IN RE: YANKO FUENTES and HOFFA 2006, Protestors.
Protest Decision 2006 ESD 216
Issued: May 4, 2006
OES Case No. P-06-270-041906-NE
(See also Election Appeals Master decision 06 EAM 32)
Yanko Fuentes and and Hoffa 2006 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"). The protests alleged that voted ballots had been picked up from the post office prior to the date set for tally of ballots, in violation of the Rules. We consolidated the protests for investigation and decision.
Election Supervisor representative David Reilly investigated the protests.
Findings of Fact
The protest filed by Yanko Fuentes, a member and delegate candidate from Local Union 805, alleged that voted ballots had been retrieved from the post office several times during the election period without notice to observers. The protest stated:
The IBT election rules and the Local 805 election schedule are clear that candidates be permitted to observe every step of the election process, including the collection of ballots from the post office. Neither set of rules, for reasons that I am sure are obvious to you, allow for the unsupervised picking up of the ballots from the post office or the storage of the ballots in a union hall.
The Hoffa campaign's protest alleged that "Local 805 ballots were, without notifying observers, picked up from the Post Office Box by Sandy Pope's staff and then simply left at Local 805. No observers were notified of this until after the fact, and the ballots were left unsecured - or worse. THESE BALLOTS ARE TAINTED AND MUST NOT BE OPENED [original emphasis].
Both protests requested that ballots not be opened and counted. The Hoffa campaign's protest, in requesting an emergency hearing before the Election Appeals Master, concluded as follows:
PROCEEDING RESULTS IN PERMANENT DAMAGE AND ENDLESS PROTESTS. WAITING PERMITS ALL PARTIES TO EXPLAIN WHAT HAS HAPPENED AND WILL RESULT IN A COMPREHENSIVE PLAN TO PERMIT LOCAL 805 MEMBERS TO FREELY AND PROPERLY ELECT LOCAL 805 DELEGATES, FREE OF CORRUPTION AND OTHER NEFARIOUS BEHAVIOR.
(Original emphasis.)
Local Union 805 is entitled to elect 1 delegate and 1 alternate delegate to the IBT convention. Two candidates were nominated for each position. For the delegate position, Sandy Pope, the local union's principal officer, competed against protestor Fuentes. For alternate delegate, Ralph Vomaro and Bobby Gonzalez were nominated.
Under the local union election plan approved by the Election Supervisor, the delegate and alternate delegate election was supervised by an election committee of the local union. No candidate was a member of the election committee. As set forth in the approved plan, the election committee rented two post office boxes at the same post office for use in the election. One post office box number was listed as the return address to which ballot packages would be returned if they were undeliverable because of incorrect or insufficient address. The second post office box number was printed as the address to which ballot return envelopes containing voted ballots would be sent.
We supplied the "IBT Election Supervisor's Manual for Conducting Local Union Delegate Elections, 2005-06 version," to all local unions, including Local Union 805. Among other things, the manual details a step-by-step procedure for processing undeliverable ballots. Under a heading of "Processing Undeliverable Packets," the manual directs to "[p]ick up return mail from the post office regularly." Manual, Section IX(B)(2).
However, the manual elsewhere cautions with respect to voted ballots that "[u]nder no circumstances should mail be picked up prior to the announced date and time or handled by anyone other than the election committee." Id., Section X(B).
Under the local union election plan and our manual, the election committee or its designee was required periodically to retrieve ballot packages returned as undeliverable from the post office box established for that purpose. The election committee permissibly designated a clerical employee of the local union, office manager Linda Alvarez, to pick up undeliverable ballots from the post office.
Alvarez is a 15-year employee of the local union, but she has never performed any function in a contested election before this one. Previous delegate elections during her tenure have been uncontested; local officer elections have been handled by an outside vendor.
Before picking up undeliverable ballots the first time, Alvarez and election committee chair Bill Bailey reviewed the local union election plan and our manual to familiarize themselves with the correct procedure to be followed. In addition, Alvarez spoke by telephone with Louie Nikolaidis, the local union's lawyer. According to Alvarez, Nikolaidis told her that she needed to go to the post office and pick up the ballots after they had been mailed by the mailhouse.
