IN RE: RICHARD DELGADO, Protestor.
Protest Decision 2006 ESD 245
Issued: May 15, 2006
OES Case Nos. P-06-278-050506-MW
Richard Delgado, a member of Local Union 743 and a candidate for delegate on the 743 New Leadership slate ("NL slate"), filed a post-election protest pursuant to Article XIII, Section 3 of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Homer Lambert, a Local Union 743 member and candidate for delegate on the 743 Unity Slate ("Unity slate"), challenged Delgado's voted ballot at the counting of ballots with full knowledge that his challenge was without basis, thereby improperly disenfranchising Delgado in violation of the Rules.
Election Supervisor representatives Taea Calcut and Dennis Sarsany investigated this protest.
Findings of Fact
On April 29, 2006, the tally of ballots was conducted in the Local Union 743's delegate and alternate delegate election. Delgado and Lambert participated in the count as authorized observers for their respective slates. During the process where returned ballots are reviewed to determine whether the voter was in good standing and eligible to vote, Lambert challenged the ballot submitted by Delgado. Delgado was not present in the area where the challenge was made but was later advised by an observer representing the NL slate that Lambert had challenged Delgado's ballot, asserting he was not a member in good standing. All challenged ballots were segregated from the ballots of patently eligible members ("eligible ballots"), and the eligible ballots were opened and tallied. At the conclusion of the tally, the candidates on the Unity slate led all the candidates on the NL slate. However, the margin between the candidate on the Unity slate with the fewest votes and the candidate on the NL slate with the most votes was less than the number of ballots challenged during the eligibility testing process, making resolution of challenged ballots necessary.
On May 1, 2006, William C. Broberg and Joe Childers of our office resolved challenged ballots, and the victory of the Unity slate over the NL slate was confirmed. When the margin between winning and losing candidates exceeded the number of challenged ballots remaining, no further resolution of challenges was necessary. Resolution of challenged ballots was halted before the challenge to Delgado's ballot was resolved, and no decision was made on May 1 as to his eligibility to vote.
Investigation of this protest included a review of Delgado's TITAN dues record, which showed that he is a member in good standing of the local union, with his dues paid by employer checkoff through March 2006 and, therefore, was eligible to vote on April 29. Accordingly, had the process of resolving challenged ballots reached Delgado's ballot, the challenge would properly have been resolved in favor of Delgado's eligibility to vote.
Delgado supplied no evidence that Lambert's challenge to his ballot was "wanton" and "deceitful," as he alleged in his protest, rather than a mistake based upon incorrect assumption. Our investigation found no such evidence.
Analysis
This is a post-election protest. Under Article XIII, Section 3(b) of the Rules, "[p]ost-election protests shall be considered and remedied if the alleged violation may have affected the outcome of the election." We find no effect on the outcome of the delegate and alternate delegate election in Local Union 743 because the margin between winning and losing candidates was greater than Delgado's vote could change.
Accordingly, we DENY this protest. However, we note the post-election protest pending in Case No. P-06-277-050506-MW concerning the same election. If that protest results in a decision to resolve challenged ballots further, Delgado's ballot will be removed from the challenged ballot pool and counted with other eligible ballots.
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 245
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
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 Delgado
16144 Pamela Court
Oak Forest, IL 60452
Homer Lambert
30W 168 Briar Lane
Napierville, IL 60563
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 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
Taea Calcut
1725 K Street, NW Suite 1400
Washington, DC 20005
tcalcut@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com