Protest Decisions

IN RE: JAMES LONG, Protestor.
Protest Decision 2006 ESD 82
Issued: February 13, 2006
OES Case No. P-05-018-101005-FW

James Long, a member and delegate candidate of Local Union 948, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that a member violated the Rules by seeking to collect the ballots of other members in the delegate and alternate delegate election.

Election Supervisor representatives Philip P. Chandler and Jesús Ramos investigated this protest.

Findings of Fact

Local Union 948, a seasonal food local union, mailed ballots for its delegate and alternate delegate election on September 16 and counted ballots on October 7, 2005. Fourteen candidates on two slates competed for eight delegate positions; fifteen candidates on the same two slates competed for eight alternate delegate positions.

All six delegate candidates on the Martinez-Dickson Slate for Change slate¹ ("MDSFC slate") won delegate seats; all seven candidates for alternate delegate on the MDSFC slate won their races. The two members of the Long Unity Slate ("LUS slate") to win election were delegate candidates Tony Dillon and Gloria Ramirez. The lone member of the LUS slate to win election as alternate delegate was Jesse Vasquez. The tally of ballots, with slate affiliations, shows the following:

Delegate election

Alternate delegate election

1,443 valid ballots were counted in the delegate election. The margin between the winning MDSFC delegate candidate with the fewest votes (Evans) and the losing delegate candidate with the most votes (Garcia) was 220. The margin between the winning MDSFC alternate delegate candidate with the fewest votes (Shandrew) and the losing delegate candidate with the most votes (Aguirre) was 203.

Protestor Long, the immediate past principal officer of the local union, alleged the following in his protest:

[A]t least one member of Local 948 attempted to interfere with the voting. Specifically, I am informed that this member approached other members to solicit and encourage those members to give her their ballots for marking or mailing in order to affect the outcome of the Delegate Election.

By such conduct, the member is [in] violation of Article II, [Section] 15 of the Rules governing Union Delegate Elections.

I am informed and believe that the member who is subject [of] this protest engaged in this conduct in order to benefit the candidates for Delegates and Alternate Delegates on the Slate known as: Martinez-Dickson Slate for Change.

At least one of the members who engaged in this conduct is Consuelo Herrera.

To investigate this protest, we interviewed 38 witnesses; of these, we took sworn depositions of 5. Local Union 948 conducted its local officer election in August 2005 and its delegate and alternate delegate election the next month. Both were mail-ballot elections. We only have jurisdiction over the delegate and alternate delegate election. Several witnesses ascribed ballot misconduct to the local union election while others said it occurred in the delegate and election. Still others were certain the misconduct complained of had occurred but could not be specific as to the election in which it took place.

Gloria Ramírez, a successful candidate for delegate on the LUS slate, told our investigator that she saw Herrera in August 2005 ask for but not receive the ballot of Delores Mariscál in the local union officer election; Ramírez, however, had no evidence that Herrera engaged in similar conduct in the delegate election.

Juana Alonzo told our investigator that Herrera asked her and Magdalena Vargas, Marta Galván, Maria Hinojosa, Francisca Echavarría and Teresa Caldwell for their ballots in the local union election, saying they needed to support Martínez, and that she would take care of the voting for them. Alonzo stated that she gave her ballot to Herrera, and that she believed the others did also.

Despite repeated efforts, we were unable to interview Magdalena Vargas and Teresa Caldwell; Alonzo stated that the latter was the aunt of Herrera, a relationship that might explain her unavailability. The remaining members Alonzo identified gave the following information.

Marta Galván told our investigator that Herrera asked her several times for her ballot in the delegate election while at work at ConAgra. However, Galván said she always told Herrera that she had forgotten to bring it with her. She said she never gave her ballot to Herrera.

Maria Hinojosa stated that Herrera asked her for her ballot while in the cafeteria at the ConAgra facility. Hinojosa denied giving the ballot to Herrera but stated that Herrera asked many others for their ballots in her presence. Hinojosa stated she was unsure whether any of the other workers gave their ballots to Herrera. Further, she could not recall whether Herrera asked for her ballot for the local union or delegate election or both.

