Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2016 ESD 155

                                                                        )           Issued: March 29, 2016

            Protestor.                                           )           OES Case Nos. P-218-031116-FW   

____________________________________)                      

Teamsters United filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged ballot collection in Local Union 396’s delegates and alternate delegates election, in violation of the Rules. 

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

Two full slates are competing for the twelve delegate and fourteen alternate delegate seats up for election in Local Union 396.  Protestor Teamsters United supports the Galvan Local 396 Teamsters United slate, which opposes the Ron Herrera Local 396 slate.

Ballots were mailed March 3 and are to be counted March 29.  On March 11, the protestor alleged ballot collection at Republic Waste, an employer under the jurisdiction of the local union.

Investigation showed that José Colorado, a four-year driver at Republic’s Anaheim location, gave his ballot to Victor Mineros, a Local Union 396 business agent with responsibility for Republic.  According to Colorado, at approximately 2 p.m. on Wednesday, March 9, Colorado and his wife Delmis Bonilla, also a Republic employee, were visiting with Mineros in the Republic yard. At one point in their exchange, Colorado said Mineros asked him if he had received his ballot for the delegate election. Colorado replied that he had, and Mineros then asked if Colorado wanted to give it to him “to take care of it.”  Colorado readily agreed, considering this “as a favor” and something that he would not have to deal with.  Because Mineros was with the union, Colorado thought it sensible to give him ballot envelope, which according to Colorado was still not voted.  Colorado told our investigator he did not see anything wrong with this and expressed concern to our investigator that he would get into trouble for giving his ballot to Mineros.  To our investigator, during his interview Colorado seemed confused and did not to have a clear understanding of the point of the delegate election. 

Our investigator asked Colorado whether he was aware of any similar ballot collection activity by Mineros or anyone else at Republic, including whether Mineros had solicited the ballot of Colorado’s wife, Bonilla.  To our investigator, this question appeared to confuse Colorado, who said nothing further on the subject and deferred to his wife for additional information.  Colorado said his exchange with Mineros on March 9 was while Colorado was preparing to get into his truck at the start of his shift.  He described the brief encounter as an exchange of pleasantries, since he, Mineros, and Bonilla all were friendly with each other. Their mutual conversation was as a threesome, and not as part of any larger group.  Colorado told our investigator he did not know exactly who Mineros was in relation to the union or the election.  He simply knew him as someone “with the union” who he routinely saw around the yard conducting union business and talking with the members.

Bonilla, Colorado’s wife, is also employed at the Republic Services Anaheim yard.  She said she was present when her husband gave Mineros his ballot.  She stated further that Mineros then asked her if she wanted to give him hers as well.  Bonilla told our investigator she was bothered by this and told Mineros that it was improper of him to ask for her ballot and for her to give it to him, so she refused.  Nonetheless, she did not object or block her spouse’s action, which she said occurred in her presence, of handing his ballot to Mineros or Mineros’s acceptance of it.  Bonilla told our investigator the matter ended there and the three parted company.  Bonilla said she did not know of any other similar activity that Mineros or anyone else had engaged in with respect to the delegates election.

Mineros is a long-time member and business agent for the local union.  He denied to our investigator collecting any ballots.  He stated that at about 2:00 p.m. on Tuesday, March 8, 2016, he was present at the Republic facility on a routine business agent visit for union business when Colorado approached him.  Mineros said he and Colorado are on friendly terms and have known each other for years.  In the course of their brief exchange of pleasantries, Colorado told Mineros that he had received his ballot.  Mineros replied “Good!”  Colorado said he was surprised to get the ballot so early, but said he had not had the time to mail it.  According to Mineros, Colorado then asked Mineros if he could “drop it off in the mail” for him.  Mineros said “sure, if you want me to.”  Colorado insisted this is what he wanted, and, according to Mineros, gave him the sealed ballot return envelope, which Mineros said he promptly mailed at the next mailbox he saw.  Since Mineros and Colorado were on such friendly terms, and since the overture was from Colorado framed as a request for a favor, Mineros told our investigator he did not give the matter a second thought.  After learning of the protest, Mineros told our investigator he thought he might have been set up, either by Colorado or by persons who were aware that Colorado had given his ballot to Mineros.  Mineros told our investigator that, given the protest, he will never agree to take anyone’s ballot again under any circumstances. 

Mineros told our investigator that the conversation with Colorado was one-on-one and that Bonilla was not present.  Mineros said that, at the time of the interview following the March 8 chance meet-up with Colorado, Mineros had not seen Bonilla at any time in the past month.  He told our investigator he could not understand how Bonilla could claim that he asked her about her ballot or offer to take it to the post office, stating adamantly he never spoke with her about the election or her ballot.

