Protest Decisions

IN RE: GARY FABIANO, ED TAYLOR, and ANTHONY SGRILLO, Protestors.
Protest Decision 2011 ESD 176
Issued: March 23, 2011
OES Case Nos. P-149-021711-ME,
P-156-022211-ME & P-166-022211-ME

Gary Fabiano, Ed Taylor and Anthony Sgrillo, members of Local Union 107, filed separate pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). All of the protests alleged that the printer of the ballots in the local union delegates election frustrated their rights to observe the ballot printing and that ballot security in the print shop was compromised. In addition, Taylor's protest alleged he was denied a copy of the local union election plan and was told he could not be an observer because he was a candidate.

Election Supervisor representative Bill Kane investigated these protests.

Findings of Fact

Ballot mailing was scheduled to occur February 15, 2011. Ballot printing and assembly and addressing of ballot packages are events that candidates or their designees have the right to observe under Article IX of the Rules. Jackie Hopkins, Local Union 107's TITAN operator and a member of the election committee, initially concluded that candidates could not serve as observers.[1] When she was corrected, she contacted candidates and slate representatives on February 14 and advised them that they could observe the printing, which would commence at 9 a.m. on February 15.

Karen Matchett is employed as TITAN operator by Local Union 676; in addition, she works part-time as needed for TLB Solutions, the agency hired by Local Union 107 to administer the delegates election. She arrived at Cheltenham Printing at 8:30 a.m. on February 15 and discovered to her surprise that ballots were already printed and were stacked in an unsealed, open cardboard box on a counter in the print shop. She told our investigator that she questioned Maurice O'Neill, print shop owner, as to when the ballots had been printed. He replied that he had done the printing with the help of his staff on February 14. He assured her that no printing had occurred before February 14. Matchett told our investigator that it is standard practice for a TLB Solutions representative to be present when ballots are printed.

O'Neill told our investigator that he and a few of his regular employees printed the ballots on February 14, two to a page, along with ballot package envelopes, secret ballot envelopes and ballot return envelopes. The ballots were also cut and stacked on February 14. He said he did the printing on February 14 because he wanted to be ready to stuff and mail the ballot packages on February 15. He claimed that he had authorization from Local Union 107 to print a day early, but he could not recall who gave the authorization and had no documentation to substantiate it.

After Matchett arrived and saw that ballots had been printed, she asked O'Neill how many he had printed. He replied that he did not know, because his Canon 6000 does not have an automatic counter. He said he stopped printing when he estimated he had reached the 2,500 ballots the local union had ordered. After cutting the ballots, he said he stacked them in a cardboard box without a lid because the height of the stack extended above the top of the box.

Protestor Fabiano told our investigator he arrived at the print shop at 8:45 a.m. to find the ballots already printed and stacked in an open box on a counter. According to Fabiano, the open box bore no sign that it had been previously taped. He said he asked Matchett about the printing and that she replied the ballots had been printed on February 14 when she was not present. Fabiano asked Matchett and O'Neill how many ballots had been printed; according to Fabiano, both replied they did not know.

James Price, candidate for alternate delegate on the Dump Hoffa slate, said he arrived at 9:02 a.m. He said he was surprised and dismayed to find the ballots were printed, stacked and uncovered on a counter. He said he asked Matchett and O'Neill separately how many ballots had been printed; neither was able to give him a figure.

Ed Taylor, delegate candidate on Dump Hoffa, arrived at 9:23 a.m. When he arrived, ballots were stacked in piles, unboxed and unwrapped, on a four foot wide counter. He too asked O'Neill the number of ballots printed, and O'Neill replied that he did not know.

Matchett then proceeded to proof and count the ballots in the presence of the observers. Working in small batches, she counted the ballots, removing those that showed smudges. At the end of this process, she had removed seven spoiled ballots, which she maintained with the other election records. Her count, including the 7 spoiled ballots, was 2,423 ballots, 77 short of the 2,500 ballots the local union had ordered. Accordingly, she directed O'Neill to print the additional number needed.

O'Neill printed 39 sheets, each containing two ballots. He cut them, producing 78 ballots. Matchett tore one ballot into small pieces and discarded it; she placed the 77 remaining ballots with the others, bringing the total to 2,500. O'Neill signed a printer's certification that 2,500 ballots were printed.

Ballots were then folded and ballot packages addressed and assembled for mailing by print shop employees. This process produced 2,357 ballot packages for mailing. At the end of the process, 2,364 ballots had been used, including the 7 spoiled ballots, leaving 136 available for remails. Matchett said she maintained those unused ballots in her custody. Fabiano disputed this claim, stating that the unused ballots and the 7 spoiled ballots were left in an open box on the counter while all present - print shop employees and observers - walked the boxes of ballot packages to the post office, a short distance away. According to Fabiano, the print shop was left unlocked, with no one present during the trip to the post office. We credit Matchett.

