IN RE: RICHARD BERG, Protestor.
Protest Decision 2006 ESD 397
Issued: December 6, 2006
OES Case No. P-06-303-062806-HQ
(See also Election Appeals Master decision 07 EAM 80)
Richard Berg, a member of Local Union 743, 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 Richard Lopez, a member, officer and delegate from Local Union 743, violated the Rules by assaulting Berg on June 27, 2006 at the site of the IBT convention in Las Vegas, Nevada.
In Berg, 2006 ESD 315 (June 29, 2006), we found that Lopez had assaulted Berg as the protest alleged. Accordingly, we granted the protest and imposed a comprehensive remedy against Lopez, including a cease and desist order, forfeiture of delegate credentials, removal from and prohibition on reentry to the convention hotel, forfeiture of convention per diem, fine, and notice posting.
Lopez appealed our decision to the Election Appeals Master, who vacated the decision and remanded the matter for further investigation. Berg, 06 EAM 58 (July 26, 2006). The Appeals Master observed: "The question here is 'was violence inflicted?' This implies an intentional and forceful act and not an inadvertent and benign contact occurring in a scuffle."
Election Supervisor representatives Dolores Hall and Jeffrey Ellison investigated this protest.
Findings of Fact
Lopez is secretary-treasurer of Local Union 743 and a supporter of the Hoffa slate; he also was an elected delegate to the IBT convention. Berg was an unsuccessful candidate for delegate from Local Union 743. During the 2005-2006 International officer election cycle and prior to the incident at issue in this case, Berg had filed a number of protests against Lopez and/or Local Union 743, and Lopez had filed a protest against Berg. Berg's protests against Lopez and/or Local Union 743 were decided in Berg, 2006 ESD 210 (April 26, 2006), Berg, 2006 ESD 211 (April 25, 2006), Berg, 2006 ESD 276 (May 31, 2006), Berg, 2006 ESD 278 (May 30, 2006), Berg, 2006 ESD 286 (May 30, 2006), Berg, 2006 ESD 296 (June 4, 2006), Berg, 2006 ESD 211 (April 25, 2006). Lopez's protest against Berg was decided in White, Lopez, Corrigan & Brown, 2006 ESD 241 (May 15, 2006).
On June 27, 2006, Berg was nominated from the floor of the IBT convention for the position of IBT Central Region vice president on the Leedham slate. Pursuant to Article III, Section 5(g), the secret ballot vote of delegates to confirm or reject the floor nominations for all regional vice presidents was conducted Tuesday evening, June 27, from 5:00 to 7:00 p.m. The results of the balloting were announced at 8:00 p.m. that evening. Berg's nomination drew more than the 5% of delegate votes cast to be nominated to the general election ballot.
The protest alleged that, about an hour after results were announced on the regional vice president nominations, Berg was assaulted by Lopez in the convention hotel. According to the protest, Berg walked from the convention center in the Paris Hotel and Casino to the adjacent Bally's Hotel; Lopez approached him walking in the opposite direction. The protest stated that Lopez "started yelling loudly and shouting insults at Berg." Lopez yelled that Berg "was a loser, that Leedham was a loser, something about TDU, and other remarks." The protest stated that Berg told Lopez, "You're a small man." Lopez then approached Berg "so closely that the two men were touching. Without warning, Lopez punched Berg in the mouth with a closed fist. Another man then intervened and pulled Lopez away from Berg and sent him off."
The protest asserted the following:
Mr. Lopez' physical attack against Berg was unprovoked retaliation for Mr. Berg's right to be a candidate on the Leedham slate and for his activities as a candidate and active supporter of the Leedham campaign. Before winning nomination as a Leedham slate candidate, Mr. Berg had filed numerous election protests, focusing in particular on deficiencies in the Local 743 membership list and difficulties he had encountered in attempting to exercise his right to inspect the list. As a result of his pre-election protest about the state of the membership list, Local 743 was required to take certain steps by the Election Supervisor to address deficiencies in the list. Mr. Lopez, as secretary-treasurer, was the Local 743 officer who was responsible for the membership list and its integrity.
Investigation showed that Berg reported the assault by Lopez to hotel security immediately after it occurred and gave a written statement as follows:
At about 9:10 p.m. on June 27, 2006 I was walking down mall area in Paris toward Bally's. Richard Lopez was walking in the opposite direction and as he approached me he started yelling and shouting loud insults at me. I said, "you are a small man." He got face to face with me and then punched me in the mouth with a closed fist.
