IN RE: FRED ZUCKERMAN, Protestor.
Protest Decision 2005 ESD 38
Issued: December 15, 2005
OES Case No. P-05-022-101105-MW
Fred Zuckerman, president and candidate for delegate from Local Union 89 on the Zuckerman-Bolton Fighting for You slate (ZB slate), filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Wayne Sharp, a supporter of the United Rank & File slate (UR&F slate), violated the Rules by assaulting Kevin Oliva, a ZB campaigner.
Election Supervisor representative Joe F. Childers investigated this protest.
Findings of Fact
The protest alleged that, at 11 p.m. on October 6, 2005, members and supporters of both slates competing in Local Union 89's delegate election were campaigning side-by-side at a UPS facility in Louisville, Kentucky. Among these campaigners were ZB supporter Kevin Oliva and UR&F supporter Wayne Sharp. According to the protest, "an argument ensued between the[se] two individuals." The protest elaborated as follows:
At that time, Mr. Wayne Sharp, who appeared to be intoxicated, physically assaulted Local 89 member Kevin Oliva in the presence of supporters from both slates, as well as employees entering and exiting the United Parcel Services facility. The supporters and members of the United Rank and File Slate, including Mr. Darrell Hall, failed to intervene prior to the assault in an effort to prevent the incident. Arguably, those same supporters and members facilitated the incident. Unlike the United Rank and File Slate, during the argument Mr. Zuckerman specifically advised Mr. Oliva not to engage in any physical acts with Mr. Sharp.
The campaigners for the respective slates converged on the UPS facility around 10 p.m. Handbilling for the ZB slate were, among others, protestor and delegate candidate Zuckerman, business agent Oliva, UPS steward Lenny Evans, local union chaplain and retiree Charlie Weibel, and local union custodian Danny Clemente. The UR&F slate leafletters included delegate candidates Darrell Hall and Mark "Gator" Horsley, alternate delegate candidate Keith Atwood, Atwood's daughter Christie, union members Phil Pennington, Lynn Wheatley and Dale Knipp, and retiree and former member Sharp.
Zuckerman told our investigator that Sharp distinguished himself with boisterous behavior on that evening. Thus, for about an hour leading up to 11 p.m., Sharp walked the line of UR&F campaigners yelling obscenities, making comments about the Central States pension fund and his insurance premiums, and stating that "this is the way [Zuckerman] treats retirees." Sharp approached Zuckerman and berated him about insurance and pensions, calling ZB supporters "motherf-ckers." Zuckerman responded to Sharp's complaints by saying, this is how the local "treats f-cking morons." According to Zuckerman, Sharp moved down the line of ZB campaigners, finally settling on Oliva. Zuckerman stated that Sharp moved in close to Oliva and called him "a f-cking idiot." Oliva responded by telling Sharp "to go f-ck himself." The two continued "nose to nose," according to Zuckerman. Then, Sharp chest-bumped Oliva. In addition, Sharp attempted to head-butt Oliva, but the bill of his ball cap struck Oliva and flew off. Finally, according to Zuckerman, Sharp backed away from Oliva slightly, raised his forearm and "fairly gently" moved his forearm into Oliva's chest. At this, UR&F delegate candidate Darrell Hall pulled Sharp away from the ZB campaigners, ending the incident.
Oliva corroborated much of Zuckerman's account. Oliva told our investigator that, as soon as he arrived, he noticed Sharp "running his mouth," saying that Hoffa and Zuckerman "just want your money, they're just going to raise your dues." Oliva disputed Sharp's statements, saying, "Buddy, that's not right; let's talk about Ron Carey; he spent every dime we had." Sharp responded with another remark about Hoffa. According to Oliva, this exchange occurred at a distance. Some twenty minutes later, however, the exchange was joined again. While walking the line of ZB handbillers, Sharp continued to criticize Zuckerman's handling of the union. When he neared Oliva, Sharp said, "I don't love you." Oliva responded, "Get the f-ck out of my face; you don't know who you are f cking with." At this, Sharp closed in on Oliva and said, "What are you going to do, big boy?" Oliva repeated that Sharp should back off, but Sharp responded by moving closer. According to Oliva, Sharp came nose-to-nose and attempted to head-butt Oliva, but the bill of Sharp's cap struck Oliva and the cap fell to the ground. Sharp then moved to forearm Oliva, and touched him lightly on the chest. Sharp then pushed into Oliva with his chest. At this behavior, Oliva shot a glance at Zuckerman, who gave him a sign to back away. Oliva and other ZB handbillers then yelled for Darrell Hall to get Sharp away from them. Hall responded, and the incident ended, but not before Sharp issued a final accusation to Zuckerman, telling him that he was "ruining the union." Zuckerman responded by calling Sharp "a f-cking moron." At the end of the night, Zuckerman told Oliva he did the right thing by not hitting Sharp. Oliva replied that it was hard to resist because he was raised never to back down from a fight.
