IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 278
Issued: May 30, 2006
OES Case No. P 06 267-041706-MW
(See also Election Appeals Master decision 06 EAM 46)
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 1) that Local Union 743 business agent Reginald Ford campaigned on April 7, 2006 on time paid for by the local union, 2) that IBT General President Hoffa "appeared at the Central States Pension Fund [at] a captive meeting with the employees" who were Local Union 743 members, while Tom Leedham was denied the same opportunity, 3) that candidate Evelyn Steward's use of her work e-mail to promote her candidacy and that of her slate constituted an improper employer contribution, 4) that candidate Debra Radice instructed her fellow employees to bring their ballots to her when they received them in the mail, and 5) that undeliverable ballots were not in the post office box designated for them but rather "off to the side," and further that some of the undeliverable ballots were stolen.
Election Supervisor representatives William C. Broberg, Joe Childers, Nancy Golen, and Taea Calcut investigated this protest.
Findings of Fact and Analysis
1. Allegation that Richard Ford campaigned on union-paid time.
Sidney Simmons, alternate delegate candidate on Berg's slate, stated that he observed Richard Ford and a "short, thin African-American man" distributing flyers in the basement of University Hospital between 3:00 and 3:30 p.m. on April 7, 2006. He stated further that he heard Ford tell employees that Richard Berg negotiated a bad contract for hospital employees. Simmons interjected to Ford that Berg had never been business agent for hospital employees and therefore was not responsible for the contract.
Ford denied that he was present at the University Hospital on April 7, 2006. He stated that he was in the local union office from 8:30 a.m. until approximately 2:35 p.m., when he signed out. He then proceeded to Provident Hospital, a hospital not part of the University Hospital system, to speak with non-Teamsters nurses about joining Local Union 743. Ford stated he spoke briefly there with Debbie Strickland, a Provident Hospital shop steward. After speaking with Strickland, Ford stated that he went to the hospital emergency room to speak with an old high school friend, Sandy Watlington. Ford stated that he then spoke with other nurses and repeatedly denied that any campaigning took place at Provident Hospital. When told that he allegedly stated that Berg had negotiated a bad contract at University Hospital, Ford replied that he knew Berg had never been a business agent at that hospital, and he would not have made such a statement.
Watlington corroborated Ford's statement that she spoke with him at Provident while working on April 7.
Our investigation found no corroboration for Simmons' allegation. Simmons identified 3 witnesses, but none placed Ford at University Hospital on April 7. Thus, Sidney Shirley stated that he did not recall Ford campaigning that day, although Shirley stated he left the hospital before 3:00 p.m. Duane Epps did not return a message left on his answering machine. The number provided for Maurice Brewer was incorrect. Hospital security did not respond to our investigator's repeated calls.
We DENY this aspect of the protest for lack of evidence that Ford campaigned at University Hospital on union-paid time.
2. Allegation that James P. Hoffa campaigned at Central States Pension Fund.
Berg alleged that General President James P. Hoffa appeared at Central States Pension Fund (CSPF) in Rosemont, Illinois on April 11, 2006 in a "captive" meeting with employees who are members of Local 743. He contended that Tom Leedham, Hoffa's opponent in the election for General President of the IBT, must be afforded the same access, but was denied this opportunity previously. According to Richard Delgado, a member of Berg's slate and an employee of CSPF, Hoffa did not openly campaign while at CSPF on April 11, 2006, but nevertheless went "over the line" of permissible conduct and "subtly" campaigned by stating that "outside groups" are disseminating information about CSPF that is negative and false in an attempt to tear down the fund. Delgado denied that Hoffa made any reference to the International election, the delegate and alternate delegate election, or to Tom Leedham. Hoffa's entire address to the membership lasted about ten minutes. The meeting itself lasted approximately one hour and ten minutes.
Bradley Raymond, General Counsel of the IBT, wrote our investigator that Hoffa was in Chicago on other union business on April 11 and was asked to appear at CSPF to provide a special honor to union members who had raised significant amounts of money to assist IBT members affected by Hurricane Katrina. Raymond stated that Hoffa's remarks were limited to honoring the employees and that he did not campaign while there. Raymond stated an incumbent union officer has a right and responsibility to advise and report to the membership on issues of general concern, even during an election period.
David Hoffa, counsel for Hoffa 2006, stated that Hoffa was on official union business not related to the campaign on April 11 and did not campaign at CSPF. He also urged dismissal of the protest for being untimely filed.
We find that Hoffa was at CSPF on April 11 on union business not related to the International election or the delegate election and did not campaign while there. Accordingly, we DENY this aspect of the protest.
3. Alleged improper use of employer email to campaign.
Berg alleged delegate candidate Evelyn Steward used her work email to promote herself and her slate, and that this constituted an employer contribution. Berg was unable to supply a copy of the email, and he referred our investigator to Sidney Simmons. Although Simmons provided emails from Steward to our investigator, none related to the delegate and alternate delegate election.
