Protest Decisions

IN RE: SANDY POPE, Protestor.
Protest Decision 2006 ESD 316
Issued: June 30, 2006
OES Case No. P-06-284-051206-NE

Sandy Pope, member, principal officer, and delegate from Local Union 805, 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 Yanko Fuentes, the opposing delegate candidate in the local union's delegate and alternate delegate election, collected ballots in violation of the Rules.

Election Supervisor representatives Michael Stolper and Maureen Geraghty investigated this protest.

Findings of Fact

The protest alleged that, on May 10, 2006, Fuentes "was seen collecting unopened ballots outside of Harold Levinson Associates, marking the ballots and causing the ballots to be mailed at the mailbox nearby."

Harold Levinson Associates (HLA) is an employer of members of Local Union 805. Fuentes is shop steward for the warehouse employees at the Farmingdale, New York facility. Fuentes was a candidate for delegate in Local Union 805's delegate and alternate delegate election. Robert Gonzalez, another HLA employee, ran for alternate delegate on a slate with Fuentes. Ballots were mailed on May 6, 2006.

Nicolas Rodriguez, an HLA warehouse employee, told our investigator that on or about May 10, 2006, he observed Fuentes and Gonzalez collecting, marking and mailing ballots handed to them by HLA employees. Rodriguez stated that he was sitting in his parked car directly in front of the HLA entrance and observed Fuentes and Gonzalez on the sidewalk immediately outside the entrance. Rodriguez observed 4 HLA employees exit the building, approach Fuentes and Gonzalez, and begin speaking with them. The 4 employees were Martin José, Estanislao Peña, Silastre Cruz, and José Flores. Rodriguez stated that he witnessed each of these employees hand his ballot to Fuentes. Fuentes marked each ballot, and he and Gonzalez then placed the marked ballots in secret ballot and ballot return envelopes. Gonzalez then took the sealed ballot return envelopes the short distance down the street to a USPS mail box and mailed them.

Rodriguez stated that ballot collection was widespread at HLA in the current and previous mail ballot elections. Rodriguez further stated that he was unaware that ballot collection was improper until he offered his mail ballot to Sandy Pope, whom he supported. Pope refused to accept the ballot. Pope told Rodriguez that the Rules forbid any member or candidate from soliciting or accepting a ballot from another member.

Our investigator made site visits to HLA on May 17, May 22, June 13 and June 29, 2006. None of the 4 employees seen handing their ballots to Fuentes and Gonzalez was available to be interviewed on May 17. On May 22, our investigator interviewed José, Peña and Flores, 3 of the 4 employees. Each claimed to have voted by mailing his ballot from home; each denied bringing his ballot to work and further denied surrendering his ballot to anyone else, including Fuentes and Gonzalez.

On May 23, Fuentes denied to our investigator that he collected, marked and mailed any ballot other than his own. Our investigator interviewed Gonzalez the same date. He too denied collecting, marking and mailing ballots of other employees. Gonzalez admitted that many employees brought their ballots to him at work during previous elections; in the current delegate and alternate delegate election, Gonzalez stated that employees showed him their ballots and even marked them in front of him. Gonzalez stated many members do not read English and have difficulty figuring out how to mark the ballots. He stated that he assisted them with the English instructions. Gonzalez stated he kept a list of members whom he had asked to vote, and he checked off that list when a member stated that he or she had voted. Gonzalez stated that, at present, when members tried to give him their ballots for mailing, he stated: "I am not taking anything else. You have to mail it on your own." Our investigator asked Gonzalez why members tried to give him their ballots. Gonzalez replied that he has a reputation for helping fellow employees with English language issues, and they knew he was always available to help. However, Gonzalez denied that he ever collected ballots, in this or a previous election, and he denied knowledge that any ballots had been collected in a previous election.