Francisca Echavarría said that Herrera asked for her ballot in both the local union and delegate elections. Each time, according to Echavarría, Herrera stated that she was collecting them and would hand them in to secure the election of Sammie Martínez, a member of the MDSFC slate.²  Echavarría further stated that Herrera believed that the election of Martínez would insure that her boyfriend, Bob Díaz, would be hired by the local union as a business agent. Echavarría contradicted Alonzo's account, however, and told our investigator that she did not surrender her ballot in either election to Herrera but instead mailed it herself each time. Finally, Echavarría stated that Herrera admitted to her that she had been collecting ballots but boasted that no one could prove that she had done so.

While attempting to locate Magdelena Vargas, our investigator spoke with Rigoberto Vargas, her husband and a seasonal employee at Signature, Plant #1, a facility under the jurisdiction of the local union. Vargas told our investigator that he observed Gerardo Montoya and Walter Clark, two leadmen on the midnight shift, collect ballots from 3 or 4 members. Montoya subsequently denied to our investigator that he had done as Vargas alleged. Clark also denied the allegation and told our investigator that he was angry he had been accused.

After the initial interviews of these witnesses, we took the deposition of Consuelo Herrera. Herrera was not a candidate in the delegate election; all witnesses who were asked told our investigator that Herrera supported the MDSFC slate. At deposition, however, Herrera denied under oath that she knew or campaigned for any of the candidates on the MDSFC slate. She further denied that she asked for or received ballots from any members. She also claimed to have no idea why anyone would think she had done what was alleged. Herrera further stated that Bob Díaz lives with her, but that he could not be hired as a business agent for the local union because he is retired: "He can never get a position" for this reason.

We also took the deposition of Sam Martínez. Martínez was elected as secretary-treasurer of the local union in the August 2005 election and was the leader of the MDSFC slate in the delegate election. He testified that he heard rumors that Herrera collected ballots in the delegate election, but he discounted the rumors because he heard them from the opposition slate. He stated that such rumors always come up at election time.

Subsequent to these depositions, Gloria Ramírez told our investigator that Alonzo complained to her about Galván. Ramírez recounted that, according to Alonzo, Galván said Alonzo was "stupid" for telling our investigator that she had given her ballot to Herrera. Alonzo also told Ramírez that Galván had admitted doing two things: giving her ballot to Herrera and lying about it to our investigator. According to Ramírez, Galván was present when Alonzo made these statements to Ramírez and did not deny them.

Ramírez also recounted a conversation she had with Herrera in which Herrera admitted receiving the delegate election ballot from Irina Garza.

Alonzo also told our investigator of a conversation she had with Herrera on the morning of Herrera's deposition in which Herrera vowed to "deny everything" at her deposition. Alonzo had another conversation with Herrera following the deposition in which Herrera bragged about collecting ballots and lying about it at deposition. According to Alonzo, Herrera stated that she collected ballots inside the workplace, put them in lunch bags, and took them outside to her boyfriend, Díaz.

Maria Cortez told our investigator that she gave her ballot to Herrera. Elva Reséndez stated that Herrera had picked up the ballots of Guadalupe Zamudio, her husband and family, numbering some 6 to 8 members; our investigator could not locate Zamudio for direct evidence on this point.

We also investigated an allegation that Luis Díaz and Arturo Vigil, delegate candidates on the MDSFC slate, collected ballots. Our investigator found no witness with personal knowledge who substantiated the allegation against Díaz, and Díaz denied the charge under oath.

Ernie Cobarrubia told our investigator that he gave his ballot in the local union election to Arturo Vigil and saw Juanita Martínez do the same. Cobarrubia stated that he threw away his delegate election ballot and did not observe Vigil or anyone else attempt to collect ballots in that election. However, José Mendoza stated that Vigil asked him and others in his presence for their delegate election ballots; Mendoza denied giving his ballot to Vigil. Vigil denied such activity.

Finally, Elvira Vargas stated that she observed Sylvia Adame collecting ballots; Adame denied doing so.