Alvarez did as she believed she had been instructed. During the balloting period, she went to the post office approximately twice each week and picked up undeliverable ballots from the post office box designated for that purpose. However, she also picked up ballot return envelopes containing voted ballots from the second post office box. On each occasion that Alvarez went to the post office to retrieve ballots, she counted the ballot return envelopes containing voted ballots and placed them in a UPS vinyl envelope that she sealed. She did not open any ballot return envelopes. She wrote the number of ballots that the vinyl envelope contained and signed the outside of the envelope. She then returned to the local union's office with the undeliverable ballots and the vinyl envelope containing voted ballots. She processed undeliverable ballots as required by the local union election plan and our manual, attempting to obtain corrected addresses for the ballot packages and, if such addresses were obtained, mailing duplicate ballots to those members. She locked the sealed vinyl envelope containing voted ballots in a filing cabinet. She told our investigator that she possessed the only key to that filing cabinet. Each time Alvarez retrieved ballots from the post office, she was accompanied by Oneida Rodriguez, another clerical employee of the local union.
On one occasion during the balloting period, Alvarez was on vacation on the day that undeliverable ballots were to be retrieved from the post office. On that day and after being briefed as to the procedure by Alvarez, office clerical Linda Rivera and local union member Louis Morales made the trip to the post office. There, they retrieved undeliverable ballot packages from the first post office box and ballot return envelopes containing voted ballots from the second, both as instructed by Alvarez. They told our investigator that they counted the voted ballot envelopes and placed them in a UPS vinyl envelope that they sealed; they then wrote the number of ballots the vinyl envelope contained and signed the outside of the envelope. They did not open any ballot return envelopes. Upon returning to the local union office, they placed the vinyl envelope in the same filing cabinet in which Alvarez had placed the other vinyl envelopes of voted ballots. Alvarez had left the key to that filing cabinet with the local union's receptionist, who gave it to Rivera so that Rivera could open the cabinet. Rivera then returned the key to the receptionist who, in turn, gave it to Alvarez when Alvarez returned from vacation.
Alvarez, Rivera and Morales all denied to our investigator that they examined, noted or recorded the names of members that appeared on the ballot return envelopes. Further, they denied that they told any candidate or any other person that they had picked up voted ballots from the post office or that the voted ballots were locked in a filing cabinet at the local union office. In addition, they stated that no one, including any candidate, asked anything about voted ballots or said anything to suggest that they knew that voted ballots had been picked up from the post office. In particular, these witnesses report that no one asked the identity of any members who had voted and that they did not provide any such information to anyone.
Our investigator interviewed Pope, the local union's principal officer and a candidate for delegate. She stated that she was unaware prior to the day of the count that voted ballots had been picked up from the post office. She denied giving any instruction or advice to this effect. She stated affirmatively that on the one occasion when Alvarez asked her a question about election procedure, Pope told her to ask the election committee or the local union's lawyer, Nikolaidis, explaining that she, Pope, was a candidate in the election and could not answer any question or give any advice about election procedure.
Our investigator also interviewed Nikolaidis. He stated that he instructed Alvarez, in general terms, to retrieve undeliverable ballots from the post office periodically and process duplicate ballots for them if corrected addresses could be obtained. However, he denied instructing Alvarez to pick up voted ballots, explaining that he knew that voted ballots could not be picked up until the day of the count and that he would not have given instruction that was inconsistent with that knowledge of procedure. He stated that he had regular conversation with Alvarez in which she told him how many ballots she had picked up from the post office; however, he believed that she was giving him the number of undeliverables that she had retrieved and not the total number of ballots, undeliverable and voted, she had picked up.
We had previously supplied a copy of our manual to Nikolaidis. Nikolaidis is the law partner of Daniel Clifton, who serves as counsel to the Leedham campaign.
Postage on the ballot return envelopes was paid by postage stamp rather than business reply permit. Accordingly, the post office did not tally the number of envelopes it placed in the post office box designated for ballot return envelopes.
Protestor Fuentes learned of Alvarez's actions with respect to voted ballots the day before the count. That day, he contacted the local union office and stated that he would be present at the post office to observe voted ballots being picked up. At that point, Alvarez told him that she had picked up the voted ballots regularly when she had gone to the post office to retrieve ballot packages returned as undeliverable.
These protests followed.