As explained in Fuentes, 2006 ESD 174 (April 6, 2006), postage on ballot return envelopes in Local Union 805's delegate and alternate delegate election was paid with postage stamps rather than business reply mail. Mail with postage stamps is postmarked by the U.S. Postal Service. The USPS postmark carries the date the letter was processed and the first 3 digits of the zip code of the facility where it was processed. Article II, Section 11(i) requires that all ballots and ballot return envelopes received in each mail ballot delegate and alternate delegate election be preserved for a period of 1 year after the count.

The zip code for HLA's Farmingdale, New York facility is 11735. The 3 digit code recorded on the postmarks for mail deposited in the mailbox at the HLA facility is 117. Our investigation found that 65 ballot return envelopes (BREs) received from HLA members who did not reside in Farmingdale were postmarked with the 117 postmark, indicating that they were mailed in Farmingdale. We obtained the zip codes for each of these 65 HLA employees and, using a web-based mapping service, calculated the distance in road miles from each member's home address to HLA's Farmingdale facility. The results follow:
Number of voting HLA members with 117 postmark on BRE City of Residence Commute distance (road miles)

Of the 4 employees Rodriguez observed hand their ballots to Fuentes and Gonzalez, José, Peña and Flores each told our investigator that he mailed his ballot from home. José lives in Uniondale, Peña in Manhattan, and Flores in Hempstead; these residences are, respectively, 11, 12 and 38 miles from HLA. Cruz, the fourth voter Rodriguez said handed his ballot to Fuentes, resides in Brooklyn, 31 miles from work. The BREs for these 4 voters showed each envelope was postmarked, and therefore mailed, in Farmingdale.

Our investigator returned to HLA on June 13 to take sworn depositions of these 4 members. One testified that he mailed his ballot at a mailbox in the same block as his residence. He denied that he brought the ballot to work and gave it to any other employee. When confronted with the BRE that contradicted his sworn testimony, the witness then said he was confused and could not recall where he mailed it.

A second witness stated under oath that he marked his ballot and mailed it himself at work. He denied showing or giving the ballot to anyone; in the initial contact with our investigator, the witness stated that he mailed the ballot from home.

Another witness stated under oath that he mailed the ballot himself from his home. When our investigator confronted the witness with the BRE that showed a Farmingdale postmark, the witness admitted that he had not mailed the ballot himself. Instead, he stated that he brought the ballot to work and gave it to either Fuentes or Gonzalez.

The final witness testified that he mailed his ballot at the corner mailbox in front of HLA.

Fuentes gave sworn testimony to our investigator on June 28, 2006 in Las Vegas, Nevada, where he was a guest of the Hoffa campaign at the IBT convention. He stated that he did not ask for or collect ballots. He denied that he received or was offered ballots. He stated that he instructed members to vote and mail their ballots themselves.

Gonzalez, Fuentes' slate-mate, was questioned under oath on June 29 at HLA. Initially, he denied requesting ballots from members or collecting them. After he was confronted with the BRE evidence, however, Gonzalez admitted to our investigator that he collected and mailed 10 to 15 ballots, both inside and outside the facility. He swore that the ballots he received were already sealed inside the BREs. After close questioning, Gonzalez then admitted that he helped members fill out their ballots.

Gonzalez further testified that Fuentes collected and mailed 20 to 25 ballots. Gonzalez stated that neither he nor Fuentes were aware that collecting ballots of other members was a violation of the Rules.
Each ballot in every delegate and alternate delegate election conducted under our Rules, including the election at Local Union 805, contains the following warning:

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 THE 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.

Analysis

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.

As we noted in Berg, 2006 ESD 278 (May 30, 2006), aff'd, 06 EAM 46 (June 20, 2006):

[B]allot 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. … [O]ur obligation to insure that elections under the Rules are "fair, honest [and] open" requires that [ballot collection] conduct be met with severe consequences.

Despite his denials of improper activity, we find that Fuentes violated Article II, Section 15 of the Rules by limiting and interfering with the right of HLA employees to mark and mail their ballots themselves, and by encouraging members to give their ballots to him.

