25. John Seibel of True Ballot established a website to record undeliverable ballots as he retrieved them from the post office. Seibel gave Thompson the URL of the website so he could access it, see the names of members whose ballots had been returned, and undertake the effort to obtain corrected addresses. On March 10, however, Seibel emailed Thompson requesting that he not give the address of the website to anyone "other than the office staff who will be doing requests for undeliverable ballots." Seibel sent another email to Thompson that date identifying a second website that listed only the totals of the undeliverable and duplicate ballots. Seibel requested that Thompson give the URL of the second website to candidates and observers so they could monitor the activity.
Thompson did not do so. On March 20, protestor King obtained from our office the URL for the second website True Ballot had established. On that date, the website showed only 5 ballots had been sent to members requesting duplicate ballots. Ballots for 104 members had been returned as undeliverable and none had been processed for re-mailing.
On March 21, the protestor checked the website again and found the information unchanged from the previous day. At that time, the protestor contacted Seibel at True Ballot to inquire whether a ballot had been mailed to a member who had requested one the previous week; Seibel told him it had not.
After this telephone conversation, Seibel telephoned Wesley Jenkins, Local Union 767's president, and asked why no one from the local union had supplied him with corrected addresses for the members whose ballots had been returned as undeliverable. Jenkins did not know. Jenkins then called Thompson, who was traveling on union business, gained access to Thompson's computer, and downloaded the data on undeliverable ballots that had been accumulating since March 8. Jenkins and two office clericals employed by the local union then divided up the list of 104 names and contacted employers seeking correct addresses. They were successful in obtaining 54 corrected addresses. When Seibel checked the private website again on the evening of March 21, he found the 54 corrected addresses. Seibel immediately began assembly duplicate ballot packages for these members and, on March 22, mailed them by first class mail.
On March 22, the protestor again visited the website and saw that 54 ballots had been mailed to corrected addresses. The protestor contacted Seibel again and learned that the corrected addresses had just been obtained from the local union and the ballots were mailed that day by first class mail. The protestor asked Seibel if he thought the ballots would be delivered to the members in sufficient time for them to be voted and delivered to the post office box by March 25, Seibel conceded that they probably would not. The protestor then asked why the ballots had not been sent by overnight mail; Seibel replied that no one asked him to do so.
The protest alleged that True Ballot's failure to send the duplicate ballots by overnight mail on March 22 meant that the 54 members to whom ballots were sent would not have the opportunity to vote since they would not receive the ballots in time to vote and mail them back to the Fort Worth post office box in time for the ballot count on March 25, because duplicate ballots were mailed by True Ballot in Bethesda, Maryland to members of Local Union 767 in greater Fort Worth, Texas. The protest further alleged that handling the undeliverable ballots at the Maryland location denied candidates the right to observe processing of the undeliverable ballots. Finally, the protest claims that no candidates were notified that Thompson, himself a candidate for delegate, would be responsible for obtaining corrected addresses for undelivered ballots in order to have observers present during this process.
The local union election plan described the following procedures the local union would employ to update mailing information for members whose ballots were returned as undeliverable, viz.
Contacting employer, calling members, checking phone book, calling information, checking the Internet. Thereafter, a duplicate ballot will be mailed to the member by True Ballot, Inc.
Thompson, however, claimed he was advised by the Election Supervisor's office that True Ballot, Inc. would handle all phases of the election process. He therefore assumed that they would also obtain corrected addresses for the ballots which were returned to True Ballot as undeliverable. Thompson acknowledged that he did not provide the URL to either candidates or observers.
Seibel told our investigator that no one ever suggested that he obtain corrected addresses; he explained that he had no way of knowing where the members worked whose ballots were returned, and employers were the primary source for correct addresses. Seibel stated that he furnished Thompson with the website for the undeliverable summary so that candidates and observers could monitor the statistics. He requested that Thompson distribute the URL to other candidates and observers. Seibel also sent the URL to Thompson for the duplicate ballot requests, with the request that the address not be given to anyone other than the office staff who would be handling the undeliverable ballots.
Further, Seibel's first email to Thompson of March 10, in which he provided the URL of the private website, asked Thompson to limit disclosure of the web address to "the office staff who will be doing requests for undeliverable ballots." This request was consistent with the plan to have local union staff correct addresses of undeliverables. Seibel's final sentence - "Let me know if anyone needs assistance with this" - drew no response from Thompson.
