IN RE: J.D. JACKSON, Protestor.
Protest Decision 2006 ESD 275
Issued: May 25, 2006
OES Case No. P-06-224-031506-MW
J.D. Jackson, member and delegate candidate from Local Union 299, filed a post-election protest pursuant to Article XIII, Section 3(a)(1) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the local union delegate and alternate delegate election "was tainted by the use of illegally obtained election materials at Hertz and other airport worksites." The protest further alleged that "the procedures used by election personnel did not allow observers to exercise their basic rights to observe and challenge ballots," in violation of the Rules.
The alleged "illegally obtained election materials" were the subject of a separate protest that we denied in Jackson & Trupiano, 2006 ESD 124 (April 17, 2006), holding that the campaign material at issue, and its preparation, did not violate the Rules. The Election Appeals Master affirmed our decision in Jackson & Trupiano, 06 EAM 36 (May 11, 2006). The decisions in that protest obviate the need to consider and decide the identical matter here.
The instant decision addresses the protest's remaining allegation that observer rights were violated at the tally of ballots in Local Union 299's delegate and alternate delegate election. Election Supervisor representatives Joe Childers, William Broberg and Taea Calcut investigated this aspect of the protest.
Findings of Fact
Local Union 299 contracted with Election Services Corporation (ESC) to conduct its delegate and alternate delegate election. The tally of ballots was conducted by ESC personnel on March 10, 2006 at the local union hall. Protestor Jackson's slate, Local 299 Members for Change, designated Donald Gumm, Mike Dewar and others to observe the process on behalf of the slate.
After the ballot return envelopes containing voted ballots were picked up from the post office and returned to the count site, ESC personnel screened the ballot return envelopes for voter eligibility using an optical scanner. The scanner read a bar code on the label on each ballot return envelope that uniquely identified the particular member to whom the ballot package had been mailed. The member's name was cross-checked electronically against the Election Control Roster, a database that listed all local union members and their eligibility to vote. As each envelope was scanned, the member's name and eligibility determination was displayed on the scanner's monitor. Ballot return envelopes of members who were undisputedly eligible were segregated from those that the Election Control Roster challenged. The challenged ballots were marked with the appropriate challenge code for later resolution and counting, if the margin between leading and trailing candidates proved it necessary.
The protest alleged several deficiencies with respect to the check of voter eligibility. Thus, it claimed that observers were given "no explanation of exactly how the [scanning] machine functioned," that "no list of allegedly eligible voters was provided to the observers," and that observers were not able "to see most of the envelopes as they were processed." Given these circumstances, the protest asserted that observers were denied their right to "observe the verification of the eligibility of those members whose right to vote is challenged," in violation of Article IX, Section 6 of the Rules. We investigated these and other issues that arose during our investigation.
Marilin Falik of ESC told our investigator that observers were given a tutorial on the function the scanner performed and how it worked. The tutorial included a demonstration in which actual ballot return envelopes were scanned, with the result from the database displayed on a screen to show that the computer had correctly identified the voter in the database and pulled up the voter's eligible status. Dewar and Gumm, two of Jackson's observers, corroborated Falik's statements that the optical scanning of ballot return envelopes was explained to observers.
Falik further stated that an alphabetized print-out of the Election Control Roster was placed near the scanner machine, and Falik announced to the observers that the ECR was there for any observer who wished to examine it. Dewar and Gumm each told our investigator that he was unaware the ECR was available. However, Gumm stated that he brought a current seniority list for the local union into the counting room and used it to make his own assessments of voter eligibility.
Falik stated that, before scanning commenced, she asked the assembled observers whether they had any challenges to voter eligibility. Gumm had identified 3 members on his seniority list whom he believed to be ineligible. However, he did not challenge them.
Falik explained that, once challenges to eligibility were solicited and received from observers, ESC personnel then scanned the ballot return envelopes for voter eligibility. As they performed this function, two observers from each slate stood behind them and watched the monitor. Gumm confirmed this statement. Falik stated that ESC personnel announced the name of each voter that was challenged by the Election Control Roster database. Dewar stated that some names of challenged voters were announced while others were not. Gumm denied that any names were announced but conceded that he was not standing at the scanner observing the monitor.
Falik stated that ESC has used the optical scanning process in 22 IBT local union delegate and alternate delegate elections that ESC has conducted in the current election cycle. In no such election was use of the optical scanner to check voter eligibility either challenged or determined to be deficient.
Local Union 299's local union election plan announced that the initial determination of voter eligibility would be done by optical scanning. In response to question 12, "Please describe the steps the Local will follow after the ballots are picked up from the post office to determine voter eligibility and to prepare the ballots for counting," the local union stated the following:
Ballots mailed to members by Election Services Corporation will have a bar code to identify the member on the reverse side of the Business Reply Envelope. On the day of the ballot count, at the count site, the Election Services Corporation will receive the Election Control Roster from the IBT and the members identified as ineligible will be inputted into the computer database. When the envelope is scanned and the member is ineligible, the computer will indicate that the member is ineligible and the ballot will be segregated and not processed.
No comment was submitted objecting to optical scanning to determine voter eligibility. The local union election plan we approved included this element.