Sharp offered a different account of the night's activity. He told our investigator that he approached Zuckerman and asked whether his insurance rates were going up. According to Sharp, Zuckerman replied, "That's how dumb you are; the Central States pension fund has nothing to do with the Teamsters." Sharp states that Oliva piled on, calling Sharp a "dumb motherf-cker." Sharp then went nose-to-nose with Oliva, telling him, "You don't know me well enough to call me that." Sharp recalled his hat falling to the ground but stated that his recollection was otherwise "a little fuzzy." Although he did not deny physical contact with Oliva, Sharp doubts that such occurred, stating, "if there had been physical contact, all hell would have broken loose because tensions were high." Sharp does recall Darrell Hall pulling him away from Oliva, saying "it's not worth it." Sharp denied being under the influence of alcohol or drugs that night.
Hall was a distance away from the Oliva-Sharp exchange and observed little of it. However, he saw but did not hear an apparent argument between the two; he responded by pulling Sharp away, telling him, "It's not worth it. Get away from here."
In addition to Zuckerman, Oliva, Sharp and Hall, our investigator interviewed ZB campaigners Lenny Evans, Craig Burns, Charlie Weibel, and Danny Clemente. Evans and Burns heard Sharp use profanity and saw his attempted head-butt; in addition, Burns heard Oliva's profanity and saw Sharp "brush" Oliva with his elbow. Weibel heard Sharp curse at Oliva but saw no physical contact. Clemente heard an exchange of profanity between Sharp and Oliva but likewise saw no contact.
UR&F delegate candidate Keith Atwood told our investigator he heard an ongoing, at times profane, exchange between Sharp and Oliva. While he saw them move very close together, he did not see a head-butt or a forearm move. Atwood's daughter, who was standing near the two when they began their exchange, moved away immediately and saw no physical contact. Gator Horsley, a UR&F handbiller, heard loud voices but saw no physical contact. Finally, Lynn Wheatley and Phil Pennington neither saw nor heard anything relevant to this matter.
Analysis
Article VII, Section 11(a) of the Rules provides the following, in relevant part:
All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This includes, but is not limited to, the right to distribute campaign literature and) otherwise to solicit support for a member's candidacy) outside a meeting hall before, during and after a Union meeting, regardless of Union policy, rule or practice.
Where any candidate or other member of the Union exercises or attempts to exercise any right finder the Rules to campaign for or against the candidacy of any person for the position of delegate, alternate delegate or International Officer, members of the Union shall have the reciprocal right to hear or otherwise receive such campaign advocacy.
Article VII, Section 11(g) states:
Retaliation 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 is prohibited.
The protest asserts that Sharp's conduct constituted impermissible retaliation. As we noted in Cooper, 2005 ESD 8 (September 2, 2005):
Actual violence to suppress Rules-protected conduct has been found to be retaliation. See Teller, P1086 (December 27, 1991) (finding violation where a local trustee grabbed a member by the arm, tapped a finger into his chest, grabbed him by the jacket collar and pushed him against the wall); Stefanski, P282 (January 22, 1996), aff'd 96 EAM 94 (February 21, 1996) (finding violation where a member grabbed another's arm in a menacing manner and ordered him to leave the facility where he was campaigning). Further, a threat of violence has also been held retaliation. See Smith, P600 (April 30, 1996) (finding remark "you'll be taken out of here in a body bag" to violate Rules); Lopez, P456 (April 10, 1996) (finding "I'll kill you" to violate Rules); and Kelly, P600 (March 27, 1991) (finding threat to "kick their ass" made in menacing manner in violate Rules). A threat of retaliation must be serious and immediate to amount to a Rules violation. Past decisions recognize that loud and sensational language is part of the election process, and the Rules do not bar that sort of zealous campaigning. See Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior not unlawful), aff'd, 00 EAM 5 (September 18, 2000); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides not unlawful); and Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words and a few pushes were exchanged). Moreover, in the cases finding retaliation, the circumstances show that the retaliator aimed at protected activity in a way to send an immediate message to the victim, and that the victim could reasonably perceive the threat in that way.
The UR&F slate seeks dismissal of the protest by arguing that Sharp's conduct is not attributable to the slate because he is a retiree and therefore a non-member. We reject this position. Under general principles of agency, candidates and slates who enlist supporters to conduct campaign activity are responsible for the Rules violations those supporters commit, even where those supporters are not union members. We note that, while members have greater rights to engage in campaign activity than non-members1 , they and the candidates and slates for whom they advocate share a common responsibility to abide by the Rules.
Here, Sharp's behavior was "loud, rude and obnoxious." Yocum. Further, it was provocative and easily could have resulted in violence. Oliva, to his credit, resisted the bait, and Zuckerman and Hall appropriately intervened to avert a fight. Because Sharp's conduct stopped short of violence, no Rules violation occurred. Therefore, we DENY this protest.
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 38
1 For example, members have the Rules-protected rights to run for office, make financial contributions to candidates and slates, and engage in other campaign activity, including campaigning in employee parking lots. In contrast, non-members are limited to donating services in their personal free time without compensation. In particular, campaigning in employee parking lots by non-members is not activity the Rules protect.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
Robert Colone
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
rmcolone@teamsters89.com
Kevin Oliva, Business Agent
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
koliva@teamsters89.com
David Thornsberry
785 Kingswood Drive
Taylorsville, KY 40071
davidthorny@msn.com
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Wayne Sharp
United Rank & File Slate
P.O. Box 991175
Louisville, KY 40269-1175
Rankandfile2005@msn.com
Ann Curry Thompson
Kelman Loria, PLLC
660 Woodward Avenue, Suite 2300
Detroit, MI 48226
acthom@kelmanloria.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com