IN RE: JAKWAN RIVERS, Protestor.
Protest Decision 2011 ESD 222
Issued: April 19, 2011
OES Case No. P-228-031711-NE
Jakwan Rivers, member of Local Union 237 and unsuccessful delegate candidate, filed a post-election protest pursuant to Article XIII, Section 3(a) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that voting and counting irregularities affected the outcome of the election.
Election Supervisor representative Deborah Schaaf investigated this protest.
Findings of Fact and Analysis
Local Union 237, the IBT's largest local union, is comprised of employees of New York City. At the local union's nominations meeting held January 6, 2011, two full slates of candidates for delegate and alternate delegate were nominated. Protestor Rivers was a candidate on the We Deserve Better slate. That slate competed against the Greg Floyd slate, comprised in part of incumbent local union officers; in addition, several independent candidates were nominated for delegate. Ballots were mailed February 9 and were counted March 15.
The count was conducted by Election Services Solutions (ESS), an agency hired by Local Union 237 pursuant to the local union election plan. OES representatives also attended in a supervisory capacity. Candidates on the Floyd slate won all delegate and alternate delegate positions. On 5,011 valid ballots counted, the winning delegate candidate with the fewest votes tallied 2,995 while the losing delegate candidate with the highest tally achieved 1,824, for a margin of 1,171 votes. The alternate delegate race showed a similar result, with a margin of 1,242 between the last winning candidate and the first losing.
Rivers' post-election protest made six allegations. We address them as follows.
Allegation that Local Union 237 and/or the Floyd slate identified members with a history of incorrect addresses and diverted ballots intended for those members to a location where they were collected and voted for the Floyd slate.
The protestor presented no evidence - and our investigation found none - that ballot packages were diverted to a location where they could be collected and voted fraudulently on behalf of the Floyd slate. Protests without evidence will be denied. Joseph, 2006 ESD 132 (March 31, 2006); Gegare, 2010 ESD 10 (July 27, 2010). Accordingly, we DENY this aspect of the protest.
Allegation that widespread use of tape to seal ballot return envelopes revealed problems with the integrity of the seal on the return envelopes.
Ballot return envelopes that are sealed with tape generally merit examination to determine whether the tape was applied by the voter or may have been applied by an unknown person after the envelope left the voter's custody. OES recognizes that some voters place tape across an envelope flap to insure the flap remains sealed. Generally, the ballots those envelopes contain are counted, absent evidence of tampering. However, ballots in envelopes with an edge torn open and then taped closed are generally not counted because there is no assurance that the envelope was sealed by the voter.
As is its policy, ESS segregated during the initial sort each ballot return envelope (BRE) that was taped in any manner. In addition, torn BREs were also segregated [1] . OES regional director David Reilly examined each taped or torn envelope in the presence of observers to determine whether the opening in the envelope, sealed or not, was of sufficient size to permit removal and possible tampering with the ballot. According to Reilly, approximately 125 taped or torn envelopes were segregated for examination. Most of the taped envelopes had tape on the flap only. Reilly concluded that the tape on these envelopes was applied by the voter to insure that the envelope remained sealed. These ballots were counted. However, Reilly determined that 39 envelopes were void because they were taped along the top edge, indicating that the envelope had been torn or slit open after it was sealed; as it was impossible to determine whether the slitting and sealing of the envelope was done by the voter or someone else, the ballot was voided. Approximately 2.4% percent of the total ballots cast were returned in taped or torn envelopes. Less than 1% of the ballots were voided because of taping or tearing.
Two candidates on Rivers' slate, Randy Thorne and Noreen Hollingsworth, observed the examination of the taped and torn BREs They did not make any contemporaneous challenge or objection to the process or the determinations on count day. Nonetheless, when interviewed in this investigation, Thorne claimed that 300 to 400 envelopes were taped shut (a number he characterized as excessive), and that it took more than two hours to make rulings on them. Thorne's claim was not supported by any of the count personnel. Further, Thorne alleged "95% of envelopes were taped with the same tape - clear packing tape." Falik and Reilly flatly disputed that claim. Regardless of the differences between Thorne's account and those of count officials with respect to the number of taped BREs and the type of tape used, Thorne did not challenge, either at the count or in the course of this investigation, Reilly's determination to count or to void any particular BRE.
Investigation found no evidence to support Rivers' contention that the gum seal on the BREs was deficient or compromised. As noted, only 2.4% of BREs were returned with tape, with the balance sealed only with the gum seal intact. We conclude that this allegation is unsubstantiated.
Accordingly, we DENY this aspect of the protest.
Allegation that ballots were counted that showed evidence of tampering.
Aside from the BREs, protestor alleged that specific ballots were counted that showed evidence of tampering. Thus, he alleged that ballots were torn, cut, and in some instances, were in two or more pieces.
A ballot may become torn as the result of the voter's action. In addition, it may be torn or cut as the result of extracting the secret ballot envelope from the BRE or extracting the ballot from the secret ballot envelope. As ballots at Local Union 237's tally were counted by optical scanning device, each ballot that was torn or taped was examined to insure that its markings could be read by the scanner. Ballots that could not were re-made under the direct view of candidate observers, with a count worker marking a blank ballot with the same vote(s) that the voter had made on the torn, cut or damaged ballot.
