IN RE: WILLIAM HAMILTON, Protestor.
Protest Decision 2011 ESD 191
Issued: March 28, 2011
OES Case Nos. P-189-030211-ME
William Hamilton, member of Local Union 107 and candidate for delegate, 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 Gary Fabiano had no right to serve as an observer under Article IX of the Rules because he was not designated as such in writing.
Election Supervisor representative Denise Ventura investigated this protest.
Findings of Fact and Analysis
Ballots in the delegates election at Local Union 107 were mailed on February 15 and counted on March 9, 2011. We have issued three decisions concerning observer rights.[1] Gary Fabiano, a member of Local Union 107, served as an observer for delegate candidate Anthony Sgrillo in each case.
Hamilton's protest alleged that "Gary Fabiano has protested everything under the sun and at no time has he been an accredited observer."
Article IX, Section 1(a) permits each candidate for delegate or alternate delegate and each slate of candidates "to have at least one (1) observer present at each and every phase of the election process. Such observer shall be a candidate or a member of good standing of the Local Union." The rule continues as follows:
For the purpose of observing the printing of ballots, preparation of ballot packages and/or mailing of ballots from a centralized location, a nominated candidate or slate of such candidates may authorize in writing any member of the Union in good standing to serve as his/her/its observer, whether or not the person is a member of the Local Union.
Hamilton alleged that this provision required Sgrillo to designate Fabiano in writing as his observer. Absent such a writing, Hamilton contended Fabiano had no right to serve as observer.
Hamilton's contention is incorrect. The quoted provision applied to the comparatively rare circumstance where ballots are printed at a location distant from the local union. In that circumstance, requiring that an observer also be a member of the local union conducting the election would require that he/she travel to the distant location to perform the observer function. Accordingly, the Rules create an exception from the requirement that an observer be a member of the same local union for ballot printing and mailing from a centralized location to permit instead that the observer be a member of any local union. In this situation, the candidate or slate must designate in writing that the member will serve as observer. This is the only situation in which the Rules expressly require a candidate to designate his/her observer in writing, and it applies only to printing and mailing of ballots from a centralized location.[2]
Making written designation of an observer in other situations may eliminate potential confusion or doubt as to whether a particular member is serving as observer and therefore be good practice, but the Rules do not mandate it. Here, we find there was no confusion or doubt that Fabiano was serving as Sgrillo's observer. Further, we note that a designation of Fabiano as observer was made shortly after this protest was filed.
Accordingly, we 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 191
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
[1] Fabiano et al, 2011 ESD 176 (March 23, 2011), appeal pending; Taylor et al, 2011 ESD 177 (March 23, 2011), appeal pending; and Sgrillo, 2011 ESD 189 (March 28, 2011).
[2] In the past, Supplemental Rules specific to the International Convention and to the International Officer ballot count have required candidates to designate observers in writing using an OES credential form. See, e.g., Supplemental Election Supervisor Rules for the 27th International IBT Convention, Section IX (May 1, 2006); Supplemental Guidelines for the Conduct of the 2001 IBT International Officer Mail Ballot Election, Section V (October 2, 2001). These Supplemental Rules have also provided that the Election Supervisor could limit the number of candidate observers to address space limitations or security concerns. The Election Supervisor will issue Supplemental Rules for the 28th International Convention, and for the International officer ballot count, at a later date.
