Protest Decisions

ELECTION APPEALS MASTER

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IN RE: TEAMSTERS UNITED,                                                    
                                                                                      2015-2016 EAM 29 (KAR) (ESD 284)   

                                                             PROTESTOR                                    

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                        Protest Decision 2016 ESD 284 (ESD 284) was issued on September 16, 2016 (OES Case No. P-314-063016-NA).  The protest alleged that Sean O’Brien threatened a delegate and interfered with the exercise of delegate rights during the convention nominations process in violation of Article VII, Section 12(g) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”), which prohibits “[r]etaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules * * *.”  

Decision of the Election Supervisor

            The Election Supervisor conducted an extensive investigation, including witness interviews and a review of audio and video evidence, with respect to statements made to a Teamsters United supporter, Matt Taibi, while he was engaged in seconding the nomination of Tim Sylvester, a candidate on the Teamsters United slate for the office of General Secretary Treasurer of the IBT.   Mr. Taibi was accompanied at Microphone 3 by Local 89 delegates and Teamsters United supporters Zach Pfeiffer and Mike Rankin.  The Election Supervisor concluded that the complained of statements were made by two different individuals—Mr. O’Brien, a member of the IBT General Executive board and candidate for re-election as IBT vice president for the East region, and Tom Mari, an elected delegate and officer from Local Union 25. 

              With respect to Mr. O’Brien,[1] the Election Supervisor found that while the nomination speech was being delivered from Microphone 1, across the hall from Mr. Taibi’s location, Mr. O’Brien came up the side aisle and stopped immediately in front of Microphone 3, from which Mr. Taibi would momentarily deliver the seconding speech.  At this point Mr. Pfeiffer got the attention of OES representative Joe Childers and told him that Mr. O’Brien was not in his seat.  Mr. Childers approached Mr. O’Brien and asked him if the seat he was standing near was his.  Mr. O’Brien replied, “It is now.”  Mr. Childers directed Mr. O’Brien to sit down, but he did not comply.  Mr. O’Brien then leaned toward Mr. Pfeiffer and addressed him directly:  “You are a punk.  I know who you are.  You are nothing.  You don’t want none.”  Mr. O’Brien then laughed.  Mr. Pfeiffer told Mr. O’Brien, “I am not afraid of you.”

Mr. O’Brien denied saying anything to Mr. Pfeiffer or any other Teamsters United supporter in the area of Microphone 3.  Mr. O’Brien admitted that he went to the back of Section 2, close to Microphone 3, but said he did so solely to speak with Local Union 191 delegate Ed Rooney concerning a workplace problem Mr. Rooney was trying to solve with UPS in Local Union 191.  The Election Supervisor rejected Mr. O’Brien’s explanation on the ground that it was contradicted by photographs of the scene and other witness testimony, and “not at all credible considering all of the circumstances.  First, Rooney told our investigator he saw O’Brien that morning standing near Microphone 3 staring at Taibi at the time of the seconding speech, but Rooney denied speaking with O’Brien at all on Thursday of convention week, whether at that moment or at any other time.  Second, Alston’s photographs show O’Brien in the area of Microphone 3 with Pfeiffer and McGaha.  Third, during nominations, the proceedings around the floor microphones concern nothing but nominations, and those proceedings are loud with the range of crowd noises and shouting.  It is not credible that O’Brien would have chosen the time and place of Taibi’s seconding speech to go to the area of Microphone 3 for a conversation with another delegate about a workplace issue that O’Brien described to our investigator as not urgent in nature.  Finally, and most important, it was no coincidence that O’Brien chose the moment of Taibi’s seconding speech to leave his seat for the area of Microphone 3.  Taibi is the Local Union 251 member he had previously been charged with intimidating, and we find that O’Brien went to the Microphone 3 area to face Taibi, not to have a work conversation with Rooney unrelated to convention business.”

The Election Supervisor denied the protest with respect to Mr. O’Brien, finding that Mr. O’Brien’s words to Mr. Pfeiffer did not violate the Rules.  “Unlike the threats described in the charges resulting in his fourteen day suspension, the statements to Pfeiffer were mild and arguably not threatening at all.  Further distinguishing his 2013 threats, which were made to members of a local union within the joint council in which he held elected office, O’Brien’s words to Pfeiffer were to a member of Local Union 89 in Louisville, KY, the home local union of Teamsters United standard bearer Zuckerman, and O’Brien has no power he can leverage against Pfeiffer.  Finally, although not dispositive of the protest against O’Brien, we find that Pfeiffer subjectively was not intimidated by O’Brien.  His physical posture, facial expressions, and actions as shown on the IBT video are not those of a person who was intimidated.  In addition, he told O’Brien, ‘I’m not afraid of you’.”

With respect to Mr. Mari, the Election Supervisor found (based upon an audio recording by Tim Hill, a Teamsters United photographer/videographer[2]) that during Mr. Taibi’s seconding speech, Mr. Mari shouted:  “You’re a fuckin’ scab, you motherfucker!  You’re a fuckin’ scab, you fuckin’ scumbag.  You’re a fuckin’ scab!  Motherfuckin’ scab! You should be fuckin’ ashamed of yourself!  You’re all fuckin’ dead, motherfuckers.  You fuckin’ ratfuck! You’re a fuckin’ ratfuck!  You piece of shit!”    Notwithstanding these threatening insults (and the crowd’s booing and derisive chanting), Mr. Taibi completed his seconding speech.  Mr. Taibi told the OES investigator that he did not hear Mr. Mari’s shouts.

