IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 211
Issued: April 25, 2006
OES Case No. P 06 129-020706-MW
Richard Berg, a member of Local Union 743 and delegate candidate on the 743 New Leadership slate, filed a pre election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005 2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the Local Union 743 membership list to be used to mail ballots in the Local 743 delegate and alternate delegate election was tainted with fraud.
Election Supervisor representatives William C. Broberg, Joe Childers, and Nancy Golen investigated this protest.
Findings of Fact
Local Union 743 is located in Chicago, Illinois and represents members employed in various occupations. The membership is largely comprised of service workers (e.g. hospital cleaning staff, security guards) and semi-skilled factory workers. The local union has approximately 13,000 members.
The protest alleged that, as of February 3 (approximately two months before the scheduled mailing of ballots in what ultimately turned out to be a contested election), the Local Union 743 membership list remained tainted with fraud first discovered during the December 2004 election of local union officers. The 2004 officer election is the subject of a suit brought by the U.S. Department of Labor that seeks to set the election aside. Chao v. Local 743, International Brotherhood of Teamsters, C.A. No. 05C 4642 (N.D. Ill.). Protestor Berg stated that the USDOL suit alleged that ballots in the 2004 election were diverted from members' addresses to the addresses of stewards, interested employers, and a Russian Turkish bathhouse where Robert Walston, principal officer of the local union, allegedly met from time to time with Robert Simpson, a former IBT member allegedly banned from membership, union office and employment for life by the Independent Review Board. The ballot diversion was allegedly carried out by addressing the ballot in the name of an actual member, but using a mailing address other than that of the member.
The protest further alleged that spot checks of the Local Union 743 membership list showed that some of the addresses to which ballots were allegedly diverted in the 2004 election remain on the membership list in the TITAN system. The protest alleged that, without correction of these addresses, the delegate and alternate delegate election will be tainted by the same fraud that marred the 2004 election.
To address the allegations in this protest we scrutinized the Local Union 743 mailing list and the processes the local union used to update the list for mailing out the delegate election ballots in 2006. In conducting this analysis, we made no findings concerning whether the violations as alleged in Chao v. Local 743, International Brotherhood of Teamsters actually occurred in the 2004 Local Union 743 officer election; such findings are outside our jurisdiction and authority and those matters are properly resolved in the U.S. District Court. Rather, our actions focus on preparation of the list for the 2006 delegate election.
The Rules require each local union to submit a plan for conducting its election of IBT convention delegates (Article II, Section 4), and the Election Supervisor's official Local Union Plan form requires each local union to explain, as part of the plan, the procedures to be used to update and correct the list of member addresses used to mail out ballots (Local Union Plan, Question 11). Our analysis of Local Union 743's mailing list included checking it for the problems as specifically alleged in connection with the 2004 officer election, specifically: 1) whether the list used to mail delegate election ballots in 2006 contained names and addresses identified by USDOL as suspected diversion addresses on the 2004 list; and 2) the incidence of more than one Local Union 743 member sharing a mail address.
I. Review of the 2006 Local Union 743 Delegate Election Mailing
List For Problems Specifically Identified In Connection With the
2004 Local Union 743 Officer Election Mailing List
The protestor supplied us with a copy of the Fed. R. Civ. P. 26 mandatory disclosure made by the USDOL in Chao v. Local 743, International Brotherhood of Teamsters. USDOL's Exhibit A consists of a list of 128 members for whom voted ballots were recorded in the 2004 Local Union 743 officer election where the ballots were originally mailed out to an address allegedly not that of the voting member. Exhibit B of USDOL's mandatory disclosures identified those addresses on the 2004 Local Union 743 officer election mailing list used by multiple members. Comparing this information to the mailing list used for the 2006 Local Union 743 delegate election shows that the number of allegedly problematic addresses from 2004 have been drastically reduced. If ballots are cast in the delegate election from ballot packages originally sent to addresses identified as allegedly problematic in 2004, those ballots can be identified and challenged in the delegate election eligibility check.
Specifically, reviewing USDOL's Exhibit A, we found that of the 128 names allegedly associated to an address other than that of the named member on the 2004 Local Union 743 officer election mailing list, only 12 names appeared on the mailing list used to mail out ballots in the 2006 Local Union 743 delegate election that were associated with the same address as on the 2004 mailing list. The remaining 116 names are either listed with updated addresses or do not appear on the list at all. As already noted, if ballots are returned in the Local Union 743 delegate election from the 12 names and addresses that also appear on the USDOL's Exhibit A, a challenge may be lodged and those ballots will be segregated and not counted unless the authenticity of the address can be verified to the named member.
USDOL's Exhibit B consists of addresses associated with more than one member's name on the 2004 Local Union 743 officer election mailing list. There were 55 addresses on the 2004 list shared by four or more addressees. On the 2006 Local Union 743 delegate election mailing list, only eight of those addresses still appear as locations with multiple addressees. None of the eight addresses is the same as an address on USDOL Exhibit A, i.e., an address that the USDOL alleges was not the named member's address.