As part of the remedy for the Rules violation it alleged, the Hoffa campaign sought emergency relief to halt the count and prevent disclosure of the election results. We denied that request, stating that the protest would be investigated and, if a violation was found, a remedy ordered. The Hoffa campaign took emergency appeal to the Election Appeals Master, who affirmed our decision to proceed with the count.
At the count, each UPS vinyl envelope held in the locked filing cabinet was examined. The materials used in construction of these envelopes make them tamper-evident, and inspection of them revealed no evidence that any had been opened or tampered with after initial sealing. The number of ballot return envelopes said to be contained in each vinyl envelope matched the number actually found in each envelope. The ballot return envelopes contained in each vinyl envelope likewise showed no evidence of having been opened or otherwise tampered with. Finally, all unused ballots were accounted for.
Analysis
Article XI, Section 1 of the Rules states that "[e]ach candidate nominated for [Convention delegate or alternate delegate] and each slate of candidates nominated for such position(s) shall have the right, at his/her/its expense, to have at least one (1) observer present at each and every phase of the election process. Such observer shall be a candidate or a member of good standing of the Local Union."
Article XI, Section 5 states that "[o]bservers shall further be permitted to be present when the cast ballots are picked up from the post office box and to accompany the transfer of such ballots to the location where they are to be counted. Notice shall be given to all affected candidates of the times of such mail ballot pick-ups."
The procedure the local union followed to pick up voted ballots prior to the date set for tally of ballots violated Fuentes' observer rights. The Rules grant observer rights to curb ballot fraud and to allow candidates to verify first-hand that the election has been decided by qualified voters and not by improper manipulation of the contents of the ballot box. Denial of observer rights undermines confidence in the integrity of the election.
For this reason, we GRANT the protests. We do so even though we find no evidence that fraud occurred. Thus, our investigation did not reveal any proof or substantial inference that Alvarez, Rivera or Morales discarded or destroyed voted ballots from those retrieved from the post office box or introduced fraudulently voted ballots into the vinyl envelopes they used to preserve the voted ballots.
Further, we find no evidence to suggest that Nikolaidis instructed Alvarez to retrieve voted ballots. Instead, we find that Alvarez's actions in retrieving those ballots, and her instructions to Rivera and Morales to do the same, resulted from Alvarez's misunderstanding of her duties, a misunderstanding that was not clarified by her contact with Nikolaidis. We further find that Pope did not instruct Alvarez with respect to any aspect of election procedure and instead, as a candidate, properly disassociated herself from the mechanics of the election.
Finally, we find no evidence that any candidate, including Pope, was aware that Alvarez, Rivera or Morales had retrieved voted ballots, and we find that no candidate had access to the voted ballots or any information about the ballots that would assist them in the election.
Despite this lack of evidence of fraud, we cannot certify this election. Article I of the Rules grants the Election Supervisor authority to take all necessary actions "to ensure fair, honest, open and informed elections." Article XIII, Section 4 provides that where "the Election Supervisor determines that the Rules have been violated or that any other conduct has occurred which may prevent or has prevented a fair, honest, open and informed election, the Election Supervisor may take whatever remedial action is appropriate."
Because Fuentes was effectively - although apparently through inadvertence - denied his right under the Rules to observe the pick up of voted ballots from the post office, the election was not "open" in all relevant respects, as the Rules require. We will not certify an election where a candidate is denied the right to observe an event as critical as ballot pick-up because such action has taken away that candidate's opportunity to verify the integrity of the ballot box.
Our obligation under the Rules is to certify that an election was fair. We cannot do so where the means of verifying that fairness were destroyed, even through innocent conduct.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order Local Union 805 to rerun its delegate and alternate delegate election. The local union shall post notice of the rerun election on all union bulletin boards under the jurisdiction of the local union using our Form 11 no later Wednesday, May 3, 2006. Ballots shall be mailed on Friday, May 5, 2006. The tally of ballots shall take place on Wednesday, May 31, 2006, at 9:00 a.m. at the local union's offices. All other aspects of the approved local union election plan remain in full force and effect.
The local union is cautioned not to pick up voted ballots from the post office box reserved for them until May 31, 2006 and to facilitate all observer rights required by the Rules.
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 216
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
Louie Nikolaidis
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
lnikolaidis@lcnlaw.com
David F. Reilly
22 West Main Street
P.O. Box 457
North Kingston, RI 02852
dreilly@rooltd.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com