IN RE: ERIC JORGENSEN,
Protest Decision 2000 EAD 72
Issued: December 26, 2000
OEA Case No. PR102401MW
Eric Jorgensen, a member of Local 200, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), against Local 200 recording secretary Timothy Buban, alleging a violation of Article VII, Section 11(g) of the Rules through his conduct on October 21, 2000 at the facilities of Consolidated Freightways in Milwaukee, Wisconsin.
Election Administrator representative Michael Nicholson investigated this protest.
Findings of Fact and Analysis
Jorgensen and Buban are members of Local 200. Buban is recording secretary and a supporter of Tom Leedham. Jorgensen is a steward and a supporter of James P. Hoffa. On October 21, 2000, both were at work at the Consolidated Freightways facility in Milwaukee, Wisconsin.
Jorgensen was in the drivers' rooms with several other Local 2000 members. He was discussing what he characterized as the sparse attendance at a recent Leedham fundraiser in Milwaukee with these members. Buban was on the next floor, and overheard the conversation. According to Jorgensen, Buban "came storming down the stairs, got into [Jorgensen's] face, and began to intimidate and threaten [him], telling [him] that [he] didn't know what [he] was talking about, and … demanded that we step off company property…" Jorgensen says that he felt this was a "physical threat, as any verbal conversation could have continued on Consolidated Freightway's property." According to Jorgensen, the interchange with Buban lasted one to two minutes.
Pete Guarjado was referred by Jorgensen as a witness to the October 21 interchange. Guarjado confirmed that he saw what transpired. According to Guarjado, the back and forth conversation between Buban and Jorgensen lasted two to three minutes. Jorgensen was making fun of Buban's "candidate", Tom Leedham. He thought that Jorgensen and Buban were joking around. He saw or heard nothing that he felt was threatening behavior by either member.
Gary Dretske was also referred by Jorgensen as a witness. He was talking to Jorgensen, when Buban came down from upstairs. Jorgensen and Buban began a discussion about Tom Leedham. According to Dretske, Jorgensen and Buban were joking at first, and then Buban got upset when Jorgensen said that there were only 28 persons in attendance at a recent Leedham meeting. Dretske, however, said that he could not hear much of what was said due to his placement in the room. He believed that Jorgensen and Buban were joking at first, and then got angry. At the end of the conversation, he heard a comment by Buban about going outside to talk the numbers over. According to Dretske, Guarjado was present when the conversation got heated. Unlike Guarjado and Jorgensen, Dretske estimated the Jorgensen/Buban interchange lasted ten minutes.
Elray Wittenberg was also referred by Jorgensen as a witness. He saw Jorgensen start out with a joking conversation that led into "nose-to-nose" arguing. Wittenberg did not, however, see or hear any threats or anything he interpreted as a threatening statement or threatening behavior. He did not hear either Jorgensen or Buban talk about going outside to finish their conversation.
Buban denies threatening Jorgensen. He claims that he has been an outspoken opponent of the leadership of his local union, and a minority voice on its executive board. He stated that Jorgensen had in the past denounced him openly and heatedly at local union meetings, recalling one incident (which Jorgensen admitted) where Jorgensen responded to Buban's criticism of Local 200's leadership by getting up, giving Buban the "finger", and loudly stating "fuck you."
Buban says that on October 21, 2000, he and Jorgensen debated the turnout at a Leedham fundraiser, with Jorgensen stating that 26 people were there, and Buban claming 50 attendees. According to Buban, Jorgensen responded by saying, "you're full of shit." Buban says that Jorgensen put his face next to Buban's and began yelling at him. According to Buban, he felt the situation cold get out of control, and said to Jorgensen "we're going to have to discuss this later", in an attempt to break off the interchange. According to Buban, Jorgensen responded saying he wanted to discuss it now." Buban responded by leaving.
Buban also referred driver Selman Kojo as a witness. According to Kojo, several hours before the October 21 incident, Jorgensen approached him at work and started an angry argument with him over a work-related issue. Buban claims that Jorgensen's behavior with him later in the day was just a continuation of Jorgensen's "angry mood." Jorgensen admits an interchange with Kojo that day, but denies exhibiting any anger.
Based on the foregoing, we find that Buban and Jorgensen had an angry exchange of words at their workplace on October 21 over the turnout at a Leedham fundraiser in Milwaukee. We, however, do not find as a fact that Buban threatened Jorgensen with physical harm, as Jorgensen alleges. We do find that Buban said that he and Jorgensen should continue their conversation later, but do not find that this was a threat, as opposed to an attempt by Buban to defuse a heated situation. We base this conclusion primarily upon the testimony of Wittenberg and Guarjado, who both witnessed the interchange and said that they did not see any threatening behavior or hear any threatening statements by either Jorgensen or Buban.
As we have previously held in Rodriguez, 2000 EAD 45 (November 3, 2000) and Wasilewski, 2000 EAD 14 (August 14, 2000), loud, heated, rude or obnoxious behavior directed at fellow members because of their support of candidates for International office does not violate the Rules. Such heated debate cannot be censored. And while verbal threats of physical violence in retaliation for such candidate support are prohibited by the Rules,we cannot find as a fact that the heated conversation here rose to the level of a physical threat.
Based upon the foregoing, the protest is DENIED.
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 Administrator 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
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2000 EAD 72
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
645 Griswold
Penobscot Building
Suite 1800
Detroit, MI 48226
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, DC 20036
IBT Local 200
6200 West Blue Mound Road
Milwaukee, WI 53213
Eric Jorgensen
2717 North River Road
Waterford, WI 53185
Tim Buban
4220 South Katherine Dr.
New Berlin, WI 53151