May 7, 1996
VIA UPS OVERNIGHT
William Groweg, et al.
May 7, 1996
Page 1
William R. Groweg
2321 Cobble Creek
Conroe, TX 77384
Francis Pradier
14135 Lorne Street
Houston, TX 77049
Dan L. Morris
234 Bluffview
Willis, TX 77387
Nick R. Ramirez
407 S. Johnson
Pasadena, TX 77506
William Groweg, et al.
May 7, 1996
Page 1
Re: Election Office Case No. Post-11-LU988-SOU
Gentlemen:
William Groweg, Francis Pradier, Nick Ramirez and Dan Morris, members of Local Union 988, filed a post-election protest pursuant to Article XIV, Section 3 of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). The protesters allege that ballots received at the post office prior to the final ballot due date were returned to members unopened with the message “Return to Sender - Box Closed.” They also allege that, prior to the ballot count, one of the protesters was informed that 1,347 ballots had been received at the post office box but, when the ballots were counted, only 1,175 were recorded as received. The protesters further allege that an entire group of members were not sent ballots, in violation of the Rules.
Regional Coordinator Dolores C. Hall investigated the protest.
The counting of the ballots for the mail-ballot delegate election at Local Union 988 took place on March 22, 1996. There were 1,175 ballots cast, of which 1,103 were counted. Three slates competed for the four delegate positions and three alternate delegate positions. The results of the election were as follows:
William Groweg, et al.
May 7, 1996
Page 1
Delegate:
Name Slate/Independent Votes
Chuck Crawley Teamsters 4 Teamsters 514
Dennis Bankhead Teamsters 4 Teamsters 513
Abel Mosley Teamsters 4 Teamsters 507
Timothy Mardis Teamsters 4 Teamsters 489
Jimmy Tarver Delegates for Hoffa 378
Barney Smith Delegates for Hoffa 370
Dan Morris Delegates for Hoffa 367
Tom Landsman Delegates for Hoffa 360
Timothy Gonzales Members Leadership 220
Hank Steger Members Leadership 213
Charlie Matthews Members Leadership 207
Julius Groves Members Leadership 197
Alternate Delegate:
Kathy Lane Teamsters 4 Teamsters 510
Sam Levy Teamsters 4 Teamsters 503
Billy Stewart Teamsters 4 Teamsters 497
Nick Ramirez Delegates for Hoffa 378
Francis Pradier Delegates for Hoffa 371
Bill Groweg Delegates for Hoffa 357
Henry Realyvasquez Members Leadership 215
Tom Mitchell Members Leadership 206
Clint Anderson Members Leadership 202
1. Returned Ballots
In order to support their allegation that ballots mailed prior to the ballot count were returned by the post office, the protesters provided copies of a number of ballot envelopes. These envelopes had all been postmarked prior to the ballot due date of March 22, 1996, and had been labeled “Return to Sender” by the post office. Some of these envelopes were also labeled “Box Closed.” The protesters allege that these envelopes demonstrate that ballots which were received at the designated post office prior to the ballot due date were returned unopened. These envelopes were postmarked prior to the ballot due date. The protesters contend that the postmark indicates when these ballots were received at the post office box. Thus, they reason, any envelope postmarked prior to the ballot due date should have been opened and counted instead of returned. As a result, the protesters allege that members were denied their right to participate in the election.
William Groweg, et al.
May 7, 1996
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According to officials of the U.S. Postal Service, however, envelopes are postmarked at the post office where they are initially received. They are then distributed to the post office of the addressee. As a result, ballots postmarked prior to the ballot due date may still arrive at the addressee post office after the ballot due date. Such ballots would be returned to sender by the post office. In addition, on March 22, when the ballot envelopes for Local Union 988 were retrieved, representatives of the Election Officer were assured by postal officials that they had all of the Local Union 988 mail received by the post office at that time.
Therefore, the Election Officer finds that all ballots timely received in the Local
Union 413 election were properly considered in that ballot count. See Duff, Post-12-
LU413-CLE (April 10, 1996).
For the foregoing reasons, this portion of the protest is DENIED.
