Protest Decisions

IN RE: ROBERT WOOD, Protestor.
Protest Decision 2011 ESD 202
Issued: April 4, 2011
OES Case No. P-222-031511-SO & P-223-031511-SO

Robert Wood, member of Local Union 728, filed two post-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 first protest, Case No. P-222-031511-SO, alleged that certain pre-election conduct of the opposition slate violated the Rules; it also alleged that count day procedures and processes violated the Rules as well. The second protest, Case No. P-223-031511-SO, alleged that Eric Robertson used the protest procedure to intimidate opposing candidates and did so using union resources.

Election Supervisor representative Dolores Hall investigated these protests.

Findings of Fact

Robert Wood ran for delegate on the Restore the Power slate in Local Union 728's delegates and alternate delegates election. The slate opposing Wood's was the Members First slate, comprised of many incumbent local union officials. Ballots were counted on March 11. Candidates on the Members First slate won the first eight of the nine delegate seats at issue and all three alternate delegate positions. Larry McDonald, a member of Wood's slate, won the remaining delegate seat. He tallied three votes more than Wood and nine votes more than the final member of the Members First slate.

Pre-election conduct in Case No. P-222-031511-SO.

Wood's first protest alleged that certain pre-election conduct by candidates on the Members First slate violated the Rules. Thus, he claimed that Members First candidates, as local union officers and business agents, had advantages in campaigning, including use of union-provided vehicles for transportation and the ability to arrange their visits to worksites in order to meet and greet members during the election period. He also alleged that the local union failed to update its membership list, with the result that ballot packages were returned as undeliverable and members were deprived of the right to vote. Finally, he alleged that bar-coding on ballot return envelopes that postal regulations required for business reply mail purposes caused voted ballots to be returned to the voting member rather than to the post office box for ballot return envelopes.

We DENY these aspects of the protest as untimely filed. Article XIII, Section 3 of the Rules define post-election protests as those "concerning election day or post-election day conduct." The allegations that opposition slate members used union-provided vehicles and the ability to arrange their schedules for campaign advantage concern pre-election conduct which allegedly occurred in the run-up to the mailing of ballots on February 16 and thereafter. Further, the local union's alleged failure to update its membership list so as to minimize the number of ballot packages returned as undeliverable also concerns pre-election acts or omissions that occurred before February 16. The bar-coding on ballot return envelopes was applied at the time the envelopes were printed and inserted in ballot packages on February 16. Wood's post-election protest, filed March 15, came far too late to address these issues. As we said in Berg, 2006 ESD 296 (June 4, 2006), aff'd, 06 EAM 44 (June 15, 2006):

Post-election protests are properly addressed to actions occurring at or after the ballot count itself. They are not to be used to assert violations based on matters that the protestor knew (or should have known) about in the pre-election period. A protestor cannot sit on a pre-election allegation, wait for the outcome of the election, and then seek to upset the entire result based on pre-election conduct that, if a violation, could have been addressed earlier.

Election day conduct in Case No. P-222-031511-SO.

This protest also made several challenges to conduct occurring on election day. Thus, the protest alleged that the election control roster used to determine eligibility to vote was not up-to-date. It also alleged that certain members did not receive ballots packages mailed or remailed to them. Finally, this protest alleged that the counting machines used at the tally inaccurately counted ballots where the member voted both for a slate and for independent candidate Donnie Dixon. We address these allegations in the order presented.

Investigation of the election control roster showed that it was produced by the IBT to Merriman River Group, the agency hired by the local union to administer the election, on March 9, two days before ballots were counted. As such, we find it was current.

Wood provided a list of ten members he alleged did not receive ballots. Investigation revealed the circumstances with respect to eight of these ten. Thus, three received ballots, and one of these voted; two did not receive ballots and did not call to request that they be sent duplicate ballots; one, Alyce Pruitt, was mailed two ballot packages and she received neither[1]; one did not get a ballot, called for one, and did not receive it, although evidence showed that it was sent; and one was found not to be a member of Local Union 728. Our investigator was unable to contact the remaining two persons on Wood's list; the number Wood provided for one was incorrect, and the other person did not return the investigator's call. None of the members listed had their ballot packages returned as undeliverable.

