April 9, 1996
VIA UPS OVERNIGHT
Bill Hoefer, et al.
April 9, 1996
Page 1
Bill Hoefer
72-41 66th Place
Glendale, NY 11385
Tony Donato
46 Deserre Avenue
Huguenot, NY 10312
Vinny Monte
1027 Theodora Street
Franklin Square, NY 11010
Bill Hoefer, et al.
April 9, 1996
Page 1
Re: Election Office Case No. P-581-LU804-NYC
Gentlemen:
This protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Bill Hoefer, Tony Donato, and Vinny Monte, members of Local Union 804. The protesters allege that Regional Coordinator Arthur Wasserman improperly transmitted a sample ballot to an employer via facsimile. They further allege that a typographical error on Local Union 804’s ballot amounts to an unfair disadvantage in their election prospects.
Specifically, the protesters allege that on February 16, 1996 Mr. Wasserman faxed a sample ballot to UPS staff member Tony Caputo. The protesters ask first, “from whom did Mr. Wasserman acquire a UPS fax number?” and second, “if we are not permitted to compaign [sic] on employer property, why was a ballot sent to UPS management personnel?”
In the second part of the protest, the protesters allege their campaigns were adversely affected by an error on the ballot. According to the protesters, they requested that their slate appear on the ballot as “SLATE C” but that the ballot mailed to the membership identifies them only as “SLATE.”
Bill Hoefer, et al.
April 9, 1996
Page 1
Since the protested ballots were mailed on February 29, 1996 and the protest was received on March 2, 1996, the Election Officer deferred this protest for post-election review pursuant to her authority under Article XIV, Section 2(f)(2).
The protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
1. Faxing of Sample Ballot
The investigation revealed that on February 15, 1996 The Election Officer’s New York Regional Office received a copy of the proposed ballot for Local Union 804’s delegate election. Adjunct Regional Coordinator Helen Scott immediately attempted to contact slate representatives and independent candidates in that election so she could provide them with copies of this sample ballot for their review. Mindful of a weather forecast calling for a heavy snowstorm, and facing a three-day weekend,[1] Ms. Scott sought to get copies of the sample ballot to appropriate parties as soon as possible. She feared that, if she hesitated, the weather and the holiday would conspire to delay her distribution efforts.
To avoid this outcome, she attempted to contact all relevant parties by telephone to see if she could transmit the sample ballot to them by facsimile before the storm broke. According to information provided to the New York Regional Office, Mr. Hoefer, who is employed by UPS, had been designated the representative of his slate. Consequently,
Ms. Scott attempted to contact him. She used the telephone numbers provided by Mr. Hoefer on his candidate information sheet. From her efforts, Ms. Scott learned that Mr. Hoefer was not at his home, nor was he available at the site for which he had provided a business telephone number.
In the course of her efforts to reach other candidates, Ms. Scott was informed by a UPS representative that Tony Caputo, a manager at UPS, would accept a facsimile transmission for Mr. Hoefer and give it to him when he arrived at the facility. According to this representative, Mr. Hoefer was expected at the facility later that day. Ms. Scott faxed a copy to Mr. Caputo, but later events indicate that it was not delivered to Mr. Hoefer.
The next day, on February 16, 1996, Mr. Hoefer contacted Ms. Scott to ask why, when other candidates had received their sample ballots, he had not received one. Ms. Scott explained that she had tried to get him a copy the same day that other candidates received theirs but had been unsuccessful. He then requested she fax another copy to a number he provided. Ms. Scott immediately complied.
Bill Hoefer, et al.
April 9, 1996
Page 1
These facts do not indicate a Rules violation. While under normal circumstances, employers would not be provided with sample ballots, Mr. Caputo was sent a copy as part of Ms. Scott’s many efforts to ensure that the candidates received their sample ballots with sufficient time left over for comment and any necessary revision. Additionally, these facts answer the two questions presented by the protesters with regard to this issue. Accordingly, this portion of the protest is DENIED.
2. Ballot Error
Local Union 804’s nomination meeting was held on January 28, 1996. At the meeting, the protesters were nominated to run for alternate delegate to the International convention as a slate. At that time, the protesters did not assign a name to their slate although the Election Officer representative at the meeting suggested that they do so. When the first sample ballots were issued, the protesters’ slate was designated simply as “SLATE.” Shortly before the ballots were printed, the protesters contacted the Election Office and requested that they be included on the ballot as the “Row C Slate” because they occupied the third column on the ballot.
The protesters state that prior to their request that a slate name be adopted they assumed that the ballot would be divided into rows labeled alphabetically, like in state and local elections in New York. Because they knew their position on the ballot, the protesters believed their slate would appear under the heading “Row C.” As a result, they campaigned under the name of the “Row C” and printed literature in which they referred to themselves by this name. When they saw the sample ballot on February 16, 1996, they realized their mistake and requested that they be assigned the name “Row C Slate.” This request was granted and a new sample ballot was circulated on which the protesters’ slate is entitled the “Row C Slate.” The ballots were printed on February 27, 1996 and mailed to the membership on February 29, 1996.
Because of an Election Office error, this edit was not included on the final ballot printed and mailed to the membership for casting, and the protesters were designated as “SLATE” on that ballot. Similarly, the Unity Slate also requested a last minute change in their slate name to “The Local 804 Unity Slate.” This edit was also not included on the final ballot sent to the printer.
The counting of the ballots for the mail-ballot delegate election at Local Union 804 took place on March 22, 1996. There were 2,112 ballots cast, of which 1,939 were counted. Three slates and three independent candidates competed for three alternate delegate positions. The results of the election for alternate delegates were as follows:
Name Slate/Independent Number of Votes
Bill Leary Unity 875
Jimmy Walker Unity 861
Joe Fazio Unity 841
Bill Hoefer Slate 428
Tony Donato Slate 483
Bill Hoefer, et al.
April 9, 1996
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Name Slate/Independent Number of Votes
Vinny Monte Slate 446
Jim Reynolds Putting Members First 372
Anthony DeRosa Putting Members First 372
John Nemeth Putting Members First 316
Al Henley Independent 185
Michael Fohn Independent 97
Angelo Guarella Independent 231
These results indicate that the protesters’ slate came in second to the Unity slate of Messrs. Leary, Walker, and Fazio. On average, the Unity slate members received over 400 votes more that the Row C slate members.
The protesters state that, in their campaigning efforts, they told people to vote for “Row C.” They admit, however, that they included the candidates’ names on each piece of campaign literature, often in larger and more conspicuous type than Row C, and after the ballots were mailed, they emphasized to members that they needed to vote for them by name. An examination of the ballot reveals that it lists slate candidates vertically in rows by slate. The protesters’ slate comprises the third row. Given this fact and the fact that the protesters’ slate is the only slate on the ballot without a title, a reasonable observer would assume that their unnamed slate in the third row (or, if labeled alphabetically, row “C”) was the slate whose candidates had advised voters to vote for “Row C.” The fact that the Unity slate-- which also requested a name change--was victorious demonstrates, at least in part, that the members voted for candidates rather than slate names.
As a result, while the Election Officer regrets the ballot error, the protesters did not suffer substantial disadvantage from this error. The Election Officer finds this error did not affect the outcome of this election.
For the foregoing reasons, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Bill Hoefer, et al.
April 9, 1996
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Arthur Wasserman, Regional Coordinator
[1]Monday, February 19, 1996 was President’s Day.