Protest Decisions

IN RE: JOHN PHILLIPENAS, Protestor.
Protest Decision 2011 ESD 201
Issued: April 4, 2011
OES Case No. P-237-033011-GP

John Phillipenas, member and secretary-treasurer of Local Union 631 and delegate candidate on the Empowerment slate, filed a post-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 Rules were violated with respect to the counting of ballots in the local union's delegates and alternate delegates election.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact

Local Union 631 conducted its tally of ballots on Monday, March 28, 2011. The local union contracted with Merriman River Group to administer the election. Merriman's representative, Matt Fitch, attended and supervised the count. Also present were OES representatives Mary Ann Campbell and Bruce Boyens. Slates and candidates exercised their right to observe the count process, including the pickup of voted ballots from the post office.

The first issue the protest presented concerned the pickup of ballots. As this decision details, two pickups were made on count day. Protestor Phillipenas submits that the second pickup should not have been made nor the votes from that pickup added to the tally. The facts giving rise to his claim follow.

At about 9:45 a.m. on count day, a caravan of vehicles proceeded to the post office to pick up ballots. Among those making this trip were Fitch, Boyens, and observers for various slates competing in the election. Enroute to the post office, Fitch made three calls to post office personnel to advise that they were on their way to pick up the ballots. He called the post office box clerk, the business entry clerk, and the postage due clerk. He spoke with the first two and was assured they were ready for the caravan's arrival. He left a voice-message for the postage due clerk.

Voting members mailed their voted ballots in ballot return envelopes with postage paid by business reply mail. Postage expense on business reply mail is incurred only on mail actually received; as such, business reply mail received at the post office is routed to the postage due clerk before being deposited in the post office box to which it is addressed. The postage due clerk tallies the business reply mail received and debits the business' account before releasing it to the box holder. If the funds on deposit for business reply mail are insufficient to cover the postage due on it, the mail is held until sufficient funds are deposited. Fitch called the postage due clerk to learn whether the positive balance in the account as of the previous Friday was sufficient to pay any outstanding business reply postage expense.

At the post office and in the presence of Boyens and the observers, Fitch asked for and received the mail for the ballot return post office box. After that mail was produced to him, he asked if he had received all the mail for that post office box. He was assured that he had. Fitch, Boyens and the observers then returned to their vehicles. Boyens and the observers traveled in the car with the ballots back to the union hall; Fitch returned by separate vehicle.

At the hall, Fitch instructed all observers and counters to turn their cell phone ringers off to eliminate interruptions and distractions they could cause; he did the same. Approximately 15 minutes later, at 11:06 a.m., the postage due clerk called Fitch's cell phone to respond to the voice-message he had left her earlier that morning. The clerk, identified as Joyce on the voice-message, stated that there were "a little over 150 pieces" still at the post office and that Fitch should "call and let me know what you want to do" about that mail.

Fitch, with his cell phone ringer off, did not discover Joyce's message until approximately 1:30 p.m., some two and one-half hours later. In the interim, the count proceeded with the ballots obtained that morning. The ballot return envelopes were counted and were scanned for the initial eligibility determination.[1] The envelopes that scanned as challenged were bundled together in groups according to the challenge code assigned them. The envelopes that scanned as eligible were opened and the secret ballot envelopes they contained were removed. The secret ballot envelopes were shuffled, then opened and the ballots removed. Each ballot was examined to insure that its markings could be read by the optical scanner machines used at the count. Those that could not were set aside for hand-counting.

By the time Fitch discovered the voice-message from the postal clerk, the counting process of the ballots picked up that morning that had scanned as eligible was nearly complete; challenged ballot resolution was yet to commence. Fitch discussed the message with OES's Campbell and Boyens. Campbell determined that the mail should be picked up and examined to verify that it was mail that had been at the post office at the time of the original pickup and was not mail that had been received that day, March 28, after the morning pickup. Protestor Phillipenas objected to this decision, stating that postal employees had said repeatedly at the time of the first visit that all the ballots had been produced. Any additional ballots, Phillipenas argued, were late returns that should not be counted. Campbell overruled the objection to making a second pickup. She reasoned that mail at the post office at the time of the pickup should be counted and mail received after the pickup should not be, but the decision as to which ballots to count, if any, could not be made without examining each piece.

At this, Fitch led a second caravan to the post office to retrieve the additional mail. Boyens and the observers returned to the hall in the car with the ballots. Campbell examined the postmarks on the 152 pieces contained in the second pickup: 32 had no discernible or legible postmark; of the remaining 120 pieces, the postmarks ranged in date from March 18 to March 26.[2] None carried a postmark date of March 28, the date of the count. Accordingly, Campbell concluded that all of the ballot return envelopes from the second pickup had been at the post office when the first pickup occurred and simply had not been produced to Fitch. Therefore, she determined that they should be counted.

Subsequent investigation showed that the ballot return envelopes produced in the second pickup had been in the work area of the postage due clerk at the time of the initial pickup; the clerk had completed her work tallying the postage expense but had not sent the ballots to the post office box area for inclusion with the other ballots. Pete Seriano, postal service distribution operations supervisor, told Fitch and Campbell on March 29 that postmarks are applied when mail arrives at his facility; therefore, the postmark dates on the ballots produced at the second pickup indicated the dates those envelopes arrived there.

To preserve the issue for review, Campbell directed that a separate tally be made of the ballots in the second pickup. This was done.

When the tally of the ballots that scanned as eligible was completed, the number of challenged ballots was sufficient to affect the outcome of the election. Accordingly, Campbell and the local union's TITAN operator worked to resolve the challenges to the eligibility of those voters. All but two were resolved on March 28 and the ballots of the voters determined to be eligible were counted that day. The results of the election to that point were still such that the eligibility determination on the remaining two challenged ballots could affect the outcome of the election. Determination of eligibility of those two ballots required access to employer records to verify the identity of one of the members[3] and the employment status of the other. Given the lateness of the hour, however, contact with the employers was unsuccessful.

The inability to access the employers' records on March 28 gave rise to the second allegation of Phillipenas' protest. He contended that the count should have concluded on March 28 under these circumstances. The impact of his position is that any ballots for which eligibility could not be determined as of the end of the day on March 28 should not be counted, and the tally as it stood at that time deemed final.

Campbell concluded, contrary to Phillipenas' position, that the effort to resolve the final challenges should continue and that the employers should be contacted. Accordingly, she announced that the count would continue the next morning, March 29. No one, including the observer for Phillipenas' slate, objected to this decision.

The first of the following tables shows the tally of ballots in the delegates portion of the election after counting of the ballots that scanned as eligible from the first pickup; the second table is the cumulative total at the end of the day on March 28, after resolution of all but the final two challenged ballots.

Tally of ballots from 1^st pickup

Tally before resolution of last 2 challenges

On March 29, Campbell resolved the challenged ballots in favor of eligibility after gaining access to records that were unavailable the previous evening; both voters were determined to be eligible. Both ballots were slate votes for the RTP slate. The addition of these votes to reach the final tally changed the finishing order for the seventh, eighth and ninth positions. The following tables show those positions before and after the addition of the final two votes:

Tally before resolution of final 2 challenges

Tally after resolution of final 2 challenges