Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: HOFFA-HALL 2016,                      )           Protest Decision 2016 ESD 332

                                                                        )           Issued: November 23, 2016

            Protestor.                                           )           OES Case No. P-415-111716-NA     

____________________________________)                      

Hoffa-Hall 2016 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 asserted that the ballots received from members of Local Union 2011 were void and should not be counted because those voters had ceased to be members of the local union and were therefore ineligible to vote.

            Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Background

A.        Local Union 2011’s Certification as the Exclusive Bargaining
Representative of a unit of the Florida Department of Corrections

The membership of Local Union 2011 consists in its entirety of employees of a statewide bargaining unit of the Florida Department of Corrections (FDOC).  These employees had previously been represented by the Florida Police Benevolent Association, Inc. (PBA) but, in 2011, the Florida Public Employees Relations Commission (PERC) conducted an election in which the PBA, Local Union 2011, and the International Union of Police Associations competed to represent the unit.  See Teamsters Local Union No. 2011 v. State of Florida, Department of Management Services, Verification of Election Results: Certification of Exclusive Collective Bargaining Representative and Revocation of Certification, Case No. EL-2011-025, Order No. 11E-433 (PERC December 5, 2011).  Local Union 2011 won the election.  As a result, the PERC revoked the PBA’s certification and certified Local Union 2011 as the exclusive representative of the bargaining unit.  Id.  

B.        The 2016 Certification Election at the FDOC Bargaining Unit

In 2016 PBA petitioned to represent the FDOC bargaining unit, and the PERC administered a representation election.  See Florida Police Benevolent Association, Inc. v. State of Florida Department of Management Services, Order Directing Election and Transferring case to Elections Division, Case No. RD-2016-20, Order No. 16E-224 (PERC August 29, 2016).  Bargaining unit members could cast votes for the PBA or Local Union 2011 as their bargaining representative, or vote “against the participating organization(s).”  Id., Tally of Ballots (PERC November 15, 2016).  The PERC tallied the ballots in the representation election on November 15, 2016 and the results showed that PBA garnered more votes than either Local Union 2011 or the option against both organizations.  Id. 

Under Florida law,

When an employee organization is selected by a majority of the employees voting in an election, the commission shall certify the employee organization as the exclusive collective bargaining representative of all employees in the unit.  Certification is effective upon the issuance of the final order by the commission or, if the final order is appealed, at the time the appeal is exhausted or any stay is vacated by the commission or the court. 

FS 447.307(3)(b)

Under PERC procedure, the tally of ballots is not the certification of representative.  Rather, a final order of certification or revocation of certification following a representation election may not issue until at least fifteen days following the tally of ballots.  During that period, “any party may file with the Commission a post-election petition relating to the conduct of the election or conduct affecting the results of the election.”  Fla. Admin. Code R. 60CC-2.005(1).  By rule, the Commission shall investigate any such post-election petition, provided “that disputed issues of material fact may be determined upon an evidentiary hearing.”  The Commission has authority to dismiss the post-election petition or, “where warranted, set aside the previous election and order a rerun election.”  Fla. Admin. Code R. 60CC-2.005(3) and (4).  To date, Local Union 2011 remains certified as the exclusive representative of the FDOC bargaining unit.  The PERC has not issued any order changing Local Union 2011’s certified status. 

C.        The IBT International Officer Election

OES mailed ballots in the International officers election to all IBT members on October 6, 2016.  To be counted in that election, ballots had to be received by mail by November 14, 2016.  Ballots were tabulated during the week beginning that date.[1]  The results of the PERC election were known before the ballot counting of Local Union 2011 votes in the International officers election commenced. 