A man stepped in to pull Lopez away from me. After he ushered Lopez on his way in the opposite direction he came back and identified himself as hotel security and said his name was Fred. He refused to give me a last name.
I went to the Leedham campaign office in Bally's and attempted to report this to the Teamster election supervisor. When I could not reach them I contacted Bally's security which put me in contact with Paris Security which contacted Las Vegas Police.
Responding officers from the Las Vegas Metropolitan Police Department took a report of misdemeanor battery. The police report, prepared by Las Vegas Police Officer R. Bill, indicated that the report was taken at 11:00 p.m. on June 27. All information in the report was supplied to the officer by Berg. The report listed Berg's height and weight at 5'11" and 240 pounds and Lopez's at 5'7" and 200. The report narrative, entered in the LVMPD computer system on June 28 at 7:42 p.m., read as follows:
VICTIM BERG, RICHARD STATED THAT LOPEZ, RICHARD APPROACHED HIM AS HE WAS WALKING IN THE MALL AREA OF THE HOTEL. THE TWO MEN BEGAN TO YELL INSULTS AT EACH OTHER. BERG STATED LOPEZ THEN PUNCHED BERG IN THE MOUTH WITH A CLOSED FIST ONE TIME. BERG STATED THE TWO WERE SEPARATED BY A MAN WHO WAS IDENTIFIED ONLY AS 'FRED.' FRED WAS UNAVAILABLE FOR A STATEMENT. IT WAS DISCOVERED THAT LOPEZ WAS STAYING IN ROOM 6813 AT BALLY'S HOTEL/CASINO. BUT WAS NOT ABLE TO BE CONTACTED FOR HIS ACCOUNTS. THE TWO MEN ONLY KNEW EACH OTHER AS FELLOW TEAMSTER MEMBERS. BERG STATED THE TWO WERE NEVER INVOLVED IN ANY PHYSICAL ALTERCATIONS IN THE PAST. DUE TO THE ABOVE FACTS AND CIRCUMSTANCES A REPORT WAS TAKEN. BERG HAD NO VISIBLE SIGNS OF INJURY AND SURVEILLANCE DID NOT CAPTURE THE ALLEGED BATTERY.
Our investigator interviewed Berg on June 28, the morning after the incident and immediately after the protest was filed. Berg told our investigator that, after he got word that his nomination had been successful, he walked from Paris toward Bally's at about 9:10 p.m. He was at the point where the 2 hotels join when he saw Lopez walking toward him. According to Berg, Lopez was accompanied by Harold Johnson, a business agent for Local Union 743. In addition, Lopez was with a woman Berg did not recognize but whom Berg assumed was Lopez's wife. Berg stated that, as they got closer, Lopez began yelling and cursing him.
Berg told our investigator that he responded to Lopez's insults with: "You are a small man." According to Berg, Lopez then walked straight up to him so that they were "torso to torso." Lopez then punched Berg in the mouth with a closed fist. Berg stated that, at that point, he was so shocked that he did not recall if anyone said anything. He stated he was stunned by the action. He stated that his lip was not cut nor did it swell. He stated that it stung "for awhile," but was "okay" by the time he spoke with our investigator the next day.
Berg further told our investigator that a man Berg did not know "jumped in between" Lopez and him and "got Lopez started down the hall." The man wore a black collared shirt, buttoned down the front and not tucked into his trousers. The man walked Lopez down the hall away from Berg, speaking with him and gesturing along the way. Berg remained in the area momentarily and the man returned and spoke with him. According to Berg, the man told Berg he was "with the hotel," but Berg stated he was not wearing a uniform, any identification, or any IBT insignia, such as a sergeant-at-arms armband. Berg stated that the man said his name was Fred but declined to give his last name. Berg stated that the man told Berg, "Don't worry about Lopez; we'll take care of him." Berg was adamant with our investigator that the man referred to Lopez by name. Berg described the man to our investigator as white, 6'2", 210-215 lbs., well-built, dark hair combed straight back, clean-shaven, no glasses, approximately 40 years of age, no distinctive regional or foreign accent, and no facial features indicating ethnicity.
