Protest Decisions

IN RE: MARIA ASHLEY ALVARADO, Protestor
Protest Decision 2010 ESD 43
Issued: October 27, 2010
OES Case No. P-043-101410-FW

Maria Ashley Alvarado, member, president and delegate candidate from Local Union 601, 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 Lucio Reyes encouraged ballot collection in violation of the Rules.

Election Supervisor representatives Rochelle Goffe and Michael Miller investigated this protest.

Findings of Fact

Two slates are competing in Local Union 601's delegates and alternate delegates election. Protestor Alvarado is the lead delegate candidate on the No Mas Lucio slate. Local union principal officer Reyes is the lead delegate candidate on the We Don't Make Promises, We Deliver slate. This election has been the subject of several protest decisions.[1]

The instant protest alleged that "Lucio Reyes has been calling our members and requesting that they collect ballots, to vote for him and to call for replacement ballots and put the ballots in the mail securing all these votes for him." Specifically, the protest alleged that Reyes called Amparo Cornejo twice on October 11, 2010. "On the first call he was asking for her support and reminding her to send the ballots. On the second call, [he] continued to ask her to collect the ballots and instructed her to request replacement ballots by getting their social security number." The protest concludes that "ballot fraud has occurred."

Amparo Cornejo is retired 3 years from her Teamster-represented job with Escalon Premium Brands. While she was employed, she supported Reyes in successive local union officers elections. At the time, she lived in a mobile home park where migrant workers lived during peak season. She told our investigator that many of them used her address for their mail, as they were in the area only during the season and moved on to Mexico, Texas or southern California when the season ended. In past local union officers elections, Cornejo told our investigator that she received mail ballot packages for these members at her address. She said that the members to whom the ballot packages were addressed requested her to vote their ballots for Reyes and his slate. She told our investigator that she did as these members requested.

After Cornejo and her husband retired, they moved from the mobile home park to their current address. She stated that her brother, her daughter and her son-in-law are Local Union 601 members and use her address to receive mail.

Cornejo told our investigator that, on a recent date she could not recall precisely, she received 2 phone calls from Reyes within a short time frame. She stated that each call lasted only a short time, possibly as long as 4 or 5 minutes. On the first call, she said Reyes asked her if she would be willing to support him in the upcoming delegate election. She said they had a pleasant exchange after she made it clear that she supported him. She told our investigator that there was nothing more of consequence in the first conversation, only an exchange of pleasantries since they had known each other for many years.

Shortly after the first phone call, Cornejo said that Reyes called back to speak with her husband. Cornejo concluded that Reyes was campaigning by calling members off a list, as she knew he had done in past elections. When Cornejo told Reyes her husband was not at home, they spoke some more about the election. Cornejo told Reyes she had not received as many ballots at her home as she had in the past. She said that Reyes told her that members who did not receive ballots could request duplicates by calling the union, and they would have to supply their Social Security numbers as identification. She said she asked Reyes if she should get the members' Social Security numbers. She said Reyes replied that she could do that, but then told her that the members themselves would have to call to request their own duplicate ballots. Cornejo told our investigator that, during this conversation with Reyes, she was thinking only of her brother and son-in-law, whose ballots had not yet arrived. She said that her daughter's ballot had arrived as of the date of the phone calls with Reyes. As Cornejo and her husband are retired, they are not members and have not received ballots.

In response to direct questioning from our investigator, Cornejo said that Reyes did not direct, request or encourage her to collect ballots from or fill out ballots for members. During the discussion about duplicate ballots, Cornejo said that Reyes told her that members who had not received ballots had to make requests for duplicate ballots themselves and that she could not make the requests on their behalf.

Cornejo's son, Angel Cornejo, was present during the phone conversations between Cornejo and Reyes. Angel previously worked in the Heinz food processing plant. He subsequently was employed as an organizer for the IBT but is presently laid off. He has not maintained his dues obligation and is not a member in good standing. He has not received a ballot. Nonetheless, he is supporting Alvarado's slate in the delegates and alternate delegates election and has done clerical work and leafleting for that slate. He has also assisted Alvarado with plans for the upcoming local union officers election.

