OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: PATRICK KELLY, ) Protest Decision 2021 ESD 89
) Issued: March 22, 2021
Protestor. ) OES Case No. P-105-031121-FW
____________________________________)
Patrick Kelly, member of Local Union 952, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that the Orange County Transit Authority (OCTA) violated the Rules by barring him from campaigning in the parking lot at the Santa Ana bus base where its employees park their vehicles. The protestor sought an order directing OCTA to re-admit him to the parking lot at the Santa Ana bus base; he also sought an order directing that the tally of ballots be postponed from March 16 to March 22, 2021.
In Kelly, 2021 ESD 83 (March 15, 2021), we denied the protest on an interim basis, concluding that, although the investigation was ongoing, Kelly was unlikely to prevail on his claim that his presumptive right to campaign in the OCTA parking lot at Santa Ana where employees park their vehicles had been violated. We specifically denied his request that the tally of ballots be postponed.
The tally was completed on March 16, 2021. Competing for election to the 12 delegate and 5 alternate delegate positions were a full slate of candidates, a partial slate, and Kelly as an independent candidate for delegate. On 2,113 valid ballots counted, Kelly tallied 144 votes. The 12 delegate candidates successfully elected ranged from 970 to 1,019 votes.[1] As such, the margin between Kelly’s tally and the successful delegate candidate with the fewest votes was 826 votes.
Investigation showed that 322 members of Local Union 952 are employed at OCTA-Santa Ana. Of these, 79 cast ballots, representing 24.5% of the membership employed there. In comparison, the 2,113 returned ballots reflected an election participation rate of 23.6% of Local Union 952’s overall membership.
Because the investigation into Kelly’s parking lot access protest was not complete at the time ballots in the election were tallied, we deferred decision on the issue for post-election consideration under Article XIII, Section 2(f)(2), which requires that we determine whether the denied access “may have affected the outcome of the election.” Article XIII, Section 3(b). We conclude that the standard established by this provision of the Rules has not been reached because the total number of members employed at OCTA-Santa Ana is less than two-fifths of the margin between Kelly’s tally and that of the successful candidate with the fewest votes. We note further that Kelly campaigned in the OCTA-Santa Ana for a period before being removed and then campaigned on the driveway into the lot for an extended period without interference.
Accordingly, we DENY the portion of Kelly’s protest challenging his removal from the OCTA-Santa Ana parking lot.[2]
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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD 89
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Kevin Moore
Mooregp2021@gmail.com
F.C. “Chris” Silvera
fitzverity@aol.com
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Patrick Kelly
Pdk952@aol.com
Teamsters Local Union 952
office@teamsters952.org
OCTA
James Donich
Woodruff, Spradlin & Smart
jdonich@wss-law.com
Grant Maertz
Gmaertz952@gmail.com
Eric Jimenez
ejimenez@teamsters952.org
Bruce Boyens
boyensb@aol.com
Michael Miller
Miller.michael.j@verizon.net
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] Two protests that contest the resolution of five challenged ballots remain pending. This small number of ballots does not affect our analysis here.
[2] In a telephone conversation with our investigator, Kelly also asserted that OCTA had barred campaigning at the Garden Grove bus base. This allegation was not investigated because no protest was filed, and we do not consider it here.