OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: PETER SULLIVAN and ) Protest Decision 2016 ESD 149
TEAMSTER UNITED AZ, ) Issued: March 17, 2016
) OES Case Nos. P-217-031116-GP
Protestors. )
____________________________________)
Peter Sullivan, member and delegate candidate in Local Union 104, and the Teamsters United Arizona slate, the slate that includes Sullivan, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest charged that a proposed remedy for a significant error in the mailing of ballot ballots in Local Union 104’s delegates and alternate delegates election would violate the local union election plan and unfairly disadvantage the protestors.
Election Supervisor representative Mary Campbell investigated this protest.
Findings of Fact and Analysis
Local Union 104, comprised of more than 7,000 members, is entitled to elect nine delegates and three alternate delegates to the IBT convention. Its local union election plan called for mailing of ballot packages on February 26 and tallying of returned ballots on March 22. The local union opted to handle ballot-specific tasks of the election itself, including generating the mailing list to be used for balloting, and transmitting that list to the mail house it engaged to print the ballots, and assemble the ballots, ballot security envelopes, and return envelopes into the ballot packages to be mailed to local union members.
Through error, the mailing list the mail house used to send ballot packages to members was not current.[1] This error had three significant consequences: first, the list did not include individuals who had become members since the date it was generated; second, the list did not include changes of address that had been made to members’ records on the list since it was generated; finally, the list included individuals who are no longer members, whether because of retirement, employment turnover, or opting out of union membership.
On or about March 7, the local union discovered that the outdated list had been used for the mailing.[2] However, quantitative assessment of the impact of that error took several more days to complete. That assessment concluded that more than one thousand four hundred persons who had become members since the date the 2014 list was generated were not included in the February 26 ballot mailing. In addition, more than two hundred members whose addresses had been changed in the TITAN system since 2014 were sent ballots at their former addresses.[3]
The local union proposed to remedy the error with a complete rerun election, with remailing of ballots to all members using a current list. Because members receiving ballots in a rerun election would not have time to return them by the March 22 count date, the local union’s proposal necessarily implied amendment of the local union plan to change the ballot mail and tally dates. The protestors objected to this proposal as a violation of the local union election plan, which set dates for mailing and tallying ballots, as well as the date by which members’ eligibility to vote would be assessed.
We intervened and directed the mail house to compare the list used to mail ballots with a list generated by the IBT of all persons who were members of Local Union 104 on February 26. The mail house performed a deduplication comparison of names and addresses and found there were more than 1,600 persons entitled to ballots in the February 26 mailing who were not sent ballots at all or were not sent them at the addresses listed for those members on the current membership list.
After consultation with all parties, including the protestors (through counsel), the lead candidate on the slate opposing the protestors, both unaffiliated candidates, and the local union, we order a supplemental mailing on March 21 to the members who should have been sent ballots at their current addresses as part of the February 26 ballot mailing but were not. We preserve the March 22 receipt deadline for ballots mailed on February 26. However, the members to whom ballot packages are mailed on March 21 will be directed to return their ballots so they are received no later than 9 a.m. MST on April 14, 2016. This return date will give the members to whom ballots are mailed on March 21 the same opportunity to receive, review, mark and return their ballots as the members to whom ballots were mailed on February 26 were given.
Two pickups of voted ballots will be conducted. One, on March 22, 2016, will be of the ballots mailed February 26; these will be picked up under observation, counted, sealed, and stored under security. The second pickup, on April 14, 2016, also under observation, will be for all remaining ballots. Ballots from the February 26 mailing that are found in the April 14 pickup will be voided as untimely received.[4] The tally of ballots from both pickups will be conducted at a single count on April 14, 2016. As indicated by the local union election plan, member eligibility will be assessed using an Election Control Roster generated on March 22, 2016. Accordingly, the deadline for members to bring their dues current will be the close of business on March 21, 2016.
We direct this remedy for the following reasons. First, it seeks to achieve the universal enfranchisement of the Local Union 104 members who are eligible to vote that would have been achieved had the correct list been used on February 26. Second, it is preferable to a rerun election, which necessarily would entail sending ballots to the large majority of the local union’s membership who already were sent ballots at their current addresses in the February 26 mailing, the additional ballots likely generating confusion in those members that could taint the electoral result. Finally, candidates have organized their campaigns around the ballot mailing and eligibility dates laid out in the local union election plan, and these dates should be honored if a reasonable solution consistent with full enfranchisement can be crafted, which we have done here.
