April 10, 1996
VIA UPS OVERNIGHT
Jimmy H. Duff
912 Maurine Drive
Columbus, OH 43228
Stand-Up Slate
c/o Garlin D. Carter
4049 Groveport Road
Columbus, OH 43207
Re: Election Office Case No. P-608-LU413-CLE
Post-12-LU413-CLE
Gentlemen:
Jimmy H. Duff, a member of Local Union 413 and a candidate for delegate on the Duff-Wellman Members First slate, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) and a post-election protest pursuant to Article XIV, Section 3(a) of the Rules. In P-608-LU413-CLE, Mr. Duff contends that the opposing Stand-Up slate received improper campaign contributions from a third party and used money, equipment and other resources of an employer. In Post-12-LU413-CLE, Mr. Duff contends that during the Local Union 284 ballot count on March 27, 1996, 51 Local Union 413 ballots (from the delegate election for which ballots were counted on March 6, 1996) were intermingled with Local Union 284 ballots at the Main Post Office in Columbus, Ohio.
Regional Coordinator Joyce Goldstein investigated the protests.
1. The Allegation of Improper Contributions from an Employer
Jimmy H. Duff
April 10, 1996
Page 1
Mr. Duff alleges that the Stand-Up slate received money, equipment and other resources from an employer, in violation of Article XII, Section 1(b) of the Rules. Although repeatedly asked for facts or evidence to substantiate his allegation, Mr. Duff did not provide any evidence. Eventually he asserted that the employer who had made contributions, in the form of a telephone list, to the Stand-Up slate was Teamsters for a Democratic Union (“TDU”).
Through the evidence produced in Cipriani, et al., P-420-LU391-SEC, et seq.
(March 1, 1996), aff’d, 95 - Elec. App. - 123 (KC) (March 13, 1996), the Election Officer is aware that delegate candidates in Local Union 413 received a mailing list from Diana Kilmury through the TDU. However, as the Election Officer found in Cipriani, the possession of such lists for use in the delegate election campaign did not violate the Rules. TDU has repeatedly been found not to be an employer from which contributions violate the Rules. Pierani, P-589-LU407-CLE, et al. (March 25, 1996), aff’d, 95 - Elec. App.- 158 (KC) (April 4, 1996); Halberg, P-155-LU174-PNW (December 14, 1995).
Reminded yet again that he was required to provide evidence to support his allegations, Mr. Duff eventually sent an affidavit to the Regional Coordinator in which the witness stated that he had overheard some unidentified individual claiming to have made approximately 1,000 telephone calls to campaign against Mr. Duff’s slate. Even if true, such telephone calls do not allege a Rules violation.
Article XIV, Section 1 of the Rules places the burden on the complainants “to present evidence that a violation has occurred.” Further, the Election Appeals Master has stated that the protester bears the initial burden of proof to offer evidence substantiating his allegations. In Re: Chentnik, 95 - Elec. App. - 52 (KC) (January 10, 1996). Because the protester has not met his burden of offering evidence substantiating his allegations, the protest for use of employer resources is DENIED.
2. Allegations of Improperly Intermingled Ballots
The ballots in the Local Union 413 election were counted on March 6, 1996. In order to be counted in that election, the ballots had to have been received in the post office box by
9 a.m. on March 6, 1996. Rules, Article III, Section (1)(h).
The ballots for the delegate elections for two local unions, 413 and 284, had been intermingled at the Columbus, Ohio, post office where both were received. Accordingly, on March 6, when the Local Union 413 ballots were picked up for counting the Election Officer’s representatives and the error was detected, the post office re-sorted the mail. At that time, which was at or after the deadline for receipt of Local Union 413 ballots, all of the Local Union 413 ballots which had been received at the Columbus post office were released to the Election Officer’s representatives.
Jimmy H. Duff
April 10, 1996
Page 1
On March 27, 1996, the day of the ballot count in the Local Union 284 delegate election, the Election Officer’s representatives went to the post office to retrieve the ballots. When the count of ballots was conducted, the Regional Coordinator found 51 ballot envelopes from Local Union 413’s delegate election. When these 51 envelopes were reviewed, three were found to have postmarks after the March 6 count date. The remaining 48 envelopes were postmarked March 4, 1996. Envelopes are postmarked in the post office which first processes the mail, not the post office in which mail is ultimately received. There is no evidence that they were received at the Main Post Office by 9 a.m. on March 6. In fact, on March 6, when the ballot envelopes for Local Union 413 were retrieved, representatives of the Election Officer were assured by postal officials that they had all of the Local Union 413 mail received by the post office at that time.[1]
Therefore, the Election Officer finds that all ballots timely received in the Local
Union 413 election were properly considered in that ballot count.
Accordingly, the protest in Post-12-LU413-CLE 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:
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
Joyce Goldstein, Regional Coordinator
[1]Mr. Duff notes that the Election Office counted ballots in the Local Union 407 election which were found in the Local Union 507 vote count on the previous day. Those ballots, however, were received prior to the cut-off date for receipt of ballots since they had been retrieved the day prior to the ballot count.