After conducting the "Exempt" vs. "Non-exempt" vote for the Rehabilitation Therapist Task Force Outreach Committee, the Election Committee received four protests. Below (and to follow) are the protests and the Election Committee’s responses to each of the protests.
Protest #1 filed on November 14 by Denise Nicks:
I am hearby protesting the recent election/vote regarding the Rehabilitation Therapists remaining non-exempt or becoming exempt from the FLSA, regarding the conduct of the election, based on the following several counts:
1. Although this election did not involve an office or position, it did involve a major change in the class of Rehabilitation Therapists; therefore, having a Rehabilitation Therapist, Cindy Ihm, on the Elections Committee, directly overseeing the counting of the votes and having general responsibility for the conduct of the election….should not be eligible to serve on this committee as she is directly impacted in the outcome of this vote and she is likely to be biased in carrying out her duties, (Duties of the Elections Committee are specifically stated in the elections Manual, pg. 12-13, and are as follows:
(2) "to hear and decide any challenge…"
(4) "To prepare or supervise the preparation of the ballots."
(5) To supervise the issuance and return of the ballots…receiving their ballots…depositing them in a ballot box…"
(6) "Counting the ballots and certifying the results of the election."
(7) "Hearing and deciding…any protests that may be filed concerning the conduct of the election." and
(8) "Making a report to the membership concerning the results of the election and,…the decisions made on any protests."
("No member of the Election Committee may be a candidate for office" appears to be equivalent in meaning that no member of the election committee may stand to benefit from the outcome of the election. Elections Code, Section 2, B).
2. There were several ballots that were not counted due to judgments made by the elections Committee; however, these judgments seemed to be inconsistent with other judgments made in allowing other ballots to be counted. With the results being so very close, 128 – 130, the judgments made to not count certain ballots becomes significant. The Elections Manual, page 22, states:
"If the intention of the voter is clear, count the vote." Page 23 of the Elections Manual states: "When the tabulation has been completed, the committee should turn its attention to any remaining challenged votes…..If the number is great enough that it might affect the outcome….the committee must then take up each challenge separately and,…make a decision as to whether or not the ballot should be counted."
3. The ballot box was not secured. A storage box with a hole cut in the lid and the lid taped to the box and kept in the union office does not make the box "secure" and tamper-proof. Many people come in/out of the union office each and every day and the box was not under supervision 24/7. Furthermore, the tape had no signature or date written across the tape to ensure when and who taped it. With the box being unsecured, it is quite possible that there were more than one ballot boxes with ballots being added to both boxes; yet only one box was counted. Without using a post office box as the manual requires, there are endless opportunities for potential of manipulation of the mail-in ballots. In addition, the deadline for all returned ballots was 11/09/17 by 4pm. The ballots were counted on 11/10/17 at 10am. Friday, November 10th was an observed holiday for many state workers but the Federal holiday for postal workers was on 11/11/17. Mail was delivered on 11/10/17 and had the ballots been sent to the post office, this would have allowed for more ballots to have been counted. The Elections Manual (pg. 32-33) states, "If elections are to be conducted by mail, the following procedures must be followed:
"The return envelopes should be addressed to a neutral address, not to the union office…The best way is to have them returned to a Post Office Box requiring two keys to open. One of these keys should be retained by the chair-person of the election committee and the second by another committee member."
4. No opportunity for members to come and observe the preparation of the ballots, prior to mailing, was given. There have been reports from many members who have not received a ballot and had to request a duplicate ballot. With receiving duplicate ballots, there is always a problem of the ballot not arriving in a timely manner. Had there been observers present during the preparation of the ballots, could have eliminated so many members from not needing a duplicate ballot. There was only one email notification sent on Monday, October 9th stating that ballots would be mailed the next day (10/10/17). The Elections Manual, page 33, states:
`"Official observers designated by the candidates are entitled to be present during the addressing, stuffing, and mailing of the ballots."
5. Lastly, the postmarks on each ballot were not consistently checked to determine being mailed and received prior to the deadline as well as confirming membership prior to the deadline.
Please let me know your recommendations as to the above issues which I believe have negatively interfered with the results of this election.
Denise Nicks, Steward
AFSCME Local 2620
The Election Committee requested supporting evidence. No supporting documentary evidence was provided.
The Election Committee’s response:
1. The only eligibility requirement as to who may serve on the Election Committee is that the person be a member, not a fair share payer. Other than that, the guidelines only spell out who may NOT serve.
Per Article X, Section 2 of the Constitution of AFSCME Local 2620, "An Election Committee shall be appointed by the president and ratified by the executive board. Members of the Election Committee may not be a candidate for office or serving in the capacity as an executive board member, trustee or Council 57 delegate. "
The AFSCME Local Union Election Manual states, "The Election Committee, like any other local union committee, is ordinarily appointed by the Local President, with the approval of the executive board."
2. Only one ballot was not counted. You do not specifically state which judgments were made which you felt were "inconsistent with other judgments made." Each questionable ballot was addressed individually by the Election Committee and a vote was taken as to whether to accept or dismiss the ballot based upon the instructions which were provided with all of the ballots.
3. There are no guidelines as to what constitutes a "secured" ballot box. The ballot box prepared and used is consistent with ballot boxes used in past elections/votes. Never has more than one ballot box been required. The Ballot Box was kept in Shirl Martinez’s office. During business hours, Shirl Martinez, Teresa Munoz, Monique Aubrey and Lisa Trujillo are always present; Shirl, Teresa, and Monique are Council 57 staff. During non-business hours, Shirl’s office door is closed and locked by a key.
As to the deadline to receive ballots, the Burbank mailbox was checked in the presence of the Committee members and observers on November 10 and it was empty. Any ballots received on that day or after, regardless of postmark, would have been passed the deadline. The instructions stated that "Ballots are due at the Burbank office by 4:00 P.M. on November 9," not that they should be postmarked by 4:00 P.M. on November 9.
Regarding the post office box: both the post office box and the Burbank office mailbox require only one key to open them.
4. It is not clear how having observers present during the preparation of the ballots "could have eliminated so many members from not needing a duplicate ballot." E-mails were sent October 2, October 6 and October 16 with regard to this vote; members had notification of the important dates and the instructions to send all questions to the Election Committee via e-mail. You are assuming that no observers were present.
5. It was not necessary to check postmarks, as when the ballot was mailed is irrelevant; only when the ballot is received. As stated in #3, the Burbank mailbox was checked in the presence of the Committee members and observers on November 10 and it was empty. Any ballots received on that day or after, regardless of postmark, would have exceeded the deadline. The instructions stated that "Ballots are due at the Burbank office by 4:00 P.M. on November 9," not that they should be postmarked by 4:00 P.M. on November 9.
As for verifying who were members prior to the 4:00 P.M. deadline on October 25, there were only 6 RTs who became members between 10/26/17-11/08/17. They were identified on a separate list and if ballots were received from them, the envelopes were set aside and were not counted.
The Election Committee