IN RE: RAY BARTOLOTTI,
Protest Decision 2001 EAD 312
Issued: April 17, 2001
OEA Case Nos. PR022711CA and PR030111CA
Ray Bartolotti, principal officer of Local Union 938 and lead delegate candidate on the Hoffa Canadian Unity slate, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges Joe Jephson threatened retaliation against Bartolotti and another person for exercising rights protected by the Rules.
Election Administrator representative Jeffrey Ellison investigated the protests.
Findings of Fact and Analysis
1. In a protest prepared and filed for him by lawyer Cynthia Watson, Bartolotti alleges Jephson called him on February 26 to complain that literature characterizing Jephson as a TDU supporter was posted at Jephson's worksite. The protest claims Jephson "was irate and was screaming obscenities" at Bartolotti. Bartolotti told Jephson he had not posted any such literature but could if he chose. The protest alleges Jephson then threatened him: "I will get you." Bartolotti hung up on Jephson.
The protest asserts that Jephson called again 5 minutes later and "immediately continued screaming and ranting" on the same point. Bartolotti told Jephson not to call back and hung up again.
Finally, the protest claims Jephson was on work time when he made the calls.
Jephson admitted placing two cellular telephone calls to Bartolotti on February 26 to ask why Bartolotti was attempting to paint him as a TDU loyalist. Jephson denied being upset; he further denied raising his voice or using profanity. He further claimed he was on break when he made the calls.
Craig McInnes corroborated Bartolotti's version of events to a limited degree. McInnes was across the desk from Bartolotti when Jephson's calls came in. McInnes heard Bartolotti's statements; he also heard loud talking from the handset but was unable to identify the voice or decipher the words. When the first call ended, Bartolotti told McInnes, "That was Jephson."
Although annoyed by the telephone calls, Bartolotti did not call the police, advise local union staff to be vigilant for Jephson, or take any other action that suggested he felt threatened by Jephson's words or conduct. Further, Jephson did not call again or take any other action to harass or threaten Bartolotti.
We find that Jephson made the heated comments alleged in the protest. However, we have previously held that "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 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." Jorgensen, 2001 EAD 72 (December 26, 2000). See also Pimentel, 2001 EAD 251 (March 21, 2001), Rodriguez, 2000 EAD 45 (November 3, 2000) and Wasilewski, 2000 EAD 14 (August 14, 2000).
We further find insufficient evidence to contradict Jephson's assertion he was on break when he made the calls.
Accordingly, we DENY this protest.
2. In a second protest prepared and filed by Watson, Bartolotti alleges that Jephson "uttered death threats against a steward, George Heydon, who has indicated his support for the Bartolotti Slate."
Investigation showed no person named George Heydon is a member of Local 938. Acknowledgment of the protest was sent to Bartolotti and Watson, among others, on March 2 urging that
all interested parties, including the person(s) filing the protest, … should immediately contact the Election Administrator representative assigned to this case with all information relevant to the allegations contained in the protest. The representative should be provided with the name, address, and telephone number of all witnesses and persons with information concerning the allegations in the protest.
Nothing was produced in response to this letter. Our investigator placed several telephone calls to Watson during the week of March 5 requesting her evidence; none was returned. Finally, the investigator wrote Watson on March 10 giving her a 5 p.m. deadline of March 12 to contact him with evidence substantiating the protest. She called one and one-half hours ahead of the deadline to arrange a telephone interview for March 13. At the telephone interview, she offered no evidence to substantiate this protest but corrected the name of the purported victim of Jephson's alleged conduct to "George Hedley." Watson promised to provide Hedley's telephone number. On March 15, two weeks after the protest was filed, Watson's assistant telephoned with a number she said was Hedley's. The number she provided was not a working number. Hence, our investigator was unable to interview Hedley.
A protestor's failure to provide evidence constitutes grounds for dismissal of that protest. Article XIII, Section 1. Chentnik, 95 EAM 52 (January 10, 1996). However, despite Watson's failure, our investigator developed a substantial factual record of the event at issue.
Jephson reports that on February 26 he came upon Hedley in a non-work area of Purolator Courier's Logan Depot where both are employed. Jephson states he was on break. Both Jephson and Hedley are stewards at the facility. Jephson presented a petition for Hedley's signature seeking the removal of Bobby Miles as the business agent responsible for that facility. Jephson states the petition was generated by members dissatisfied with Miles' representation. According to Jephson, Hedley previously had instructed Jephson that stewards must sign such grassroots petitions regardless of their personal feelings on the relief the petitions seek. When Jephson presented the petition to Hedley, Hedley refused to sign. Jephson reminded Hedley of the steward's duty to sign; Hedley repeated that he would not sign. Heated words followed. Jephson concluded by telling Hedley: "I will bury you in this place."
Hedley complained both to Purolator management and to Miles about this statement. Pursuant to its "workplace relationship policy," Purolator suspended Jephson with pay for one day while it investigated the incident. Scot Birnie, Purolator's HR manager for the depot, interviewed Hedley and Jephson separately. After investigation, Birnie told our investigator he was confident Jephson was speaking in a political sense and not making a physical threat. Nonetheless, Birnie placed a letter in Jephson's personnel file reiterating Purolator's policies forbidding solicitation and verbal or physical harassment on work time. According to Birnie, the letter does not constitute disciplinary action and may not be grieved under the collective bargaining agreement.
Hedley told Miles he perceived Jephson's statement as a physical threat. Miles states that Hedley told him Jephson went chest to chest with Hedley, backing him into a wall. Jephson denies this allegation.
We DENY this protest for two reasons. First, the evidence establishes that the controversy between Jephson and Hedley concerned the latter's refusal to sign a petition seeking Miles' ouster as business agent. Accordingly, it did not concern the delegate election or Hedley's right to support or oppose any candidate in that election. Second, even if the discussion concerned an issue related to the delegate election, insufficient evidence exists to establish that the heated words overflowed into an impermissible threat of violence. Key to our holding of insufficient evidence is the failure of Bartolotti and Watson to present Hedley for interview.
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, 727 15th Street NW, Tenth Floor, Washington, DC 20005, (fax: 202-454-1501), all within the time 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
2001 EAD 312
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