Protest Decisions

IN RE: ED TAYLOR and GARY FABIANO, Protestors.
Protest Decision 2011 ESD 177
Issued: March 23, 2011
OES Case Nos. P-168-022311-ME,
P-169-022411-ME & P-170-022411-ME

Ed Taylor and Gary Fabiano, 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 they were denied observer rights with respect to the pickup of ballots returned as undeliverable and that security of those returned ballot packages was compromised.

Election Supervisor representative Bill Kane investigated these protests.

Findings of Fact

Ballots in the delegates election at Local Union 107 were mailed on February 15 and counted on March 9, 2011. In Fabiano et al, 2011 ESD 176 (March 23, 2011), we decided protests that alleged denial of observer rights at the printing of ballots. We turn now to allegations that observer rights were denied with respect to the pickup of ballots returned as undeliverable.

In mail ballot elections of local union delegates administered under the Rules, the local union rents two post office boxes. One is used as the address at which ballot return envelopes containing voted ballots are received. The other is listed as the return address on ballot packages that are sent to members by the local union; ballot packages returned as undeliverable are directed to this second post office box. Local unions must visit the second box frequently to retrieve returned ballot packages and, if updated addresses can be obtained, ballot packages are to be remailed to those members.

Candidate observers may witness the retrieval of ballot packages returned as undeliverable. Rules, Article IX, Section 1(a) (candidates or their designees have the right to observe "each and every phase of the election process"). Specifically, Section 5 of that article permits "observers to be present at the time(s) when those ballots returned as undelivered are picked up from the prescribed post office box and when the envelopes containing those ballots are inspected and counted." These protests concern this right.

After ballots were mailed on Tuesday, February 15, the first date scheduled for retrieval of returned ballot packages was Tuesday, February 22. Candidates were notified that retrieval would occur at 8:00 a.m. that day. Jackie Hopkins, the local union TITAN operator and office manager, was responsible for picking up the returned mail. She arrived promptly at 8:00 a.m., accompanied by Jack Haas. Haas is employed by the local union as a bookkeeper and is supervised by Hopkins. Hopkins brought Haas with her for added safety and security.

Hopkins on an earlier date rented the post office box used for undeliverables. At the time of the rental, she was issued two keys to the box.

When Hopkins and Haas arrived at the post office on February 22, protestor Fabiano was present on behalf of delegate candidate Sgrillo. The post office lobby did not open to the general public until 8:45 a.m. that day, but Hopkins gained access to the portion of the lobby where post office boxes are located by entering a numeric code in a keypad adjacent to the door. Hopkins, Haas and Fabiano entered and proceeded to the designated post office box. Hopkins inserted the key, opened the door to the box, and retrieved three ballot packages. She gave them to Haas. Fabiano asked to see the mail. Hopkins instructed Haas to display the mail so that Fabiano could observe that there were three pieces but not so he could see the names of the members to whom they had been sent. Fabiano objected, but Haas complied with Hopkins' instructions.

The three then exited the post office, Hopkins and Haas entered their vehicle for the return to the local union, and Fabiano followed in his.

Meanwhile, just as he had when observing the ballot package assembly at the print shop, protestor Taylor arrived late. He phoned Fabiano when he was en route; Fabiano told him not to hurry because the post office did not open until 8:45. Taylor said he arrived at 8:02 a.m., in time to observe Hopkins leaving the parking lot in a vehicle. Taylor joined the caravan behind Fabiano for the trip to the local union hall.

At the hall, Taylor asked Hopkins to permit him to examine the envelopes she picked up from the post office box. Hopkins refused but told him three pieces had been retrieved. Taylor objected. Both protests claimed Hopkins' refusal to permit inspection of the names and addresses on the returned mail as a Rules violation.

Later that day, Hopkins phoned OES regional director Denise Ventura and learned that observers had the right to observe the names and addresses on the returned ballot packages.

The following day, February 23, Hopkins and Haas repeated the process, arriving at the post office at 8 a.m., retrieving ballot packages returned as undeliverable, and returning to the union hall. On February 23, 17 ballot packages were in the post office box. As was done the day before, Hopkins withdrew them from the box and handed them to Haas, who held them for the ride back to the hall. Once there, Hopkins and Haas placed the returned mail on a work surface to permit observers to examine and make notes of the names and addresses on the mail. In addition, they displayed the three pieces retrieved from the previous day. The only complaint from protestors about February 23 was that Haas touched the returned ballot packages; they assert that Haas had no role with election administration and therefore compromised ballot security.