Ballot packages in the March 21 mailing will include the following notice[5]:
Notice to Members of IBT Local Union 104
Enclosed is a ballot for Local Union 104’s delegates and alternate delegates election. You have been sent this ballot because you may not have received a ballot from the ballot mailing that occurred on February 26, 2016.
For your ballot to be counted, it must be returned by mail, in the ballot return envelope provided, so it is received by 9:00 a.m. on April 14, 2016.
Ballots will be counted on April 14, 2016. As provided in the 2016 Election Rules and stated in the Local Union 104 Election Plan, members eligible to vote are those who are in good standing with dues fully paid as of March 21, 2016.
In addition, the local union is directed to post the notice attached to this decision on all union worksite bulletin boards no later than Wednesday, March 23, 2016, and submit affidavit proof of this posting to OES no later than Friday, March 25, 2016.[6]
On this basis, we deem this protest RESOLVED.
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:
Kathleen A. Roberts
Election Appeals Master
JAMS
620 Eighth Avenue, 34th floor
New York, NY 10018
kroberts@jamsadr.com
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, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kathleen A. Roberts
2016 ESD 149
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Peter Sullivan
20443 N 31st Ave
Phoenix AZ 85027
teamstersunitedaz@gmail.com
Andrew W. Marshall
Teamsters Local Union 104
1450 S. 27th Ave
Phoenix, AZ 85009
Amteam104@cox.net
kevin.davidson@teamsterslocal104.com
Mary Ann Campbell
13853 State Rd E
DeSoto, MO 63020
mcampbell@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 212
Ann Arbor, MI 48104
EllisonEsq@aol.com
Notice to Members of IBT Local Union 104
The ballots for the Local Union 104 election of delegates and alternate delegates to the 29th IBT International Convention were mailed on February 26, 2016. To be included in the ballot count, the ballots mailed on that date must be returned by mail, in the ballot return envelopes provided, so they are received by 9:00 a.m. on March 22, 2016.
The local union has determined that some local union members were not included in the ballot mailing list and were not mailed a ballot. To correct this error, on March 21, 2016, ballots will be mailed to those members improperly omitted from the mailing list used on February 26. The ballot return envelope in the second mailing is printed on different color paper from the ballots mailed on February 26 in order to facilitate processing of all ballots when the votes are counted.
To be included in the ballot count, the ballots in the March 18 mailing must be returned by mail, in the ballot return envelope provided, so they are received by 9:00 a.m. on April 14, 2016.
Ballots will be counted on April 14, 2016. As provided in the 2016 Election Rules and stated in the Local Union 104 Election Plan, members eligible to vote are those who are in good standing with dues fully paid as of March 21, 2016.
[1] Information provided to us by the local union indicated that a list of 7,419 members was transmitted to the mail house on February 19. According to the local union, this list was likely a current list. It was supplemented on February 22 with a seniority list of 369 employees of American Airlines, of whom 104 were said to be members as of that date. On February 24, a list of 7,038 members was transmitted to the mail house. This list apparently was used for the 2014 local union officers election; it was out of date by more than a year and included persons who no longer were members and excluded persons who had become members after the list was generated. The mail house used the outdated February 24 list for the mailing of ballot packages; of the 7,038 persons on that list, there were 6,975 names and addresses sufficient for mailing. On February 29, a list of 104 American Airlines employees, numbered 7039 through 7142, was transmitted to the mail house. The mail house sent ballot packages to these names on March 3. Information provided us by the local union suggests that all the lists transmitted to the mail house were sent by the office manager, whose employment has since been terminated.
[2] The facts said to have prompted the local union to investigate the provenance of the list used for the mailing included that a local union executive board member did not receive a ballot and that several retirees did receive them.
[3] We are less concerned about quantifying the number of persons who were members in 2014 but were no longer members on February 26, 2016, because if those persons received and returned ballots in the delegates and alternate delegates election, they will be challenged as non-members in the eligibility verification process at the tally of ballots.
[4] To facilitate segregation of late-received ballots from the February 26 mailing from ballots received from the March 21 mailing, the ballot return envelopes in the March 21 mailing will be printed on colored paper.
[5] A Spanish language version of this notice will also be included in the ballot packages mailed March 21.
[6] The notice attached to this decision is in English. OES will supply a Spanish language version to the local union, which is required to post both notices on all union worksite bulletin boards.