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Office of the Election Supervisor for the International Brotherhood of Teamsters

Kelly, 2021 ESD 89


for the


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

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





Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

Edward Gleason

Patrick Szymanski

Will Bloom

Tom Geoghegan

Rob Colone

Barbara Harvey

Kevin Moore

F.C. “Chris” Silvera

Fred Zuckerman

Ken Paff

Teamsters for a Democratic Union

Patrick Kelly

Teamsters Local Union 952


James Donich

Woodruff, Spradlin & Smart

Grant Maertz

Eric Jimenez

Bruce Boyens

Michael Miller

Deborah Schaaf

Jeffrey Ellison

[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.