IN RE: ANTHONY SGRILLO, Protestor.
Protest Decision 2011 ESD 94
Issued: January 30, 2011
OES Case No. P-086-011811-ME
Anthony Sgrillo, member of Local Union 107, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the ballot placement lottery for slates was not conducted fairly, in violation of the Rules.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact and Analysis
Local Union 107 retained TLB Solutions to conduct its delegates and alternate delegates election. Its representative, Karen Matchett, conducted the nominations meeting on January 16, 2011. Candidates comprising 3 full or partial slates were nominated.
As multiple slates of candidates are competing in the election, Article II, Section 10(b)[1] of the Rules required the local union to conduct a lottery for ballot placement, which Matchett did at the candidates meeting that immediately followed the close of nominations. The Hamilton Dockerty slate, comprised of local union officials, won first position in the lottery. The Dump Hoffa slate placed second. The Rank and File slate of which protestor Sgrillo is a member placed third.
Sgrillo alleged that Matchett conducted the lottery while candidates were completing candidate information sheets and other paperwork at the candidates meeting. According to the protest, he and other candidates were seated at a table some 20 feet from the podium filling out forms when Matchett pulled the first name from a receptacle and announced that Hamilton Dockerty had won the first position on the ballot. Sgrillo stated he was not shown the receptacle from which the names were drawn before the drawing in order to witness that it was empty, nor was he shown the slips that slate names were printed on to see that all were the same size and quality of paper folded in the same way. Sgrillo stated that he did not ask to make these inspections before the lottery was conducted because it occurred before he had the chance to do so.
Mike Szarzynski, another member of Sgrillo's slate, was also present when the lottery occurred. He told our investigator that he, Sgrillo, and Edwin Taylor, candidate on the Dump Hoffa slate, were seated together at a table to the left of the stage "filling out paperwork" when Matchett announced "we're going to conduct the lottery now." Szarzynski said, "She pulled a box from the podium and just opened it up and pulled out the names. We never saw the papers, even afterwards."
Taylor said he, Sgrillo and Szarzynski were filling out "information forms" at a table about twenty feet from the stage where Matchett was. Matchett held up a box that "looked like the size of a jewelry box" and said, "I have your names in here. I'm going to pull them out now," and then drew out the first piece of paper. According to Taylor, Matchett provided no other explanation of the process.
Matchett told our investigator that she conducted the lottery as the last order of business at the candidates meeting, after candidates had submitted all their forms. She said the candidates were sitting in the front row of chairs at a table about five or six feet from the podium. She said she tore three strips of paper from her notebook and wrote a different slate name on each strip. She said she folded the strips and put them on the table at the front of the podium, "in front of the candidates". Matchett stated that her plan was simply to take the strips one by one from the table surface, but decided it might appear improper. Abandoning that plan, Matchett said she looked for an appropriate container, and found a small box under the podium. She placed the folded strips into the box, announced the lottery would begin, and then began pulling strips from the box. Matchett stated that all the candidates were in a position to observe the entire process the entire time. She said no one complained about the lottery that night, or asked to look at the strips of paper or box.
Jackie Hopkins, a local union employee, was also present. She told our investigator that each slate filled out a piece of paper with the name of their slate. The papers were folded, and put into a box she and Matchett found under the podium. According to Hopkins, Matchett shook the box, and Hopkins picked out the names.
As we held in Richardson, 2006 ESD 239 (May 12, 2006), "[t]he essential element of an acceptable lottery is a chance or random means of selection." Further, Article IX, Section 3 of the Rules provides that:
Observers shall be permitted to be present at any drawing by lot conducted in connection with any phase of the nomination and election process (e.g., determining the placement of slates and individual candidates on the ballot for election of delegate and alternate delegate candidates, the breaking of ties, etc.). Notice shall be given to all affected candidates of the time and place for the conduct of such lotteries.
The Rules make a lottery an observable event to provide reasonable assurance to those affected by its results of its integrity. Where the means of lottery is a drawing, observers must be given the opportunity to inspect the slips to be drawn (whether they are inscribed with numbers, letters, or slate names), the manner in which they are folded, and the receptacle from which they are to be drawn before the drawing commences. This inspection permits observers to determine that the content of a slip cannot be identified by touch, whether because it is a different texture of paper, a different size, or folded differently than other slips. We hold that notice of a lottery that the Rules require includes this right of inspection. Where such right of inspection is not given, the lottery may be voided for lack of notice.
We find that Matchett did not give the pre-drawing right of inspection that is required for a valid lottery. In reaching this conclusion, we make no finding that the lottery conducted January 16 was fixed, rigged or predetermined to decide its outcome. Instead, we find that it was invalid because observers were not given the right of inspection inherent in the notice provision of the Rules.
Accordingly, we GRANT the 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 direct Local Union 107 to conduct a new ballot placement lottery for slates competing in its delegates and alternate delegates election no later than Tuesday, February 1, 2011. We limit the time period for completing the lottery because ballots must be prepared, proofed and printed and ballot packages prepared for mailing. Notice of the date, time and location of the lottery must be given to a representative of each slate. Such notice may oral or in writing, by phone, email or fax, but must be calculated to give actual notice. Slates may be represented by at least one qualified observer (who may be a candidate), however, failure of a slate to send an observer after due notice will not be grounds for invalidating the lottery. We encourage each slate to contact the local union promptly and work cooperatively toward a date and time for the lottery that is convenient for all.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
2011 ESD 94
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
William Hamilton, President
Teamsters Local Union 107
2845 Southampton Road
Philadelphia, PA 19154
jazz61161@aol.com
Anthony Sgrillo
33 Highland Drive
Telford, PA 18969
sgrillos@verizon.net
Edwin Taylor
378 Cutler Avenue
Maple Shade, NJ 08052
teamstered@comcast.net
Karen Matchett
TLB Solutions
7331 Greystone Street
Lakewood Ranch, FL 34202
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com
[1] The applicable sentence of this provision reads: "The order of placement of the slates on the ballot shall be determined by lot."