ELECTION APPEALS MASTER
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IN RE: DON FAUTH, DAN RAISOR, and 2015-2016 EAM 19 (KAR)
BRET REYNOLDS, DECISION RE 2016 ESD 176
PROTESTORS.
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Protest Decision 2016 ESD 176 (ESD 176), regarding pre-election protests by Don Fauth (OES Case No. P-149-020616-MW) (Fauth Protest) and Dan Raisor, and Bret Reynolds (OES Case No. P-151-020616-MW) (Raison/Reynolds Protest), members of Local Union 89, was issued on April 20, 2016. Both protests alleged that one or more members or supporters of the Zuckerman-Bolton slate, including Wesley Koch, a union steward and a candidate for alternate delegate, made impermissible threats of physical violence to members or supporters of the Hourly Workers Unite to Lower Dues! Slate (Hourly Workers Unite Slate) in two separate incidents on February 4, 2016. On March 2, Mr. Koch was elected as an alternate delegate to the IBT convention, winning 2081 of the 3,273 votes cast.
The Election Supervisor consolidated the two protests, which were deferred for post-election consideration pursuant to Article XIII, Section 2(f)(2) of the Rules. With respect to the Fauth Protest, the Election Supervisor found that Wesley Koch committed battery on Mr. Fauth by striking him in the chest forcefully and shoving him backwards, and that Mr. Koch made immediate threats of violence with the purpose of retaliating against Mr. Fauth because of the candidacies of Mr. Fauth and the other members of the Hourly Workers Unite Slate in opposition to those of the Zuckerman-Bolton slate candidates. With respect to the Raisor/Reynolds Protest, the Election Supervisor found no violation of the Rules, and denied the protest.
On April 22, 2016, an appeal of ESD 176 with respect to the Fauth Protest was filed by Mr. Koch. By Notice of Hearing sent to all distributees of ESD 176, a telephonic hearing was scheduled for April 28, 2016. On April 27, 2016, the Election Supervisor submitted a written response to the appeal (OES April 27 Letter).
A telephonic hearing was held on April 28, 2016. The following individuals attended the hearing: David O’Brien Suetholz, Esq., on behalf of Mr. Koch, Wesley Koch, Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor (OES), Joe Childers (OES), David J. Hoffa, Esq., on behalf of the Hoffa Campaign.
Decision of the Election Supervisor
The Fauth Protest arose from a confrontation that occurred on February 4, 2016, while members and supporters of the Hourly Workers Unite Slate were campaigning at the mid-afternoon shift change in and near employee parking lots at Jeffboat, a barge manufacturer in Louisville, Kentucky under the jurisdiction of Local Union 89. David Dorton and Clark Pritchard, respectively, candidates for delegate and alternate delegate on the Hourly Workers Unite Slate, were leafleting in a Jeffboat parking lot near Gate 7 and the Lighthouse Restaurant when they were approached by Mr. Koch, a steward at Jeffboat and candidate for alternate delegate on the Zuckerman-Bolton slate. According to Mr. Dorton, Mr. Koch yelled at them that they were on his turf now and to get out of there. Mr. Dorton said he replied to Mr. Koch that he was a dues paying member, that his father had fought in World War II, and that he had every right to be there. Mr. Dorton said Mr. Koch replied: “Fuck you and your father.” When Mr. Dorton refused to engage Mr. Koch in response to this taunt, Mr. Koch turned to protestor Don Fauth and Tommy Riddle, candidates for delegate on the Hourly Workers Unite Slate, who were leafleting across the street in another Jeffboat parking lot.
