IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 210
Issued: April 26, 2006
OES Case No. P 06 258-040706-MW
Richard Berg, a member of Local Union 743 and delegate candidate on the 743 New Leadership slate, 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 Berg was denied the right to see the Local Union 743 membership list prior to the mailing of ballots as permitted by the Rules.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
Protestor Berg wrote Local Union 743 secretary-treasurer Richard Lopez on Friday, March 31, 2006, requesting to review the local union's membership list. The letter stated the following, in part:
. . . Local 743 Election Officer Julie Hamos just notified me that major changes are being made to this list right now under the direction of the Office of the the [sic] Election Supervisor pursuant to our election protest. . . .
Obviously we don't want to view a list marred with errors. As soon as is practical after you have completed the Election Supervisor[']s changes, we would like to inspect the list. Please notify us of when you expect this to be completed as we want to inspect the list before ballots are mailed out …
Under the local union election plan, ballots were to be mailed on Wednesday, April 5, five days after the date of Berg's request.
Berg previously filed a pre-election protest in OES Case No. P-06-129-020706-MW, alleging significant problems with the local union's membership list. In response, we conducted an independent review of the membership list and provided the results to Local Union 743. Using this information, Local Union 743 updated more than 1,000 addresses before it mailed out the ballots.1 We provided the updated information to Local Union 743 on Wednesday, March 29, 2006. Four employees of the local union worked from Wednesday, March 29 until 10:00 a.m. Sunday, April 2 updating member addresses in the local union's list. Local Union 743 also updated its list by seeking out address information for members to whom union mailings were sent, but that were returned as undeliverable. As Berg's March 31 letter indicates, Local Union 743's retained Election Officer had informed him that the local union was updating its address list at the time he sent his request for inspection.
Corrections to member records are made by TITAN operators at each IBT Local Union. The database is maintained under the auspices of the IBT. Thus, on the morning of April 3, IBT headquarters transmitted the Local Union 743 membership list, as updated, electronically to the local union's contractor for ballot printing and mailing (Progress Printing). Shortly thereafter, Local Union 743 began printing the membership list at the local union's office. Local Union 743 has more than 13,000 members, and the printing took several hours.
Also on Monday, April 3, Local Union 743 secretary-treasurer Lopez faxed a letter to Berg responding to Berg's letter of the preceding Friday. Lopez informed Berg that the Local Union 743's membership list would be available for viewing on Tuesday, April 4 between the hours of 9:00 a.m. and the close of business, that only members of Local Union 743 would be permitted to view the list, and that no copying of the list of any kind would be allowed, pursuant to Article VII, Section 2 of the Rules.
Local Union 743 had scheduled its ballot mailing for April 5, 2006. This date was set out in the local union plan and published on the Election Supervisor's website, www.ibtvote.org.
Approximately one year ago, Berg was laid off from his job. He has continued to be available for work and has continued to pay his dues to Local Union 743 in order to maintain his eligibility to run for office. He is in arbitration over his job loss and had an arbitration hearing scheduled for Tuesday, April 4. Berg alleges that Lopez knew Berg would be in an arbitration hearing all day on Tuesday, April 4, and thus unavailable to inspect the membership list that day. He asserts that Lopez had actual knowledge of Berg's schedule for April 4 because Lopez himself had been subpoenaed to testify at the arbitration. Lopez did testify at the arbitration hearing on April 4; the proceeding did not conclude until 7:00 p.m.
Berg claims that because Lopez knew Berg was unavailable to review the list on April 4, Lopez was obliged to point out to Berg that ballots were to be mailed on April 5 and make arrangements to permit Berg to review the list before ballots were mailed. Berg stated that Lopez had the opportunity to talk to him at the arbitration hearing about the schedule conflict, but Lopez said nothing on the subject.
Lopez confirmed that he was subpoenaed to testify at the arbitration hearing. Lopez pointed out that it was Berg's wish, as stated in his March 31 letter, to review the membership list after the bad addresses were corrected but before the ballots were mailed. He stated that the corrections were not finished until Sunday, April 2 and the list did not finish printing until late on Monday, April 3. Lopez maintains that the only day it was possible for Berg to review the list, within the parameters that Berg set, was Tuesday, April 4. He stated that the list was available for any candidate to see; all the candidate had to do is call and make an appointment.