After the protest was filed, the protestor provided additional information that expanded the allegations and the scope of the investigation.  The additional claim was that Mineros and Rafael Camacho, another business agent with responsibility at Republic, engaged in wholesale collection of ballots from members employed there.  The principal witness supporting this allegation was Danny Chavez, a Republic employee for the past six years.  He told our investigator that he observed both Mineros and Camacho soliciting and collecting ballots from members at his work yard on Thursday and Friday “about a week or two ago,” or approximately March 8 or 9.  Chavez said he knew both men as business agents assigned to Republic.  He stated he was not sure they knew he was watching them.  While he said he overheard both men asking members how they voted (and, in about 10 instances, saw members give them what appeared to Chavez to be their ballots), he also said he was not close enough to hear conversations, and did not know the names of any of the members he believes he saw give over their ballots.  Chavez said he later reported what he saw to co-worker Danny Pacheco, an operator at the Republic yard, who told him that someone from OES would be calling to interview him.  Chavez insisted that the activity he observed occurred between 1:00 and 2:00 p.m. on the day in question, and that he was sure they were telling people how to vote, and in about 10 cases, taking ballots from members, who were apparently voluntarily surrendering them Mineros and Camacho. 

Mineros flatly denied collecting ballots from any members, and specifically denied the conduct Chavez claimed to have observed.  Mineros told our investigator he does not know who Chavez is or why Chavez would say that Mineros and Camacho were out in the Republic work yard collecting ballots.  Mineros offered that the only reason that might explain why these members are accusing him and Camacho of collecting ballots is that both he and Camacho have campaigned at the Republic Anaheim yard a few times, always off the clock and outside of work areas.  At such times, they have passed out “Elect Herrera” flyers that resemble the ballot, with marks telling the members how to vote for the Herrera slate.  On Friday, March 11, Mineros and Camacho were present at Republic on personal time distributing “How to vote the Herrera Slate” flyers, which included an image of the portion of the ballot that listed the Herrera slate candidates. 

Camacho likewise denied ever asking for or taking anyone’s ballot in any election at any time.  He said he knew such conduct was strictly forbidden.  He was surprised to learn that he had been named by the protestor as complicit in such activity.  He said he had never seen Mineros solicit or take ballots either. They see each other often because they both routinely have union grievance and contract issues at the same facilities, including Republic Waste in Anaheim. Camacho and Mineros are friends as well as colleagues. During this delegate election cycle, they have both campaigned together at Republic and various other sites, always off the clock after their work shift. Camacho’s shift is usually about 5 a.m. until 1 p.m., so he has often been free to campaign during afternoon shift changes at various facilities. Part of their strategy this cycle has been to pass out ballot samples as flyers, which explain to the members how to mark their ballot to vote for the Herrera slate.  Camacho assumed that as he and Mineros had campaigned at Republic, perhaps some members mistook their passing out the sample ballot flyers for collecting or soliciting actual ballots from members, but that was never the case.  Camacho said he and Mineros are both veteran business agents who know the rules.

Ballot collection is a serious offense because it interferes directly with the democratic choice of the membership.  Article II, Section 15, titled “Prohibition on Interference with Voting,” provides the following:

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 Final 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.

On this investigation, we find that Colorado gave his ballot to Mineros for mailing, that the ballot was voted and sealed at the time Colorado gave it to Mineros, and that Colorado asked Mineros to do the favor of mailing the ballot for him.  We reach this conclusion largely on the evidence provided by Mineros; Colorado presented as confused and therefore somewhat unreliable.  We do not credit the claims of Bonilla, Colorado’s wife, that she observed Colorado give his ballot to Mineros or that Mineros asked her for her ballot, assertions not supported by Colorado or Mineros.  We likewise do not credit Chavez’s claim that he observed Mineros and Camacho from a distance collecting ballots from members.  We reject Chavez’s factual assertions, in part because of the distance involved, in further part because he was unable to identify any of the ten co-workers he claimed he saw give their ballots to Mineros and Camacho, and finally because Mineros and Camacho held in their hands and were distributing flyers that contained an image of a sample ballot.  We credit the statements of Mineros and Camacho as broadly convincing, which included Mineros’s admission that he accepted Colorado’s ballot for mailing.

 The Rules’ prohibition on ballot collection is strong, and sound policy considerations support it.  Here, Mineros accepted Colorado’s sealed ballot return envelope for mailing by Mineros.  The Rules declare, inter alia, that “[n]o person may encourage … an IBT member … to give his/her ballot to any person … for … mailing.”  Because we construe the ballot interference prohibition liberally we find that acceptance by Mineros of Colorado’s ballot violates the Rules because his willingness to accept the envelope “encourage[d]” Colorado to give it to him.  We find no other conduct on the part of Mineros or Camacho to violate the Rules.

Because Colorado gave his voted ballot to Mineros, we GRANT the protest.  As remedy, we direct that Colorado’s ballot be voided and not included in the tally of ballots in Local Union 396’s delegates and alternate delegates election.  We order no further relief.  In particular, we order no notice posting of a Rules violation because of our finding that the delivery of Colorado’s ballot to Mineros was initiated by Colorado for Colorado’s convenience.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 155

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