Protest Decisions

            John Murphy, nominated candidate for IBT Eastern region vice president on the Hoffa-Hall 2011 slate, 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 an OES policy permitting non-members who are affiliated with campaigns to be present in campaign offices at the ballot count site violated the Rules.

            Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

The ballot count for the IBT International officers election will commence Monday, November 14, at a facility in Alexandria, Virginia.  Under the Rules, the only persons permitted in the ballot processing area during counting activities are OES staff, OES count workers, and candidate observers.  With respect to observers, Article IX, Section 6 grants candidates or their designated observers the right to observe every phase of the election count.  This right includes the right to inspect the set-up of the counting machines and to observe the stored ballots, the eligibility check of ballot return envelopes, the opening of ballot return envelopes, the counting of the votes, the recording of the vote count, and the counting of unused, voided and spoiled ballots. 

All of the activities for which the Rules grant observer rights take place in the ballot security cage or the ballot processing area of the count site building.  The ballot security cage area is secured by a locked gate on the north end, and by a locked, roll-down metal door at the south end.  During the ballot count, the locked gate will be further secured by a tarpaulin covering.  Two large rooms at the count site (the “South Hall” and the “Central Hall”) are dedicated to ballot processing..[1]  Candidates and their designated observers are permitted access to the ballot security cage area and to the South Hall and Central Hall during ballot processing and ancillary activities.  Article IX, Section 1(a) requires that a person designated as an observer “shall be a candidate or other member in good standing in the Union.”  Because of this rule, non-members are not permitted access to the ballot security cage or the ballot processing area during count activities.

Separate from the South Hall and the Central Hall, there is a third large area (the “Lunch Room”).  Along the north wall of the Lunch Room, three walled offices are assigned for use by the three campaigns competing in the election.[2]  The campaign office area, on the north side of the Lunch Room, is separated from the Central Hall by a) the area of the Lunch Room and b) the wall that divides the Central Hall from the Lunch Room.  There are two openings in the wall that separates the Lunch Room from the Central Hall.  One is the locked and tarpaulined end of the ballot security cage.  There will be no passage from the Lunch Room to the Central Hall through that “opening” during the ballot count.  The other opening is a checkpoint staffed by OES security.[3]  Only persons displaying OES-issued badges authorizing access to the count floor can enter the Central Hall from the Lunch Room.  OES staff and count workers enter the count facility through a doorway (staffed by OES security) on the building’s east side.  Candidates, observers, media and others enter the count site facility through a doorway (also staffed by OES security) on the building’s west side that leads to the Lunch Room.  The count floor cannot be observed from the campaign office area, or even from most of the Lunch Room.  The check point at the border of the Lunch Room and the Central Hall is the only way that candidates and observers can enter the ballot processing area. 

On November 7, OES announced that campaigns may permit non-member representatives, staff or visitors to have access to, enter, and be present within the campaign offices inside the count site building.  Any such persons must be badged as visitors.  Because they are non-members and not qualified to serve as count observers, such visitors are not permitted access to the count floor or to a location where they may observe count floor activities. 

In issuing this announcement, the Election Supervisor concluded that such non-member visitors would not be in a position to observe count floor activity and therefore would not violate the Rules’ requirement that candidate observers be IBT members in good standing.  Further, the Election Supervisor concluded that permitting non-member campaign staff to access the campaign offices does not implicate the integrity of the count and may facilitate disposition of ballot challenges or other disputes that may arise on the count floor.

This protest followed.  Protestor Murphy argued that in previous elections non-members have never been permitted access to the count site building and that the Election Supervisor’s policy announcement departed from well-established precedent in this regard.  Further, Murphy contended that the announcement granted a subsidy to a particular campaign by permitting it to avoid the expense of securing office space outside the count site building for its non-member staff.  Finally, Murphy objected that the announcement, issued seven days before the count begins, came “so late in the schedule of the IBT Officer Election.” 

The 2011 ballot count is the sixth union-wide count that has occurred under the Consent Order.  Investigation of the protestor’s claim found that in 1991, 1996, 1998, and 2001, non-members were permitted access to the count site building.  Thus, non-member lawyers and the non-member campaign manager[4] for the Carey campaign were permitted inside the count site building (although not on the count floor or in a position to observe count floor activity) at the Bender building in 1991.  A lawyer and the campaign manager for the Carey campaign, both non-members, were permitted access to the count site building (but not the count floor) at the 4-H Center building used for the 1996 count.[5]  In addition, a non-member lawyer for the Hoffa campaign was also permitted access to the count site building that same year.  The campaign manager for the Leedham campaign staffed the Leedham campaign office in the Hoffman building in 1998.[6]  The campaign manager for the 2001 Leedham campaign staffed the Leedham campaign office at the count site in the National Car Rental building in 2001.[7]  As with the earlier examples, the non-member manager for the 2001 Leedham campaign was not permitted to enter the count floor or observe count floor activities.

Each of the buildings used for the ballot counts in 1991, 1996, 1998 and 2001 were similar to the current count site building in that the campaign offices were in an area of the building segregated from the count floor, and count floor activities could not be observed from the campaign offices or their immediate environs.[8] 

            The 2006 count site in Alexandria, Virginia differed from those used previously in that the campaign offices at that facility could only be reached by traveling across the count area, and the offices themselves were adjacent to and had a direct view of the count floor and the activities there.  Accordingly, the Election Supervisor limited access to the campaign offices to members only.  The 2006 example represents the only time that non-member campaign staff, managers, lawyers or guests were barred from the campaign office area while count activity was proceeding.

            Given this evidence, we conclude that the history of permitting non-member staff, attorneys and visitors to access campaign offices at count sites where the offices were segregated from the count floor and did not provide a view of count floor activities supports the Election Supervisor’s November 7 announcement permitting non-member staff, attorneys and visitors to access the campaign offices within the 2011 count site building.

            We also reject the protestor’s contention that the policy announcement grants a subsidy to a campaign.  The policy is non-discriminatory and permits all campaigns the same right to permit non-member visitors to their campaign offices within the count site building.

            Finally, we reject the protestor’s contention that the policy announcement came too late to be effective.  The Rules establish no time limit applicable to the announced policy, nor has any claim of prejudice been presented.  In light of the historical record establishing that non-members have been allowed into campaign offices at the count site (so long as those offices were segregated from the ballot processing area), no claim of prejudice could be made. 

            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, 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.