IN RE: GERALD MOERLER, Protestor.
Protest Decision 2006 ESD 392
Issued: December 20, 2006
OES Case No. P-06-352-101306-HQ
Gerald Moerler, a member of Local Union 848, 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"). The protest alleged that Jim Santangelo, Local Union 848 secretary-treasurer and IBT Western Region vice president, threatened Moerler in retaliation for activity protected by the Rules.
Election Supervisor representative Steven Newmark investigated this protest.
Findings of Fact
Moerler is employed at Vons Grocery's El Monte, California facility and is a supporter of the Leedham slate. On the morning of October 12, 2006, Santangelo and Moerler engaged in a heated argument outside the drivers' dispatch room at the El Monte facility. According to Moerler, several Vons employees and at least one supervisor were present when Santangelo yelled loudly: "You don't even know what I am going to do to you. I am going to f-ck you up." Moerler stated that Santangelo referred to Moerler's campaigning and to protests Moerler had filed and then addressed Moerler directly in a loud voice, saying that if Moerler did not stop filing protests, Santangelo would "f-ck him in the next life time."
Santangelo admitted that he engaged in a heated exchange with Moerler but denied that he made any mention of Moerler's campaign or protest activity. He stated instead that he and Moerler argued only about issues unrelated to the election or protests. Santangelo claimed that Moerler began the hostilities on this day by telling Santangelo, "You're a piece of shit." Moerler acknowledged making this remark but said he did so only after Santangelo threatened him.
Following this exchange, Moerler entered the work area to clock in and get his assignment for the day.
When exiting the facility to start his job for the day, Moerler alleged that Santangelo stood directly between Moerler and the door Moerler sought to exit through and blurted, "I will f-ck you now and in the next life. See you in the next life." Santangelo denied this claim but admitted that he made repeated loud statements against Moerler.
On Friday, October 13, 2006, following the work shift that began the previous day, Moerler filed a police report about the October 12 incident at the Valley Boulevard precinct of the El Monte, California Police Department. According to his attorney, Moerler has subsequently dropped any criminal charges against Santangelo but is considering a civil action.
Investigation also showed that on the morning of October 25, 2006, Moerler and Santangelo had another verbal altercation at the El Monte facility. Moerler alleged that Santangelo again threatened Moerler, stating, "Gerry [Moerler] is a f-cking Megan's Law case. Gerry is a child molester. Gerry is on Megan's List." Moerler also stated that Santangelo asked Moerler: "Why are you campaigning for Leedham? Why are you filing protests? I am going to get you." Moerler also maintained that Santangelo expressed anger at Moerler for telling the Office of the Election Supervisor that Santangelo had ejected TDU members from a union meeting.
Santangelo admitted to our investigator that he referred to Moerler's status as a registered sex offender, but stated he did so only to protect Moerler's co-workers from Moerler.
Aside from the participants, our investigator contacted 9 persons who were said to have witnessed Santangelo's behavior directed at Moerler. Four of those contacted would provide information only on a confidential basis and refused to tell OES any information except on the condition that their names would not be used in any protest ruling. These witnesses particularly did not want Santangelo to know that they had provided information to our office. Our findings therefore do not rely on this interview information. An additional 3 witnesses who were present at the exchange between Santangelo and Moerler told our investigator they saw "nothing." Another witness did not respond to repeated telephone calls. A final witness, business agent Juan Medina, an admitted ally of Santangelo, told our investigator that Moerler seemed upset "for some reason." Medina stated that Moerler called Santangelo a "piece of shit" and threatened Santangelo as well.
Santangelo's "Megan's List" reference was to the California sex offender registry. Since 1947, certain classes of sex offenders living in California have been required to register their residences with local law enforcement agencies. In 2004, California Penal Code Section 290.46 was enacted, establishing a website, http://meganslaw.ca.gov/, that is intended to provide information on certain registered sex offenders. Moerler's name, address, photo, physical description, and the statutory citation and description of the offense of which he was convicted currently appear on the website.
Santangelo denied that his Megan's List statements were retaliatory toward Moerler. Santangelo claimed that he told Moerler: "I'm not gonna stop my civic duty to tell people who you are."
Investigation showed that Moerler's conviction has been vacated and that his name appears on the registry erroneously. A court order entered August 14, 1995 shows that a "[p]lea or conviction of guilty/nolo contendere heretofore entered is set aside; a plea of not guilty is ordered entered and the case is dismissed." When Moerler learned that his name presently appears on the registry, he undertook action to have it removed. That effort has not yet proved successful.
