IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 296
Issued: June 4, 2006
OES Case No. P 06 277-050506-MW
(See also Election Appeals Master decision 06 EAM 44)
The Election Supervisor issues this supplemental decision to state additional, independent bases for denying post-election protest P 06 277-050506-MW ("Protest 277") filed by Local Union 743 delegate candidate Richard Berg. The bases for this supplemental ruling were implied but not stated explicitly in the initial ruling issued on May 31, 2006 in Berg, 2006 ESD 276.
Findings of Fact and Analysis
Berg filed Protest 277 as a post-election protest pursuant to Article XIII, Section 3(a)(1) of the Rules for the 2005 2006 IBT International Union Delegate and Officer Election ("Rules"). Section A of Berg, 2006 ESD 276 (May 31, 2006) analyzed the protestor's challenges to the adequacy of the Local Union 743 mailing list and ballot mailing, specifically: 1) that Local Union 743 did not mail ballots to 703 members on the list "for whom the address was insufficient to deliver a piece of mail, viz., the member record consisted of a name and city only, with no street or post office box address, or consisted simply of a name," (Berg, 2006 ESD 276 at 2-5); and 2) that the Local Union 743 mailing list was not trustworthy as shown by the different number of names comprising it and the list supplied to Berg for inspection before the ballot count (Id. at 5-6). Section B of Berg, 2006 ESD 276, concerned Berg's allegation that he had been denied the right to observe the Local Union 743 Election Officer's execution of ballot remailings (Id. at 8-9); Section C of the decision analyzed Berg's claim that the local union denied him use of the least expensive means to conduct his campaign literature mailing (Id. at 9-11).
Article XIII, Section 3(a)(1) of the Rules provides that:
Protests regarding any alleged improper election day or post-election conduct or event must be filed . . . within three (3) working days of the posting of the official election tally sheet, when involving any delegate election . . . .
The 4 aspects of Berg's protest we decided in Sections A, B and C of 2006 ESD 276 are not proper post-election protests because they did not allege "improper election day or post-election conduct." Instead, each concerned alleged Rules violations that were said to have occurred prior to the tally of ballots completed May 1, 2006. Thus, the 2 issues we decided in Section A of 2006 ESD 276 alleged Rules violations surrounding the mailing of ballots, which occurred April 5, 2006. The issue we decided in Section B of the same decision concerned observer rights with respect to remailing of ballots returned as undeliverable, and the mailing of ballots to 50 members who were not mailed ballots originally but for whom sufficient addresses were obtained through follow-up with employers. These mailings occurred between April 10 and 24, 2006. The issue we resolved in Section C concerned the campaign mailing by Berg's slate that was carried out on April 4.
The only protest filed with respect to the 4 issues decided in these 3 sections of our decision was Berg's protest dated May 4, which his counsel denominated as a "post-election protest." Had Berg wished to protest each of these issues in a timely manner, his rights were governed by Article XIII, Section 2(b) of the Rules. That section requires that "all … pre-election protests, including, by way of example only, the following, must be filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived:
***
(2) Protests regarding alleged failures to provide proper access to the membership, including, e.g., alleged violations of these Rules regarding access to collective bargaining agreements or worksite lists, to Union meetings and publications, or to employer premises;(3) Protests regarding alleged improper or inequitable treatment of the candidate or his/her supporters by the Union, by any other labor organization or by an employer, including improper handling of the candidate's request for mailings by the Union, improper or inequitable denial of access to the membership or to relevant information by the Union, by any other labor organization or by an employer …
Each of Berg's allegations we addressed in Sections A, B and C of 2006 ESD 276 fell within Article XIII's broad definition of a pre-election protest. First, they occurred before the tally of ballots, the date the Rules refer to as "election day." Second, they are described in the Article XIII, Section 2 definition of pre-election protest. Thus, Berg's complaint regarding the local union mailing list and the absence of sufficient addresses to mail ballots to a segment of the membership constitutes a complaint under Article XIII, Section 2(b)(2), "regarding alleged failures to provide proper access to the membership," as well as under Article XIII, Section 2(b)(3), "regarding alleged improper or inequitable treatment of the candidate or his/her supporters by the Union," for it essentially alleged that the local union denied ballots to members who might have cast votes for Berg or his slate and thereby denied his slate access to those members or otherwise improperly treated his supporters. For the same reason, Berg's allegation that he was denied observer rights for remailing of ballots is a pre-election protest. Finally, his claim that his campaign mailing was improperly handled is identified explicitly as a pre-election protest in Article XIII, Section 2(b)(3).
Each of Berg's allegations that we decided in Sections A, B, and C of 2006 ESD 276 are, therefore, untimely filed as pre-election protests and improperly filed as post-election protests, and we so hold. We make this finding in addition to the findings we made on the merits of the protests in the cited decision.