We find the evidence of Fuentes' misconduct overwhelming. First, the ballot return envelopes of members contradict their claims that they mailed the ballots from their home communities. Second, members who initially claimed to have mailed their ballots from their home communities gave thoroughly unconvincing explanations for the substantial discrepancy between their initial statements and the proof provided by the BREs. Third, one witness recanted his previous false statement and admitted giving his ballot to either Fuentes or Gonzalez. Finally, the testimony of Gonzalez, which we treat as an admission against interest by a co-conspirator, established that he and Fuentes both collected ballots in violation of the Rules.

In reaching this conclusion, we necessarily conclude that Fuentes made false statements to our investigators. Article XIII, Section 2(g) of the Rules authorizes severe penalties for witnesses who make false statements to the Election Supervisor.

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.

In Berg, supra, we found that a delegate candidate collected ballots, in violation of the Rules. When confronted, the candidate admitted her misconduct. She prevailed in the delegate election, but we found that her improper activity did not affect the results of the election. To redress the serious misconduct that her ballot collection engendered, we ordered her disqualified from taking her seat as a delegate to the convention. We further ordered that she cease and desist from further ballot collection and sign and post a notice acknowledging her misconduct.

Here, we cannot disqualify Fuentes and Gonzalez from taking seats at the IBT convention because they lost their elections for delegate and alternate delegate.

We order the following relief with respect to Fuentes:

1. Yanko Fuentes shall cease and desist from any ballot collection in any election under our Rules.
2. Local Union 805 shall post on all union bulletin boards under the jurisdiction of Local Union 805 the notice attached to this decision, in English and Spanish. Said notice shall be maintained on all such bulletin boards through November 30, 2006.
3. Because we find that Fuentes made repeated false statements to our investigator, under oath, we order that he pay a fine to the Office of the Election Supervisor in the amount of $500.00 within 5 working days of receipt of this decision. Fuentes shall pay the fine solely from personal funds. When paying the fine, Fuentes shall submit an affidavit stating that the fine is paid solely from personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that Fuentes will refuse any such offer, transfer, or contribution.
4. Yanko Fuentes shall forfeit his credentials as a guest at the IBT convention.
5. Finally, because of the severity of Fuentes' misconduct, we refer him to the Independent Review Board for appropriate action.

We order the following relief with respect to Gonzalez:

1. Robert Gonzalez shall cease and desist from any ballot collection in any election under our Rules.

We order no further relief with respect to Gonzalez. We find that his admission of his own misconduct and his sworn testimony against Fuentes substantially mitigate the severity of his offense.

A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).

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. 20006-1416, 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 316

NOTICE TO ALL MEMBERS OF IBT LOCAL UNION 805 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 Yanko Fuentes, a candidate for delegate, and Robert Gonzalez, a candidate for alternate delegate, violated this provision of the Rules by requesting that local union members employed at their worksite bring their ballots to them for mailing.

The Election Supervisor will not tolerate such misconduct.

The Election Supervisor has ordered Fuentes and Gonzalez to cease and desist from collecting ballots and from soliciting members to give them their ballots.

Further, because Fuentes made repeated false statements denying the misconduct, the Election Supervisor has ordered him to pay a fine in the amount of $500.00 and has revoked his guest credentials at the IBT convention.

The Election Supervisor has ordered Local Union 805 to post this notice on all union bulletin boards under the jurisdiction of the local union and to maintain the posting through November 30, 2006.

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: June 30, 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

Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com

Yanko Fuentes
233 Walker Street
West Babylon, NY 11704

Sandy Pope, President
IBT Local Union 805
44-61 11th Street, 3rd floor
Long Island City, NY 11101

Harold Levinson Associates
21 Banfi Plaza
Farmingdale, NY 11735

Walter Kane
Cary Kane LLP
1350 Broadway, Suite 815
New York, NY 10018

David F. Reilly, Esq.
22 West Main Street
North Kingston, RI 02852
dreilly@rooltd.com

Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com