Falik, Reilly, and OES's Maureen Geraghty agreed that the number of torn or taped ballots was not excessive. Those that were torn or taped were considered individually to insure the scanner could read them properly. None was voided, and no challenge or protest was made at the count about this issue.
Neither Thorne nor Hollingsworth expressed concern about the number of torn or taped ballots, and neither challenged the remaking of ballots that the scanner could not read in their existing condition.
Accordingly, we DENY this aspect of the protest.
Allegation that the ballot count was chaotic and poorly organized, with ballots misplaced, misdirected or not counted at all.
According to ESS and OES staff present at the count, no ballots were lost, missing or not counted. Investigation showed that all ballots were accounted for in the final tally, and we find therefore that no ballots were lost, missing or not counted. Falik noted that the count may have seemed chaotic to some observers, as there were over 5,000 ballots to handle and only a portion of them were handled at any given time.
Hollingsworth did not allege or observe any improper action or ballot tampering. However, she claimed that she observed a count worker who had rolled mixed-vote ballots into bundles of 25 and then could not find them when the scanner was ready to count them. Hollingsworth claimed that the ballots "turned up on the other side of the room, then came back to the counter." Investigation found no count personnel who were aware of this circumstance, and Hollingsworth conceded she did not raise it as an issue on count day. Falik asserted that bundles of ballots ready for counting were held in a secure location until the scanner was available for them.
As the protestor presented no evidence to substantiate this aspect of his protest and our investigation found none, we DENY it.
Allegation that ESS provided the Floyd slate periodic reports on the number of returned ballots, but denied Rivers' slate the same information.
This allegation claimed pre-election misconduct on the part of ESS. As such, it is not an appropriate subject for a post-election protest, which concerns "election day or post-election day conduct." Article XIII, Section 3. The instant allegation concerns conduct said to have occurred after mailing but before counting of ballots. The Rules require any protest of this alleged conduct to be filed within two days of its occurrence. Rivers' protest that included this allegation was filed March 17, two days after the tally of ballots and too late to address it in a pre-election context. 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.
See also, Wood, 2011 ESD 202 (April 4, 2011); and Castillo, 2011 ESD 203 (April 7, 2011), appeal pending.
Accordingly, we DENY this aspect of the protest as untimely filed.
Were we to consider it on the merits, we would deny it. Investigation revealed no evidence that anyone - whether candidates, slates or ESS employees - knew the number of BREs that had been returned until the count conducted on March 15. With respect to the alleged discriminatory dissemination of information, investigation showed that ballot packages returned as undeliverable were collected periodically by ESS, which provided a weekly report of undeliverable and remailed ballots to each slate and to all independent candidates.
Allegation that the ballots of more than 200 members who voted for Rivers' slate did not appear on the list of validated voters provided by ESS following the eligibility check.
Distilled to its essence, this claim is that the ballots of members who Rivers claimed voted for his slate were not received and therefore were not counted.
Rivers supplied a list of 202 members he claimed told him or other members of his slate that they returned ballots; Rivers claimed that these members did not appear on the list of received ballots that ESS provided for viewing by candidates and observers following the eligibility check.
Our investigator compared Rivers' list with ESS's list of validated voters, the ESS list of Civil Service Bar Association validated voters, and the ESS Local Union 237 Activity Report (detailing all ballots returned as undeliverable and, if possible, re-mailed). Contrary to Rivers' allegation, 110 of the 202 members on the Rivers list (54%) also appeared on the list of validated voters, indicating that ballots were received from them. Two members were on the list of undeliverable ballots.
Ballots arriving at the post office box after the March 15 tally were not included in the count because they arrived too late. As part of the investigation of this protest, we observed the pickup of late returns that took place on April 12. BREs of four additional members on Rivers' list were included in the late returns. Accordingly, some 88 persons appeared on Rivers' list who he claimed sent in ballots but whose ballots did not arrive and were not counted.
We did not investigate the circumstances of these 88 persons, as the margin between the winning and losing delegate candidates was 1,171, far in excess of the 88 members whose ballots Rivers' claimed were not counted.
Accordingly, we DENY this final aspect of the protest. Even were a Rules violation alleged and found with respect to these 88, we conclude that it would not affect the outcome of the election.
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 222
[1] ESS's Maralin Falik and OES's David Reilly recognized envelope tears as a common result of processing envelopes through sorting machines at the post office.
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
Jakwan Rivers
9810 Avenue K, Apt. 2
Brooklyn, NY 11236
jakwanr@optonline.net
Gregory Floyd, President
Teamsters Local Union 237
216 W. 14th Street
New York, NY 10011
greyes@local237.org
George Geller
Teamsters Local Union 237
216 W. 14th Street
New York, NY 10011
grgeller@msn.com
Deborah Schaaf
1118 Coddington Road
Ithaca, NY 14850
debschaaf33@gmail.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
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
