IN RE: RONALD JOSEPH, Protestor.
Protest Decision 2006 ESD 129
Issued: March 6, 2006
OES Case No. P-06-194-022806-AT
Ronald L. Joseph, member and business agent for Local Union 639, 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 asserted that Michael Hicks, a Local 639 member and candidate for delegate, intimidated him and interfered with his right to campaign by declaring: "I'll put my foot up your ass."
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
This history of tension between members of competing slates at Local Union 639 is described in our previous decisions. See Peete-Jackson, 2006 ESD 112 (February 27, 2006); Joseph, 2006 ESD 128 (March 6, 2006).
On Thursday, February 23, 2006, protestor Joseph and Rudy Dixon from the Members United slate and Addy Andrews from Team 639 campaigned in the employee parking lot of the Landover, Maryland UPS facility, which employs about 150 employees. Both slates campaigned from approximately 5:45 p.m. to 7:15 p.m. At times during the campaigning, the verbal exchanges between Joseph and Andrews became heated.1 Both sides stopped campaigning so that they could attend the monthly membership meeting of Local Union 639. The meeting started at 8:00 p.m. and concluded at 8:30 p.m.
At the conclusion of the meeting, Joseph, a business agent, went to his second-floor office. Shortly thereafter Joseph descended the stairs to a hallway that is located between the outside front door of the building and the entrance to the meeting room. As Joseph descended, Mike Hicks, a Team 639 slate member, called out his name and walked toward him. Joseph turned away from Hicks and walked toward the meeting room. According to Joseph, Hicks stated: "If you have any problem with Addy Andrews, you need to take it up with the Election Officer." According to Hicks, he told Joseph: "You need to stay out of people's face. If you have a problem, go to the Election Office." Without responding, Joseph continued to walk away from Hicks and toward the meeting room. Two members observed Hicks walking behind Joseph. John Molz, a Team 639 slate member, observed Hicks and Joseph but could not tell what was being said because he was standing by the front door. Molz did not pay much attention to them because "they are always jawing at each other." Rudy Dixon, a Local 639 business agent and member of the Members United slate, also could not hear what was being said. Dixon saw that Hicks was walking behind Joseph and gesturing with his hands. Dixon agreed with Molz: Joseph and Hicks have been going at each other for years. Hicks did not follow Joseph into the meeting room, but Dixon did.
In the meeting room, Joseph told Dixon and Larry Hawkins, a Local 639 business agent and fellow slate member, that Hicks had said: "I'll put my foot up your ass." Hicks denies making the "foot up your ass" statement, and our investigation found no other witness who heard it.
Joseph asked Hawkins to walk with him outside to his car and be a witness in case something happened. Hawkins described Joseph as being visibly upset. When Joseph and Hawkins walked outside, Hicks was standing a few feet from Joseph's car. Joseph got in his car without incident; Hicks then walked over and stood in front of the car. He spoke with Hawkins, stating in part: "He better back that mother- f-cker up." Hicks then calmed down and walked away, and Joseph drove off.
Analysis
The Rules provide that each member has the freedom to exercise his/her political rights, free from intimidation, retaliation, or interference. Article VII, Section 12(a) of the Rules states, in relevant part:
All Union members retain the right to engage 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 solicit support for a member's candidacy outside a meeting hall, before, during or after a Union meeting, regardless of Union policy, rule or practice.
Further, Article VII, Section 12(g) states:
Retaliation or threat or 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 threat of violence can constitute intimidation and retaliation. 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); Passo, P469 (February 29, 1996), aff'd, 96 EAM 124 (March 13, 1996) (finding intent to provoke physical confrontation to violate Rules); Kelly, P600 (March 27, 1991) (finding threat to "kick their ass" made in menacing manner to violate Rules). The threat of violence must be immediate and serious to amount to a Rules violation. Cooper, 2005 ESD 8 (September 2, 2005).
The Rules also recognize that loud and sensational language is part of the election process, and the Rules do not bar that sort of zealous campaigning. Jorgensen, 2000 EAD 72 (December 26, 2000); Rodriguez, 2000 EAD 45 (November 3, 2000); Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior of union steward as member attempted to have other members sign petition not unlawful); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides in the context of petitions being signed); Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words were exchanged and a few pushes).
In this case, we make no finding as to whether Hicks made the threat to "put my foot up your ass" as he followed Joseph because such a finding is unnecessary to our resolution of this protest. In evaluating the totality of the circumstances, including the lengthy partisan electoral history between Joseph and Hicks, of which loud and sensational language plays a central role, and the facts that Hicks did not invade Joseph's personal space, did not strike or attempt to strike Joseph, and did not impede Joseph's ability to walk or drive where he desired, any alleged threat to "put my foot up your ass," even if admitted or otherwise proven, would not rise to the level of a Rules violation because it could not be considered to be "immediate and serious." Furthermore, even if the statement were admitted or otherwise proven, there is nothing to suggest that a vulgar comment by a competing candidate limited or deterred Joseph's participation as a delegate candidate in the ongoing election.
Accordingly, 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
885 Third Avenue, Suite 1000
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
2006 ESD 129
1 The events of that campaigning are more fully described in Joseph, 2006 ESD 128 (March 6, 2006).
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Ronald Joseph
23628 Kingston Shore Lane
California, MD 20619
Mike Hicks
9713 Summit Circle #2D
Largo, MD 20774
Thomas Ratliff, President
Local Union 639
3100 Ames Place, N.E.
Washington, DC 20018
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com