Angel told our investigator that the phone conversations between Cornejo and Reyes occurred October 11 and were received by Cornejo on speakerphone; as a consequence, Angel was able to hear the entire conversation clearly, although he did not participate in the conversation or otherwise indicate his presence. Angel told our investigator that the Cornejo residence has been used over the years as the union's address for a large number of cousins, aunts, uncles and other family members who do seasonal work and then return to Texas or Mexico where they reside the balance of the year. Angel told our investigator that he heard his mother tell Reyes that she had not received as many ballots this year as usual. Angel said that Reyes replied to the effect, "No problem, call the union, get these people's Social Security numbers and ask that the ballots be sent to your address." When Cornejo repeated this instruction back to Reyes, Angel told our investigator that Reyes changed the instruction, saying that Cornejo should "have these people call" and have their ballots sent to the Cornejo address. Angel concluded from this exchange that Reyes was implicitly requesting that Cornejo receive, open, mark, collect and return ballots addressed to others.

Reyes told our investigator that he has known Cornejo for years, perhaps as long as he has been a union officer. He said that Cornejo and her husband worked at Escalon Premium Brands. When asked directly if he knew whether Cornejo and her husband were still employed, Reyes conceded that he did not know, that he believed they were, but that his information might be out of date.

Reyes acknowledged calling Cornejo on October 11 and having 2 conversations with her in a short period of time that day. He said he called her to request her support in the delegates and alternate delegates election. He said she had supported him in past elections, that there were "lots of Cornejos in the plant," and that she had told him during past campaigns that she talked up his candidacy to her family. Reyes said that during the first conversation, Cornejo asked Reyes to help Angel get work with the union. Reyes replied that no work was available at the local union and that the International was not hiring because of economic conditions. Reyes sensed that Cornejo was waiting to see what Reyes said about helping her son before she said whether she would support Reyes in the election. He did not ask her if this was true.

Reyes said he called Cornejo back a few minutes later to make sure things were alright between them. He did not want to leave the impression with her that he was insensitive to her request for help in finding work for Angel. When he spoke with her the second time, they had a pleasant conversation and he did not raise the issue of Angel. Reyes said that during the second call Cornejo told him fewer ballots had been delivered to her residence than in previous elections. Reyes said he told her that if members did not receive their ballots, they should call the union and request duplicate ballots, and they would need to supply their Social Security numbers to do so. Reyes denied instructing, asking or suggesting to Cornejo that she open, mark, collect or receive ballots of other members. He stated he would not do so under any circumstances. Further, because some of his supporters had told him Angel was supporting his opponent, he told our investigator it would be especially foolish to request Angel's mother to collect ballots for him.

No other witness was identified or produced with direct knowledge of any action by Reyes to encourage Cornejo, or anyone, to collect ballots.

Analysis

Ballot collection is a serious allegation. It is one of two Rules violations for which referral of the violator to the Government is expressly authorized.

Article II,Section 15 declares:

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.

The instructions for balloting included in ballot packages shall contain these prohibitions and shall urge members to promptly vote and return their ballots.

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.

Because of the seriousness of the offense, we have disqualified a winning delegate candidate who engaged in ballot collection, even where the margin of her victory exceeded the number of ballots she collected. Berg, supra. In cases where the ballot-collector has nonetheless lost the election, we have imposed severe penalties. Pope, 2006 ESD 316 (June 30, 2006) (fine, revocation of Convention guest credentials, and referral to the Independent Review Board); and Long, 2006 ESD 82 (February 14, 2006) (referral to the Government).

In the present case, we find no evidence to substantiate the allegation that Reyes encouraged Cornejo to open, mark, collect or return ballots addressed to others or to request duplicate ballots for any member. We find no evidence that Reyes encouraged anyone else to collect ballots from other members, and to mark and return them as votes in the delegate election. Further, we find no evidence that Cornejo in fact opened, marked, collected or returned ballots of others or requested duplicate ballots from the union. We find that Reyes' advice on what members who had not received ballots should do to obtain duplicate ballots was correct and appropriate and did not, without more, suggest a scheme to have Cornejo fraudulently obtain ballots and vote them for Reyes.

Accordingly, we DENY this 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
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 43

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

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Lucio Reyes, Secretary-Treasurer
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
lreyes601@sbcglobal.net

Maria Ashley Alvarado, President
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
europeartmuseum@yahoo.com

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

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

Michael J. Miller
1611 Granville Ave., #8
Los Angeles, CA 90025
miller.michael.j@verizon.net

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