Mr. Mari denied shouting the above statements and claimed that he never walked back to Microphone 3, but stayed in the aisle next to his seat.  The Election Supervisor found that Mr. Mari’s denial was contradicted by the audio and video recordings of activity in proximity to Microphone 3, and by witness testimony.  The Election Supervisor concluded that Mr. Mari moved directly to Microphone 3 when Mr. Taibi was present and then shouted threatening insults and obscenities during Mr. Taibi’s speech.

The Election Supervisor denied the protest with respect to Mr. Mari, on the ground that Mr. Mari’s insulting threats against Mr. Taibi did not impede the nominations and did not violate the Rules, because “they were not even heard by Taibi amidst the nomination hubbub.  As such, despite his intention to be disruptive and intimidating, Mari was doing nothing more than shouting into the void.”

Notwithstanding his denial of the protest, the Election Supervisor concluded that Mr. O’Brien and Mr. Mari falsely denied their actions to the OES investigator, and that their false statements constituted a failure to cooperate with the Election Supervisor in violation of Article XIII, Section 2(g) of the Rules, which requires, inter alia, that “all members … are required to cooperate with the Election Supervisor.  Failure to cooperate with the Election Supervisor or Election Appeals Master (including making false statements to the Election Supervisor or Election Appeals Master) may result in referral of the matter to the Government for appropriate action under law (including the Final Order), or such other remedy as the Election Supervisor or Election Appeals Master deems appropriate.”  Nevertheless, the Election Supervisor exercised his discretion not to remedy this violation directly with a fine, notice posting, or, in O’Brien’s case, disqualification from candidacy, “because the convention is concluded, the candidate whose nomination Taibi was seconding was successfully nominated to the Union-wide ballot, and we find no other conduct on the part of O’Brien and Mari that violated the Rules.”  However, the Election Supervisor found the conduct of O’Brien in lying to the OES investigator and the conduct of Mari in attempting to intimidate and lying about it to the OES investigator “sufficiently egregious that we refer it to the Independent Investigations Officer for the investigation and action he deems appropriate under Article XIII, Section 2(g) of the Rules (false statements as a failure to cooperate) or Section B(1) of the Rules Governing the Authorities of Independent Disciplinary Officers and the Conduct of Hearings (IIO authorized to investigate, inter alia, “use of threats of force or violence against members to interfere with or extort their rights under the IBT Constitution or their union democracy rights under applicable law, including their rights to assemble, express their views, vote, seek election to office, support the candidates of their choice * * * or conduct that in the Independent Disciplinary Officer’s view brings reproach upon the Union”).”  

Appeal of ESD 284

            On September 20, Attorney Gonzalez filed an appeal of ESD 284 on behalf of Teamsters United, asserting that the statements made by Mr. O’Brien and Mr. Mari were threats in retaliation for opposition election activity that constituted violations of the Rules, and that the Election Supervisor should have remedied the violations by issuing a cease and desist order, substantial fines, and the disqualification of Mr. O’Brien from candidacy to IBT office, and in addition should have imposed a substantial fine for lying to the OES or obstructing the OES investigation. 

A telephonic hearing on the appeal of 2016 ESD 284 was held on October 4, 2016, attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Delores Hall and Joe Childers (OES Investigators); David J. Hoffa, Esq., on behalf of the Hoffa-Hall 2016 Campaign and Sean O’Brien; Julian Gonzalez, Esq., on behalf of Teamsters United; Barbara Harvey, Esq., on behalf of TDU; and Michael A. Feinberg, Esq., and Renee J. Bushey, Esq., on behalf of Mr. O’Brien and Mr. Mari.

Prior to the hearing, on September 30, 2016, the Election Supervisor submitted a response to the appeal; Attorney Hoffa submitted a response to the appeal on behalf of Mr. O’Brien; Attorneys Feinberg and Bushey submitted a response to the appeal on behalf of Mr. O’Brien and Mr. Mari; and Attorney Harvey submitted a statement on behalf of TDU.

Decision of the Election Appeals Master 

Teamsters United and the TDU argue that the Election Supervisor’s determination that the statements by Mr. O’Brien and Mr. Mari did not violate the Rules constituted legal error.  They contend that the statements by Mr. O’Brien and Mr. Mari would reasonably be perceived as threats of violence, that the Election Supervisor improperly focused on whether Mr. Pfeiffer or Mr. Taibi was actually intimidated (citing Murphy v. International Union of Operating Engineers, Local 18, 774 F2d 114, 126 (6^th Cir. 1985), and that the Election Supervisor failed to consider the intimidating or “chilling” effect on others who heard the statements.      I disagree.    The Election Supervisor did not abuse his discretion in concluding that Mr. O’Brien’s statements were “mild and arguably not threatening at all.”[3]  With respect to Mr. Mari, neither Teamsters United nor TDU has provided any authority for the finding of a violation where a threat is not even heard by the person to whom it is directed, but only by unidentified others who may (or may not) be intimidated.  See In re Jeff Cooper, Protestor, 2005 ESD 8.  I further find that the Election Supervisor’s choice of remedy for false statements during the investigation is entitled to substantial deference and does not constitute an abuse of discretion.  The appeal is therefore denied and ESD 284 is affirmed.

SO ORDERED.

/s/____________________________________

KATHLEEN A. ROBERTS

ELECTION APPEALS MASTER

DATED:  October 12, 2016