April 19, 1996
VIA UPS OVERNIGHT
Jean Birch & Erik Jensen
April 19, 1996
Page 1
Jean Birch
RR 2, Box 286
Staples, MN 56479
Erik Jensen
4343 11th Avenue, S.
Minneapolis, MN 55407
Harold Yates, Trustee
Teamsters Local 320
3001 University Avenue, S.E.
Minneapolis, MN 55414
Sue Mauren Unity Slate
1901 S. 5th Street
Minneapolis, MN 55454
United Minnesota Teamster Coalition
c/o Tom Fahling, Treasurer
413 19th Avenue, N.E.
Minneapolis, MN 55418
Matthew O’Brien
2193 Tilsen Avenue
St. Paul, MN 55119
J. W. Quarnstrom
Patrick J. Kelly
Bannigan and Kelly, P.A.
1750 North Central Life Tower
445 Minnesota Street
St. Paul, MN 55101
Paul Levy
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, DC 20009
Jean Birch & Erik Jensen
April 19, 1996
Page 1
Re: Election Office Case No. P-708-LU320-NCE
Gentlepersons:
Jean Birch & Erik Jensen
April 19, 1996
Page 1
Jean Birch and Erik Jensen, members of Local Union 320 and candidates for delegate on the Ron Carey Rank and File Slate ("Carey" slate), filed a pre-election protest, pursuant to Article XIV, Section 2(b) of the Rules for the IBT International Union Delegate and Officer Election ("Rules"), in order to raise serious allegations of non-compliance with the Election Officer's order of remedies in an earlier protest brought by Ms. Birch. Birch, P-603-LU320-NCE (March 21, 1996), aff'd, 96 - Elec. App. - 154 (KC) (April 1, 1996). They lodge their protest against Local Union 320 Trustee Harold Yates and Assistant Trustee Sue Mauren, and against the members of the Sue Mauren Unity slate ("Mauren" slate), which includes most of the full-time local union staff. They contend that the noncompliance affected the outcome of the Local Union 320 delegate election.
In Birch, the Election Officer found that Local Union 320 employees violated the Rules by turning bargaining unit meetings into campaign fora for Mauren slate candidates in the local union delegate election, and that the local union violated the Rules by withholding information about those meetings from Ms. Birch. The Election Officer further found that the seriousness of those violations, coupled with the short time period before ballots were to be counted, required prompt remedial action as set forth below.
In this protest, Ms. Birch and Mr. Jensen allege that Local Union 320 did not meet any of the remedy time frames required by the Election Officer's order. They contend that the local union deliberately failed to comply in order to stall the ordered remedies until it was too late for them to have any remedial effect.
Local Union 320 admits noncompliance but responds that delays were caused by honest mistakes, by concerns over possibly needless expenditures for remedies pending appeal, and by personal tragedies in the lives of both Mr. Yates and Ms. Mauren. Local Union 320 also asserts that its noncompliance did not affect the outcome of the election.
This protest was investigated by Regional Coordinator Judith E. Kuhn.
Local Union 320 covers a large geographic area. Therefore, the local union must conduct its business in a large number of small, geographically dispersed meetings. The investigation in Birch revealed evidence that local union employees used three such meetings to provide campaign opportunities to Mauren slate members. In one instance, a local union employee adjourned the meeting she was conducting and then turned the floor over to five Mauren slate members. The protest also involved Ms. Birch's request to the local union for a list of such meetings so that she could campaign outside them and monitor what happened inside. The local union initially refused to give her that information and then "by a pattern of resistance and unfulfilled commitments" delayed eight days before giving it to Ms. Birch or to the Regional Coordinator. As the decision summarized,
Jean Birch & Erik Jensen
April 19, 1996
Page 1
The Election Officer finds on these facts that the incumbent members of the Mauren slate have been taking advantage of their knowledge, as Local Union 320 employees, of scheduled bargaining unit meetings, in order to conduct a pattern of campaign activity at them. The Election Officer further finds that Local Union 320 withheld information about such meetings from Ms. Birch and then engaged in a pattern of delay in withholding such information from Regional Coordinator Kuhn in the course of her investigation on behalf of the Election Officer. These are very serious violations of the Rules.