Mr. Fauth told the OES investigator he and Mr. Riddle were leafleting when a member of the Zuckerman-Bolton Slate they did not know approached Mr. Fauth, questioned his support for the Hoffa-Hall 2016 Slate and asked specifically how the Hourly Workers Unite Slate was going to “lower the dues.” While Mr. Fauth was answering this question, Mr. Koch approached from across the street, interrupted Mr. Fauth’s conversation and demanded to know what was going on. Mr. Fauth turned toward Mr. Koch and stated that he was talking to someone, at which point Mr. Koch stated to Mr. Fauth, “Get the fuck out of my face,” and aggressively placed both hands on Mr. Fauth’s chest and pushed him. Mr. Fauth stumbled back two steps and then recovered and approached Mr. Koch but did not touch him, at which point Mr. Koch shouted “I’ll put you on the concrete.” Mr. Koch then turned to Mr. Riddle and stated, “And I’ll put you on the concrete too.”
Mr. Riddle confirmed Mr. Fauth’s account of the episode, including that Mr. Koch shoved Mr. Fauth and threatened to put both Mr. Riddle and Mr. Fauth “on the concrete.” In addition, Mr. Dorton told the OES investigator that when he heard voices raised across the street, he turned and witnessed Mr. Koch place his hands on Mr. Fauth and push him. Mr. Pritchard told our investigator that Mr. Koch was very agitated that day and was “jumping around,” talking about how he was going to “kick someone’s ass” and yelling that Hourly Workers Unite Slate members were “talking shit” about him on Facebook. Mr. Pritchard stated that when Mr. Koch crossed the street to confront Mr. Fauth and Mr. Riddle, he heard Mr. Koch berate them and heard Mr. Koch use the “Fbomb.” Although Mr. Pritchard heard Mr. Koch’s words, he said he was not in a position to see Mr. Koch shove Mr. Fauth.
Jeff Cooper and Jim Kincaid, respectively, delegate and alternate delegate candidates on the Zuckerman-Bolton slate, told the OES investigator that while they were in the vicinity but were busy talking to members and did not witness the incident involving Mr. Koch and Mr. Fauth.
Mr. Koch told the OES investigator that he had an altercation with a member of the Hourly Workers Unite Slate he could not identify. He said he confronted members of the slate about how they intended to “lower the dues,” and maintained that they were intentionally deceiving members. He also said he was upset because things had been said about him on Facebook. Mr. Koch maintained that Mr. Dorton approached him and called him and his slate members “suckasses” and other derogatory names, but Koch did not remember whether he told Mr. Dorton “fuck you.” Mr. Koch said that after the exchange with Mr. Dorton, he crossed the street to Mr. Fauth and Mr. Riddle. He admitted that he told Mr. Fauth to “get the fuck out of my face,” but denied that he shoved Mr. Fauth. He also denied that he made a comment about putting anyone on the concrete. Mr. Koch told the OES investigator that he had been a steward at Jeffboat for ten years and that he regularly coached Little League and volunteered at his local courthouse as an advocate for abused and neglected children.
Based upon the above facts, the Election Supervisor found that:
Wesley Koch committed battery on Don Fauth by striking him in the chest forcefully and shoving him backwards. Koch committed an intentional and forceful act, an aggressive action that was not inadvertent and benign. Berg, 06 EAM 58 (July 26, 2006). We further find that Koch made immediate threats of violence and did so with the purpose of retaliating against Fauth because of the candidacies of Fauth and the other members of the Hourly Workers Unite slate in opposition to those of the Zuckerman-Bolton slate candidates.
The Election Supervisor disqualified Mr. Koch from serving as alternate delegate or delegate from Local Union 89 to the IBT convention, and further ordered that “Koch is barred from all premises used by the IBT, committees, and officers of the IBT for convention and convention-related activities, including the entirety of Bally’s and Paris Las Vegas, the convention space, casinos, restaurants, hotel guest rooms, and other space, for the period June 20 through and including July 3, 2016. Should Koch violate this order barring his presence in the specified locations, we will hold the elected delegates and alternate delegates of Local Union 89 responsible for any additional remedy.”
The Election Officer further ordered Local Union 89 to post a notice attached to ESD 176 on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through July 1, 2016, the last day scheduled for IBT convention proceedings.