Investigation of Wood's allegation concerning the logic and accuracy of the tabulating machines showed the following. Before the count commenced, Matt Fitch of Merriman invited any observer or candidate who wished to do so to mark a sample ballot as he/she saw fit to test whether the machines recorded the votes on the sample ballot in accordance wtih the Rules. This was done, and no objection was made before the counting of ballots to the logic and accuracy of the machines.

In his protest, Wood asserted that the machines' ability to count so-called "split votes," i.e., ballots that voted for a slate and an individual candidate not on that slate, was not "proven accurate." To the contrary, the pre-count testing of the machines demonstrated that the machines' logic counted the ballots as the Rules provide.

Wood's second allegation is that the machines should have recorded a ballot that cast a slate vote and a vote for independent candidate Donnie Dixon as an over-vote and therefore void, as the effect of the vote, according to Wood, was that the member voted for ten delegate candidates (nine of whom were on the slate, the tenth being Dixon) when only nine delegate seats were being elected. Wood is incorrect. Article II, Section 10(a) of the Rules states the following on this point:

If the total number of delegate candidate votes exceeds the number of delegates to be elected, that portion of the ballot shall be void, except where a voter has voted for a slate or a partial slate, in which case the slate or partial slate vote only shall be counted.

(Emphasis supplied.)

The tabulating machines were programmed in accord with this provision, and ballots that were marked for a slate and for independent candidate Dixon were counted as votes for the slate candidates only.

Accordingly, we DENY the remainder of the protest in Case No. P-222-031511-SO.

Pre-election conduct in Case No. P-223-031511-SO.

In this protest, Wood alleged that Eric Robertson, a delegate candidate on the Members First slate, filed several protests against Wood and Wood's slate in an effort to "eliminate competition/opposition" in the election, and that he did so on union-paid time. Investigation showed that Robertson filed an eligibility protest that we denied in Eligibility of Ross et al, 2011 ESD 110 (February 14, 2011); the protest raised colorable claims of ineligibility and was not frivolous. In Robertson, 2011 ESD 146 (March 2, 2011), we granted the protest and imposed a remedy. In Robertson, 2011 ESD 200 (April 4, 2011), we denied two protests that alleged that the remedy in the previous case had not been completed timely; we find that these protests were not frivolous.

Article VII, Section 12(g) prohibits retaliation for activity protected by the Rules. We find that Robertson's use of the protest procedure here was in accordance with its purpose of insuring that only those members who are eligible to do so may stand for office and may nominate or second the nomination of other members. We also find that his protests of campaign conduct sought to insure that the election was conducted fairly. Accordingly, we find that Robertson's protests did not violate Article VII, Section 12(g) as prohibited retaliation.

We turn next to the allegation that Robertson prepared and filed his protests using union resources. As we have said, whether researching, filing and subsequent processing of a protest constitutes an improper use of union funds depends on whether the protest furthers the independent, institutional interest of the union.  Jenne, 2000 EAD 64 (December 14, 2000); Koch, 2006 ESD 169 (April 3, 2006) (protest researched and prepared on union-paid time and filed on union stationery is permissible where it sought to enforce Rules provision limiting ballot access to eligible candidates).  Local unions can expend their resources to pursue a protest filed to insure proper implementation of the Rules as long as they do not take a partisan position or engage in advocacy on behalf of particular candidates.  Id.  When these criteria are met, a local union may use its funds to file and pursue such a protest.  It may do so by paying for time spent by its officers in handling such protests and by hiring legal counsel.  Local unions cannot, however, use their funds to finance protest activity that advances or damages a candidacy without implicating the institutional interest of the union.  We apply a tolerant standard for differentiating between proper and improper expenditures in this context. Sandberg, 2011 ESD 192 (March 28, 2011), appeal pending. Assuming without finding that Robertson prepared and filed the protests on union-paid time using union resources, we find that such use did not violate the Rules because the protests advanced the institutional interests of the local union.

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 202

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

Eric Robertson
375 Spence Road
Fairburn, GA 30213
e_robertson@yahoo.com

Mike Drummond
Restore the Power Slate
280 Birkdale Drive
Fayetteville, GA 30215
ma74931@bellsouth.net

Robert Wood
ups1973@bellsouth.net

Jimi Richards, Secretary-Treasurer
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
jimi_richards@bellsouth.net

Randall Brown, President
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
jrichards@teamsterslocal728.org

Matt Fitch
Merriman River Group
matt@merrmanriver.com

Dolores Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net

Maria 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
EllisonEsq@aol.com