Moerler has filed 10 protests, of which 7 have been granted, 1 resolved in Moerler's favor, and 2 denied. See Moerler, 2006 ESD 342 (August 28, 2006); Moerler, 2006 ESD 343 (August 25, 2006); Moerler, 2006 ESD 364 (October 26, 2006); Moerler, 2006 ESD 365 (October 5, 2006); Moerler, 2006 ESD 367 (2006); Moerler, 2006 ESD 371 (October 13, 2006); Moerler, 2006 ESD 372 (October 17, 2006); Moerler, 2006 ESD 378 (October 24, 2006); and Moerler, 2006 ESD 382 (October 24, 2006), aff'd, 06 EAM 74 (October 31, 2006).
Analysis
Article VII, Section 12(g) of the Rules state that "[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 is prohibited." Article XIII, Section 1 permits a member to file a protest "free from any direct or indirect retaliation or threat of retaliation by any Union officer [or] member ..."
We conclude that Santangelo uttered the statements attributed to him by Moerler. Santangelo admitted he engaged in heated verbal exchanges with Moerler and that he loudly called out Moerler's status as a listed sex offender. While conceding these statements, Santangelo seeks to tailor his admission by denying that he made any campaign or protest-related statements, and by denying that his verbal set-to with Moerler had anything to do with protected election protest activity. We reject as not credible Santangelo's explanation that he was performing a public service by proclaiming Moerler's registered status to Moerler's co-workers in the workplace. To the contrary, we find that such statements alone constituted threats of retaliation and actual retaliation against Moerler for his protected activity of campaigning for a candidate Santangelo opposed and protesting alleged violations of the Rules. The other threatening statements Moerler asserts Santangelo made are consistent with what Santangelo concedes he said, given the content and context of those conceded statements. Accordingly, we credit Moerler's account of the confrontations over that of Santangelo. We do not credit Juan Medina that Moerler threatened Santangelo, as Santangelo himself does not contend that Moerler threatened him.
Under Article VII, Section 12(g), a 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).
As we noted in Fuentes, 2006 ESD 258 (May 19, 2006), retaliation under the Rules requires malicious intent. Thus, in Echeveria, 2006 ESD 66 (February 3, 2006), we found that a shop steward made prohibited threats of retaliation when he attempted to dissuade members from signing accreditation petitions for a candidate he opposed. The steward told members, "I will remember you inside if you sign [the petition]" and "If you sign this, you are not going to get any backing from me." We found that the steward had malicious intent "to compel them not to exercise their political rights by threatening to withdraw union support if they showed support for a candidate [the steward] opposed. Such conduct violates the Rules because it constitutes a 'palpable threat of actual harm.' Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001)."
Malicious intent is an established element in cases where retaliation has been found. Thus, in cases where violence occurred, the perpetrator was found inferentially to have intended the violence. 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 carries with it an intention to commit the violent act. 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).
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).
We find that a threat to "f-ck up" a person is street slang for a threat to inflict serious bodily harm or death on the person. Accordingly, we conclude that Santangelo's threat to "f-ck up" Moerler, made in a menacing manner, had a malicious intent and was equivalent to the conduct described in precedent that found threats to "kill you" or to take a person "out of here in a body bag" to violate the Rules. We also find that Santangelo's motivation for uttering the threat was to retaliate against Moerler for his protected campaign and protest activity. Santangelo's action of impeding Moerler's exit from the work facility in order to commence his assigned tasks added a physical element to Santangelo's broad and vulgar oral threats against Moerler. Blocking the victim's path is a factor we used in Joseph, 2006 ESD 129 (March 6, 2006) and Duncan, 2006 ESD 247 (May 16, 2006), to assess the immediacy and seriousness of the threat.
For these reasons, we hold that Santangelo violated Article VII, Section 12(g) and Article XIII, Section 1 of the Rules by threatening to commit violence against Moerler in retaliation for Moerler's protected campaign and protest activity.
Turning to the question of Santangelo's "Megan's List" statements, we conclude that he committed actual retaliation against Moerler with those utterances. Under California law, "[a]nyone who uses this information [in Megan's List] ... to harass an offender or his or her family is subject to criminal prosecution and civil liability." This warning is prominently displayed on the sex offender registry website that reveals the names of individuals on Megan's List. To access names on the list, the user must click a box that reads "I have read the disclaimer and agree to the terms and conditions."
California law states that "[a] person is authorized to use information disclosed pursuant to [Megan's Law] only to protect a person at risk." Penal Code Section 290.4(e)(1). Further, Section 290.4(e)(2) provides that "use of such information for purposes relating to insurance, loans, credit, employment, education, housing, benefits or services provided by a business establishment, or any other purpose in violation of Section 290.4(e)(1) shall make the user liable for damages and civil penalties."
