March 25, 1996
VIA UPS OVERNIGHT
Joseph Pierani
March 25, 1996
Page 1
Joseph X. Pierani
67 Claremont Drive
Brunswick, OH 44212
Teamsters for a Democratic Union
7437 Michigan Avenue
Detroit, MI 48210
Paul A. Levy
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Green Team (Ron Carey’s Reform Slate)
c/o Alex Adams
14968 Carol Drive
Maple Heights, OH 44137
Joseph Pierani
March 25, 1996
Page 1
Re: Election Office Case Nos. P-589-LU407-CLE
Post-2-LU407-CLE
Post-3-LU407-CLE
Gentlepersons:
Joseph Pierani, a member of Local Union 407, and a candidate for delegate on the Reform Members slate, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protester alleges that the Green Team slate impermissibly accepted contributions of suggested campaign literature and a membership list from Teamsters for a Democratic Union (“TDU”) because TDU is an employer, under the Rules. The Election Officer deferred this protest for post-election review pursuant to her authority under the Rules, Article XIV,
Section 2(f)(2).
In Post-2-LU407-CLE, C. Sam Theodus, president of the local union and a candidate for delegate on the Reform Members slate, also raises the contention of impermissible assistance from the TDU. In addition, he protests certain actions which occurred as part of the election count. Specifically, the protester cites as violations the retrieval and counting of ballots from a post office box other than the one designated for the Local Union 407 election and the failure of the Election Officer’s representative to count ballots which had been opened and then resealed.
Joseph Pierani
March 25, 1996
Page 1
In Post-3-LU407-CLE, Mr. Pierani also protests certain alleged activities at the election count: the proximity of observers to ballot counters, changes in stroke counts when errors were detected, and rereading ballots on the request of a tallier. Further, Mr. Pierani requests a recount due to the closeness of the election outcome.
Regional Coordinator Joyce Goldstein investigated the protests.
The ballot count for the delegate election from Local Union 407 took place on March 2, 1996. It was supervised by Regional Coordinator Joyce Goldstein, in consultation with the Election Officer and her staff. Observers from the two delegate slates, the Green Team and the Reform Members slates, including the protesters, were present during the ballot processing and count. The tally shows a margin of two votes between the winning candidate with the least number of votes and the losing candidate with the highest number of votes, Mr. Theodus. The other protester, Mr. Pierani, also ran unsuccessfully, receiving four fewer votes than
Mr. Theodus.
I. Allegations Concerning the Use of the Membership List Obtained from TDU
The respondents admit to receiving the membership list and model leaflet from TDU. The receipt and use of the membership list obtained from TDU by the Green Team was specifically addressed and decided in Cipriani, et al., P-420-LU391-SEC, et seq. (March 1, 1996), aff’d, 95 - Elec. App. - 123 (KC) (March 13, 1996). There, the Election Officer ruled that the delegate candidates who received membership lists from TDU and Mr. Paff were not in violation of the Rules. The Election Officer permitted those local union candidates to retain and use the lists for proper purposes under the Rules. The protesters have raised no new evidence here. Therefore, these allegations are DENIED.
II. Allegations Concerning TDU as an Employer
TDU’s alleged status as an employer prohibited from making contributions to delegate campaigns has also been addressed and decided by the Election Officer. In Halberg, P-155-LU174-PNW (December 14, 1995), the Election Officer found that TDU is not an “employer” within the meaning of the Rules because it is a caucus whose contributions to campaigns are financed exclusively from contributions permitted under the Rules. See also Halberg, P-019-LU174-PNW, et seq. (Decision on remand) (December 14, 1995). The Election Officer finds that Mr. Pierani’s protest here offers no reason to revisit that decision and has not presented any evidence contrary to that decision. As a caucus of union members, it is not a violation of the Rules for TDU to produce and distribute campaign literature for use in the delegate election. Accordingly, these allegations in the protests are DENIED.
III. Allegations Concerning Election Irregularities
There were 15 ballots for the Local Union 407 election found in the post office box used for receipt of ballots in the Local Union 507 election. Those ballots were declared void with respect to the Local Union 507 election when the ballots in that election were counted on
Joseph Pierani
March 25, 1996
Page 1
March 1, 1996. Thereafter, these void ballots were sealed and stored separately with the other Local Union 507 materials in case they were needed for the Local Union 407 ballot count the following day. Due to the closeness of the count, it appeared to the Regional Coordinator supervising the election that those Local Union 407 delegate ballots originally received in the Local Union 507 post office box might affect the outcome of the Local Union 407 election. After consultation with and a determination of the Election Officer, Regional Coordinator Goldstein retrieved and counted these ballots with the other Local Union 407 ballots. Observers for the candidates, including those of this protester, were offered the opportunity to observe the retrieval of these ballots. Only an observer for the Green Team chose to do so. There is no evidence that the determination to count these ballots was improper. Indeed, the Rules require that ballots from all eligible members be counted prior to any challenged-ballot resolution. Article III, Section 4. Particularly given the closeness of the margin in this election, it would have been improper not to count ballots which the Regional Coordinator knew had been received for the Local Union 407 election prior to the deadline.
The contention that ballots that had been opened, resealed are not counted does not suggest a violation of the Rules. In fact, to preserve the integrity of the balloting process, the Election Officer has ruled that such ballots are not to be counted. On the outside of the voters’ secret-ballot envelopes, the member is instructed: “Once you have sealed your envelope, do not reopen it. Envelopes that have been sealed and reopened will not be counted.”
Finally, the protesters allege that the observers and candidates “were seen walking around the perimeter and into the work area.” This, they allege, resulted in count workers having to change stroke counts as names were being called from ballots “where the vote had marked more candidates than the allowed number.” The Rules, at Article X, Section 6, state, in pertinent part:
Observers shall be permitted to observe the election count. Observers shall be permitted to be present at the vote counting locations.
The right to observe includes the right to . . . observe . . . the opening of the return ballot envelopes; the count of the votes . . . Observers shall be permitted to remain with the ballots from the time the count commences until the ballots are counted . . .
There is no evidence presented that the observers conducted themselves in violation of the Rules or that their proximity to the count gave them access in excess of that provided by the Rules. Any correction by the ballot counters of tallying errors discovered on the spot is proper procedure in an election count.
None of the allegations regarding the conduct of the election constitute a violation of the Rules. Therefore, these protests are DENIED.
Joseph Pierani
March 25, 1996
Page 1
IV. Request for a Recount
Given the closeness of the vote, and after consultation with the Regional Coordinator who directed the counting of the ballots, the request for a recount of the ballots under these circumstances is not unreasonable. The recount will take place at 10 a.m. on April 13, 1996, at the Local Union 407 hall, 3150 Chester Avenue, Cleveland, Ohio, or at such other date that is feasible for Regional Coordinator Goldstein and the other Election Officer representatives needed to conduct the recount. Determinations made by the Election Officer on void ballots, voter eligibility determinations based upon challenges made at the time of the vote count, or concerning any conduct of any candidate or candidate observers will stand as previously determined and will not be reviewed as part of the recount.
Accordingly, the request for a recount is GRANTED.
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
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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
Joyce Goldstein, Regional Coordinator
Green Team
Joseph Pierani
March 25, 1996
Page 1
Jeff Chambers
Frank Dennis
Tom Lavelle
Lillian Morisky
Jim Collum
Melvin May
Ben Sizemore