At the ballot count on March 25, 2006, a member of Local Union 767 appeared and requested permission to hand-deliver his ballot. He stated that he had received it on Friday, March 24, and knew it would not get to the post office box in time for the March 25 count. The member was advised that only ballots returned to the post office box could be counted and his ballot could not be accepted.
The tally of ballots in the local union's delegate election showed 760 valid ballots counted. The margin of victory between the winning delegate candidate with the fewest votes and the losing delegate candidate with the most votes was 227; the same margin in the alternate delegate election was 215 votes.
Analysis
Pursuant to Article XIII, Section 2(f)(2) of the Rules, we treat this matter as a post-election protest filed pursuant to Article XIII, Section 3(b). That section states that post-election protests such as this one "shall only be considered and remedied if the alleged violation may have affected the results of the election."
The purpose of correcting addresses on ballots returned as undeliverable is to maximize participation in the democratic process. It is axiomatic that members cannot vote in a mail-ballot election if they do not receive ballots.
As principal officer of the local union and the point of contact between the local union and True Ballot, Thompson failed his duty to pass on to local union staff the web address that would allow them to identify the members for whom the local union had incorrect addresses. In addition, Thompson ignored Seibel's email requesting that he inform the candidates and observers of the website address which they could visit to monitor the duplicate and undelivered ballot transactions.
In addition, Seibel failed to monitor the local union's effort in researching correct addresses for members whose ballots were undeliverable. Had he done so, he would soon have recognized that the local union was taking no action to obtain corrected addresses. Only because of the protestor's action did Seibel contact Local Union 767 on March 21 and confirm what was obvious even from the public website, that no one from the local union was working on undeliverables.
The combined negligence of Thompson and Seibel caused 54 members to receive ballots too late to vote. Moreover, Thompson's failure to provide the URL for the public website to the candidates and observers on or immediately after March 10 deprived the protestor and other candidates of their rights as observers to monitor the processing of undeliverables, which had the effect of permitting the local union's inactivity to continue until it was too late to remedy.
Accordingly, we GRANT this protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order the local union, within 3 working days of receipt of this decision, to post on all union bulletin boards under the local union jurisdiction the attached notice, signed by Thompson, acknowledging the Rules violation we find here. The notice shall remain posted for 30 consecutive days. Thompson shall provide an affidavit of compliance to our office within 2 working days of the date the posting is completed.
We order no further relief. The vote margin between successful and unsuccessful candidates is significantly greater than the number of ballots returned as undeliverable. We conclude that the failure to process undeliverables, while reprehensible, did not affect the results of the election; accordingly, we do not order that the election be rerun.
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 Supervisor 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
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 225
NOTICE TO ALL MEMBERS OF
TEAMSTERS LOCAL UNION 767
FROM GERALD THOMPSON
Under the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"), Local Union 767 conducted an election for delegates and alternate delegates to the 2006 Convention of the International Brotherhood of Teamsters. The Election Supervisor approved a local union election plan for this election that required the Local Union to make efforts to correct addresses on members' ballots that were returned to the post office because of incorrect addresses.
As Secretary-Treasurer of your local union, it was my duty to provide the Local Union staff with access to the information that would allow them to process the ballot packages returned by the post office as undeliverable. I failed to do so. I recognize that the Rules and the Local Union 767 plan are intended to protect the right of every eligible IBT member to vote in the delegate election; as a direct result of my failure to have ballots returned as undeliverable properly processed, more than 50 members of Local Union did not receive ballots in time to exercise their rights to vote.
The Election Supervisor has determined that my failure did not affect the results of the delegate and alternate delegate election because the margin between the winning candidate with the least votes and the losing candidate with the most votes was greater than 200 votes. Accordingly, those results stand. However, the Election Supervisor has ordered me to sign and post this notice on all Union bulletin boards and maintain the posting for 30 consecutive days.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
________________________________________
Gerald Thompson
Secretary-Treasurer
IBT Local Union 767
Date:
This notice has been approved by IBT Election Supervisor Richard W. Mark and must remain posted for thirty (30) consecutive days.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Eric King
2904 South Park Lane
Fort Worth, TX 76133
eking2904@hotmail.com
Gerald Thompson, Secretary-Treasurer
Teamsters Local Union 767
6109 Anglin Drive
Forest Hill, TX 76119
John L. Siebel
True Ballot, Inc.
3 Bethesda Metro Center, Suite 700
Bethesda, MD 20814
john@trueballot.com
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com