Protest Decisions

December 14, 1995

VIA UPS OVERNIGHT

Timothy W. Dunn

37 Southwick Road

North Reading, MA 01864

Ralph Goscinak, Secretary-Treasurer

Teamsters Local Union 259

258-260 West Broadway

South Boston, MA 02127

Re:  Election Office Case No. P-249-LU259-EOH

Gentlemen:

A pre-election protest was filed with the Election Officer pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Timothy Dunn, a candidate for delegate from Local Union 259.  The protester complains that postage was omitted from the envelopes sent to voters in the Local Union 259 delegate election for return of their ballots, in violation of Article III, Section 1(b) of the Rules.  The protester asserts that Local Union 259 President Joseph J. Donahue caused additional confusion by stating to voters that the “bar code” on the return envelope was the required postage. The protester asks the Election Officer to void the delegate election and direct that the election be re-run.  The Election Officer deferred this protest for consideration post-election, pursuant to Article XIV, Section 2(f)(2).

Local Union 259 Secretary-Treasurer Ralph H. Goscinak, also a candidate for delegate, argues that the Election Officer need not impose any remedy interfering with the results of the delegate election because, pursuant to her direction, shortly after the mailing of the protested return envelopes, a second mailing of stamped return envelopes was sent to the voters of Local Union 259.  Mr. Goscinak also points out that the post office collected return envelopes lacking postage and provided these to the Regional Coordinator so that they could be counted along with the rest of the ballots.  Mr. Goscinak denies that the president of Local Union 259 told the protester that the bar code on the return envelope was the required postage.

Timothy W. Dunn

December 14, 1995

Page 1

Local Union 259 is entitled to send one delegate and one alternate to the International convention.  There were two candidates for Local Union 259 delegate.  The election for alternate delegate was uncontested.  The Election Office records show 310 valid ballots were counted.  There were 440 eligible voters in Local Union 259.  Ralph H. Goscinak won the election with 226 votes.  The protester, Timothy Dunn, lost, receiving 74 votes.

The protest was investigated by Election Office Protest Chief Benetta Mansfield.

Article II, Section 2 of the Rules requires that mail balloting be used in all elections for delegate and alternate delegates, unless the Election Officer determines that there are compelling reasons for in-person voting.  Article III, Section 1(a) empowers the Election Officer to print and mail ballots by first-class mail from two centralized mail houses, one in the United States and one in Canada, and to receive undelivered ballots and remail ballots.  Article III, Section 1(b) requires the Election Officer, at least 21 days prior to the deadline for return of ballots, to mail each ballot-qualified member a ballot, a secret-ballot envelope and a pre-labeled, stamped, self-addressed return envelope.

On or about Tuesday, November 21, 1995, Local Union 259 voters received ballots that had been mailed on November 17, 1995.[1]  On November 21, 1995, the Election Officer was advised that the mailing house had failed to include postage on the ballot-return envelopes sent to the voters.  She directed that a second mailing immediately take place enclosing a stamped return envelope without a second ballot, and also including a letter from her explaining the reason for the second mailing.  The second mailing occurred on November 22, 1995.

Upon request of the Associate Regional Coordinator, the South Boston Post Office agreed to hold at its facility all ballot-return envelopes which were received without postage. The post office collected approximately 40 ballot-return envelopes without postage.  The Election Office paid the postage on these ballot returns and these ballots were counted along with all other ballots received at the post office. The Associate Regional Coordinator, the Election Officer and the Local Union 259 office were each contacted by a few voters about the stamped envelopes.  Some of those advised that they had put their own postage stamp on the ballot-return envelope.  The remainder requested that they be provided postage, which was ultimately provided on envelopes sent to each ballot-qualified voter.

The instructions contained on the ballot stated that a duplicate ballot, if necessary, could be obtained from the Regional Coordinator.  Thus, if upon receipt of the stamped envelope, voters who had already disposed of the original ballot due to the lack of postage on the envelope could obtain a duplicate ballot.

Timothy W. Dunn

December 14, 1995

Page 1

The Election Officer finds that the initial ballot mailing did not satisfy the requirement in Article III, Section 1(b) that postage be provided on return envelopes sent to ballot-qualified voters.  However, this protest is being treated as a post-election protest and must therefore satisfy the requirement in Article XI, Section 1(b)(2) of the Rules, which provides:  “Post-election protests shall only be considered and remedied if the alleged violation may have affected the outcome of the election.”  Thus, a violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the outcome of the election may have been affected by the violation.  See Wirtz v. Local Union 410, 366 F.2d 438 (2nd Cir. 1966) cited in Romero, P-220-LU670-PNW (November 21, 1995), aff’d,

95 - Elec. App. - 41 (KC) (December 5, 1995).  To determine whether the required effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election.  Dole v. Mailhandlers, Local 317, 132 LRRM 2299 (D.C.M.D. Ala. 1989), cited in Romero, supra.  Since the Election Officer has determined above that the Rules have been violated, the issue then becomes whether said violation affects the outcome of the election.

The protested ballot mailing was quickly rectified by the second mailing, which included a stamped return envelope and a letter of explanation from the Election Officer.  The protester does not claim that the second mailing did not permit sufficient time to return the ballots, which were due December 8, 1995.  The percent of qualified voters who actually voted here was 71%--the highest turnout in any fall delegate elections thus far conducted by the Election Officer.  Significantly, if all ballot-qualified voters who did not return a ballot had in fact voted, and all of those votes were cast for the protester, the winning candidate would remain Mr. Goscinak.  Thus, the violation had no meaningful effect on the election results, and there was no causal connection between the violation and those results.  See Newingham, Case No. Post 26-LU554-MOI (March 12, 1991) (no violation found in post-election protest where outcome of election could not be affected by total number of unreturned ballots in election where postage provided on return envelopes increased after ballot mailing); Naccarato, Case No. Post 17-LU378-PNW (February 12, 1991) (no violation found in post-election protest where outcome of election could not be affected by total number of absentee ballots not returned due to postage problem).

Accordingly, the protest is DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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:

Timothy W. Dunn

December 14, 1995

Page 1

Kenneth Conboy, Esq.

Latham and 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, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

David F. Reilly, Regional Coordinator