To remedy these violations, the Election Officer found that prompt action was necessary. The decision was issued on March 21, 1996, and ballots were due to be counted 12 days later, on April 2. Therefore, the Election Officer ordered several time-sensitive remedies, including the following:
· "On or before March 25, 1996, Local Union 320 shall send a list of all local union meetings, whether of the entire membership or of any part of the membership, known to the local union at the time of sending, to all candidates for delegate and alternate delegate . . . [and] the local union shall be under a continuing obligation to transmit such information regarding all local union meetings of which the local union becomes aware until the election is completed on April 2, 1996."
· "Local Union 320 shall send to every member of the local union, at its expense, one mailing of campaign material provided to it by each of: (I) the Ron Carey Rank and File slate, (ii) the United Minnesota Teamsters Coalition slate, and (iii) independent candidate Matthew J. O'Brien [if they choose to use the opportunity] . . . within two (2) business days of the date the literature is provided . . ."
· "On or before March 25, 1996, Local Union 320 Trustee Harold Yates and Assistant Trustee Sue Mauren shall execute [a prescribed] notice and post it on all local union bulletin boards at all work sites." The notice notified members of the violations found by the Election Officer and informed members that the local union had been ordered to make the campaign mailings provided for above.
On Friday, March 22, 1996, the day after Birch was issued, Regional Coordinator Kuhn faxed the decision to Mr. Yates, Ms. Mauren, and the local union counsel, John Quarnstrom. She marked the cover sheet "URGENT!," referred to "the speed with which the remedy must be executed in this matter," and stated that she was available to answer any questions. That afternoon, another Local Union 320 attorney, Patrick J. Kelly, faxed a notice of appeal to the Election Appeals Master, with a copy to the Election Officer. The following chronology is not disputed:
March 23 (Saturday). There was a death in Mr. Yates' family. He did not return to the office until March 29.
March 25 (Monday). (This was the date by which Local Union 320 was required to mail a list of all local union meetings to all candidates and to post the prescribed notice on all local union bulletin boards at all work sites.) Mr. Jensen delivered Carey slate campaign material to the local union office at approximately 9:00 a.m., and the United Minnesota Teamsters Coalition slate ("Coalition" slate) delivered campaign material at approximately 11:00 a.m. Under the terms of the Election Officer's order, the local union was required to mail these materials, separately, to all local union members by March 27.
Jean Birch & Erik Jensen
April 19, 1996
Page 1
Also at approximately 9:00 a.m., Regional Coordinator Kuhn spoke by telephone with Local Union 320 Attorneys Quarnstrom and Kelly about compliance. They suggested that compliance was stayed pending their appeal. Ms. Kuhn informed them that a notice of appeal does not stay Election Officer orders and suggested that delay may make the remedies ineffective and cause the upcoming election to be re-run at local union expense. Mr. Kelly faxed a letter to the Election Appeals Master and the Election Officer requesting a stay pending appeal.
Mr. Kelly also mailed a letter to General President Ron Carey requesting guidance with respect to the Election Officer's orders.
March 26 (Tuesday). Independent candidate Mr. O'Brien delivered campaign material to the local union office. Under the terms of the Election Officer's order, the local union was required to mail it to all local union members by March 28.
March 28 (Thursday). The Election Officer faxed her denial of the local union's stay request, noted that the local union had not complied with any part of the ordered remedies, and advised that "[f]ailure to immediately comply will result in the referral of this matter to the U.S. Attorney." The Election Appeals Master heard the appeal in Birch.
March 29 (Friday). Protest Chief Benetta Mansfield referred the matter to the U.S. Attorney for possible contempt proceedings against the local union. Mr. Carey faxed his reply to Mr. Kelly's March 25 letter, stating, "You are hereby directed to immediately comply with this and any other decision of the Election Officer and Election Appeals Master unless the decision is stayed by the Election Appeals Master or Judge Edelstein." Mr. Yates returned to the office.
