IN RE: YANKO FUENTES, Protestor.
Protest Decision 2006 ESD 174
Issued: April 6, 2006
OES Case Nos. P-06-208-031006-NE & P-06-215-031006-NE
Yanko Fuentes, a member and delegate candidate from Local Union 805, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). In OES Case No. P-06-208-031006-NE, he alleged that Alexandra Pope, president of Local Union 805 and delegate candidate on a slate that opposes the protestor, deliberately sabotaged the ballot mailing to Local 805 members in order to obtain an extension in the balloting schedule, in violation of the Rules. In OES Case No. P-06-215-031006-NE, he alleged that the method of conducting the remedial ballot mailing was flawed and that the timing of the remedy was prejudicial to his electoral interests.
Election Supervisor representative David Reilly investigated these protests.
Findings of Fact
Pursuant to the local union election plan ("LUEP") we approved, ballots were mailed to all members of the local on February 28, 2006 and were to be counted on March 23. Following the provisions of the LUEP, the local union's election committee contracted with Royal Printing to print the ballots, envelopes and other components of the ballot package; Full Service Mailing was hired to prepare and mail the packets to the members.
Each delegate election ballot package is required to include a pre-addressed, stamped return envelope for the member's use in returning the voted ballot. Because the number of members in Local Union 805 is insufficient to warrant the expense of maintaining a business reply mail permit, the return envelope included in the ballot package was so-called "courtesy reply mail," a designation of the United States Postal Service that requires that a postage stamp be affixed to the envelope.
Approximately one week after the mailing date, members of Local Union 805 began calling the local union's office to report that their ballots had been returned to them by the United States Postal Service for insufficient postage. An investigation by the local union immediately determined that the return ballot envelopes in the ballot packages had no postage stamp affixed. When local union president Pope learned of the problem, she determined that another ballot mailing would be required. She prepared and sent a notice to this effect to members of Local Union 805 by faxing it to the employers for posting on union bulletin boards.
Subsequently, David Reilly, our Regional Director, was advised of the problem on the afternoon of March 9. After investigation of the problem and consultation with our staff, Reilly advised the candidates, as representatives of their respective slates, that the problem would be remedied as similar problems in other locals had been remedied: ballot packages would be remailed and would include an explanatory statement to lessen confusion among the members.1 In the interim, Reilly's investigation showed that the printer accepted responsibility for the error, citing its failure to communicate to the mailhouse the need for stamped reply envelopes. In addition, the printer agreed to pay the full cost of the reprinting and remailing. Both the printer and mailer strongly denied that either had been approached by Pope with a plan to mishandle the ballot packages intentionally.
At the same time as he investigated the protests, Reilly, in his capacity as Regional Director for the region that includes Local Union 805, finalized the remedy for the flawed ballot mailing. Subsequent to confirming arrangements with the printer and mailhouse, he set a new election schedule with a ballot remailing on Friday, March 24 and a new ballot count date of April 19. On March 17, the protestor was provided the details of the remedy and the new election schedule; Pope was similarly advised on the following Monday, March 20. After consulting with senior staff of our office, Reilly drafted the explanatory language to be inserted in the new ballot package. The final draft of that language was sent to the printer on Monday, March 20.
Analysis
The initial protest alleges that Alexandra Pope, in an effort to extend the time for the election, sabotaged the ballot packages by intentionally omitting postage on the return envelopes. The protestor provided no evidence of such activity and the allegation was emphatically denied by Pope. In separate interviews with principals of both the printer and the mailhouse, each strongly denied that either Pope or anyone acting on her behalf approached them with a plan to include unstamped reply envelopes in the ballot packages.
In addition, the initial protest claims that the protestor is prejudiced by the remail plan, even though both candidates had sent mailings to the members of the local union that were timed to reach the voters at approximately the same time as the initial ballot mailing. The protestor claims that his mailing was superior to Pope's and was accompanied by phone-bank follow-up calling; he argued therefore that his campaign effort was more seriously harmed by the remailing plan.
Initially, the protestor alleged that Pope needed to extend the time of the election for her political benefit and the protestor's political detriment. However, in his second protest, the protestor argues that we failed to extend the election schedule sufficiently to protect the protestor's interest. Allegations were made that our representative deliberately aided Pope's campaign by providing her with advance notice of an expedited remail schedule. However, the schedule was not set until over a week after the initial protest was filed; further, the protestor received notice of the new schedule before his opponent was contacted.
Accordingly, we DENY these protests.
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 174
1 The text of the explanatory statement read as follows:
Dear Members of Local 805:
Due to an error by the printer/mailer in not affixing the proper postage to your return envelope, new ballots and envelopes are being mailed to you. This was not the fault of the union, and the union will not occur any additional cost for the additional mailing.
If you have already mailed your voted ballot using the envelope provided and it has not yet been returned to you, you need not revote. Your original ballot will be counted. If unsure, you may complete your "new" ballot and mail it in.
In any event, only one ballot will be counted - if two ballots are received, only the later ballot will be counted.
If you have any questions, please call the Regional Director for the Office of the Election Supervisor, David F. Reilly. He may be reached by phone at (401) 294-9595 or by fax at (401) 295-2423 or by e-mail at dreilly@rooltd.com.
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Yanko Fuentes
233 Walker Street
West Babylon, NY 11704
Walter Kane
Cary Kane LLP
1350 Broadway, Suite 815
New York, NY 10018
Alexandra E. Pope, President
Teamsters Local 805
44-61 11th Street, 3rd Floor
Long Island City, NY 11101
David F. Reilly
22 West Main Street
P.O. Box 457
North Kingston, RI 02852
dreilly@rooltd.com
Dennis Sarsany
Office of the Election Supervisor
International Brotherhood of Teamsters
1725 K Street, N.W., Suite 1400
Washington, DC 20006
deesarincr@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com