Berg told our investigator that he then proceeded to the Leedham campaign office in Bally's and tried to telephone the Election Office to report the incident. Berg's cell phone records document that this call occurred at 9:25 p.m. As it was well after hours, his call was routed directly to voicemail. He then tried to reach TDU attorney Barbara Harvey without success. He then went to Bally's hotel security to file a complaint. When Bally's security learned where the incident occurred, they directed Berg to the Paris hotel security office. Berg proceeded to Paris security and filed the report quoted above. As he left that office, he encountered Harvey and Leedham slate attorney Dan Clifton and told them of the incident. Berg stated that he then met with Police Officer Bill and filed the police report.
Our investigator contacted hotel security for the Paris Hotel. Sgt. Tony Spencer, security supervisor for Paris, who stated no security employee observed the incident.
Sgt. Spencer further stated to our investigator that Las Vegas Police had issued a warrant for Lopez's arrest. However, no such warrant was produced in our original or remand investigation. Detective Culver, the LVMPD officer listed on the police report as the investigator, did not respond to repeated messages left with his office. Detective Culver's announcement on his voicemail stated that he was assigned to the "Robbery, Homicide and Bureau of Violent Crimes Section." The announcement further stated that "If you're calling to activate a misdemeanor battery case, those cases are opened or investigated on a case-by-case basis. Cases without independent witnesses or cases that cannot be proved beyond a reasonable doubt will not be opened and will not be investigated. All cases are investigated on a priority basis, from attempted murder down to misdemeanor battery."
The day after the incident, our investigator reviewed the scene of the incident and canvassed restaurants and shops to identify any witnesses to the incident. One such witness was found. Silvia Garcia, a counter employee of Le Creperie, stated that at the time of the incident she observed 2 men "yelling at each other." She could not recall what they said, but stated that they stood very close to each other. She turned to telephone hotel security; when she looked back at the men, she observed a third person had stepped between the 2 men. She did not observe any blows.
Our investigator's efforts to interview Lopez on June 28 and the morning of June 29 were unsuccessful. Our investigator spoke with Bally's bell captain Calvin Neely, who checked hotel records and reported that Lopez had checked out of his room at Bally's early on the morning of June 28. Lopez did not participate in the secret balloting of delegates for the positions of vice president at large on the evening of Wednesday, June 28; further, electronic records produced by the IBT demonstrated that he did not attend floor sessions of the convention on June 28. Moreover, he did not transfer his delegate credentials to the ranking Local Union 743 alternate delegate present in Las Vegas; as a result, the local union was represented by 13 delegates instead of the 14 to which it was entitled. A recording on the telephone number for the local union offices in Chicago, Illinois, stated that the local union was closed during the week of the convention.
Our investigator spoke with David Hoffa, counsel to Hoffa 2006, on June 28 about the protest. Hoffa told our investigator that he was aware of the Berg-Lopez incident. He stated that there has been a long history of animosity between Berg and Lopez. He further stated that they both probably had had a few drinks. Hoffa stated that he did not believe that Lopez actually punched Berg. Our investigator told Hoffa that she sought to interview Lopez.
David Hoffa contacted our investigator shortly after noon on Thursday, June 29, more than 24 hours after the protest was filed and distributed to interested parties, and offered to produce Lopez for interview at 3:30 p.m. that day.
At the interview, Lopez described the encounter with Berg on the evening of June 27 as follows. Lopez stated that he, his wife, Paul Peters, an attorney from Chicago, and local union business agent Harold Johnson were walking to dinner when they encountered Berg headed in the opposite direction. Lopez stated that he held up his thumb and first finger in the shape of the letter "L" and called Berg a "loser." He told Berg that he and Leedham were losers and were not going to win. He stated that he could not recall what Berg said except that Berg called him a "little man." Lopez stated that he and Berg were then face-to-face and close, bumping "belly to belly." Lopez stated that Berg is about 6 inches taller than him, and he told Berg not to touch him. Lopez stated that his "hand went up to push" Berg away and he "caught" Berg "in the mouth" with the heel of his hand. Lopez denied making a fist or punching Berg. He stated that he merely was trying to push Berg away. Lopez stated that his wife and Johnson then got between him and Berg, and the incident ended.
Lopez stated that he and his wife checked out of Bally's Hotel early on the morning of June 28. Lopez said they did so because his wife was concerned that another incident might occur between Lopez and Berg. However, Lopez filed no report with hotel security or Las Vegas police. The couple moved to a room at the Flamingo Hotel rented under the name of Bob Walston, who is president of Local Union 743.