There are substantial differences between the mailing lists used by Local Union 743 in its 2004 officer election and 2006 delegate election, and work performed to update the list for this delegate election will be described in the next section. Whatever the USDOL may ultimately prove in the action challenging the 2004 Local Union 743 officer election, the specific, allegedly suspect addresses identified in the Rule 26 disclosure have been almost completely eliminated from the list in the course of updating it.
II. Updating the Local Union 743 Mailing List for the 2006 Delegate Election
When this protest was filed, OES took steps to test whether the list was comprised of genuine addresses associated with individuals. We contracted with a private mailhouse to analyze the Local Union 743 mailing list to determine if the addresses shown were current for the individual member names and requested a report of address corrections. The vast majority of the names on the Local Union 743 mailing list were verified to the addresses shown. The investigation found current addresses for a number of Local Union 743 members who had moved and filed a forwarding order with the U.S. Postal Service. The mailhouse determined that 829 members filed individual change of address forms and 194 others filed family change of address forms with the USPS in the past year. We supplied this list of 1,023 members and their old and new addresses to Local Union 743 and directed the local union to correct these addresses before mailing ballots. Local Union 743 corrected the addresses between March 29 and April 2, 2006, before the ballots were mailed on April 5.
The private mailhouse analysis identified 987 listed members of Local Union 743 whose addresses could not be verified for any of several reasons, including invalid city, state or zip (539 entries), address not found (336 entries), multiple responses (108 entries), non-deliverable (3 entries), and wrong kind of zip code (1 entry). We supplied this information to Local Union 743 and directed the local union to attempt to correct these entries by obtaining address information from any available source (e.g., the member or the employer).
On April 3, our investigator met with Ted Bania, comptroller for Local Union 743. Bania confirmed that four local union staff members worked continuously from March 29 until 10:00 a.m. on Sunday, April 2 to update the members' addresses in the TITAN system. Including the information supplied by OES, a total of 1,099 addresses were updated. On the morning of April 3, the IBT transmitted the updated mailing list electronically to Progress Printing, the company contracted to print and mail out the ballot packages. Bania reported that earlier, in December 2005, the local union had updated more than 1,000 addresses that were discovered to be incorrect following a mailing of a periodical. In addition, after the nominations meeting notice was mailed, the local again updated more than 1,000 incorrect addresses. According to Bania, about 10% of each Local Union 743 membership mailing (approximately 1,300 pieces) is returned as undeliverable. Bania ascribes these returns to the regular fluctuations in the Local Union 743 membership.
On April 3, we obtained the membership list for Local Union 743, including addresses, directly from the IBT. This list was identical to the list the IBT transmitted to Progress Printing. We conducted a thorough review of this list to identify any addresses claimed by more than one member. We made this inquiry in consideration of the allegation that multiple ballots could be misdirected to select addresses and voted by persons other than those whose names appeared on the ballot packages. As a result of this review, we found 193 instances in which 2 different members used the same address, 41 instances where 3 different members used the same address, 5 instances where 4 different members used the same address, 2 instances of 5 members, and 1 instance of 6 members. The aggregate total membership where a member shared an address with at least 1 other member was 545, representing about 4% of the total membership of the local union. Analysis of the member names in question showed that many of the multiple address locations had people with the same surname. We inferred from this that such listing reflected family members sharing the same address, e.g., a working couple or family. We did not, however, sample or call individuals and conduct interviews to attempt verification of the members' identities. The mailhouse analysis performed for OES did not find that these addresses were spurious locations and did find in third-party sources that these addresses were associated with the names provided. On these facts, we are not able to find in 2006 the existence of a program to divert ballots to select addresses so that they may be voted by persons other than the members to whom they are addressed.
Analysis
Article I of the Rules grants us "authority to take all necessary actions, consistent with these Rules, to ensure fair, honest, open and informed elections." The local union election plan each local union must submit for approval under Article II, Section 4(a) includes a requirement that local unions make efforts to update their mailing lists as much as possible. Buckner, 2006 ESD 108 (February 27, 2006); see Election Supervisor's Local Union Plan Official Form, Question 11. The importance of an accurate mailing list cannot be overstated in an election that depends on the U.S. Postal Service to deliver notice of the election and to send and return ballots.
On the facts presented here, we are satisfied that our effort and that of the local union to update and correct the addresses on the local union's membership list before the April 5 ballot mailing meets the requirements of the Rules. For this reason, we see no basis to exercise our authority under Article XIII, Section 4(v) to conduct Local Union 743's delegate and alternate delegate election ourselves. Election Supervisor representatives will be present at the Local Union 743 ballot count, scheduled now for April 29, 2006, will note challenges to returned ballots, and will resolve challenges if necessary.
Accordingly, we deem this protest RESOLVED.
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
885 Third Avenue, Suite 1000
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., 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
2006 ESD 211
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Richard Berg
1336 West Argyle
Chicago, IL 60640
Richard Lopez, Secretary-Treasurer
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
Robert Walston, President
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
William Widmar III
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com