The process repeated on February 24. On this day, Hopkins realized when she arrived at the post office that she did not have the key she had used the day before. She produced the second key, opened the box, retrieved 33 ballot packages, and handed them to Haas. The box also contained a small bag imprinted with a post office logo. Inside the bag was the key Hopkins had used the day before to open the box. She told Haas, "Oh my God, there's the other key." Fabiano claimed that Hopkins also admitted that she possibly left the key inserted in the box lock the day before; Hopkins denied admitting or doing such. Both keys were imprinted with the same serial number; neither listed the number of the box they opened. The post office manager told our investigator that he had no information about where, when or how the key was found.

Ballots returned as undeliverable were retrieved in the same manner on subsequent dates.

Protestor Taylor conducted a campaign mailing to the local union membership using a list supplied him by the Sandy Pope campaign. He received many more returned campaign mailers than the local union did ballot packages. He cites this disparity as proof that more ballot packages had to have been returned than were retrieved by Hopkins and Haas on their daily retrieval. He further notes that Hopkins had 24-hour access to the post office box and could have retrieved returned packages at any time.

Investigation showed that the list the Pope campaign supplied Taylor was the list Pope received when she achieved status as an accredited candidate for International office in January 2011. The IBT had created that list many months before ballots were mailed in Local Union 107's delegates election and the IBT-generated list likely contained outdated addresses because of its age. Other slates in the delegates election used mailing labels produced by the local union on the same date (or within a few days) of the date the list was produced for ballot packages. No complaints were received from those slates concerning an unexpected amount of mail returned as undeliverable. Taylor could have had a mailing prepared with a list prepared by Local Union 107 as the other slates apparently did. See Rules, Article VII, Section 7.

Taylor also alleged that the post office where the box for returned ballot packages was rented is the same one where the local union receives its general mail. This, Taylor asserts, raises the possibility that returned ballot packages were misdelivered to the local union's general box, permitting fraudulent voting. Our investigator confirmed with the post office manager that the only box the local union rented at that branch was the one Hopkins and Haas checked daily. Hopkins told our investigator that the local union does not use a post office box for its general mail; instead, that mail is delivered directly to the local union hall.

Fabiano complained that he was not permitted to observe what happened with the returned ballot packages after he last saw them at the local union hall. Hopkins told our investigator that she relayed to the local union's business agents the names of the members whose ballots were returned and asked them to obtain updated addresses for those members. When she got the new addresses, she faxed them to the printer, who mailed new ballot packages to the members on the list. A total of 61 ballot packages were remailed by the printer. Hopkins stored the undeliverables in a safe in the local union hall until the tally was conducted on March 9.

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).

We find that Fabiano was permitted to observe the retrieval of three undeliverable ballot packages on February 22, although he and Taylor were not permitted to see the names and addresses of those members until the next morning. We note that this issue was resolved before any of the protests were filed.

We also find that Hopkins did not violate the Rules by having Haas assist her. Haas' activity was under Hopkins' direct, close supervision and was observed by Fabiano. Nothing in the Rules forbids a designated election administrator from having assistance in performing her responsibilities.

We find that the discrepancy between the returns Taylor received from his campaign mailing and the returns of ballot packages is explained by the relative age of the mailing lists used for each. The ballots were mailed with a current list; Taylor's mailing was done with a list created several months before the ballot mailing.

We find that the only post office box the local union rented at the branch in question was the box used for returned ballot packages, contrary to Taylor's contention.

We find that Hopkins maintained proper custody and control of the ballot packages returned as undeliverable through the date of the count.

Although these protests were filed pre-election, we consider them in a post-election context pursuant to Article XIII, Section 2(f)(2). Except for Hopkins' February 22 refusal to permit Fabiano and Taylor to see the names and addresses on the three ballot packages returned that day - a violation corrected promptly - we find no other violation of the Rules. Given the wide margin between winning and losing candidates, we find that Hopkins' error of February 22 did not affect the outcome of the election.

Accordingly, we DENY these protests.

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 177

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
mailto: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