Lopez stated that he did not vote on the evening of June 28 because he got back from dinner too late. He further stated that he stayed away from the convention all day on June 28 on the advice of David Hoffa.
During the remand investigation, we spoke with persons to whom Lopez spoke in the 24 hour period following the incident. Michael Corrigan, a trustee of Local Union 743, served as a sergeant-at-arms during the convention. He told our investigator that he attempted to reach Lopez earlier in the evening of June 27, the date of the incident, to try to "hook up" with him that evening. Lopez returned the call, according to Lopez' cell phone records, at 9:38 p.m., some 30 minutes after the incident with Berg. According to Corrigan, Lopez said he "had an altercation with Richard Berg in the hallway at Paris." Corrigan stated that Lopez told him "that Berg came up and pushed him." Lopez further told Corrigan that "he pushed Berg back," and then "someone from the hotel security stepped in between them."
Thor Hester, a business agent for Local Union 743, spoke with Lopez when Lopez called him early in the morning of June 28, the morning after the incident. Hester said that Lopez told him he had a "run-in" with Berg the night before. Lopez asked Hester to accompany him to David Hoffa's office to report the incident." Hester said Lopez told him that Berg started an argument by pushing Lopez with his body. Hester further said Lopez told him that he pushed Berg back with his body. Hestor said Lopez may have said that he used his hands also to push Berg away. Hester said Lopez told him "some guy" came between them.
Robert Walston, president of Local Union 743, said Lopez called him early on June 28 and asked whether Walston had a casino rate at the Flamingo Hotel. Walston told our investigator he had such a rate because he gambled there a lot. Walston told Lopez that he thought he could get him a room at that rate and he went and booked him a room that morning. Lopez then occupied the Flamingo room under Walston's name. Walston said that Lopez moved "so that he wouldn't run into Berg again." Walston did not ask Lopez to describe what happened between him and Berg because Walston had already heard of the incident from several of his employees.
Dolceta Lopez, Lopez's wife, told our investigator that she first became aware of the incident when her husband and Berg began exchanging words. According to Ms. Lopez, Berg walked past them and then turned around because Lopez "said something about being a loser." She said that Lopez and Berg then "bumped bellies," with Berg asking repeatedly, "What are you going to do about it, little man?" Ms. Lopez denied that her husband hit or had any contact with Berg except for "bumping bellies." She recalled that a man they did not know then "walked up and pushed" her husband. She stated that the man was wearing a black shirt and said he was from security. She said the man "got huffy" with her husband, and they thought he was a friend of Berg. According to Ms. Lopez, the man told them he would have them "thrown out of the hotel."
Paul Peters, an attorney present at the IBT convention as a guest of Local Union 743, also was present at the incident. He stated he was walking with Johnson about 15 feet in front of Lopez as they proceeded to the Paris Hotel. He heard heated words behind him and turned to investigate. He said that he saw Lopez turned around facing back toward Bally's and Berg was facing Lopez. He heard the two speaking loudly and in angry tones. Peters said he saw Lopez's arm go up, and he saw Berg's arm go up. Peters believed there was contact between the 2 men but did not believe a punch was thrown. Peters stated that he did not see the entire confrontation because he was scanning the area for security staff who could intervene. When he refocused on the 2 participants, a man in a black shirt was between them. The man, who Peters described as a "tourist," starting yelling at Lopez. After the man escorted Lopez down the hallway toward Paris, Peters approached the man and apologized for the actions of his friend, Lopez. Peters said that the man "seemed okay" and shook his hand.
Business agent Harold Johnson, the fourth member of Lopez's dinner party, told our investigator that he was walking with Peters, but stated that the 2 were walking 15 feet behind Lopez, not in front of them as Peters stated. Johnson stated that he heard a commotion occur in front of him between Lopez and Berg. The 2 were very close to each other when, according to Johnson, Berg bumped his belly into Lopez. Lopez raised his open hand to push Berg away and made contact with him in the "head area." Johnson denied that Lopez used his fist. Johnson stated that he stepped in and tried to separate Lopez and Berg. He told them, "Be quiet and let's move on." Johnson stated that they were separated at that point, and another man "showed up and sort of took over." The man was wearing a black shirt buttoned down the front.
