Protest Decisions

May 6, 1996

VIA UPS OVERNIGHT

Arthur Snow

May 6, 1996

Page 1

Arthur Snow

3 Visby Avenue

Plainville, MA 02762

George W. Cashman, President

Teamsters Local Union 25

544 Main Street

Boston, MA 02129

Shailah Stewart

Angoff, Goldman, Manning,

Pyle, Wanger & Hiatt, P.C.

24 School Street, 3rd Floor

Boston, MA 02108

Arthur Snow

May 6, 1996

Page 1

Re: Election Office Case No.  Post-15-LU25-ENG

Gentlemen:

A post-election protest was filed pursuant to Article XIV, Section 3 of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Arthur Snow, a member of Local Union 25 and a candidate for delegate.  Mr. Snow alleges that Adjunct Regional Coordinator Shailah Stewart erred by permitting candidates and observers to examine the Election Control Roster (“ECR”) at the ballot count after eligibility determinations were made.  The protester contends these actions compromised members’ right “not to vote” and potentially subjected these members to reprisals and ridicule.  Mr. Snow also alleges that

Ms. Stewart failed to provide the total slate vote to an independent candidate who requested it after the election.  Finally, Mr. Snow alleges that Local Union 25 failed to timely post election results at two employers, as required by Article III, Section 5 of the Rules.

In response, Ms. Stewart states that she properly provided observers access to the ECR.  She also states that she promptly responded to requests for supplementary tally information, although she was not required to do so under the Rules.

Arthur Snow

May 6, 1996

Page 1

Local Union 25 and its agents respond that a mail delivery problem caused the election results to be posted late by the steward at 357 Corporation, but that the notice was promptly posted after the local union learned about the problem.  Local Union 25 contends that the results were timely posted at Hutchinson Industries (“Hutchinson”).  The stewards at these locations state that the bulletin boards are unsecured, and there exists a chronic problem of postings being removed from bulletin boards exists at these facilities.  The stewards acknowledge that the posting in question did not remain on the bulletin boards after the initial posting, and that the notice had to be re-posted.

This protest was investigated by Assistant Regional Coordinator Shailah Stewart and supervised by Protest Chief Benetta Mansfield.

1.  Allegations Concerning Ms. Stewart’s Conduct

A count of the ballots for the delegate election in Local Union 25 occurred on March 23, 1996.  The members voted on 10 delegate positions and three alternate delegate positions.  There was one full slate of candidates, three independent delegate candidates and two independent alternate candidates.   All of the slate candidates were elected.  Mr. Snow was an independent delegate candidate.  Out of 3,235 ballots cast, 2,956 ballots were counted. 

A.  Access to ECR

The ECR is a computerized list of the local union members compiled by the Election Officer to determine voter eligibility.  Member names appear on the list and are pre-coded as either eligible (“E”) or challenged (“C”).   During the ballot count, election workers were separated into 12 teams to count the ballots.  Each of these teams received a portion of the ECR corresponding to members’ last names on the outer ballot return envelope.  These teams separated, based upon the ECR, the eligible from the challenged ballots.[1]  Due to her concern that the observers were not able to review these determinations at each table, after the election workers had separated the eligible and challenged ballots, Ms. Stewart put all the sections of the ECR back together and permitted the observers to review the entire ECR.  Ms. Stewart determined that such access was necessary to effectuate a meaningful opportunity for observers to evaluate the eligibility determinations.  Ms. Stewart closely supervised the observers’ review of the list.  Observers were not permitted to keep a written record of the list as it was reviewed.

Article X, Section 6 of the Rules provide for the rights of observers:

Observers shall be permitted to observe the election count. Observers shall be permitted to be present at the vote counting locations.  Observers may challenge the eligibility of any voter to vote . . .  The right to observe includes the right . . . to observe the verification of the eligibility of members who have cast ballots, the determination of eligibility of those members whose right to vote is challenged . . .

Arthur Snow

May 6, 1996

Page 1

A guiding principle underlying Rules provisions relating to observer rights is that observers must have “access to sufficient information to monitor the verification of eligibility.”  Schneider, et al., Post-7-LU70-CSF, et seq. (April 12, 1996). 

Here, the Election Officer concludes that the access of the observers to the ECR when making eligibility determination is consistent with Article X, Section 6 of the Rules.  As previously noted, observers were prohibited by Ms. Stewart from making any written record of the list while reviewing the ECR. 

Mr. Snow expresses concern that by viewing the ECR, the right of members “not to vote” was compromised.  The Rules require that elections be conducted by “secret ballot”.[2]  As defined in the Labor-Management Reporting and Disclosure Act, the term “secret ballot” means “the expression by ballot . . . of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.”[3]   While the  Rules protect the right of persons who vote not to be identified with their expression of preference, they do not similarly protect the anonymity of any member as to whether the member voted or not.  Any nonvoter who is subjected to retaliation because of their choice not to vote has appropriate recourse through the protest process to allege a violation of the Rules.

