Protest Decisions

              July 16, 1998

VIA UPS OVERNIGHT

Jeraldine Cheatem

July 16, 1998

Page 1

Jeraldine Cheatem

Stand-Up Slate

Post Office Box 288492

Chicago, IL  60628

Leroy Ellis

Stand-Up Slate

Post Office Box 288492

Chicago, IL  60628

Jeraldine Cheatem

July 16, 1998

Page 1

Re:  Election Officer Case Nos. Post-054-SUS-EOH

      Post-055-SUS-EOH

      Post-056-SUS-EOH

      Post-057-SUS-EOH

      Post-058-SUS-EOH

      Post-060-SUS-EOH

      Post-061-SUS-EOH

      Post-062-SUS-EOH

Gentlepersons:

Jeraldine Cheatem, a member of Local Union 743 and a representative of the Stand-Up for Teamsters slate (“Stand-Up Slate”), filed eight post-election protests pursuant to Article XIV, Section 3(a) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Election Officer Michael G. Cherkasky and Deputy Election Officer Benetta M. Mansfield.

The protester alleges the following:

1.  the tally sheets utilized for counting the supplemental nomination ballots did not include all of the information required by the Rules (Post-054);

2.  the short period between the delegates’ receipt of the ballots and the time the ballots were due made it impossible for the Election Office to deal with lost and undeliverable ballots, and deprived some delegates of the opportunity to vote (Post-055);

3.  the Election Officer’s Notice in the June 1998 Teamster Magazine describing his decision to allow James P. Hoffa to run as a candidate in the rerun election was untimely (Post-056);

Jeraldine Cheatem

July 16, 1998

Page 1

4.  the forms used to publicize the results of the supplemental nominations did not contain information required by the Rules, and the count procedure did not allow her to observe all of the regional counts and made it impossible for her to determine the number of challenged and void ballots from each region (Post-057);

5.  she was never shown a list of delegates whose ballot packages were returned as undeliverable or a list of those delegates to whom ballot packages were remailed (Post-058);

6.  the Deputy Election Officer refused to talk to a witness provided by the protester during the investigation of an eligibility protest, thereby failing to acquire facts pertinent to the resolution of that protest and the Deputy Election Officer was biased against the possibility of rerunning the supplemental nomination process (Post-060);

7.  low voter turn-out for the supplemental nomination process in both Canada and the Western region of the United States was due to the fact that the ballots were printed in English, but not in French and Spanish (Post-061); and

8.  the instructions on the supplemental nomination ballot did not adequately explain the voting procedure, and candidates nominated during the 1996 IBT Convention were afforded more time to campaign than those seeking nomination through the supplemental nomination process (Post-062).

As a remedy, Ms. Cheatem requests the Election Officer to rerun the supplemental nomination election.

These protests were investigated by Election Office Staff Attorney Peter F. Gimbrère.

Almost all of Ms. Cheatem’s allegations reflect her preferences about how the Election Officer should have conducted the supplemental nominations.  Allegations concerning whether the Election Officer had enough time to perform certain functions, the adequacy of tally procedures, or multi-lingual ballot printing were advanced without supporting evidence of any actual infringement of a delegate’s right to cast an informed vote free from improper influences, and without any explanation of how the alleged improprieties in the count impaired the accuracy of the tally.

Jeraldine Cheatem

July 16, 1998

Page 1

These allegations must be analyzed in light of the Election Officer’s authority.  The Federal District Court has vested the Election Officer with “broad authority to supervise each and every facet of the 1996 IBT election.”  United States v. IBT (1996 Election Rules Order), 896 F. Supp. 1349 (S.D.N.Y. 1995), aff’d as modified, 86 F. 3d 271 (2d Cir. 1996).  The Election Officer’s power to supervise the election, “requires that the term ‘supervise’ be interpreted in its most expansive and proactive meaning.”  United States v. IBT, 723 F. Supp. 203, 206, stay and cert. denied, 728 F. Supp. 920 (S.D.N.Y.), appeal dismissed, No. 89-6252 (2d Cir. Dec. 13, 1989), pet. for reh. en banc denied (2d Cir. Feb. 12, 1990), cert. denied, 496 U.S. 925 (1990).  The District Court has found that “it is within the scope of the duties of the Election Officer to take any further reasonable actions necessary to carry out his duties . . .”  Id. at 207.  Accord United States v. IBT (1991 Election Rules Order), 931 F.2d 177, 187 (2d Cir. 1991) (“The Election Officer . . . has substantial discretion to impose election rules and procedures that ensure that the upcoming elections are free, fair and informed”); United States v. IBT (TDU), 968 F.2d 1506, 1511 (2d Cir. 1992) (Election Officer has authority to amend the Election Rules without Court approval).  Absent a colorable argument that the Election Officer has acted unreasonably or beyond his authority, objections to the rules and procedures are “quibbles” which should be dismissed.  See 86 F.3d at 273; United States v. IBT (Count Rules Order), 88 Civ. 4486 (S.D.N.Y. October 30, 1996).