Fabiano said the group arrived at the post office at 5:05 p.m.; a sign there said that closing time was 4:30 p.m. O'Neill led the group to the loading dock where they met Randy (last name unknown), who O'Neill said was the postal manager and someone he had worked with for years. O'Neill said Randy wore a postal ID tag on a lanyard around his neck. Randy accepted the boxes from O'Neill.

Upon return to the print shop from the post office, Fabiano said he was the first to re-enter the shop and that it was unlocked. The unused ballots were then sealed and taped, and observers signed the tape.

In the days following mailing, O'Neill was responsible for remailing ballots to members whose original ballot packages were returned as undeliverable and to members who requested duplicate ballots. The local union notified him by fax of the name and new address of each member whose ballot was returned as undeliverable; he mailed a new ballot package to each such member.

According to O'Neill, 61 ballots were used in the remailing process. At the ballot tally conducted March 9, our representative counted the unused ballots and found 75 remained. Reconciling these numbers, 2,357 ballots were mailed on February 15, 7 ballots were spoiled that day, 61 ballots were remailed, and 75 ballots were unused. Accordingly, all 2,500 ballots printed were accounted for.

Protestor Fabiano also alleged that during the time at the print shop he saw Dennis Lord, an observer for the Hamilton Dougherty slate, leaning on an open box that contained ballots. He did not see Lord touch any ballot.

Protest Taylor also alleged that he requested a copy of the local union election plan and was told that he could not have a copy but could review it at the local union hall. After filing his protest, Taylor received a copy of the plan by mail from the local union.

Ballots in the election were counted March 9, 2011. The tally showed the following:

Analysis

The Rules grant observer rights to candidates and their designated representatives to promote confidence in the integrity of the election process, to curb ballot fraud and to allow candidates to verify first-hand that the election has been decided by qualified voters and not by improper manipulation of the contents of the ballot box. Denial of observer rights undermines confidence in the integrity of the election. See Fuentes, 2006 ESD 216 (April 28, 2006), aff'd, 06 EAM 32 (May 4, 2006); Hill, 2011 ESD 136 (February 24, 2011), aff'd, 11 EAM 25 (March 9, 2011).

Candidates and their designated representatives are permitted to observe every phase of the election process, including printing of ballots. McNiff, 2006 ESD 173 (April 6, 2006). The purpose for permitting observation of ballot printing is to safeguard against diversion of blank ballots to a partisan who may then attempt to vote and submit them for tallying. We find that the printer made the unilateral decision to print ballots a day early and, by doing so, frustrated candidates' observer rights and violated the Rules. We do not credit O'Neill's claim that he was given permission to print early; instead, we conclude that he printed on February 14 because of concern that he could not complete the mailing on February 15 if he was required to print that day as well. The solution to what the printer apparently viewed as an impossible schedule was not to deviate from it unilaterally. Rather, he should have notified the union that he would have to print ballots before February 15 in order to meet the scheduled mailing date, and candidates and observers would have had the opportunity to observe the printing itself on the date the printer identified.

The printer's unilateral action to print early without authorization presented Matchett with the unenviable choice either to direct the printer to discard the printed ballots and re-print on different color stock or to use the ballots as printed. She elected the latter choice, seeking to insure the integrity of the printing by counting the ballots herself to insure that the number printed was the number ordered.

Although ballot printing was unobserved, we find that this defect did not impair the integrity of the election, as several additional safeguards of the election process foreclosed this possibility. Among those safeguards were the printer's certification of the number of ballots printed and a strict accounting of those ballots. That safeguard was present here. The printer certified that the total number of ballots printed was 2,500, as counted by Matchett. The ballot reconciliation completed at the vote count verified that all ballots printed were accounted for.

A further safeguard present here was the direct observation of the pickup of ballots returned as undeliverable and the pickup of voted ballots. See Taylor et al, 2011 ESD 176 (March 23, 2011). Given that these pickups were directly observed, there is no evidence that any partisan had improper access to labeled ballot return envelopes to insert ballots that were not voted by the members to whom they were addressed.

A final safeguard was the verification by observers at the vote count that the ballots counted were received in ballot return envelopes bearing the names of eligible voters. As observers also were present at the mailing of those ballots, the credible evidence is that voted ballots received and counted were those that were mailed on February 15 and were not obtained from an impermissible source.

Although these protests were filed pre-election, we consider them in a post-election context pursuant to Article XIII, Section 2(f)(2). As such, the Election Supervisor must consider whether the violation "may have affected the outcome of the election," under Article XIII, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, PT1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")

Here, on 854 valid ballots counted, the margin between the winning delegate candidate with the fewest votes and the losing candidate with the most votes was 628 votes. We conclude that the unobserved printing of ballots did not affect the outcome of the election. Accordingly, we DENY this aspect of these protests.

We also DENY Taylor's protest that he was told he could not serve as an observer. This instruction was reversed before it was implemented, and Taylor exercised his right to observe.

Finally, we DENY Taylor's protest that he was not provided a copy of the local union election plan, finding that local union mailed him the plan, albeit after he filed his 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 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 176

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 Hall 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

Gary Fabiano
75 Stoneyford Road
Holland, PA 18966
fabianog4@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

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 Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com