Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: EDGAR ESQUIVEL,                     )           Protest Decision 2016 ESD 219

                                                                        )           Issued: May 23, 2016

            Protestor.                                           )           OES Case No. P-213-031016-FW     

____________________________________)                                                                  

Edgar Esquivel, member of Local Union 952, 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 that the procedure used for retrieving and remailing ballots returned as undeliverable violated the Rules.

Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact and Analysis

            Local Union 952 is entitled to elect eleven delegates and six alternate delegates.  At the nominations meeting held January 20, 2016, two full slates of candidates were nominated.  Candidates were advised in writing at the candidates meeting that immediately followed the nominations meeting of the procedures for retrieving and remailing ballots returned as undeliverable (RAU), viz.

A representative for the election committee will check the post office box for ballots returned as undeliverable each weekday from Wednesday, February 24, 2016 (5 days after mailing) to Monday, March 14, 2016 (3 days before count) at 10:00 a.m. at the post office at Main Post Office – Orange, 1075 N. Tustin St., Orange, CA 92863.  At that time ballots will be inspected and counted.

And

undeliverable mail – address updating

The representative of the Election Committee will process the returned mail and attempt to find updated address information each weekday at the office of the local union  or the following address: Pacific Election Services, Inc., 1650 Stanmore Drive, Pleasant Hill, CA 94523  Contact: Robbin A. Johnson.  Any candidate or designated observer may observed the process of address updating but may not copy or otherwise duplicate the address information of any member of Local 952.

(Bold and underscore emphasis in original.)

            Esquivel and another member of his slate attended the candidates meeting and signed for receipt of these written instructions.

            Esquivel’s protest alleged that the members of the election committee are office clerical employees of Local Union 952 and work under the supervision of the local union principal officer, a candidate for delegate.  The protest claimed that this fact “raises the issue of who has access to both the undeliverable PO Box and the returned ballots PO Box.”  Further, the protest asserted the following:

“Why haven’t I – as the representative of the 952 Teamsters United to Stop Hoffa & Kelly slate been notified of any opportunity to observe the pick-up and mail-out of undeliverable ballots.”

            Esquivel filed his protest March 10, 2016, some eight weeks after he was notified in writing that 1) that the election committee would retrieve RAUs each weekday at 10 a.m., and 2) that he or a designated observer had the right to observe the check of the RAU post office box and also to observe the processing for remailing of ballot packages to the members whose ballots were returned to the RAU post office box.

            The protest claimed that the local union violated its procedures by sending local union employees to retrieve RAUs.  The local union assigned Jessica Garcia, an administrative assistant employed by the local union, as the election committee member designated to visit the RAU post office box daily and retrieve ballot packages returned there.  She told our investigator that she performed this function each day during the period indicated in the notice to candidates, except for one or two days when in her absence office manager and controller Michelle Kinder performed the task.  Garcia told our investigator that, although all candidates were informed of the time of day and address of the post office, no candidate or observer ever appeared for the purpose of observing the process.  Garcia stated that when she returned to the local union from the post office, she made a good faith effort to obtain new addresses for the members whose ballots were returned as undeliverable, checking with business agents and/or employers for this purpose.  When she obtained the new addresses, she contacted Robbin Johnson of Pacific Election Services with that information, and Johnson prepared and mailed ballot packages to those members.  No ballot stock was maintained at the local union.  Further, Garcia kept the RAU ballot packages in a locked file cabinet in her office, and they were produced at the ballot count. 

On these facts, we find no violation of the local union’s procedures for processing RAUs and, in particular, no cause for concern with respect to fraud.  Candidates were notified of the opportunity to observe pickup of RAUs, and none – including the protestor and any member of his slate – availed themselves of that opportunity.  Further, security of the RAUs was maintained, as proved by their production at the ballot count.  In addition, no blank ballot stock was kept at the local union offices; instead, the duplicate ballot packages were prepared and mailed out by the local union’s vendor, Robbin Johnson.  Finally, the protestor indeed was informed of the procedures to be used for retrieving and remailing RAU ballot packages, and investigation showed that the local union adhered to the procedures that had been established and announced.

            As a final matter, we note that Article XIII, Section 2 requires that protests be filed within two working days of the date the alleged violation occurred.  Here, Esquivel was informed of the procedures with respect to RAUs on January 20 and did not file his protest until March 10, six days before the tally of ballots and four days before the last scheduled pickup of RAUs. 

            For these reasons, we DENY this protest on the merits and as untimely filed.

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 219

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