Steward denied ever sending any e-mail from work promoting her candidacy or the candidacy of her slate.
We DENY this aspect of the protest for lack of evidence.
4. Alleged attempt to collect ballots.
The protest alleged that delegate candidate Debra Radice, an employee of Chicago Teachers Union (CTU), "told fellow 743 members that they must bring their ballot to the Chicago Teachers Union once they receive them in the mail. She further told her coworkers that they must bring these ballots to her."
Radice told our investigator that she emailed fellow local union members that it would be very helpful if her coworkers would bring their ballots to work so that she and Carolyn Fulton, another employee of CTU, could track the number of ballots mailed in for her slate. Radice claimed that her purpose was to assure that members voted in the election rather than have their ballot get lost under paper on the members' desks. The email was sent to approximately 40 of Radice's coworkers. A copy of this email, dated April 6, 2006, read:
Ballots for the Local 743 delegate election were mailed yesterday and, as you are aware, I am on the ballot (there's a flyer in your mailbox regarding the election). As in the past, it would be very helpful if you would bring your sealed ballot to work so we can keep a count of ballots being mailed out. You can give them to me or Carolyn if I'm not here.
743 Unity for Change Slate thanks you for your support.
Our investigator asked Radice why she sent this e-mail; she sighed and replied, "I'm such a dummy." Radice told our investigator that she made a list of members who either brought their ballots to work or showed their ballots to her; the list showed about 20 names. She also stated that 3 "new" employees put their ballots in her mailbox at work while she was absent. The ballots were not in their return envelopes, did not contain the members' names, and were unsealed. Radice said she sent another email stating that whoever put these ballots in her mailbox should call Julie Hamos, the independent election officer, to obtain a duplicate ballot. She claims she disposed of these 3 ballots by placing them in the trash.
Radice stated that approximately 5 co-workers left their sealed ballots with her or on her desk. She stated that she mailed the ballots. She stated that other members came to her desk and showed her their ballots; still others simply told her they had voted. Radice repeatedly asserted that she was only keeping a tally of the votes and assuring that people voted.
Our investigator interviewed 7 of Radice's coworkers. Of these, 4 did not bring their ballots to work but mailed the ballots themselves. Margaret Lebrecht stated that she put her ballot and the ballot of another coworker, David Friedman, in Radice's mailbox. Both ballots were unsealed and she stated that she knew from Radice's second e-mail that she needed to call Hamos to get a duplicate ballot. However, she did not do so and as a result did not vote in the election. Her coworker, David Friedman, confirmed that he gave his ballot to Lebrecht and does not remember whether it was in an outer envelope or not. When told that his vote may not have been counted, he stated, "I have no political agenda with the Teamsters. I don't know what 'my' slate is. I don't remember the vote. In fact, I can't even remember what I ate yesterday."
Article II, Section 15 of the Rules states:
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.
We find that Radice violated this provision of the Rule.
Accordingly we GRANT this aspect of the protest.
In doing so, we expressly find that the sealed ballots received and mailed by Radice did not affect the results of the election because the margin between winning and losing candidates exceeded the 5 ballots the investigation showed Radice collected and mailed. Furthermore, we find no basis for the allegation that the unsealed ballots Radice received were actually voted.
Nonetheless, ballot collection is a serious offense because it "strikes at the heart of the democratic reforms instituted under the Consent Decree" (Long, 2005 ESD 82 (February 13, 2006)), and has the potential to destroy the democratic ideal that elections must be decided by the electorate without improper interference. Although we find that Radice's conduct did not change the election results here, our obligation to insure that elections under the Rules are "fair, honest [and] open" requires that Radice's conduct be met with severe consequences.
Accordingly, we order Radice to cease and desist from collection of ballots and solicitation thereof; we order Local Union 743 to post the notice attached to this decision on all union bulletin boards under the jurisdiction of the local union; and finally, we disqualify Radice from the delegate position to which she was elected. The notice must be posted within 3 days from the date of this decision and shall remain posted for 30 consecutive days. Within 3 days of posting the notice, the principal officer of the local union is ordered to file with the Office of the Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, an affidavit attesting that the notice has been posted in accordance with this decision. The alternate delegate candidate who tallied the highest number of ballots shall assume the vacancy created by Radice's disqualification.
We recognize that the disqualification remedy we order is anti-democratic because the voters who elected Radice as delegate will be deprived of her representation. However, the Rules infraction Radice committed is of a greater anti-democratic character and will not be tolerated.
5. Alleged mishandling of ballot packages returned as undeliverable.
Berg alleged that undelivered ballots were apparently stolen from the post office and voted by members of the slate comprised of incumbent local union officers. Berg stated that when he accompanied Janet Cichowlas, an assistant to Julie Hamos, to the post office on April 12, 2006 to retrieve undeliverable ballots, they found that the post office box for undeliverable ballots contained no ballots but held a notice directing them to inquire at the customer service desk. A postal employee at the customer desk told them the undeliverable ballots had been set aside. The employee then retrieved 276 returned as undeliverable.