2. Receipt Discrepancies
The protesters contend that Mr. Pradier was informed by the Regional Coordinator that, as of March 20, 1996, 1,347 ballots had been received at the post office but that, when the ballots were removed for counting on March 22, 1996, only 1,175 ballots were present. The protesters claim that there is no accounting for 172 ballots, enough to alter the outcome of the election.
The investigation revealed that the Regional Coordinator spoke to Mr. Pradier on March 20, 1996. During this conversation, he asked to know how many ballots had been received by the post office. The Regional Coordinator advised him that the post office did not have an exact figure regarding the number of ballots in the post office box reserved for these ballots. The post office could, however, provide the amount remaining in the business reply postage account for the ballot mailing. Based on this figure, the Regional Coordinator informed Mr. Pradier that the post office had received approximately 1,300 ballots. An examination of the account shows that, after the ballot due date, the post office charged the Election Office for 1,161 pieces of mail received. During the ballot count, 1,175 ballots were counted. As a result, the protesters’ contention that there are presently 172 missing ballots is without merit.
Accordingly, this portion of the protest is DENIED.
3. Failure to Distribute Ballots
The investigation revealed that 114 members eligible to vote were not sent ballots. These members are part-time exhibition and convention workers employed by GES who were incorrectly coded as inactive on the TITAN system by the local union, but who had paid the dues necessary to permit them to vote.
William Groweg, et al.
May 7, 1996
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The members’ names were not included on the ballot mailing list because the local union follows a policy whereby the convention workers, who generally work part-time and intermittently, are maintained on “withdrawal” status on TITAN. At the time dues are received for these members, the local union TITAN operator changes their membership status to “active.” After entering a record of this payment on the system, the operator immediately places these members back on withdrawal. As a result, members in this group who would ordinarily have had their dues paid through February 1996, the month prior to the election, were recorded as on withdrawal, and not active.
The mailing list for ballot-qualified members is compiled by the Election Officer through the IBT headquarters from the TITAN record of active members as recorded by the local union. As a result, these members were improperly classified as on withdrawal by the local union TITAN operator and did not receive ballots.
Article III, Section 1 of the Rules states, in relevant part:
Mail ballot voting shall be conducted according to the following rules:
(a) The Election Officer will print ballots and mail ballots by first class mail from two centralized mailhouses, one in the United States and one in Canada, and will receive undelivered ballots, remail ballots and receive and count ballots on a regional basis.
(b) At least twenty-one (21) days prior to the deadline for return of ballots to be counted, the Election Officer or her representative shall mail to each ballot-qualified member a ballot; a secret ballot envelope; a stamped self-addressed return envelope, prelabeled by the Election Officer with the member’s name, address and other data sufficient to identify and distinguish the member; and instructions regarding the procedure for mail-ballot voting.
(c) Observers shall be permitted to inspect the list of members to whom ballots are being sent. Should any observer claim that a member eligible to receive a ballot has been omitted from the list, such person shall be sent a ballot. If such ballot is cast, it shall be treated as a challenged ballot.
(d) Any member who does not receive a ballot should contact the Election Officer or her representative immediately if he/she wishes to obtain a ballot. Any member who has spoiled or lost a ballot should contact the Election Officer or her representative immediately if he/she wishes to receive a replacement ballot. The Election Officer or her representative shall immediately send such person a mail-ballot package, regardless of any question(s) concerning the individual’s eligibility to vote. Any such ballot cast shall be treated as a challenged ballot.
William Groweg, et al.
May 7, 1996
Page 1
The investigation revealed that more than 150 members employed in the convention and exhibition industry were recorded as being on withdrawal and, consequently, were not included on the ballot mailing list. Of these, 114 had their dues paid through February 1996. Due to the improper recording practice by the local union’s TITAN operator, 114 ballot-qualified members who would have received ballots but for the operator’s miscoding, did not receive such ballots.
The Election Officer has considered whether Article III, Section 1(d) of the Rules is applicable here. This section provides a mechanism for members who did not receive ballots to obtain ballots from the Election Officer. The Election Officer finds that the procedure in Article III, Section 1(d) is insufficient to correct the omission caused by the TITAN operator’s error in this case for two reasons. First, the 114 members who did not receive ballots represent a significant portion of the voting members in this election.