Local Union 320 took the following actions with respect to the ordered remedies:
· The list of union meetings. It mailed the list to all candidates.
· The prescribed notice. It mailed the notice to union stewards, with instructions to "Please post IMMEDIATELY the enclosed notice on your work site bulletin board" and file an affidavit with the local union showing compliance. Mr. Yates signed a sworn, dated declaration to the Election Officer stating "At my direction, a copy of [the notice] was posted on each Local Union bulletin board . . ."
· The campaign mailings. The local union printed three sets of mailing labels and contacted Accurate Mailing Service ("Accurate") for expedited service. In a letter of that date to the Election Officer, Mr. Kelly stated that the labels "ha[d] been hand delivered by David R. Dalton" to Accurate.[1] Mr. Quarnstrom wrote a letter to the Election Officer acknowledging that the local union had received campaign
Jean Birch & Erik Jensen
April 19, 1996
Page 1
literature from both slates and Mr. O'Brien, but suggesting that Local Union 320 would not make the campaign mailings before hearing the result of its appeal.
March 30 (Saturday). Mr. Dalton delivered the labels to Accurate, which began work on the mailings.
April 1 (Monday). Accurate notifies the local union that one set of labels is too light to be processed. The local union provides another set. The Election Appeals Master affirmed the Election Officer's decision in Birch.
April 2 (Tuesday). This was the count date for ballots in Local Union 302's delegate election. No ballots received after this date were accepted. Accurate delivered the campaign mailings to the post office.
Local Union 320 is entitled to elect 10 delegates and three alternate delegates. The Mauren slate and the Carey slate are full slates (i.e., consisting of 10 delegate and three alternate delegate candidates), and the Coalition slate is a partial slate (consisting of six delegate candidates). Independent delegate candidate O'Brien is the only independent candidate.
The official election tally sheet shows that 2,078 ballots were cast, of which 2,016 were counted. There were 30 void ballots and 32 unresolved challenged ballots. The challenges were left unresolved because the number was too small to affect any of the election results. The ranking of candidates was as follows:
Delegates
Rank Name Votes Slate or Independent
1 Sue Mauren 1096 Mauren
2 Shirley Cunning 1012 Mauren
3 Joanne Derby 1001 Mauren
4 Barbara Sterling 999 Mauren
5 Tim Mulcrone 985 Mauren
6 Ron Enger 983 Mauren
7 George Peterson 978 Mauren
8 Michael Golen 968 Mauren
9 Thomas Wallace 957 Mauren
10 Merle King 945 Mauren
11 Mike Turnure 865 Carey
12 Erik Jensen 860 Carey
13 Kathleen Spitzer 850 Carey
14 Jean Birch 849 Carey
15 Virginia Bratton 847 Carey
16 Gordy Jurek 822 Carey
Jean Birch & Erik Jensen
April 19, 1996
Page 1
17 Erwin Rud 810 Carey
18 Laverne Pacheco 807 Carey
19 Richard Hipsag 805 Carey
20 Yared Nerayo 803 Carey
21 Matthew J. O'Brien 172 Independent
22 Anita Caven 168 Coalition
23 Bill Connors 165 Coalition
24 Ruth Alice Davenport 159 Coalition
25 Skip Staehnke 147 Coalition
26 Thomas B. Fahling 132 Coalition
27 Alston Dutchin 112 Coalition
Alternate Delegates
Rank Name Votes Slate or Independent
½ Janet Straub 1035 Mauren
½ June Del Castillo 1035 Mauren
3 Lowell Lynch 1008 Mauren
4 Craig Nelson 886 Carey
5 Herman Johnson 871 Carey
6 Luann Runck 865 Carey
The Election Officer is extremely disturbed by Local Union 320's noncompliance in this matter. "[T]he Election Officer's orders take immediate effect against parties found to be in violation of the Rules, unless those parties obtain a stay from the Election Officer." In Re: Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996). Local Union 320 did not even request a stay from the Election Officer until March 25, the day on which two of the ordered remedies were to have been completed: the mailing of meeting lists to all candidates and the posting of the prescribed notice on all local union bulletin boards. The local union's unexcused attempt to make any effort to comply warrants the granting of this protest even in the absence of the continuing pattern of misconduct discussed below.
