Protest Decisions

Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

Local Union 805 has approximately 1,200 members and is entitled to send one delegate to the IBT convention.   The approved local union election plan designated the American Arbitration Association to administer the election.   Two candidates were nominated for delegate: protestor Peralta and local union principal officer Sandy Pope.   At the March 21 tally, Pope defeated Peralta by 148 votes on 418 counted.

Peralta filed an undated protest that was received by the OES on March 21, 2011, the same day as the Local Union 805 ballot count.

Investigation showed that immediately following the nominations meeting, Peralta, a first time candidate for delegate, attended the Local Union 805 candidates meeting, where he was given a copy of an Observer Rights Information Form.   Peralta was advised that the initial mailing of ballots to local union members would take place on February 23, 2011.   However, the section of the observer form concerning ballots returned as undeliverable was marked "N/A," as the approved election plan provided for return of the undeliverable ballots directly to AAA instead of to a dedicated post office box.  

While this is the first time Peralta has been a candidate for delegate, he previously stood as a candidate in Local Union 805's officers election conducted in Fall 2010.  In that election, he alleged that Pope, his opponent there, engaged in improper conduct concerning replacement and undeliverable ballots.   In fact, Peralta's protest here refers to "outstanding charges of ballot collection in connection with the mailing of replacement ballots" in the local union officers election.

Maria Gonzalez of AAA confirmed that undeliverable ballots in the delegate election were returned directly to AAA, and AAA immediately recorded the event, took steps to obtain new addresses, and mailed replacement ballot(s) to new addresses that were found.   Similarly, when a voter requested a duplicate ballot, she stated that procedures were followed to insure that such requests were properly recorded and that no ballot was mailed to members who did not appear on the election control roster.   She explained that it was not AAA procedure to allow candidates or credentialed representatives to observe this process, and none of the candidates in the Local 805 election, including Peralta or Pope, were given an opportunity to observe the process.   However, on the day of the count, AAA, in accordance with its usual procedures, provided documentation to all candidates and observers detailing the numbers of ballots returned as undeliverable, duplicate ballots requested, and ballots remailed to members.

Peralta was aware of this procedure as his attorney, George Geller, contacted OES on March 15, 2011 and requested that Peralta be provided with a list of the names and addresses of members to whom replacement ballots had been mailed.   In making the request, Geller referred to the ongoing controversy from the local union officer's election and that receipt of the replacement ballot information at the ballot count would be too late to make use of it.  

Peralta made no allegation of irregularity or impropriety on the part of AAA, Local Union 805 or Sandy Pope with respect to the handling of replacement ballots, nor was any evidence of such activity found during the investigation.   According to the records provided to the OES, 1,210 ballots were mailed to Local Union 805 members.   Of those, 16 ballot packages were returned undeliverable (1.33% of all ballot packages mailed), and 14 of those were re-mailed to corrected addresses.   In addition, fifteen members requested duplicate ballots.   A review of the election control roster on the day of the ballot count showed that 14 of the members who requested a duplicate ballot voted.

Analysis

We first address the apparent untimeliness of this protest.   Article XIII, Section 2(b) requires pre-election protests to be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived."   Our investigator made repeated attempts to contact Peralta during the investigation and left messages on March 25 and April 7.   No return call or other communication was received.   As a consequence, it was not possible to determine if Peralta had   tried to enforce his observation rights or if there was any reason explaining Peralta's delay until election day to file a protest alleging denial of observer rights over the previous three weeks.   Even in the unlikely event that Peralta first became aware of his right to observe the remail operation on the day his attorney made his request of the OES, six days elapsed before the protest was filed.   On these facts, we DENY the protest as untimely filed.

But while the protest alleged pre-election violation of the Rules, we consider it in a post-election context pursuant to Article XIII, Section 2(f)(2).   Under such circumstances, we may remedy any alleged Rules violation only if it may have affected the outcome of the election.[1]   There was no showing of irregularity in the handling of the remailed ballots by AAA.[2]  Further, as AAA's records show that only 31 ballots were remailed, this number is insufficient to have affected the outcome of an election where the margin of victory was nearly five times the number of ballots remailed.

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, NY   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 218

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):