Protest Decisions

IN RE: MANUEL MEDINA, Protestor.
Protest Decision 2010 ESD 29
Issued: September 21, 2010
OES Case No. P-032-091310-FW

Manuel Medina, member of Local Union 948, timely filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that a number of members of the local union did not receive ballot packages in the delegates and alternate delegates election as required by the Rules.

Election Supervisor representatives Chris Mrak, Rochelle Goffe, and Jeffrey Ellison investigated this protest.

Findings of Fact

Protestor Medina was instructed in writing to submit evidence to support his allegation that local union members did not receive ballot packages. In addition, our investigator attempted repeatedly to contact Medina to request names and contact information for members who allegedly did not receive ballots. Medina did not submit evidence or otherwise respond to requests for evidence.

As required by its local union election plan, Local Union 948 posted on all worksite bulletin boards a notice of election stating the dates that ballot packages would be mailed and returned ballots would be tallied. The notice instructed members who did not receive ballots or who spoiled the ballots they received to contact the local union to request that a duplicate ballot be mailed. Accordingly, in addition to seeking information on the protest directly from the protestor, our investigator inquired of the local union with respect to requests for duplicate ballots that the local union received. That investigation revealed that some 44 members requested duplicate ballots. For each such request, a local union employee reduced the phoned-in request to writing and faxed it to UniLect, the agency the local union engaged to administer the balloting, which then responded to the requests by mailing duplicate ballot packages to the members who requested them. Ballots in this election were mailed on August 23, 2010. Investigation showed that, on August 30, the local union employee responsible for transmitting the names and addresses of members requesting duplicate ballots attempted to fax a list of 9 such members to UniLect. Although the employee received confirmation that the fax was transmitted successfully, the confirmation report showed that the requests were sent to a fax number that did not belong to UniLect, one digit in the ten-digit phone number having been entered incorrectly. Accordingly, the 9 members identified in the mis-sent fax transmission did not receive the duplicate ballots they requested, and no ballots were cast by them.

Local Union 948 is authorized to elect 7 delegates and 7 alternate delegates. Three slates competed in the election. Thus, the Juarez/Alfaro Members 1^st slate (hereinafter "Juarez") was comprised of 7 candidates each for delegate and alternate delegate. The Members Slate, Working for You (hereinafter "Martinez," for its lead delegate candidate) listed 7 delegate and 5 alternate delegate candidates. The Tony Dillion slate ("Dillion") nominated 7 candidates for delegate and none for alternate delegate. In addition to these slates, 2 independent candidates for alternate delegate also appeared on the ballot.

Ballots were counted on September 13, 2010. The results for delegate were as follows:

These results show that the losing delegate candidate with the highest tally was Mark Perez, with 378 votes, 2 fewer than the winning delegate candidate with the fewest votes (Ramirez[1] at 380). Further, delegate candidate Randy Holder tallied 371, placing him within 9 votes of tying Ramirez for the final delegate seat.

The results of the alternate delegate election were as follows:

These results show that the losing alternate delegate candidate with the highest tally was Mark West, with 384 votes, 6 fewer than the winning delegate candidate with the fewest votes (Vargas at 390).

This protest is being considered in a post-election context. Therefore, the Election Supervisor must consider whether the violation "may have affected the outcome of the election," under Article XIII, Section 3(b) of the Rules. A violation of the Rules alone is not grounds for setting aside an election unless there is a reasonable probability that the election outcome may have been affected by the violation. Wirtz v. Hotel Employees, Local 6, 391 U.S. 492, 507 (1968). While a violation creates a presumption that the outcome was affected, that presumption "may of course be met by evidence which supports a finding that the violation did not affect the result." Id.; Dole v. Mailhandlers, Local 317, 711 F.Supp. 577, 581 (M.D. Ala. 1989); see also Platt, Post-1 (March 14, 1996), rev'd on other grounds, 96 EAM 144 (March 29, 1996) ("To determine whether an effect exists, the Election Officer determines mathematically whether the effect was sufficient in scope to affect the outcome of the election and/or whether there was a causal connection between the violation and the result or outcome of the election."); Ford, 95 EAM 46 (December 20, 1995) (However, "where the benefit conferred by a violation is significant, and the vote outcome is close, the Election Officer need not find a definitive causal link between the two.")

On the facts presented here, we find that the error of the local union employee in transmitting duplicate ballot requests to the wrong fax number effectively deprived 9 members of their right to vote in the election. Further, we find that the margin between the winning candidate with the lowest tally and the losing candidate with the highest tally in both the delegate and the alternate delegate elections is less than 9 votes. Accordingly, the violation in failing to fulfill the requests for duplicate ballots may have affected the outcome of the election.

Appropriate means by which to rectify the error caused by the fax transmission mistake is to rerun the election for the delegate and alternate delegate seats potentially affected by the error. The top 4 winning candidates in the delegate election each had tallies more than 9 votes greater than the tally of the losing candidate with the most votes. The same is true in the alternate delegate election. These candidates have tallies that are beyond the potential impact that 9 votes could effect. As such, if a rerun were to be conducted, the election would be limited to the fifth, sixth and seventh delegate and alternate delegate seats. The delegate candidates permitted to participate in such a rerun would be the following: those who have already been declared winners (Noel Alfaro (Juarez), Veronica Bustamante (Juarez), and Gloria Ramirez (Juarez)); Bryan Austin (Juarez), who withdrew in favor of Gloria Ramirez; and losing candidates Mark Perez (Martinez) and Randy Holder (Martinez), both of whom are within 9 votes of Gloria Ramirez's tally. We contacted Perez and Holder to inquire whether either wished that we conduct a rerun of the delegate election. Each declined.

In the alternate delegate race, the candidates permitted to participate in a rerun would be the following: those who have already been declared winners (Helen Camper (Juarez), Sylvia Lovato (Martinez), and Robert Vargas (Juarez)); and losing candidate Mark West (Juarez), who is within 6 votes of Vargas' tally. We contacted the Juarez/Alfaro slate, of which West is a member, to inquire whether it wished that we conduct a rerun of the alternate delegate election. Its representative told our investigator that the slate did not wish a rerun.

Accordingly, although a Rules violation may have affected the outcome of the election, we will not conduct a rerun election in either the delegate or alternate delegate elections of Local Union 948 because the candidates who potentially were adversely affected by the violation have indicated that they do not wish we do so. The Rules allow even nominated candidates to withdraw after ballot printing so long as there are unopposed candidates remaining to fill the offices up for election. Rules, Article II, Section 5(j). The voluntary withdrawals in this case are allowed under the rule.

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
Suite 1000
885 Third Avenue
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, 1801 K Street, N.W., Suite421 L, 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
        2010 ESD 29

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Manuel Medina
5064 Cozad Way
Stockton, CA 95212
By UPS overnight

Lupe Juarez, Secretary-Treasurer
Teamsters Local Union 948
1222 "I" Street
Modesto, CA 95354
Teamsters948@yahoo.com

Sam Martinez
5161 Wilkins Avenue
Oakdale, CA 95361
Ladybugtm2003@yahoo.com

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Rochelle Goffe
1234 22^nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com