B.  Request for Vote Tally Information

On March 23, 1996, Rick Anderson, an independent candidate for delegate, requested information pertaining to the total number of votes cast for slates in the Local Union 25 election.  The official election tally prepared by Ms. Stewart does not contain this information.[4] 

Ms. Stewart told Mr. Anderson that she would provide him with the total, but could not do so immediately.  On March 27, 1996, Mr. Anderson called Ms. Stewart for the information, and she provided him with the total slate vote over the  telephone.  She also sent a letter to Mr. Anderson, dated March 27, confirming the number of votes cast for the slate. 

Nothing in the Rules required Ms. Stewart to provide Mr. Anderson with a count of the slate vote.  The Rules, therefore, were not violated.

Arthur Snow

May 6, 1996

Page 1

2.  Allegations Concerning the Posting of Election Results             

Votes for Local Union 25’s delegate and alternate election were counted on March 23, 1996.  On March 28, Ms. Stewart faxed the official election results to Local Union 25 President George Cashman.  On April 1, 1996, the Election Officer received an affidavit from Local

Union 25 Secretary-Treasurer Joseph Conlon, dated March 28, 1996, attesting that a copy of the Official Election Tally had been posted on all local union bulletin boards.  This protest was filed on April 5, 1996, by Mr. Snow.  Mr. Snow claims that, as of April 5, notices of election results were not posted on bulletin boards at either Hutchinson or 357 Corporation.  357 Corporation and Hutchinson are leasing companies and they share the same facility.

The Election Officer’s investigation revealed that on March 28, 1996, after receiving copies of the official election results from Ms. Stewart, Local Union 25 mailed copies of these results to all stewards for the purpose of posting.  Robert McAllister, the Steward at

357 Corporation, never received his copy.   The notice was timely posted on the Hutchinson bulletin board but removed.  On April 2, 1996, Mr. McAllister contacted Local Union 25 Vice President Bill Carnes regarding the omission, and Mr. Carnes indicated that he would personally drop off a copy of the notice for posting the next day.  On April 3, Mr. Carnes posted the official election results in two places--an open bulletin board at 357 Corporation and on top of a glass-enclosed bulletin board used for union postings at Hutchinson.  Mr. McAllister was not present when Mr. Carnes posted the notice.  Anthony Nardone, the steward for Hutchinson, was present when Mr. Carnes re-posted a notice on Hutchinson’s bulletin board.  On April 4, Mr. McAllister noticed that the election results were not posted on the 357 Corporation bulletin board.  Subsequently, Mr. Nardone also noticed that the election results previously posted by Mr. Carnes at Hutchinson had been removed.  On April 5, Mr. McAllister contacted Mr. Carnes to alert him that the notice had been removed.  On April 10, Mr. Carnes returned to the 357 and Hutchinson locations and re-posted the notices.  Mr. Carnes left extra copies of the notice for the shop stewards in the case that the notices again were removed. 

Article III, Section 5 of the Rules requires the local union secretary-treasurer to post a copy of the official election tally sheet on all local union bulletin boards no later than seven days after the vote count and to maintain such postings for at least 30 days.

Because votes were counted on March 23, 1996, strict compliance with the Rules necessitated that the posting of election results be completed by March 30.   Because the steward did not receive it, the local union failed to timely post the notice at 357 Corporation.  As a result, the notice at 357 Corporation was not posted at 357 until April 3.  Thus, the requirement under the Rules was not adhered to. 

This is distinguishable from Hutchinson, where the election results were timely posted and then subsequently removed.  The local union appears to have taken appropriate measures to re-post missing notices.  While the Election Officer finds that the notice must remain posted for 30 days, she will not find a violation each time someone tears such a posting down.  This is especially true in this case, where the local union has acted diligently to re-post the notices.

Arthur Snow

May 6, 1996

Page 1

In consideration of the foregoing, Mr. Snow’s protest is GRANTED as to the failure to timely post the election results at 357 Corporation and DENIED in all other respects.

When the Election Officer determines that the Rules have been violated, she “may take whatever remedial action is appropriate.”  Article XIV, Section 4.  In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation as well as its potential for interfering with the election process.

              The Election Officer instructs Local Union 25 to maintain for 30 additional days from the date of this decision the posting of election results at 357 Corporation. Within two (2) days upon the expiration of this period, Local Union 25 shall file an affidavit stating that it has complied with the Election Officer’s decision in this matter.

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