In numerous communications, the local union complained of the cost of making three remedial campaign mailings to approximately 8,000 members. Yet the local union also did not comply with the Election Officer's order to mail meeting lists to the 33 candidates, which entailed negligible expense. That mailing was required by March 25, eight days before the ballot-count date, when it was still possible for candidates to receive the lists and use them in time to reach members. Without any excuse, Local Union 320 delayed mailing the lists of union meetings until March 29, four days before the count date.
Jean Birch & Erik Jensen
April 19, 1996
Page 1
That four-day delay rendered the remedy ineffective. No ballots would be accepted after the count date of April 2, which was a Tuesday. Therefore, members would have had to mail their ballots on Saturday, March 30, in order to allow two days for delivery. When Local Union 320 delayed mailing the meeting lists until March 29, it ensured that candidates would not receive them in time to make any difference in the election.
Noncompliance was even more serious with respect to the prescribed notices and the campaign mailings. The Election Officer's order required the notices to be posted "[o]n or before" March 25. On March 29, Mr. Yates caused the notices to be mailed to stewards. If stewards received them the next day and made the postings, that would not have been until Saturday, March 30--too late to be effective, as discussed above. If stewards had not received them on March 30 (Saturday), then they could not have received them until Monday, April 1. Ballots were counted the next day.
The Election Officer's investigation of actual posting dates revealed that as of April 9, the local union had only received affidavits from stewards covering about 100 postings out of approximately 600 ordered. Those postings were made between March 30 and April 2. Therefore, no posting was made early enough to have any remedial effect, and there is no evidence that 500 postings were ever made.
With respect to the campaign mailings, Accurate states that they were delivered to the post office on the count date itself, April 2. Thus, every campaign mailing was received by members after the election was over. The Election Officer was well aware of the potential cost of these remedial mailings, especially for a local union in trusteeship, but found that cost necessary in view of the seriousness of the violations found in Birch. To delay the mailings until the count date not only wasted the potential for remedial effect but wasted the money.[2] The Election Officer is very concerned that the local union converted her remedial order into a useless expense.
In assessing the seriousness of these violations, the Election Officer notes the following indicators that Local Union 320 failed to face its compliance obligations squarely and seriously: 1) The local union made no attempt to mail meeting lists to candidates by the date ordered. 2) On March 29, Mr. Yates signed a sworn declaration stating that "At my direction, a copy of [the prescribed notice] was posted on each Local Union bulletin board . . ." No notices had been posted on March 29. Mr. Yates only mailed them on that date. 3) On
Jean Birch & Erik Jensen
April 19, 1996
Page 1
March 29, Mr. Kelly stated in a letter to the Election Officer purporting to document compliance that mailing labels had been delivered to Accurate. The labels were not delivered to Accurate until the next day. 4) On April 9, Mr. Quarnstrom sent a letter to Regional Coordinator Kuhn also purporting to document compliance, in which he stated that the local union had received affidavits from stewards "verifying that the postings were completed on Saturday March 30, 1996 and the first few days of April, depending upon the location across the State." However, Ms. Kuhn's conversations with Mr. Yates showed that the local union had by that date only received affidavits verifying about 100 of approximately 600 required postings, or less than 20 percent. These violations were blatant violations of the Election Officer’s order.
This protest is being considered in a post-election context. Therefore, the Election Officer must consider whether the violations “may have affected the outcome of the election,” under Article XIV, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). A violation creates a presumption that the outcome was affected. Id. Once a violation is established, therefore, the Election Officer determines whether the effect of the violation was sufficient in scope to affect the outcome of the election. Id. Dole v. Mailhandlers, Local 317, 711 F. Supp. 577, 581 (M.D. Ala. 1989).