Second, Article III, Section 1(d) of the Rules pre-supposes that members who failed to receive ballots would have received notice that they could expect ballots in the mail from the various postings at their work site on the local union bulletin boards. The election notice would have alerted such members to the necessity of requesting a ballot from the Election Officer if they did not receive one. The investigation revealed that the majority of the affected members did not have a reasonable opportunity to see election notice postings at either the local union hall or at their employer’s work sites. Convention and exhibition workers are casual employees who are brought in for work on specific projects when the employer requires additional labor. When these workers are needed, the employer contacts the local union to request workers. The local union then contacts the member and tells the member where to report for work. These members do not report to the employer’s work site, but report directly to the convention or exhibition hall at which the employer has been contracted. As a result, the Election Officer concludes that these members did not have sufficient notice of the election in order to make them aware of the procedure for requesting a ballot.
This protest is being considered in a post-election context. Therefore, the Election Officer must consider whether the violation “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).
William Groweg, et al.
May 7, 1996
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As previously stated, an examination of the TITAN record indicates that 114 eligible members did not receive ballots. One hundred eleven votes separated the candidate winning the final delegate position, Timothy L. Mardis of the Teamsters 4 Teamsters slate, and the candidate finishing just behind, Jimmy Tarver of the Delegates for Hoffa slate. One hundred nineteen votes separated the candidate winning the final alternate delegate position, Billy J. Stewart of the Teamsters 4 Teamsters slate and the candidate finishing just behind, Nick Ramirez of the Delegates for Hoffa slate. In addition, there were 31 unresolved challenged ballots. Accordingly, since the margin of victory in the delegate election is less than the number of ballots which were not sent to these eligible members, the Election Officer finds that the effect of the failure to mail these ballots could be sufficient to have affected the election.
In considering whether to rerun this election, the Election Officer considered the question of when this omission should have been addressed by the protesting parties. Had this matter been brought to the Election Officer’s attention shortly after the ballots had been mailed, there would have been ample time to correct the error and mail ballots to this group. The Election Officer is very troubled by the prospect of members who are aware of a defect in the election process, but delay filing a protest until the outcome of an election is known. Therefore, what, if any, prior knowledge the protesters had regarding the local union’s practice of classifying the members who did not receive ballots was investigated.
The investigation revealed that the local union is in trusteeship, but the TITAN practice at issue was in place since before the local union was trusteed. According to the local union’s former TITAN operator, she was instructed to classify convention workers as “inactive” by former Local Union 988 Secretary-Treasurer Richard Hammond. Evidence gathered during the investigation suggests that Mr. Hammond either knew or reasonably should have known that convention workers would not be mailed ballots prior to the ballot mailing.
Mr. Hammond’s knowledge of this situation is troubling because of the close relationship he appears to have with the members of the protesters’ slate. Prior to the trusteeship, Hammond personally appointed three of the slate members to be shop stewards. Another candidate was appointed by Hammond to be a credit union trustee. Nonetheless, the Election Officer does not find that this evidence sufficiently proves knowledge of this TITAN operator’s practice on the part of the protesters.
The Election Officer is charged with conducting free, open and democratic elections. Due to the local union’s TITAN procedure, a significant number of members were denied the opportunity to participate in the election process because they did not receive ballots. Fostering participation and creating access to a democratic election process are cardinal objectives of the Election Officer and the Consent Decree.
While the Election Officer is extremely reluctant to order that the delegate election in Local Union 988 be rerun based on the possible earlier knowledge of the omission of these members from the ballot roster, she also recognizes the rights of these members to vote. In this case, the risk of potentially disenfranchising eligible voters outweighs the Election Officer’s concerns about the protesters’ possible abuse of her processes.
William Groweg, et al.
May 7, 1996
Page 1
In light of the circumstances described above and the close election results, the validity of the 31 unresolved challenged ballots shall be determined. Ballots determined to be valid will be added to the current election results. If, after this procedure, the margin of victory--currently 111 votes in the delegate election--rises to 115 or more, the election results will be certified by the Election Officer. If, however, the margin remains below 115 for the delegate election, then the election in Local Union 988 will be declared void and a new election, which will be conducted by the Election Officer, will be ordered. The Election Officer will be in communication with all of the nominated candidates with respect to the details of the challenged ballot determination and possible re-run election.
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
Dolores C. Hall, Regional Coordinator