May 9, 1996
VIA UPS OVERNIGHT
Daniel Green
25 Martha Eaton Way, Unit 1203
Toronto, Ontario M6M 5B7
Tom Fraser, President
Teamsters Local Union 419
1890 Meyerside Drive
Mississauga, Ontario L5T 1B4
Re: Election Office Case No. Post-16-LU419-CAN
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
Daniel Green. The protester alleges that the ballots for Local Union 419’s delegate election were not mailed in a timely manner. Additionally, he alleges that his name was omitted from the local union’s ballot mailing list, even though he was declared eligible to run for delegate by the Election Officer in Green, P-314-LU938-CAN, E-073-LU419-EOH (February 12, 1996), aff’d, 96 - Elec. App. - 99 (KC) (February 21, 1996).
Regional Coordinator Gwen K. Randall investigated the protest.
The counting of the ballots for the mail-ballot delegate election at Local Union 419 took place on March 26, 1996. There were 531 ballots cast, of which 515 were counted. One slate and one independent candidate competed for the three delegate positions. The results of the election for delegate were as follows:
Daniel Green
May 9, 1996
Page 1
Name Slate/Independent Votes
Tom Fraser Slate[1] 403
Douglas C. Power Slate 422
Les Fisher Slate 429
Daniel Green Independent 76
The slate also included a candidate for alternate delegate who ran unopposed.
1. Late Ballot Mailing
Mr. Green alleges that the ballots for Local Union 419’s delegate election were “not sent in a timely fashion.” The ballots were scheduled to be mailed on February 27, 1996. Due to a delay in the Ottawa mailhouse, however, the ballots were not mailed until
February 29, 1996.
The protester, however, fails to allege any Rules violation. Article III, Section 1(b) of the Rules states:
At least twenty-one (21) days prior to the deadline for return of ballots to be counted, the Election Officer or her representative shall mail to each ballot-qualified member a ballot; a secret ballot envelope; a stamped self-addressed return envelope, prelabeled by the Election Officer with the member’s name, address and other data sufficient to identify and distinguish the member; and instructions regarding the procedure for mail-ballot voting.
According to the local union’s approved election plan, a summary of which was posted at the local union, ballots were scheduled to be counted on March 26, 1996. The election record indicates that ballots were counted on that date. Since the ballots were mailed on February 29, more than 21 days prior to the ballot count, the Rules were not violated. The 21-day rule was established to provide sufficient time for ballots to be delivered to members, for members to consider their choices, and for the completed ballots to be returned. Even considering that the ballots were mailed from Ottawa for a local union just outside Toronto, the 26 days between the ballot mailing and the ballot count were sufficient for this purpose.
Accordingly, this portion of the protest is DENIED.
2. Failure to Include Mr. Green on Ballot Mailing List
Daniel Green
May 9, 1996
Page 1
The investigation revealed that the protester was not included on the ballot mailing list and, consequently, did not receive a ballot until he specifically requested that he be sent one. The ballot eventually sent to Mr. Green was not returned by the ballot due date. Mr. Green alleges that this omission demonstrates the failure to comply with the Election Officer’s order in Green, P-314-LU938-CAN, E-073-LU419-EOH (February 12, 1996), aff’d, 96 - Elec. App. - 99 (KC) (February 21, 1996). In that case, the Election Officer determined that
Mr. Green was eligible to run for delegate from Local Union 419. The local union’s secretary- treasurer argued that Mr. Green was no longer a member of Local Union 419 because his employment status caused him to be transferred into the jurisdiction of Local Union 938. The Election Officer rejected this contention, finding, rather, that a dispute between Local Union 938 and Mr. Green’s new employer prevented him from transferring to the new local union. In addition, the Election Officer found that dues arrearages reflected on Mr. Green’s TITAN record were the result of employer negligence and not laxity on his part. As a result, the local union had improperly placed Mr. Green on involuntary withdrawal.
Ultimately, the Election Officer declared Mr. Green eligible to run for delegate and ordered that his name remain on the ballot. Any reasonable interpretation of this decision must conclude that, as he is eligible to run, he is also eligible to vote. While the Election Officer did not specifically order that Mr. Green be taken off withdrawal status, it is recognized that the Election Officer compiles the ballot mailing list from the local union’s TITAN records. Members recorded as on withdrawal are not mailed ballots. Hence, the local union’s failure to alter the TITAN record to indicate that Mr. Green was ballot-qualified was contrary to the order of the Election Officer and, thus, is a violation of the Rules.
This protest, however, is being considered in a post-election context. Therefore, the Election Officer must consider whether the violation “may have affected the outcome of the election,” under Article XIV, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
In the present case, 337 votes separated Tom Fraser, the successful delegate candidate with the least votes, and Mr. Green, the next candidate. While the omission of Mr. Green’s name from the ballot mailing list may have prevented him from voting in a timely fashion, his vote could not have altered the outcome of the election. As a result, no remedy is ordered here.
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:
Daniel Green
May 9, 1996
Page 1
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
Dolly M. Gee, Regional Coordinator
[1]The slate was unnamed.