Analysis

Article II, Section 15 of the Rules provides the following:

No person or entity shall limit or interfere with the right of any IBT member to vote, including, but not necessarily limited to, the right to independently determine how to cast his/her vote, the right to mark his/her vote in secret and the right to mail the ballot himself/herself. No person or entity may encourage or require an IBT member to mark his/her ballot in the presence of another person or to give his/her ballot to any person or entity for marking or mailing.

Any violation of this rule may result in disqualification of a candidate who benefits from the violation, referral of the matter to the Government for appropriate action under law (including the Consent Order) or such other remedy as the Election Supervisor deems appropriate.

The instructions for balloting included in ballot packages shall contain these prohibitions and shall urge members to promptly vote and return their ballots.

The direct evidence we credit establishes that Herrera asked for and received ballots in the delegate election from the following members: Juana Alonzo, Marta Galván, Irina Garza, and Maria Cortez. Alonzo and Cortez each told our investigator that she had given her ballot to Herrera, and we credit those admissions. We find that Galván surrendered her ballot to Herrera based on Alonzo's statement, as corroborated by Ramírez. We find that Garza surrendered her ballot to Herrera based on Herrera's admission to Ramírez. We credit the statement of the six witnesses who told us that Herrera admitted or boasted of collecting ballots. We do not credit Herrera's denial of such activity.

We also credit the statements of Ramírez, Alonzo, Echavarría, and Galván that Herrera stated that she was collecting ballots for the MDSFC slate to insure that her boyfriend, Bob Díaz, might be hired as a business agent for the local union, and find this sufficient proof that Herrera's activity was in support of the MDSFC slate and against the LUS slate. For these reasons, we find that Herrera violated the Rules by interfering with the rights of these members "to independently determine how to cast his/her vote, the right to mark his/her vote in secret and the right to mail the ballot himself/herself." Further, we find that Herrera improperly "encourage[d] IBT member[s] … to give his/her ballot to [her] for marking or mailing," in violation of the Rules. We therefore GRANT the protest with respect to Herrera's conduct and "refer the matter to the Government for appropriate action under law (including the Consent Order)." In making this referral, we note that the misconduct proven here against Herrera strikes at the heart of the democratic reforms instituted under the Consent Decree and must not go unpunished. Moreover, all parties are forewarned that any retaliation undertaken in response to this decision or the action or statement of any witness to expose this wrongdoing will not go unpunished.

We find insufficient evidence to conclude that any other supporter of the MDSFC slate, including any members of that slate, violated the same provision of the Rules. Although allegations of such misconduct were made, no direct evidence was presented against any other member. Accordingly, we DENY the protest with respect to any other member's alleged misconduct in this regard.

Finally, we must determine what impact Herrera's misconduct had on the results of the election. For remedial purposes, we consider this protest in a post-election context. Therefore, the Election Supervisor must consider whether the violation "may have affected the outcome of the election," under Article XIII, 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). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, PT1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")
As noted above, the margin between the successful MDSFC delegate candidate with the fewest votes and the unsuccessful LUS candidate with the most votes was 220. The margin between the successful MDSFC alternate delegate candidate with the fewest votes and the unsuccessful LUS candidate with the most votes was 203. The number of ballots we have found Herrera to have collected is a small fraction of these vote margins. Even if we infer that Herrera collected other ballots, however, we have no evidence that could be used to determine with any level of probability the quantity of ballots collected. Thus, we do not have sufficient evidence to conclude that Herrera's misconduct alone is the cause of this wide margin. Accordingly, we do not alter the results of the delegate election.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:

Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864

Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.

Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 82

¹ The MDSFC slate originally fielded seven candidates for delegate. We found the seventh candidate, Gilbert Alvarez, ineligible in Alvarez, 2005 ESD 7 (August 30, 2005).

² As noted below, Martínez was elected secretary-treasurer of the local union in the August local officers election.

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org 

Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org 

David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com 

Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net 

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org 

Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com 

Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org

James Long
2241 W. Tomah
Porterville, CA 93257

Consuelo Herrera
6054 Rebecca Lane
Riverbank, CA 95367

Don Twohey
7330 Cardinal Road
Fair Oaks, CA 95628

Matthew Morbello
Beeson, Taylor & Bodine
1001 6th Street, Suite 500
Sacramento, CA 95814-3324

Philip P. Chandler

Christine M. Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net

Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com