Gumm summed up his dissatisfaction with the scanning process, stating: "I was expecting a manual count, where I could compare my list with the ballot envelopes, but since they sent them through the scanning machine I couldn't do that."
The protest's final allegation was that ESC personnel carried ballots out of the count room without observers being present. Falik denied the allegation. Gumm agreed that ESC did not leave the count room with ballots or leave ballots unattended in the count room. He stated further that no one other than ESC personnel approached or touched ballots.
Analysis
Article IX, Section 6 of the Rules provides the following:
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 inspect the opening and set up of the counting machine(s) before the count of the ballots commences and 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, the opening of the return ballot envelopes; the count of the votes; and the recording of the final vote count and the counting of the unused, voided and spoiled ballots. Observers shall be permitted to remain with the ballots from the time the count commences until the ballots are counted, including overnight if necessary.
Protection of observer rights is essential to the Election Supervisor's mandate to insure fair and democratic election. Observers from all sides of a political contest serve the important function of providing a check against abuse or error by the personnel responsible for tallying ballots. In this context, observers help insure that the result tallied by the election personnel is the one the voters chose; they also build confidence in the union as a democratic institution, which is a principal goal of the Consent Order. For these reasons, the Election Supervisor takes observer rights very seriously and scrutinizes carefully claims that such rights have been denied. See Fuentes & Hoffa 2006, 2006 ESD 216 (May 4, 2006), aff'd, 06 EAM 32 (May 5, 2006).
While observers are permitted to observe the verification of voter eligibility and to challenge any voter's eligibility, Article IX, Section 6 does not specify the means by which the eligibility determination will be conducted.
In the manual determination of voter eligibility that observer Gumm preferred, election workers alphabetize ballot return envelopes and compare them with the alphabetized Election Control Roster. The Election Control Roster is, in essence a membership list that codes members for good standing status based on the TITAN record of dues payments. In general, members who are active and have their dues paid through the month before the month of the election are eligible; persons who have withdrawn, transferred, or who have failed to bring their dues current are challenged. The manual process of comparing each ballot against the eligibility code reflected on the Election Control Roster consumes additional time; it does not, however, produce greater accuracy because it introduces a risk of human error that is absent with scanning technology. But whether done manually or electronically, the basic determination is the same: the name of the voter on the returned envelope is compared to the Election Control Roster. The person is either in good standing as reflected in TITAN, or the person is in challenged status. It is a matter of matching, not judgment, discretion or analysis. Provided the scanner device is properly calibrated to read bar codes and to access the data base, the procedure ESC used here eliminated the human error risk that is present in a manual check of eligibility. Here, ESC performed an accuracy test of the scanning equipment in front of the observers and explained the system. There was no objection raised at that time that the system failed to make accurate matches.
The observer function is the same whether the eligibility check is performed manually or by computerized scan: observers retain the right to challenge the eligibility of any voter and to observe the performance of the election workers. Typically, an observer who desires to challenge an individual's eligible status will come to the count prepared with the information and present it to the election official when checking commences. ESC's solicitation of eligibility challenges is typical. Here, an observer with 3 challenges had the opportunity to present them but declined to do so.
On the facts presented in this case, we find, contrary to the protest's allegations, that observers were provided a satisfactory explanation of the purpose and operation of the optical scanner and had the opportunity to test its function. ESC solicited challenged from observers, and they had an opportunity to present them at that time or during the scan of ballot envelopes. Observers were permitted to observe and in fact observed each ballot as it was fed through the scanner and the information concerning each voter and that voter's eligibility that was displayed on the monitor. Observers were permitted to review the Election Control Roster or other listing of local union membership, and they had the right to challenge the eligibility status of any voter as reflected there. Finally, we find that during the critical tallying period, ballots were under the constant observation of observers and were not removed from their presence by any person. Under these circumstances, we find that the rights guaranteed to observers by Article IX, Section 6 were honored and, further, that the integrity of the tally of ballots in Local Union 299's delegate and alternate delegate election was preserved.
In sum, the use of technology to scan ballot envelopes and sort the eligible and challenged ballots did not deprive any candidate of the ability to exercise observer rights. That this exact same process was used in 21 other delegate elections without protest in this cycle alone provides further evidence of its acceptability to candidates.
For these reasons, we DENY the protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 275
1 At the 2001 count of the International officer election, the Election Administrator used a scanning technology similar to that employed here by ESC. In the event of a contested election this year, the Election Supervisor will check voter eligibility by scanning the bar code on each envelope and having a computer perform the match between the envelope and the database - exactly as was done at Local Union 299.
2 In the 1991 election and all elections under the Consent Order since that time, the TITAN has been programmed in accordance with the Rules to make these basic eligibility decisions. The Election Control Roster that is generated from TITAN records provides an eligibility code that specifies each voter's classification - eligible or challenged (and if challenged, the basis for the challenge) - during the initial screening for voter eligibility.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
J.D. Jackson
2741 Trumbull Ave.
Detroit, MI 48216
Julie Fosbinder
1515 Mockingbird Lane
Charlotte, NC 28209
Kevin Moore, President
Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
William C. "Bill" Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Taea Calcut
1725 K Street, NW Suite 1400
Washington, DC 20005
tcalcut@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com