In this case, the smallest gap between a member who was elected and one who was not is the 80-vote margin between delegate candidates King (945 votes) and Turnure (865 votes). The Election Officer notes that there are more than 8,000 members of Local Union 320, but only 2,078 ballots were returned. That means that approximately 6,000 members did not vote.
Local Union 320 argues that the Election Officer should examine the number of ballot envelopes postmarked after March 27, when the local union should have mailed the campaign literature submitted by the Carey slate and the Coalition slate, in order to see whether enough ballots may have been subject to change, such that election results might have been different.
Campaigning and campaign mailings do not just have the potential to change votes. They also have the potential for motivating more members to participate in the process. If Local Union 320 had met its obligations under the Election Officer's orders, all candidates would have received lists of meetings in time to campaign outside them if they chose. Every member of the local union also would have received three separate campaign mailings in time to cast ballots that might have remained uncast. In view of the multiple violations committed by the local union, and the 80-vote margin in this election, the Election Officer finds that Local Union 320's violations were sufficient in scope to affect the outcome of the election.
Therefore, the delegate election in Local Union 320 is declared void and a new election, which will be conducted by the Election Officer, is ordered. The Election Officer will be in communication with all of the nominated candidates with respect to the details of the re-run election.
The Election Officer further orders the following:
Local Union 320 shall continue under its obligation as established in Birch, P-603-LU320-NCE (March 21, 1996), aff'd, 96 - Elec. App. - 154 (KC) (April 1, 1996), to transmit information to all candidates for delegate and alternate delegate regarding all local union meetings of which the local union becomes aware until the re-run election is completed.
Jean Birch & Erik Jensen
April 19, 1996
Page 1
Within five (5) days of the date of this decision, Local Union 320 Trustee Harold Yates shall execute the attached notice and post it on all local union bulletin boards at all work sites. With three (3) days of the completion of posting, Mr. Yates shall submit an affidavit to the Election Officer verifying and demonstrating compliance with this order.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In Re: Lopez, 96 - Elec. App. 73 (KC)
(February 13, 1996).
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:
Kenneth Conboy, Esq.
Latham & 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 N. Capitol Street, Suite 855, Washington, DC 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
Judith E. Kuhn, Regional Coordinator
OFFICIAL NOTICE OF THE IBT ELECTION OFFICER
OF VIOLATIONS BY LOCAL UNION 320
AND THE NEED TO RE-RUN THE DELEGATE ELECTION
Twelve days before Local Union 320's ballot count, the Election Officer issued a decision finding that Local Union 320 violated Article VIII, Sections 5(a)(3) and (4) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules") by permitting members of the Sue Mauren Unity slate to campaign at certain bargaining unit meetings without giving notice and affording equal access to other candidates in the local union delegate election. The Election Officer also found that Local Union 320 violated Article VIII, Section 5(a)(1) of the Rules by resisting and delaying the disclosure of information about bargaining unit meetings to a candidate who requested such information and to the Election Officer's representative.
As a result of those findings, the Election Officer ordered several remedies. The Election Officer has now found that Local Union 320 did not comply with her orders until it was too late for the remedies to be effective.
Accordingly, the Election Officer has declared Local Union 320's delegate election void and has ordered a new election.
______________________________
Harold Yates, Trustee
Teamsters Local Union 320
This is an official notice which must remain posted for 30 consecutive days and must not be defaced or altered in any manner or be covered with any other material.
Approved by Barbara Zack Quindel, IBT Election Officer.
[1]Mr. Kelly's letter to the Election Officer attached a cover letter to Accurate, dated March 29, reciting delivery of the labels. Mr. Kelly's letter stated that "[t]he attached correspondence has been hand delivered by David R. Dalton, Labor Relations Consultant."
[2]The time Accurate took to process the campaign mailings is Local Union 320's responsibility. By the local union's own admission, it did not contact Accurate or start to print labels until March 29.