Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RICHARD GALVAN                    )           Protest Decision 2016 ESD 240

    and EDWIN SANCHEZ,                         )           Issued: June 13, 2016

)           OES Case Nos. P-243-032516-FW

            Protestors.                                          )                       & P-245-032816-FW

____________________________________)

            Richard Galvan and Edwin Sanchez, members of Local Union 396 and candidates for delegate, filed separate pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Both protests alleged that the slate the protestors opposed was given campaign advantages that constituted impermissible employer contributions, in violation of the Rules.

            Election Supervisor representative Denise Ventura investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

            Local Union 396’s election plan provided for the election of twelve delegates and fourteen alternate delegates to the IBT convention.  The January 31, 2016 nominations meeting resulted in a contested election between two full slates and no unaffiliated candidates.  Protestor Galvan led the Galvan Local 396 Teamsters United slate; local union principal officer Ron Herrera led the Ron Herrera Local 396 slate. 

            Ballots were mailed March 3, 2016.  The total number of ballots returned and counted on March 29 was 2,940.  All candidates on the Herrera slate received more votes than any candidate on the Galvan slate.  The margin between the winning delegate candidate with the fewest votes and the losing delegate candidate with the most votes was 138 (approximately 4.7%); the corresponding margin in the alternate delegate election was 103 votes (approximately 3.5%).

            Galvan’s protest was filed Friday, March 25, at 8:45 p.m. EDT.  Sanchez’s protest was filed Monday, March 28, at 4:42 p.m. EDT.  Ballots were picked up at the post office on Tuesday, March 29, at 9:00 a.m. PDT.

            Galvan’s protest alleged that UPS permitted Ron Herrera to campaign at several facilities and the Herrera slate to hang a banner on a fence and affix stickers in break areas there.

            Sanchez’s protest alleged that a bulk driver at the UPS Main Street facility under Local Union 396’s jurisdiction placed campaign stickers and flyers supporting the Herrera slate on employer equipment at that facility.

            Galvan, a long-time UPS employee, commenced work as a feeder driver at the Main Street facility on Monday, March 21, 2016, after bidding on and winning a position there.  On Wednesday, March 23, 2016, he filed a protest in Case No. P-239-032316-FW, which we decided in Galvan, 2016 ESD 172 (April 13, 2016).  That protest alleged, inter alia, that on March 22 at approximately 9:30 p.m., Galvan observed a Herrera placard in a UPS tractor on employer property.  Through the efforts of our investigator, the placard was removed the same day the protest was filed and the driver responsible for it was instructed that the Rules prohibited display of campaign material on employer equipment in work areas.  On that basis, we deemed that aspect of the protest resolved.  No appeal was taken from that decision. 

            On the investigation of protest P-243-032516-FW here, filed late Friday, March 25, 2016, Galvan told our investigator that he observed Herrera campaign stickers affixed to production equipment, fencing, the area near the time clock, and on breakroom tables when he commenced work at the Main Street facility on March 21, four days earlier.  Galvan presented photographic proof of this allegation, taken on or about March 21.

            In addition, Galvan presented our investigator a photo taken March 21 of Herrera stickers at UPS Olympic, photos of a Herrera banner in a UPS parking lot and a Herrera sign on a fence at UPS San Gabriel taken March 4, and a photo of a Herrera sticker on a shifter’s mule taken at UPS Cerritos in late February 2016.  The first protest filed concerning these alleged violations was Galvan’s protest submitted Friday, March 25, 2016.

            With respect to the protest allegation that Herrera campaigned in UPS work areas while having no union business there, the evidence presented to our investigator was that this occurred at the UPS Main Street facility on March 7, 2016.  The sum of this evidence was that Herrera and a steward were seen shaking employees’ hands; no campaign flyers were seen and no campaign rhetoric was heard.  Herrera denied that he was campaigning on this occasion.

            Article XIII, Section 2(b) requires that pre-election protests be filed within two working days of the date the protestor knew of the alleged violation or they shall be deemed waived.  The purpose of this short limitations period is to permit the opportunity for a prompt remedy for the alleged misconduct.  Such was the case in Galvan, supra, where the Herrera placard was removed and the driver responsible for its placement was instructed on the Rules’ requirements the same day the protest was filed.  A prompt resolution such as this promotes a level playing field during the election by limiting the duration – and thus the potential for prejudicial impact – of impermissible conduct. 

Galvan filed protest P-239 concerning the placard in the truck on Wednesday, March 23, at a time when he was aware of Herrera stickers, a banner, and other placards at the same and other facilities, yet he did not protest the presence of those campaign materials until he filed P-243 two days later on Friday, March 25, four calendar days and one working day before the tally of ballots in the delegates and alternate delegates election.  Such untimely filing denies the Election Supervisor an opportunity to effect a pre-election remedy for the conduct.  The choice of remedies, were we to consider such an untimely protest on the merits, would thus be reduced to upsetting the democratic choice of the electorate in order to remedy a Rules violation that could have been investigated and remedied through a timely filed pre-election protest.

The circumstances presented in protest P-245, filed the day before the count on March 28, are even less compelling of our consideration on the merits.  The protestor in this case alleged that the same Herrera stickers at UPS Main Street that Galvan saw as early as March 21 violated the Rules and warranted a remedy.  By the time the protest in P-245 was filed, all ballots that would be counted on March 29 had already been mailed, therefore no pre-election remedy was available.

Investigation showed that the protestors in these cases were aware of the alleged Rules violations more than two working days – and in several instances, well more than two working days – before filing their respective protests.

For this reason, we DENY each protest 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 240 

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