In Byron v. City of Whittier, 46 F. Supp. 2d 1032 (C.D. Cal. 1998), the court held that the legislative history of Megan's Law demonstrated that the statute was enacted not for the purpose of providing information that could be used to inflict retribution on convicted sex offenders; instead, the goal of the statute is to protect the public. Byron points out that even a police officer must, under Section 290, reasonably suspect that a person is at risk before the officer disseminates information identifying an offender; even then, the officer may disclose only "relevant" information to "those in the public who are 'likely to encounter' the registered sex offender." Id. at 1035. Furthermore, the court in Byron reasoned that if an individual or group published or released information in violation of Section 290, such publication or release could constitute irreparable injury, particularly if that information had not yet been released to the public through previously existing media coverage. Id. at 1036.
We reject Santangelo's explanation that he announced that Moerler is listed on Megan's List to protect Moerler's co-workers. We find that Santangelo intended to inflict harm on Moerler and to intimidate him into silence by proclaiming Moerler's registered status at the workplace. Santangelo's vulgar means of disseminating the information ("Gerry is a f-cking Megan's Law case") supports the conclusion that he intended to harass Moerler in the employment setting. His decision to disseminate the information to Moerler's co-workers, without any basis to conclude that they were at risk, further supports the conclusion that Santangelo's purpose was to harass Moerler.
Accordingly, we GRANT the protest.
Remedy
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.
We order Santangelo to cease and desist from retaliating against and threatening to retaliate against Moerler for Moerler's protected campaign and protest activity. In particular, we order Santangelo to cease and desist from threatening physical harm against Moerler and from uttering any statement with respect to the listing of Moerler's name on Megan's List. Beyond the requirements that Santangelo cease and desist in these particular ways, we also order Santangelo and the union to permit Moerler every right and privilege to which an IBT member in good standing is entitled, including all rights under the IBT constitution, the NLRA, the LMRDA, any collective bargaining agreement covering employment in which Moerler is engaged, and any beneficial practice attendant to such employment. We further order Santangelo to insure that Moerler does not suffer discriminatory treatment by the union or any agent of the union, and that any grievance filed by or on behalf of Moerler is processed solely according to its merits.
We further order Santangelo to sign the notice attached to this decision. We order Local Union 848 to post the signed notice on all union bulletin boards under the local union's jurisdiction and to maintain the posting for 90 consecutive days. A copy of the notice will be provided to each member of the Local Union 848 Executive Board, to the attorney for Local Union 848, and to the IBT's General Counsel. The remedy ordered here must be completed within 5 working days of receipt of this decision. An affidavit of compliance must be filed with our office within 2 days following completion of the remedy.
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. 20006-1416, 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 392
NOTICE TO TEAMSTER MEMBERS FROM
LOCAL UNION 848 SECRETARY-TREASURER
JIM SANTANGELO
The Election Supervisor has found that I violated the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") by threatening to retaliate and retaliating against Gerry Moerler for his support of the Tom Leedham slate and because he filed protests during the election campaign. The Election Supervisor has ordered me not to make any more threats to retaliate and not to retaliate. The Election Supervisor has ordered that this Notice be posted on all Union bulletin boards under the jurisdiction of Local Union 848. A copy of this notice has been provided to the officers of Local Union 848, to the Local Union's attorney, and to the General Counsel of the IBT.
The Rules protect the right of all IBT members to run for delegate, alternate delegate and International office and to support candidates of their own choosing for those offices. The Rules also protect the right of all IBT members to file protests alleging that the Rules have been violated.
The Rules prohibit any retaliation or threat of retaliation against any IBT member for engaging in such protected conduct.
The Election Supervisor will not permit any such improper retaliation or threat of retaliation.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
_______________________________________
Jim Santangelo, Secretary Treasurer
IBT Local Union 848
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted for 90 consecutive days and must not be defaced or covered up.
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
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
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Gerald Moerler
21131 E. Calora Street
Covina, CA 91724
Jim Santangelo
Secretary-Treasurer, Local 848
818 Oak Park Road, Suite 200
Covina, CA 91724
Joe Kaplan, Esq.
15456 Ventura Boulevard, Suite 500
Sherman Oaks, CA 91403
gmunoz@wkpyc.com
Vons Grocery Corporate Headquarters
618 Michillinda Avenue
Arcadia, CA 91007
Steven R. Newmark
1725 K Street, NW, Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com