ELECTION APPEALS MASTER
IN RE:
RICHARD BERG, Protestor.
06 Elec. App. 044 (KC)
ORDER
This matter is an appeal from the Election Supervisor's decisions 2006 ESD 276, 286 and 296 issued May 31, May 30 and June 4, 2006 respectively.
A hearing was held before me on June 8, 2006. The following persons were heard by way of teleconference: Jeffrey J. Ellison, Esq., Steven Newmark, Joe Childers and William Broberg on behalf of the Election Supervisor, Thomas C. Nyhan, William G. Nellis and William Schaefer on behalf of Central States Pension Fund, William Widmere, Esq. on behalf of Local 743, David Hoffa on behalf of the Hoffa Campaign, Barbara Harvey, Esq. on behalf of Richard Berg the protester.
Richard Berg, a delegate candidate in Local 743, has filed a number of protests, and all were denied by the Election Supervisor. They have been consolidated for appeal. Two relate to membership list access and one relates to distribution of campaign leaflets at the Central States Pension Fund.
Berg asserts that some members of the Local did not receive ballots for the delegate election because of lack of or incorrect addresses on the Local's membership list. The Election Supervisor reviewed the steps taken by the Local to update and correct its list and noted his own engagement of a mailhouse to verify the adequacy of the list. The Election Supervisor concluded that the Local's maintenance of its list did not violate the Rules, in spite of the fact that hundreds of members' names and/or full addresses were absent from the list. He also ruled, in protest 296, that the membership list claims were time barred under the Rules.
The arguments of Berg's counsel that the membership list complaints were timely filed are unpersuasive, as is the novel argument of waiver. As the Election Supervisor has noted, "under the Rules, election day ends the period for filing protests based on conduct occurring (as these matters did) well more than two days before the ballot count…A protester cannot sit on a pre-election allegation, wait for the outcome of an election, and then seek to upset the entire result based upon pre-election conduct that, if a violation, could have been addressed earlier." Decision, 2006 ESD 296, at 3. The rejection of the membership list complaints based upon untimeliness is affirmed. The determination on the merits that Local 743 did not violate the Rules in the management of its membership list is also affirmed, for the reasons stated by the Election Supervisor.
Berg also asserts that one of his supporters, Delgado, was denied permission to hand out campaign literature in the lobby of the Central States Pension Fund (CSPF) while an opposition supporter Hansen-Motley, was permitted to do so. It appears to be undisputed that, although Delgado had not given the required 24 hour notice, CSPF first granted, then retracted and ultimately granted Delgado the right to leaflet. Delgado unfortunately learned of the reversal too late to effectively distribute his materials in the lobby. Hensen-Motley did in fact distribute hers. CSPF allowed distribution in its garage area later in the day, and Delgado did leaflet there.
The Election Supervisor, carefully reviewing the facts, concluded that CSPF had acted reasonably in communicating to Delgado its granting of permission to distribute his campaign materials, and thereby did not impugn Delgado's campaign rights. I specifically find that on these facts, without regard to issues of knowledge and/or intention on the part of CSPF, that the employer did not make an improper campaign contribution to Berg's rival candidates. Equal access was in fact granted to both rival campaigners.
Arguments of Berg's counsel to the contrary are unavailing. Factual findings of the Election Supervisor are entitled to deference, and nothing in the record or argument provides a basis to controvert them.
The decisions of the Election Supervisor in all three matters consolidated for appeal are accordingly affirmed.
SO ORDERED:
__/s/_____________________
Kenneth Conboy
Election Appeals Master
Dated: June 15, 2006