Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE:  Jimmy Martinez,                    )           Protest Decision 2011 ESD 279

                                                                        )           Issued: June 15, 2011

               Protestor.                                         )           OES Case Nos. P-154-021711-NE                

____________________________________)

            Jimmy Martinez, member of Local Union 449 and candidate for alternate delegate, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that candidates on the slate opposing his in the local union delegates election phone-banked from union telephones using a union-provided phone list, in violation of the Rules.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact

            Local Union 449 is entitled to send two delegates and one alternate delegate to the IBT convention.  Two full slates of candidates were nominated for these positions.  Protestor Martinez was nominated for alternate delegate on the Generation Next slate.  That slate was opposed by the George Harrigan-Jeff Brylski No Dues Increase slate. 

            Ballots were mailed on February 3 and counted on February 24.  The three candidates on the Harrigan-Brylski slate prevailed by substantial margins.  Protestor Martinez lost to his opponent in the alternate delegate race, Mike Gerviss, by a tally of 485 to 269 votes, a margin of 216 votes.

            Martinez’ February 17 protest alleged that on Sunday, February 6, opposing slate members Harrigan and Gerviss made campaign phone calls to members.  The protest claimed that the phone lists Harrigan and Gerviss used were obtained from Local Union 449 and that the calls were made from local union phones.  Martinez identified three persons by name who he said had received the campaign calls, and he alleged “there are many others” to whom the calls were made.  He stated that “the Local 449 phone number appeared on the caller ID of their cell phones,” and demanded that Local Union 449’s phone records be subpoenaed to substantiate that those phones were used to make the calls at issue.

            Martinez did not provide contact information for the named persons he said received the campaign phone calls.  Likewise, he did not provide any additional information concerning the “many others” he said received the calls.

            Harrigan told our investigator that he did not make any campaign calls from the local union office on February 6 or any other day.  He did, however, call some members from his home on February 6 to ask for their support.  He said he did not obtain the phone numbers from the local union; instead, he used numbers he had accumulated over a substantial period representing members of Local Union 449.  Gerviss told our investigator that he called one of the persons identified in Martinez’ protest from the union hall on February 6 to discuss a matter but denied soliciting his support in the delegates election that day.

            Investigation showed that Local Union 449 has four phone lines.  One line has a published number, although the numbers for all four lines will appear in the recipient’s caller ID unless the caller deliberately blocks the number.  Local Union 449 asked its phone carrier, Verizon, for a detailed report of all the outgoing calls from local union phones on February 6, 2011. Verizon could not supply the requested information because the local union has a nationwide unlimited calling plan, which does not track outgoing calls within the continental United States for billing purposes.  Instead, all calls are “bundled” and do not appear individually on billing statements.  Our investigator confirmed this information directly with Verizon.

Analysis

Article VII, Section 12(c) of the Rules prohibits use of union facilities and equipment to assist in campaigning unless the union is reimbursed at fair market value and all candidates are provided advance written notice of the availability of such assistance. 

No evidence was provided by the protestor to substantiate the allegation in the protest, the accused candidates denied the allegation, and we were unable to develop any evidence that called the denials into question.  A protest without evidence will be denied.  Joseph, 2006 ESD 132 (March 31, 2006); Gegare, 2010 ESD 10 (July 27, 2010); Reyes, 2010 ESD 12 (August 4, 2010).

            Accordingly, we DENY this protest.

            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, NY  10022

Fax: (212) 751-4864

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, 1801 K Street, N.W., Suite 421 L, 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

            2011 ESD 279

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

braymond@teamster.org

David J. Hoffa

Hoffa Hall 2011

1100 Connecticut Avenue, N.W., Ste. 730

Washington, D.C. 20036

hoffadav@hotmail.com

Ken Paff

Teamsters for a Democratic Union

P.O. Box 10128

Detroit, MI 48210-0128

ken@tdu.org

Barbara Harvey

1394 E. Jefferson Avenue

Detroit, MI 48207

blmharvey@sbcglobal.net

Fred Gegare

P.O. Box 9663

Green Bay, WI 54308-9663

kirchmanb@yahoo.com

Scott D. Soldon

3541 N. Summit Avenue

Shorewood, WI 53211

scottsoldon@gmail.com

Fred Zuckerman

3813 Taylor Blvd.

Louisville, KY 40215

fredzuckerman@aol.com

Robert M. Colone, Esq.

P.O. Box 272

Sellersburg, IN 47172-0272

rmcolone@hotmail.com

Carl Biers

Box 424, 315 Flatbush Avenue

Brooklyn, NY 11217

info@SandyPope2011.org

Julian Gonzalez

Lewis, Clifton & Nikolaidis, P.C.

350 Seventh Avenue, Suite 1800

New York, NY 10001-5013

jgonzalez@lcnlaw.com

Jimmy Martinez

168 Spicer Creek Run

Grand Island, NY 14072

judo72@yahoo.com

Ken Nelligan, Secretary-Treasurer

Teamsters Local Union 449

2175 William Street

Buffalo, NY 14206

knelligan449@aol.com

Deborah Schaaf

1118 Coddington Road

Ithaca, NY 14850

debschaaf33@gmail.com

David F. Reilly

22 West Main Street

Wickford, RI 02852

dreilly@dfresq.com

Maria Ho

Office of the Election Supervisor

1801 K Street, N.W., Suite 421 L

Washington, D.C. 20006

mho@ibtvote.org

Kathryn Naylor

Office of the Election Supervisor

1801 K Street, N.W., Suite 421 L

Washington, D.C. 20006

knaylor@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Ste. 210

Ann Arbor, MI 48104

EllisonEsq@aol.com