The only matters properly filed as a post-election protests in Protest 277 were Berg's allegations with respect to eligibility codes on the election-day Election Control Roster ("ECR") and the Election Supervisor's granting of Berg's election day challenge to 38 ballots (Id. at 6-8); these relate to the conduct of the ballot count and are properly filed as post-election protests.
We note that Berg previously filed a pre-election protest that challenged the adequacy of the Local Union 743 mailing list in many respects. For the extensive reasons articulated in our decision on that protest, we deemed the protest RESOLVED in Berg, 2006 ESD 211 (April 25, 2006). The matter of the members for whom the local union lacked addresses was known to Berg when we decided 2006 ESD 211. Thus, he had conducted a campaign mailing 3 weeks earlier, on April 4, 2006. The mailhouse informed him that it lacked addresses for more than 700 persons on the membership list. Investigation showed that the mailhouse gave to Berg the names of these persons within a day of completing his slate's mailing. Berg had been advised that the mailing list used to conduct his campaign mailing was identical in every respect to the list that the same mailhouse would use to mail ballots. Accordingly, Berg was on notice as of the date ballots were mailed that more than 700 names on the list lacked addresses sufficient to deliver a piece of mail. He did not amend his existing pre-election protest with respect to the mailing list nor did he file a new pre-election protest to assert the allegation that the local union did not have addresses for a segment of its listed members. Additional notice of the missing addresses was given to Berg on April 27 and 28, when he reviewed the local union membership list. Although this list did not include members on withdrawal or not listed on check-off, it still contained members for whom no address was listed. Berg did not protest. Most significantly, he did not appeal our decision in 2006 ESD 211 (April 25, 2006), which held that the combination of our efforts and those of the local union to update and correct the local union's mailing list met the requirements of the Rules. If Berg was dissatisfied with the resolution in 2006 ESD 211 and contended that further mailing list corrections were needed, that issue could have been raised by requesting Election Supervisor reconsideration, or by appealing the decision to the Election Appeals Master. Either approach would have resulted in consideration of the mailing list issues weeks earlier, with additional time before the IBT International Convention to implement a pre-election remedy. Berg's failure to appeal rendered that decision "final and binding" under Article XIII, Section 2(j).
We adhere to our findings and conclusions in Berg, 2006 ESD 276, as demonstrating why the protest claims should be denied even when considered on the merits. But under the Rules, election day ends the period for filing protests based on conduct occurring (as these matters did) well more than two days before the ballot count.
This protest illustrates the importance of the Rules' distinction between the subject matter appropriate for pre-election and post-election protests. Post-election protests are properly addressed to actions occurring at or after the ballot count itself. They are not to be used to assert violations based on matters that the protestor knew (or should have known) about in the pre-election period. A protestor cannot sit on a pre-election allegation, wait for the outcome of the election, and then seek to upset the entire result based on pre-election conduct that, if a violation, could have been addressed earlier.
For the reasons articulated in this supplemental decision, we DENY as untimely filed each of the allegations raised in Protest 277 that concerned conduct that occurred prior to election day. This basis for denying the protest is in addition to and does not supplant the decision on the merits we rendered in 2006 ESD 276.
On the merits of the local union's effort to secure addresses for those members for whom it had no addresses, we make a supplemental finding of fact. As we explained in 2006 ESD 276, the local union made requests of employers of its members for current addresses for each member for whom local union records showed no address, an incomplete address, or for whom a ballot package was returned as undeliverable. An example of the response the local union received is provided by University of Chicago Hospital, an employer of 1,576 members of Local Union 743. Following mailing of ballots, the local union faxed to the employer a list of 163 members for whom the local union sought updated address information. Of these 163 members, the local union had no addresses for 44. The employer faxed back a complete roster of its employees who were members of the local union. The roster was dated March 2006. Of the 44 persons on the local union's membership list for whom it had no addresses, the employer provided addresses for 4. The employer was unable to provide addresses for 40 of its employees.
A similar response was received from Health Care Services Corp., an employer of 742 members of Local Union 743. The local union faxed a list of 79 employees for whom it requested current address information. Of these, 36 had no addresses. The employer returned address information for 51 of the 79 employees on whom the local union had inquired. The employer provided address information for 30 of the 36 members for whom the local union had no addresses; it was unable to provide addresses for the remaining 6 members.
As found in 2006 ESD 276, the local union made similar inquiries with 95 other employers in a comprehensive effort to obtain addresses for members for whom it had no or incomplete addresses or for whom ballots had been returned as undeliverable. Through this additional effort, the local union secured updated addresses for a significant segment of the membership for which its records were incomplete or out of date; despite the local union's inquiry, employers were unable to provide addresses for all such members.
These facts illustrate the point to which we alluded in Berg, 2006 ESD 211 (April 25, 2006), that diligent efforts may not secure addresses for all members, where even the employers of the members do not have addresses for them.
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 296
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
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