ELECTION APPEALS MASTER
IN RE:
RICHARD BERG, Protestor.
07 Elec. App. 080 (KC)
This matter is an appeal from the Election Supervisor's decision 2006 ESD P-06-303-062806-HQ issued December 6, 2006.
A hearing was held before me on December 14, 2006. The following persons were heard by way of teleconference: Jeffrey Ellison, Esq., Steven R. Newmark and Dolores Hall of the Office of the Election Supervisor; David Hoffa on behalf of Richard Lopez; Richard Lopez, Secretary-Treasurer of Local 743; Barbara Harvey on behalf of Richard Berg; William Widmer on behalf of Local 743 and Richard Berg, the protester.
This is a protest decision on remand to the Election Supervisor. My previous decision ordering the remand may be found at Berg, 06 EAM 58 dated July 26, 2006. There is little in dispute on the facts of the incident that caused the protest. Richard Lopez at the time of the incident was an officer and delegate of Local 743 to the IBT Convention and a Hoffa Slate supporter. Richard Berg, an unsuccessful candidate for delegate from Local 743 was nominated from the Convention floor for Central Region Vice President on the Leedham Slate. Berg's protest against Lopez asserted that he had been assaulted by Berg in a hotel lobby during the Convention. In substance, Berg claimed that he had been punched in the face by Lopez, and Berg stated that he had not intended to and in fact did not punch Berg in the face but rather had the heel of his hand come in contact inadvertently with Berg's face in a scuffle that resulted from a heated verbal exchange related to Convention business and the election. In a statement to the Election Supervisor, Lopez stated "that his hand went up to push Berg away and he caught Berg in the mouth with the heel of his hand." Decision on remand at 5. Berg's statement to the Las Vegas police and in these proceedings is that he suffered no physical trauma, bruise or swelling as a consequence of Lopez's hand contact. A Hotel security surveillance tape, subpoenaed through the United States District Court in the Southern District of New York, does not reveal whether the contact was a forceful and intentional violent act or a harmless and inadvertent consequence of a scuffle between political adversaries who have a history of filing election protests against each other. Accordingly, the only evidence in the record that, in the words of the protest and the Election Supervisor's finding, "Lopez punched Berg in the mouth with a closed fist," is the assertion of the protester Berg, a statement undermined by the physical evidence.
The Election Supervisor interviewed four individuals other than Berg and Lopez who were on the scene and none confirmed that Lopez assaulted Berg in the manner claimed.
The surveillance tape, however, does contain a momentary image of Lopez' right hand while face to face with Berg. It is in a fist, and it appears to be thrust forward, toward Berg.
Based almost entirely upon this evidence, the Election Supervisor concluded that Lopez did in fact punch Berg in the face.
The Election Supervisor's factual findings are entitled to deference, and will not be disturbed absent an abuse of discretion.
Accordingly, the remand decision is affirmed.
SO ORDERED:
_/s/______________________
Kenneth Conboy
Election Appeals Master
Dated: January 8, 2007