Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KIRK SIKORA,                              )           Protest Decision 2016 ESD 178

                                                                        )           Issued: April 20, 2016

            Protestor.                                           )           OES Case No. P-195-022716-SO     

____________________________________)                       & P-212-030816-SO         

Kirk Sikora, member and delegate candidate in Local Union 327, filed two protests pursuant to Article XIII of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The first protest alleged that his opponent received an impermissible campaign advantage by being able to send campaign literature to members whose ballots were returned as undeliverable.  The second protest alleged ballot fraud. 

Election Supervisor representative Fred Ashwill investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

            Local Union 327 is entitled to elect one delegate and one alternate delegate to the IBT convention.  At its nominations meeting held Saturday, January 9, 2016, two delegate candidates and two alternate delegate candidates were nominated.  Sikora was a delegate candidate, opposing the local union’s principal officer, Joe Bennett.  David Tanksley was an alternate delegate candidate, opposing the local union’s secretary-treasurer, Doris Tigg.  On February 9, a total of 769 ballot packages were mailed; 379 valid ballots were counted on March 4.  In the delegate race, Bennett tallied 296 votes to 83 for protestor Sikora; in the alternate delegate race, Tigg tallied 291 votes to 85 for Tanksley.

            In his first protest, filed pre-election, Sikora alleged that Bennett and Tigg had an unfair advantage in communicating with members whose ballots were returned as undeliverable (RAUs).  He asserted that they had access to the RAUs when those ballot packages were picked up from the post office and could send their campaign literature to those members before Sikora learned of the new addresses.  Investigation showed that the local union’s election committee retrieved RAUs from the post office box designated for that purpose beginning February 18 and continuing every second or third business day until February 29.  During this period, a total of 14 RAUs were retrieved and remailed.  Investigation further showed that the number of RAUs was very low because, following submission of the proposed local union election plan in September 2015, the secretary-treasurer ran a “bad address” report on TITAN and worked over the next several months obtaining current addresses for the members whose names appeared on the report. 

We deferred Sikora’s protest for post-election consideration, pursuant to Article XIII, Section 2(f)(2).  Under Article XIII, Section 3(b), “[p]ost-election protests shall only be considered and remedied if the alleged violation may have affected the outcome of the election.”  Under the circumstances, we need not determine whether the conduct alleged occurred or, if it did, violated the Rules because, even if Bennett mailed to all 14 members whose ballots were returned as undeliverable before Sikora did, the margin between Bennett’s tally and that of Sikora was more than fifteen times the number of members with whom Bennett allegedly had an advantage.  Accordingly, even were we to find that the conduct occurred as alleged and that such conduct violated the Rules, there is no evidence to suggest that it affected the outcome of the election.  For this reason, we DENY the protest in Case No. P-195-022716-SO.

Sikora’s second protest alleged ballot fraud.  The sole basis for this allegation is that 379 ballots were counted, out of 769 ballot packages mailed, a return of 49%.  He contends that a return of 20% to 25% would be the maximum that could be expected absent fraud.

Sikora produced no evidence of fraud.  Investigation showed that ballots were printed, stuffed, escorted to the post office for mailing, and mailed by the local union election committee, with observation.  Investigation further showed that ballot stock reserved for remailing RAUs and filling requests for duplicate ballots was kept in the local union safe, accessed periodically by the election committee, and accounted for.  Investigation also showed that the keys to the post office box designated for voted ballots were stored in a bank safe deposit box rented for that purpose, with the requirement that the local union secretary-treasurer and the election committee chair be present when the box was opened; that this requirement was fulfilled and the keys recovered on the date designated for tally of ballots; that the ballots were retrieved from the post office using the keys that had been stored in the safe deposit box; and that all ballot return envelopes received from the post office, except two, either had postmarks or some other printing indicating they had been processed through postal machinery.

Given these facts, we find no evidence of fraud and DENY the protest in Case No. P-212-030816-SO.

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 178

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