The facts pertinent to each allegation and the Election Officer’s disposition of each claim are set forth in the following separate sections.

A.  Supplemental Nomination Count Procedures

Ms. Cheatem contends that Article III, Section 4 (d) of the Rules applies to the supplemental nomination election.  On its face, Article III of the Rules applies to delegate and alternate delegate elections only, not to the nomination or supplemental nomination of International officer candidates.  The supplemental nomination process is controlled by Article IV, Section 5 of the Rules, as modified by the Final 1996 IBT International Officer Rerun Election Plan (“Rerun Plan”).  The District Court approved the Rerun Plan earlier this year.  See United States v. IBT, 88 Civ. 4486 (S.D.N.Y. Sept. 29, 1997; March 24, 1998; June 3, 1998).

The supplemental nomination procedure was not addressed by the Rules.  Regarding the general procedures, the Rerun Plan states the following:

D.  Tally of Returned Supplemental Nomination Ballots

2.  The Election Officer shall receive and tally the return ballots.  Following the tally, the Election Officer shall determine the eligibility of all supplemental nominees who achieve the requisite five percent (5%) of the votes.  These nominees shall be notified.  Successful supplemental nominees must provide written acceptances of their nominations to the Election Officer.  For a supplemental nominee to appear on the ballot, the written acceptance must be received by the Election Officer by 5:00 p.m. on Monday, July 13, 1998.

Jeraldine Cheatem

July 16, 1998

Page 1

The Rerun Plan did not detail specific supplemental nomination count procedures.  Thus, the Election Officer retained discretion over the procedures to be utilized at the count.

The protester contends that the tally sheets utilized for the supplemental nomination count failed to include all of the information required by Article III, Section 4 (d) of the Rules, and only contained the number of votes received by each candidate.[1]  She also asserts that the forms used for the election results failed to include the information required by Article III, Section 5 of the Rules.[2]

Article III of the Rules applies to delegate elections.  Nothing required the inclusion of the Article III information in the supplemental nomination procedures.  The Election Officer had discretion to determine what information to tally and report so that the rank-and-file would have a full picture of the supplemental nomination voting and results.  The Election Officer finds that the amount of information provided on both the count tally sheets and the election results forms adequately protected and properly advanced the interests of the IBT membership in a fair, honest, open, and informed election process.

Ms. Cheatem additionally contends that because more than one region was counted at a time, she was unable to observe all of the count procedures, as provided in Article III, Section 5(a) of the Rules.  She claims that this prevented her from ascertaining the total number of ballots challenged and/or declared void from each region.[3]

Jeraldine Cheatem

July 16, 1998

Page 1

A total of five ballot packages were challenged during the supplemental nomination count.  At the end of the tabulation, only one candidate had come close to, but failed to achieve, the five percent threshold for nomination.  If four challenged ballots all listed the one candidate, he could achieve nomination.  Other candidates that failed to achieve nomination on the initial tally would not have succeeded, even were they to obtain all of the challenged votes from their region.

Three challenged packages were resolved in the presence of the protester in the following manner:  two ballot packages from the Eastern Region were declared eligible and the ballots were counted and one ballot package was voided based on the Election Officer’s finding that the voter was ineligible.  The one candidate did not receive any votes on the challenged ballots.   Counting the two remaining challenged ballots therefore could not have affected the outcome of the election, and no other challenges were resolved.

There were two counting areas at the count site.  All candidates were notified in writing of the opportunity to have more than one representative present to observe the count.  The Stand-Up Slate chose to designate only one representative.

The protester asserts that the Election Officer failed to provide candidates with a list of undeliverable mail or a list of the individuals to whom ballot packages were remailed.  There is no requirement that the Election Officer provide such information to the candidates.  However, to the extent that any ballot packages were remailed, all candidates were sent the appropriate information as to their new addresses.  The efforts made by the Election Office to provide all candidates with current and up-to-date information regarding the delegates are described fully in Theodus, PR-140-CST-EOH (June 26, 1998), aff’d, 98 - Elec. App. - 357 (KC) (July 6, 1998). Furthermore, of the 1,748 ballot packages initially mailed, by the time of the count on June 29, only six of these ballot packages had been returned to the Election Office as undeliverable.  These packages were subsequently remailed to updated addresses by the Election Office.

The protester contends that the failure of the Election Office to print Canadian ballots in French and Western ballots in Spanish, purportedly required by Article V, Section 5 of the Rules, resulted in low voter participation.  This allegation was fully addressed and denied by the Election Officer in Theodus, Post-052-CST-EOH (July 9, 1998).

Jeraldine Cheatem

July 16, 1998

Page 1

Finally, the protester asserts that 1) the instructions on the ballots were generally vague and unclear, 2) the ballot instructions did not clarify what a delegate should do if they chose not to write in a candidate, 3) the ballots favored those candidates nominated at the Convention in 1996, and 4) there was not enough time for supplemental nomination candidates to appeal to delegates for their support.