Our investigation was unable to identify or interview the man in the black shirt. Sgt. Spencer of Paris hotel security told our investigator that neither Paris nor Bally's employed a security employee named "Fred." Further, he stated that he did not recognize the man in the black shirt shown on video surveillance of the incident. Our investigator contacted the chief sergeant-at-arms for the IBT convention to ascertain whether "Fred" was part of that contingent. Our investigator reviewed the roster of sergeants-at-arms and contacted 3 persons on that roster listed there whose first name was "Fred" or a derivative. All denied any involvement in or knowledge of the incident.
During our initial investigation, hotel security declined to produce the video surveillance of the incident to our investigator or allow her to review it. At our investigator's request, hotel security personnel reviewed the surveillance and advised our investigator that the recording was not helpful. Our initial decision reported that "hotel security reviewed video recording from the security camera near the incident's location and reported to our investigator that video evidence was non-conclusive."
Following remand by the Election Appeals Master, we renewed our request that hotel security produce the video surveillance recording. Our request was again denied. We then requested that the United States Attorney assist us in obtaining the surveillance recording. The U.S. Attorney first requested that the hotel produce the recording voluntarily and, when the hotel declined to do so, petitioned the United States District Court for an order directing that the recording be produced. Hotel security surrendered the recording pursuant to court order. The recording was examined by our investigators and, based on the activity the recording depicted, we questioned several witnesses further concerning the incident. We also displayed the recording to counsel for Berg and Lopez and invited their factual arguments with respect to the recording's depiction of events.
The video camera that captured the incident was attached to the ceiling of the passageway between the Bally's and Paris hotels, some 25 to 30 feet above the floor. The camera was located in the corner of the ceiling of an area that is approximately 35 feet square. Two street lamps, of wrought iron with 5 large globes each more than 12 inches in diameter, sit on a line that roughly bisects the hall area. Because the camera is located in the corner of the ceiling, the globes of 1 of the street lamps prominently occupies the center right of the scene while the second sits at the upper center. Four sidewalk tables at which patrons of Le Creperie may dine is on the left of the picture. The Paris hotel entrance is through a hallway at the top center of the screen; Bally's entrance is off-screen to the lower right. Pedestrians traversing between Paris to Bally's generally follow the open area on the right half of the screen, away from Le Creperie's sidewalk tables. As they do, the 5-globe street lamp fixture at center-right partially obscures them from the camera's view. The video is in black and white and has no audio.
The video captured those present at the incident and confirmed the oral statements identifying who was in the group walking with Lopez, Berg's carrying a bag in his right hand, the respective directions of travel of the participants, and the basic dynamic of the encounter. Particulars of the verbal accounts, such as the intervention of Johnson and the man in the black shirt, are clearly confirmed on the video. With the principal actors thus identified, a detailed description of the video follows.
According to time markings superimposed on the video, the segment commences June 27, 2006, at 21:11:19 (9:11 p.m. and 19 seconds) . It concludes at 21:12:40. The segment opens with a frontal view of Berg walking from Paris to Bally's (i.e., from the top-center of the screen toward the bottom-right). He is wearing a long-sleeved dress shirt, dark trousers, and a lanyard around his neck to which is attached a plastic sleeve that contains an insert. He appears to be unaccompanied. In his right hand is an opaque plastic bag, dark in color, that appears to contain some weight. Although Berg's left hand is empty, he has a briefcase on a shoulder strap on his left shoulder. As he walks, Berg does not swing his arms in the usual fashion one does when walking, as his right hand carries the bag and his left steadies the briefcase so as to avoid dislodging the strap from his shoulder. Berg told our investigator that the opaque plastic bag contained a 6-pack of beer he had purchased in a hotel shop. He was enroute to a gathering where he would share the beer to celebrate his nomination.
As Berg continues on his path toward Bally's, the camera's view of him is partially blocked by the street lamp. Immediately before he moves behind the globes of the street lamp, Berg looks slightly to his left and raises his left arm as if to point. Berg told our investigator that he saw Harold Johnson, whom he knew, walking in the opposite direction. He stated he pointed at Johnson as part of greeting him in passing. Berg's lower torso, legs, and the plastic bag in his hand then return to view from behind the street lamp. He leaves the camera's view altogether at the lower right portion of the screen at 21:11:28. His pace during this segment of the video is unhurried; in the 9 seconds he is in view during this portion, Berg takes 14 steps.