Berg states that at the same time, he checked the box for his slate, which had mailed its campaign literature the day before ballots were mailed using the same membership list used to mail ballots. The slate's box held 337 pieces of undeliverable mail. Berg therefore concluded that 61 fewer ballots had been returned as undeliverable than pieces of campaign literature, and that therefore those ballots had been improperly "diverted" by the incumbent Unity slate.
Berg and Cichowlas inquired further at the post office and were allegedly told that the mail would only be set aside if someone with "authority" had requested it. The post office denied possessing a list of persons authorized to pick up the mail from the undeliverable post box for ballots. Investigation showed that undeliverable ballots were picked up on 3 occasions by Hamos or her designee: April 12, April 19, and the day of the ballot count, April 29. A total of 790 undeliverable ballots were retrieved from the post office. During the same period, Berg claimed that 893 undeliverable campaign mailers from his slate were retrieved. (See Protest No. P-06-277-050506-MW).
Hamos told our investigator that she rented the post office box for undeliverable mail in the local union's delegate and alternate delegate election herself at the main Chicago post office and obtained the only key. She stated that she did not provide a list of persons authorized to retrieve the mail to the post office. Further, she stated that she did not call the post office to request that they "set aside" the undeliverable mail rather than place it in the box and that the box was large enough to accommodate the undeliverable ballots. She gave the post office no special instructions on handling the mail.
Investigation revealed that the Local Union 743 ballots were mailed by first class mail at a cost of $4,817.67 at approximately 5:00 p.m. on April 5, 2006. The campaign mailing done by Berg's slate was mailed by first class presort mail, at a cost of $4,585.64, a difference of $232.03, one day earlier at approximately 5:00 p.m. on April 4, 2006.
Our investigator interviewed a postal employee, Lewis Allan, from the lock box division of the main Chicago post office. He stated that the post office does not require special instructions to remove mail from a box and set it aside. He said that with elections, the post office often holds mail "on the ledge" as it accumulates because the box will not hold all the mail that accumulates before the proper official comes to retrieve it. Another postal employee told our investigator that first class mail and first class presort mail are handled the same by the post office; however, this was disputed by both a mailhouse contacted by our investigator, and Nina Gapshis, part-owner of Progress Printing Company in Chicago, which printed and mailed the ballots in this election, both claiming that the more expensive mail (first class) gets priority treatment by the post office. Berg did not present any evidence to dispute the evidence provided by the mailhouse officials; nor did Berg provide any evidence to establish that these two mailings were comprised of exactly the same number of pieces or were processed through the US Postal Service in a way that the returned envelopes would match
The protest's allegation that undeliverable ballots were improperly removed from the post office and diverted by the slate of incumbent officers was not established by our investigation. Notwithstanding the denial by one postal employee, our investigation revealed evidence that first class mail sent is given priority treatment over first class presort. We find this is sufficient evidence to overcome Berg's inference the fewer number of undeliverable ballots, when compared with the number of campaign mailers returned, demonstrated that ballots were "missing." There is no evidence that anyone other than authorized postal service personnel and independent election officer Hamos had access to, and picked up, the undeliverable ballots. Indeed, the evidence established that those were the only persons with access to the ballots. There is no basis on which to conclude that any unauthorized person came into possession of undeliverable ballots and voted them.
Accordingly, we DENY this aspect of the protest.
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 278
NOTICE TO ALL MEMBERS OF IBT LOCAL UNION 743 FROM RICHARD W. MARK, ELECTION SUPERVISOR FOR THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") protect the right of each member "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." The Rules further state that "no person or entity may encourage an IBT member … to give his/her ballot to any person or entity for marking or mailing.
The Election Supervisor has found that Debra Radice, a candidate for delegate on the 743 Unity Slate, violated this provision of the Rules by requesting that local union members employed at her worksite bring their ballots to her for mailing.
The Election Supervisor will not tolerate such misconduct.
The Election Supervisor has ordered Debra Radice to cease and desist from collecting ballots and from soliciting members to give her their ballots. Further, because of the severity of the misconduct, the Election Supervisor has disqualified Debra Radice from taking her seat as elected delegate of Local Union 743. The elected alternate delegate with the highest number of votes will assume the delegate position left vacant by Radice's disqualification.
The Election Supervisor has ordered Local Union 743 to post this notice on all union bulletin boards under the jurisdiction of the local union and to maintain the posting for 30 consecutive days.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org
___________________________________
Richard W. Mark
Election Supervisor
Date: May 29, 2006
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted for 30 calendar days and must not be defaced or covered up.
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
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
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