Berg now requests to view the membership list before the counting of the ballots on April 29; he also requests an exception to the Article VII, Section 2 of the Rules and permit him to obtain a copy of the list. If he is denied a copy of the list, Berg requested permission to take notes while reviewing the list, including writing down various names and addresses from it. In support of his request for this extraordinary relief, Berg cites a lawsuit filed by the Secretary of Labor, now pending, which alleges that the 2004 officers' election at Local Union 743 was tainted by ballot fraud as a result of manipulation of the membership list.2
Analysis
Article VII, Section 2 of the Rules permits each candidate the right,
once within thirty (30) days prior to the casting of ballots in any election in which he/she is a candidate to inspect a list containing the last known names and addresses of all members of the Union who are to participate in such election. The right of inspection does not include the right to copy the list but does include the right to compare it with a personal list of members …
Berg expressly requested access to the membership list after the corrections the Election Supervisor supplied had been incorporated into the list but before the ballots were mailed. Berg knew the ballots were to be mailed on April 5, but he did not request an appointment to review the list until Friday, March 31, five calendar days before the mailing of ballots. He further knew that on Friday, March 31, the list was still being corrected. He knew that his arbitration was scheduled for Tuesday, April 4. However, his letter does not point out to Lopez that he has a conflict on that date. Neither does the letter request a specific date or time to review the list.
Even after Berg received Lopez's faxed letter on April 3, he did not telephone to protest the timing of the appointment he had been given to review the list. Likewise, he did not protest to Lopez at the arbitration hearing on April 4. Contrary to Berg's assertion, Lopez was not obligated to reschedule the appointment when Berg did not request rescheduling. Importantly, Lopez's fax to Berg permitted any persons designated by Berg, so long as they were members of the local union, to inspect the list; such permission was broader than the rule's express language, which limits the inspection right to "[e]ach candidate." See, e.g., Kleckner, 2001 EAD 187 (February 22, 2001). As soon as Berg received Lopez's letter on April 3 and recognized he had a conflict with the time given for the inspection, Berg could have requested an alternative time, or made arrangements for someone to conduct the inspection in his place. Lopez acted reasonably under the circumstances given the very short time frame between completion of the correction of addresses and the mailing of the ballots. He allotted an entire business day during which the list was available for inspection by Berg or his designee.
Accordingly, we DENY the protest. The Rules, however, provide that a candidate has the right to inspect a list containing the last known address of local union members "once within thirty (30) days prior to the casting of ballots in any election in which he/she is a candidate" and "to compare it with a personal list of members." Article VII, Section 2. Although Berg was afforded that right earlier in April, the Election Supervisor directs Local Union 743 to permit Berg and other candidates on the 743 New Leadership slate to review the membership list used to mail ballots before the counting of the ballots to be held Saturday, April 29.
During this inspection of the membership list, strict adherence to Article VII, Section 2 of the Rules is required. Accordingly, Berg and other candidates are permitted to review the list and compare it to lists they possess, if they desire. Thus, they may bring their personal lists and writing instruments to the inspection, and they may compare the information recorded on the local union list with that shown on their personal lists. In the course of this inspection, they may note on their personal lists aggregate information from the local union list, such as total numbers of members, total numbers of addresses, numbers of members in various shops, numbers of members with incomplete addresses, and similar aggregate information. Further, they may note whether members' names and addresses that appear on their personal lists also appear on the local union list, and they may note whether the local union list contains names and addresses that do not appear on their personal lists.
However, candidates may not copy the local union list or otherwise note or record personal membership information from the local union list. In particular, they may not copy or record the name or address of any person listed on the local union list. This prohibition is set forth in the Rules and federal labor law and will be strictly enforced.
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 210
1 Our independent review is discussed at greater length in Berg, 2006 ESD 211 (April 26, 2006).
2 Chao v. Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, U.S. District Court, N.D. Ill., C.A. No. 05C 4642. This suit and the evidence presented in it caused us to conduct the independent inquiry that is the subject of 2006 ESD 211. However, the issues surrounding the 2004 local officers' election presented in Chao are not before us.
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
Richard Berg
1336 West Argyle
Chicago, IL 60640
Richard Lopez, Secretary-Treasurer
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
Robert Walston, President
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
William Widmar III
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com