OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: DAN ARNOLD, ) Protest Decision 2016 ESD 180
) Issued: April 27, 2016
Protestor. ) OES Case No. P-206-030416-ME
____________________________________)
Dan Arnold, member and delegate candidate in Local Union 908, filed a post-election protest pursuant to Article XIII, Section 3(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Local Union 908’s election committee violated the Rules by directing that delegate candidate Chris Pittman not be present at the tally of ballots.
Election Supervisor representative Dan Walsh investigated this protest.
Findings of Fact and Analysis
Local Union 908 is entitled to elect one delegate and one alternate delegate to the IBT convention. At its nominations meeting held Saturday, January 9, 2016, two delegate candidates and two alternate delegate candidates were nominated. Local union president Brian VanMetre and local union secretary-treasurer Jason Fry, candidates for delegate and alternate delegate, respectively, formed the Local 908 Working as One for All slate. Chris Pittman and Doug Plassman, respectively candidates for delegate and alternate delegate, formed the Teamsters United Local 908 slate. The tally conducted March 4 showed that the candidates on the Working as One slate polled more votes than those on the United slate. On 306 ballots counted, VanMetre tallied 34 more votes than Pittman, and Fry 32 more than Plassman.
At the tally, Chris Pittman, a candidate for delegate, sought to observe the process. Shanna Worsham, local union TITAN operator and a member of the election committee, told him that candidates were not permitted in the counting area and asked him to leave. He did so.
With Pittman’s removal from the tally, the Teamsters United slate was left with one observer, protestor Arnold. However, Arnold was unable to observe all activity during the count, in particular the checking of eligibility of voters, because the election committee divided the ballots into two groups, with one checking the eligibility of voters whose last names began with letters in the first half of the alphabet and the other checking the remainder. The two groups were widely separated in the hall so that the calling of names aloud by one group did not disturb the activity of the other. Arnold was free to move back and forth between the groups but could not observe the activity of both groups simultaneously.
Article IX of the Rules grants candidates the right to have at least one observer present at each phase of the election process, including the election count, where they have the right to challenge the eligibility of any voter to vote. Article IX, Section 6.
To qualify, “[s]uch observer shall be a candidate or a member of good standing of the Local Union.” Article IX, Section 1(a).
The provision on which Worsham apparently relied for asking Pittman to leave was Article IX, Section 1(d), which states that “[a] candidate may not serve as an observer at a polling place where his/her name appears on the ballot at that polling place.” This provision does not apply to a mail ballot election such as Local Union 908 conducted, for “polling place” as that term is used in the Rules refers only to a common location members enter for the purpose of receiving and casting their ballots.[1]
For this reason, Pittman was qualified to serve as an observer at the March 4 tally. Worsham violated the Rules by using her authority as a member of the local union election committee to ask him to leave. The effect of Pittman’s removal was to leave his slate one observer short of the number desired to observe the entire process effectively.
Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process. “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.” Hailstone & Martinez, 10 EAM 7 (September 14, 2010).
The Rules provisions granting observer rights promote transparency in the electoral process and, specific to this matter, an honest assessment of the eligibility of members to vote. When a candidate is improperly deprived of observer rights, that tends to diminish confidence in the election process.
To remedy the denial of observer rights, we order that Local Union 908 post the remedial notice attached to this decision on all worksite bulletin boards under its jurisdiction and maintain that posting through and including May 31, 2016. The local union shall complete the posting no later than May 2, 2016 and, no later than May 4, shall provide affidavit proof that the posting has been completed to OES.
An additional remedy we have authority to impose is to reconvene the local union election committee for the purpose of repeating the eligibility check of ballot return envelopes for ballots that were opened and counted on March 4, with all candidates being granted the full exercise of their observer rights that the Rules permit, including the right to challenge the eligibility of voters. However, both protestor Arnold and the candidate whose rights were violated, Pittman, have requested that we not order this remedy. For this reason, we do not do so.[2]
We issue the remedy of notice posting even though we find no evidence that the results of the election may have been affected by the denial of Pittman’s right to observe the tallying of ballots. Our overarching mission is to conduct and supervise elections that are “fair, honest, open and informed.” A transparent process gives the union membership a basis to understand that the election is run fairly and that the results can be trusted. The remedy of notice posting educates the membership as to the requirements of the Rules and promotes confidence in the electoral results.
An additional basis for this remedy is that the removal of Pittman from the ballot tally was undertaken because of his status as a candidate and for no other reason. As such, he was penalized because he exercised the right the Rules protect to pursue election to the position of delegate. We have authority under the Rules to remedy post-election protests that concern retaliation for protected activity even where there is no effect on the outcome of the election. Article XIII, Section 3(b).
A remedial order of the Election Supervisor is immediately effective unless stayed.
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 180
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
Chris Pittman
Cpittman3@roadrunner.com
Dan Arnold
Dansfllc201@gmail.com
Jason Fry
Jasonfry33@gmail.com
Local Union 908
Box 1806
800 St. Johns
Lima, OH 45802
mail@teamsters908.org
Lia Lockert
lialockert@gmail.com
Dan Walsh
950 Duxbury Court
Cincinnati, OH 45255
djw4947@gmail.com
John Pegula
1434 Greendale Dr
Pittsburg, PA 15239
jpegula@gmail.com
Jeffrey Ellison
214 S. Main Street, Suite 212
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1050 17th Street, N.W., Suite 375
Washington, D.C. 20036
202-429-8683
844-428-8683 Toll Free
202-774-5526 Facsimile
ElectionSupervisor@ibtvote.org
www.ibtvote.org
Richard W. Mark
Election Supervisor
NOTICE TO MEMBERS OF TEAMSTERS LOCAL UNION 908
The Election Supervisor has found that the election committee responsible for running Local Union 908’s delegate and alternate delegate election violated the Election Rules by preventing Chris Pittman, a candidate for delegate, from observing the counting of ballots for that election. Candidates have the right under the Election Rules to observe the counting of ballots. Candidates or their observer representatives have the right to observe every phase of the election process. The Election Rules grant these rights to promote a fair, honest, open, and informed election.
The Election Supervisor will not permit any such violations of the Rules. The Election Supervisor has ordered Local Union 908 to post this notice on all worksite bulletin boards of the union and to maintain this posting through May 31, 2016.
The Election Supervisor has issued this decision in Arnold, 2016 ESD 180 (April 27, 2016). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2015/2016esd180.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-774-5526, email: electionsupervisor@ibtvote.org.
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted on this bulletin board through
May 31, 2016 and must not be defaced or covered up.
[1] For example, the “secret ballot nomination votes” for candidates nominated for International office at the IBT convention are conducted at a “polling place” established at the convention hotel. See Article III, Section 5(g).
[2] We note that the observers who were rpesent – one from each slate – did not register any challenges to the eligibility determinations they did observe.