Protest Decisions

IN RE: GINO NUZZOLILO, Protestor.
Protest Decision 2011 ESD 184
Issued: March 25, 2011
OES Case Nos. P-132-021411-NE & P-161-022211-NE

Gino Nuzzolilo, member of Local Union 170 and independent candidate for delegate, filed two 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"). The protests alleged that ballot instructions and design violated the Rules.

Election Supervisor representatives David Reilly and Deborah Schaaf investigated these protests.

Findings of Fact and Analysis

Gino Nuzzolilo ran as an independent candidate for delegate in Local Union 170. His opposition was the Members First Slate, a full slate of five delegate candidates comprised of incumbent local union officials. An election agency, True Ballot, Inc., was designated in the local union election plan to administer the election. At the nominations meeting held January 15, 2011, Nuzzolilo and the five members of the Members First Slate were nominated for delegate, and candidates for alternate delegate were elected without opposition.

Ballots were printed and mailed to the members on February 17 and tallied on March 12. The Members First slate candidates were elected; Nuzzolilo's vote total was approximately 55-60% that of the elected candidates.

David Reilly attended the ballot count and observed all aspects of the count in his capacity as Regional Director of the Northeast Region for the Office of the IBT Election Supervisor.

Protest No. P-132-021411-NE. On January 19, 2011, True Ballot presented a draft ballot to the delegate candidates for their inspection and comment. The draft was printed on both sides of a single sheet. Voting instructions were set out on one side; the list of candidates and the lone slate, along with check boxes for each, appeared on the other side. The Members First Slate reviewed a copy of the ballot sent to them by email. Nuzzolilo inspected the ballot form at Tue Ballot's offices. Present at the time of Nuzzolilo's inspection was Caleb Kleppner, a True Ballot manager. According to Kleppner, all candidates reviewed the identical ballot form. The form provided to the Members First Slate was initialed as approved by the slate and returned to True Ballot. Mr. Kleppner stated that, after inspecting both sides of the ballot draft, Mr. Nuzzolilo declined to sign off on the ballot, stating that he objected to the Instructions to Voter printed on the reverse side of the ballot.

Shortly thereafter, Nuzzolilo contacted the OES in Washington and protested that the Instructions to Voter that appeared on the Local Union 170 ballot were insufficient as they did not include instructions expressly required by Article II, § 10(c) of the Rules. This communication is the basis for Protest No. P-132-021411-NE. Nuzzolilo was directed to David Reilly, OES regional director, who agreed that the instructions were insufficient. Reilly contacted True Ballot and directed them to amplify the Instructions to Voter to make them consistent with the Rules. After the changes were made, the Instructions to Voter side of the ballot was provided to Reilly and all candidates for review and approval. All approved the changes and the ballots were printed and mailed to Local 170 members.

On these facts, we deem this protest RESOLVED.

Protest No. P-161-022211-NE. On February 22, five days after the ballots were mailed, Nuzzolilo filed a new protest. He claimed that he had just received his ballot in the mail and, after reviewing it, discovered that he was not given the same opportunity as the Members First Slate to review the ballot. The protest alleged collusion between True Ballot and the Members First slate, based in part on the protestor's experience as a losing candidate in the 2009 Local Union 170 officers election, also administered by True Ballot. According to the protestor:

• The voting side of the delegates election ballot had been substantively changed from the draft Nuzzolilo "quickly looked at before it was to go to print" in a way that disadvantaged his candidacy[1]; and

• The ballot was fatally flawed in that the header portion of the ballot, identifying it as a ballot for the election of delegates as required by the Rules, was totally missing.

The protestor demanded to be included in an additional review of the ballot and called for a re-run of the election. Supporting his protest, he included a mockup of the manner in which the voting section of the ballot should have been configured to eliminate bias against his candidacy, as well as to include a header containing the proper identification language required under the Rules.

According to True Ballot's Kleppner, at the January 19 review of the draft ballot, Nuzzolilo inspected both sides of the ballot and announced that he would not sign off on the draft because the Instructions to Voter were insufficient. According to Kleppner, Nuzzolilo did not then or at any other time complain about any aspect of the voting side of the ballot. The protestor confirmed to our investigator that he reviewed each side of the ballot on January 19 and objected only to the voting instructions.

After the voting instructions were changed, True Ballot's Kleppner circulated the amended draft of the instructions side of the ballot to candidates; he did not distribute the voting side for review and approval because no candidate, Nuzzolilo included, had objected to any aspect of that side of the ballot and because that side was the same version candidates had reviewed on January 19.

Kleppner maintains that no changes were made to the voting side of the ballot and the language and layout of that portion of the final version of ballot were identical to the draft ballot reviewed by all candidates on or about January 19, 2011. Kleppner provided our investigator copies of the draft ballot emailed to the Members First slate in January, the draft ballot returned Members First containing the slate representative's initials approving the ballot, and a copy of a voided ballot mailed to Kleppner as a test of ballot mailing to Local Union 170 members. Comparison of the voting side of these three ballots showed that the layout and language on each ballot was identical in all respects. Nuzzolilo's claim that the voting side of the ballot he received in the mail is substantively different from the one he inspected at True Ballot is unsupported by the ballot samples provided to the OES and voted at the March ballot count. We find that Nuzzolilo waived any objection to the layout on the voting side of the ballot by failing to object. We further find that the placement of the "Mark your ballot like this: ■" instruction did not improperly direct voters to cast a slate vote for the Members First slate.

The protestor's second allegation is that the ballot he received by mail did not contain the language required by the Rules identifying the ballot as an "Official Ballot for the Election of Convention Delegates and Alternate Delegates" which is required to be printed "in a legible manner, with headings printed in bold face." The claim in his protest letter tracks, nearly word for word, the required statement contained in Article II, § 10(a) of the Rules.

As evidence, Nuzzolilo faxed our investigator a copy of the ballot he said he received in the mail. The faxed document does not include the identifying heading language.

After receiving the allegedly defective ballot, Mr. Nuzzolilo requested a duplicate from True Ballot. He received one and submitted his vote on that ballot. The duplicate ballot included the required heading. Thus, assuming the original ballot lacked the heading, that alleged defect did not affect Mr. Nuzzolilo's rights.

Investigation found no evidence that any other ballot was missing the header information. Kleppner stated emphatically that he was responsible for printing all of the ballots used in the delegates election and encountered no ballot lacking the header information. Each ballot package used in the True Ballot voting/eligibility system contains information about the recipient printed on a tear-off stub (that is removed by the voter before returning the ballot), necessitating a slower print rate and a higher rate of scrutiny during the print process. A count day review of voted ballots performed by David Reilly revealed no other ballots missing the identifying header. Only the protestor's ballot seemed to lack this information.

On March 24, Nuzzolilo acknowledged to our investigator that he too had noticed that no other ballot at the count was missing the header. He conceded that his ballot likely had the header as well but that, when he asked his girlfriend to photocopy the ballot for his records, the copy she made did not capture the full ballot. On this evidence, we find that the appropriate header was included on all ballots, Nuzzolilo's included, and DENY this 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 184

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

Gino Nuzzolilo
7 Indian Lane
Webster, MA 01570
nuzzy170@yahoo.com

Michael Hogan, Secretary-Treasurer
Teamsters Local Union 170
P.O. Box 70634
Worcester, MA 01607-0634
mhogan@teamsters170.com

David Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com

Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104