Appeal of ESD 176
On appeal, Mr. Koch does not challenge the findings of fact made by the Election Supervisor, but urges the Election Appeals Master to modify the “death penalty” remedy imposed by the Election Supervisor. Mr. Koch argues that his conduct was not as egregious as conduct in other cases in which disqualification was imposed, and more comparable to cases in which a lesser penalty was found to be appropriate.
Decision of the Election Appeals Master
I note at the outset that generally, post-election protests shall be considered and remedied only if the alleged violation may have affected the outcome of the election, a claim not asserted in this case by any protestor. However, “any timely protest alleging improper threats, coercion, intimidation, acts of violence, or retaliation for exercising any right protected by these Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.” Article XIII, Section 2(f)(2).
When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process. “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.” Hailstone & Martinez, 10 EAM 7 (September 14, 2010).
I find that the Election Supervisor acted well within his discretion in imposing the remedy of disqualification in this case.
For purposes of this appeal, Mr. Koch concedes that his conduct constituted a violation of the Rules, which prohibit “retaliation or threat of retaliation by … any member of the IBT … against a Union member … for exercising any right guaranteed by” the Rules. Article VII, Section 12(g). He acknowledges that he engaged in an “intentional and forceful act and not an inadvertent and benign contact occurring in a scuffle.” Berg, 06 EAM 58 (July 26, 2006). Mr. Koch further recognizes that there is no requirement that the intentional and forceful act cause injury in order to violate the Rules.
With respect to remedy, Mr. Koch argues that other delegates have committed similar violations, but were not stripped of their convention credentials. However, in one of those cases, Leedham Slate, 2006 ESD 319 (July 9, 2006), aff’d, 06 EAM 57 (July 21, 2006), the perpetrator was not a delegate. In the other two, Pope, 2011 ESD 309 (August 5, 2011) and Deszcz & Esquivel, the investigation concluded and the decision issued after the convention closed, rendering a disqualification remedy meaningless.
The Election Supervisor contends that the applicable precedent is Berg, 2006 ESD 315 (June 29, 2006), rev’d & remanded, 06 EAM 58 (July 26, 2006), reissued, 2006 ESD 397 (December 6, 2006), aff’d, 07 EAM 80 (January 8, 2007). In that case, a delegate struck a member in a hotel hallway on the evening following the second day of the convention; the blow did not cause injury. In a decision issued on the morning of the fourth day of the convention, the Election Supervisor found a violation and ordered the perpetrator to cease and desist from further violence, further ordering him to forfeit his delegate credentials and his convention per diem, and barring him from the convention premises. Although the Election Appeals Master initially remanded the decision for further investigation, he affirmed the post-remand decision, which included the remedy of the revoked delegate credentials.
Mr. Koch argues the conduct in Berg was more serious because the assailant’s punch “left marks,” the assailant threatened to “kill” the victim, a police report was filed and warrant issued, and the assailant disappeared after the incident. I find that these distinctions are not sufficient to establish an abuse of discretion by the Election Supervisor.
Mr. Koch further argues that disqualification is inappropriate in light of his record as a union steward, and that disqualification will unfairly deprive him of the opportunity to learn and gain leadership experience at the convention. I disagree. As a “leader,” Mr. Koch has a responsibility to model responsible campaigning behavior. Moreover, permitting a “leader” who has engaged in violent misconduct to enjoy the prestige and benefits of attendance at the Convention could wrongly send a message that persons in position of authority are immune from appropriate punishment for serious violation of the Rules.
Finally, I reject the argument that the disqualification of Mr. Koch will “disenfranchise” the many union members who voted for him as alternate delegate. Local 89 is allocated 18 convention delegates, and the local union delegate election plan proposed to elect that full number plus 18 alternate delegates and to pay to send the entire complement to the International Convention. Local Union 89 therefore has a sufficient number of elected representatives to provide full-strength representation at the convention without Mr. Koch.
For the above reasons, and for substantially the reasons set forth in ESD 176 and the OES April 27 Letter, the appeal is DENIED, and the decision of the Election Supervisor is AFFIRMED.
SO ORDERED.
/s/___________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: May 2, 2016