Eligibility to vote in the International officer election is determined under the Rules.  Specifically, Article V, Section 1(a) of the Rules provides, among other things, that “[e]ach person who is otherwise a member in good standing whose dues are paid through the month prior to the month in which ballots are counted” is eligible to vote for International officers.[2]  The Notice of Election further provided that “[m]embers may become eligible by paying any unpaid dues and initiation fees at their local union by the close of business on November 10, 2016.”  In addition, a member who paid dues by check-off authorization was deemed eligible, even if not paid up through the month prior to the counting of ballots, if he/she was included in the last remittance received from the employer and that remittance was received within ninety days of the date on which ballots are counted.   Article V, Section 1(a) and (b); see also, Notice of Election.  The tally of votes for the International officers election concluded on November 18, 2016, and the results were announced that date.  See Notice Regarding the Announcement of Election Results of the IBT International Officer Election at www.ibtvote.org (November 22, 2016). 

D.        The Categorical Challenge to the Eligibility of Local Union 2011 Members

On November 15, John Murphy, candidate for IBT vice president at large on the Hoffa-Hall 2016 slate, challenged the eligibility of all members of Local Union 2011 who cast ballots in the International officers election, asserting that because the PBA received more votes than Local Union 2011 in the PERC-supervised representation election, the members who cast votes in the International officers election were no longer members of Local Union 2011 and were therefore ineligible to participate in the International officers election.  The Election Supervisor acknowledged the challenge but directed that the ballots received from members of Local Union 2011 be counted in accordance with the eligibility criteria applicable to all members voting in the International officers election.

Hoffa-Hall 2016 filed this protest on November 17, making the same assertion that Murphy stated in his challenge but elaborating as follows:

Given that the FDOC members have spoken clearly – they do not want to be Teamsters and the single unit local will convert to a FPBA local – and Local 2011 no longer exists as a chartered Teamster local.  We challenge the validity of all of the Local 2011 ballots counted by the OES, since they are from a local that is no longer an IBT affiliate. We believe they should be set aside and deducted from the ultimate tally of both the Southern Region and the entire election. The ballots are void.

            Based on the cited Rules provisions, the Election Supervisor deemed the voters from Local Union 2011 who satisfied the dues payment requirement to be eligible to vote, and their ballots were counted.  The protestor argued nonetheless that, regardless of their membership status when they cast their votes in the International officers election, the voters were no longer members of Local Union 2011 at the time their votes were counted and their ballots should have been voided.

Analysis

            We reject the categorical challenge to Local Union 2011 members’ eligibility to vote in the IBT International officers election.  The challenge to eligibility is premised on Local Union 2011 not being a Teamster affiliate at the point in time critical to determining whether the local union’s members were eligible to vote.  That premise is completely unsupported.  First, under the Rules, a member’s eligibility to vote is determined by good standing status and a paid-through date of the month preceding the month of the election, with members having the right to cure dues deficiencies up to November 10, 2016.  The event Murphy and the protestor rely on to challenge eligibility – the PERC’s November 15 tally of ballots in the representation election – occurred after the critical dates for determining eligibility in the IBT International officers election and so has no effect on the eligibility of Local Union 2011 members to vote for IBT International officers. 

            Second, Local Union 2011 was and remains an IBT affiliate and is certified as the exclusive representative of the FDOC bargaining unit to this date.  The ballots tabulated by the PERC on November 15, 2016 showed that the PBA prevailed over Local Union 2011, but the PERC has not issued any order certifying a different bargaining representative or, more to the point, revoking Local Union 2011’s certification as the bargaining representative.  Under Florida law, Local Union 2011 remains certified as the exclusive bargaining agent for the FDOC bargaining unit until the PERC revokes that certification, which cannot occur until the later of the 15-day certification period or the date the PERC has concluded its investigation (including an evidentiary hearing, if necessary) of any post-election petition that may be filed.  Thus, Local Union 2011 remains the certified exclusive bargaining representative of the FDOC bargaining unit, a status it will hold unless and until the Commission revokes that certification. 

            For these reasons, we OVERRULE Murphy’s challenge and DENY Hoffa-Hall 2016’s protest to all ballots received from Local Union 2011 members, concluding that ballots returned by November 14, 2016 from the eligible members of that local union were properly counted in the International officers election.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) 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, 34^th 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 17^th 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 332

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