The first three of these allegations have been previously addressed in Theodus, Post-052, supra.  The last allegation was addressed and denied in Theodus, PR-119-STC-EOH (June 12, 1998), aff’d, 98 - Elec. App. - 355 (GB) (June 24, 1998), and Theodus, PR-140, supra.  These will not be re-addressed here.

B.  Validity of the Election Schedule

The protester asserts that a number of delegates were unable to vote due to the short time period between the receipt of the ballots and placing them in the return mail.  She argues that, under Article III, Section 1(b) of the Rules, the ballots should have been mailed out on June 1, 1998, or the deadline for their return to the Election Office should have been extended.

The Rerun Plan, under the time schedule approved by the Court, specifically provides 14 days between the mailing of the ballots to the delegates and the deadline for their return to the Election Office.  The 14-day time period was the same as the time frame proposed and approved by the Court as part of the August 21, 1997 Rerun Plan.  Later, collateral challenges to this time frame have been rejected.  See Theodus, PR-119, supra. and Theodus, PR-140, supra.

If the protester disagreed with any aspects of the election schedule, she had ample opportunity to make her arguments prior to approval of the election schedule by the court.  The schedule cannot be challenged now.  In re Jagodsinski, 95 - Elec. App. - 22 (KC) (October 10, 1995).

C.  Notice of the Decision in PR-035 in the Teamster Magazine

The protester contends that the delegates entitled to vote in the supplemental nomination process had a right to be timely informed of the Election Officer’s decision in In re Carey Slate, PR-035-EOH (April 27, 1998), aff’d, 98 - Elec. App. - 348 (KC) (May 15, 1998) prior to mailing their ballots back to the Election Office, and that the Election Officer had an obligation to do a special mailing to the delegates.  This decision allowed Mr. Hoffa to run as a candidate in the rerun election but found certain Rules violations.  The protester argues that while the Election Officer placed a summary of the decision in the June issue of the Teamster Magazine, that issue did not reach most members, including delegates, until after the deadline for the return of the supplemental nomination ballots.  It is the protester’s view that a number of delegates would have changed their votes had they known the outcome of that decision.

Jeraldine Cheatem

July 16, 1998

Page 1

The Election Officer included in the April/May issue of the Teamster a description of the ongoing investigation in In re Carey Slate.  A summary of the decision in In re Carey Slate was included in the June issue of the Teamster, the first issue published subsequent to the date of the decision itself.  The Election Officer’s decision was reported widely in the news media upon its release.  The only basis cited by the protester for her contention that the Election Officer is required to inform delegates of the status of election protest investigations is Article I of the Rules which emphasizes the importance of “fair, honest, open and informed elections.”  There is no evidence, with the massive publicity after its release, that delegates lacked information about the In re Carey Slate ruling.  It is within the Election Officer’s discretion to inform members about the status of a protest investigation, and the Election Officer used appropriate methods to keep members advised of the status of the investigation.

D.  Conversations with the Deputy Election Officer

The protester called Ms. Mansfield on Wednesday, July 1, 1998, to speak to her about two pending protests, one of which concerned the eligibility of Leroy Ellis, former International vice - president.  During that conversation, Ms. Cheatem asserts that Ms. Mansfield declined to speak to Mr. Ellis, stating that “the issue [regarding his eligibility] was moot” and that she would respond to Ms. Cheatem’s protest but that “the supplemental nomination process was not going to be rerun.”  In her protest letter, Ms. Cheatem contends that the comments implied a decision had been made with respect to the protests prior to the investigations being completed.

Mr. Ellis withdrew from IBT membership in September 1997 and is no longer an active member.  See Cheatem, PR-150-SUS-EOH (July 7, 1998) (appeal pending).  Regardless of his eligibility, however, Mr. Ellis failed to receive enough votes in the supplemental nomination process to achieve nomination as a candidate in the rerun election.

During the investigation of PR-150, Ms. Cheatem contacted Ms. Mansfield to present Mr. Ellis’ version of events relating to his eligibility, his withdrawal from IBT membership, as well as to talk with her about another protest investigation.  At that time, Ms. Mansfield stated that “as to Mr. Ellis, the eligibility issue is moot” because he did not receive enough votes to be nominated.  She then went on to explain that other issues pertaining to his prior eligibility would be addressed in a forthcoming decision, as would a technical ballot error discovered on the Central Region ballot.  See Cheatem, PR-146-SUS-EOH (July 7, 1998).  Thus, the Deputy Election Officer properly informed Ms. Cheatem that the issue of Mr. Ellis’ eligibility was not going to cause a rerun of the supplemental nominations.

The Election Officer finds that the Deputy Election Officer’s comments were appropriate and did not indicate that any protests had been decided except to the extent that the protest over Mr. Ellis was moot.

Jeraldine Cheatem

July 16, 1998

Page 1

Accordingly, the protests are DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master