At 21:11:22, 3 seconds after the video starts, Dolceta Lopez enters the frame with Richard Lopez to her right. Ms. Lopez is wearing a white, short-sleeved blouse, not tucked in, and dark slacks. Her handbag, on a long shoulder strap, hangs from her left shoulder. Lopez wears a dark short-sleeved shirt (sleeves extending to the elbow), dark knee-length shorts, and basketball shoes. The Lopez couple is walking slowly toward Paris. Their progress appears momentarily slowed by persons ahead of them. Berg passes the Lopez couple on the right. During this passing, Berg appears to be looking to his left, in the direction of the Lopez couple.
At 21:11:26, attorney Peters emerges from behind the globes of the street lamp, close to the right-hand side of the hallway and heading toward Paris. Peters wears a short-sleeved patterned shirt open at the neck, light-colored trousers and dark shoes. Peters stops and immediately turns to look in the direction Berg is walking past the rest of Peters' party.
At 21:11:28, just as Berg leaves the camera's view at the lower right edge of the frame, Lopez reverses course and takes 3 quick steps in less than 1 second to follow Berg toward Bally's. Lopez's third step brings him face-to-face with Berg, who apparently has turned to face Lopez. Lopez stands with his feet shoulder-width, left foot slightly ahead of right, leaning forward with his weight on his forward foot. Lopez' right hand, the only one visible to the camera, is in a fist. Lopez's body appears tense and taut.
Berg's left hand enters view at the lower right of the screen at 21:11:31. Berg appears to gesture with the hand. Berg's upper arm remains at his side; his forearm does not rise above a 90° angle and his hand is open and fingers visible. After the gesture, Berg immediately drops the hand.
At 21:11:32, Lopez, still leaning forward on his left foot, raises his right fist and punches sharply. Although contact between Lopez's fist and Berg's face is not visible on the video, the camera captures Lopez's arm making the distinctive forward motion of a blow. The blow is struck at a target higher than Lopez's head. The impact of the action causes a recoil that is visible throughout Lopez's whole body: Lopez's arm returns into the visible part of the picture, and he immediately shifts his weight to his back (right) foot and draws his front (left) foot further to the left to maintain balance. Immediately after delivering the blow, Lopez backpedals 5 steps, still facing Berg squarely. He does not retreat, however, nor does Berg make any motion forward towards Lopez. Instead, Lopez moves directly toward Berg. However, Harold Johnson now stands between Lopez and Berg. Johnson wears a white sleeveless shirt with a large symmetrical design in the center of the back. He also wears knee-length shorts and open-toe sandals. Lopez twice steps to the right (at 21:11:40 and at 21:11:41), attempting to avoid Johnson in order to get face-to-face with Berg again. Each time, Johnson moves with him and blocks his path. Finally, at 21:11:45, Johnson moves directly face-to-face with Lopez, places his left hand on Lopez's right shoulder, and moves him back. Johnson then moves around to Lopez's right, still maintaining his left hand on Lopez's right shoulder. Johnson's right arm is at his side. Johnson remains in contact with Lopez in this manner for the next 13 seconds, until 21:11:58.
Almost immediately after Johnson moves Lopez back and steps to his side, the man in the black shirt moves in toward Lopez. Over the next 30 seconds, the man is seen directly addressing Lopez, gesturing toward Paris, leading the Lopez couple on their way toward Paris, and apparently remonstrating with them. Through his actions, the man in the black shirt leads Lopez away from the encounter with Berg. By the time Lopez walks away from the man in the black shirt, he is some 30 feet from the spot where he met Berg.
Berg is last seen on the tape at 21:11:58, turning again toward Bally's as Lopez is being led toward Paris by the man in the black shirt.
After the man in the black shirt has sent Lopez and his wife on their way toward Paris, he turns and takes a few steps in the direction of Bally's. At 21:12:19, he speaks and shakes hands with Peters, who is at nearly the same spot as he was when he turned to watch Berg pass his dining party. Johnson stands next to the man as he speaks with Peters. The encounter with Peters ends at 21:12:26 as Peters head toward Paris. The man in the black shirt then takes a few more steps toward Bally's while looking over his shoulder at Johnson. Johnson and the man in the black shirt appear to speak with each other until 21:12:34 when the man in the black shirt leaves view in the direction of Bally's. Johnson lingers in the area momentarily, looking in the direction that the man in the black shirt has gone. As Johnson turns to head toward Paris, the video ends at 21:12:40.
Analysis
Article VII, Section 12(g) of the Rules prohibits "[r]etaliation … by … any member of the IBT … against a Union member … for exercising any right guaranteed by this or any other Article of the Rules."
We find that Lopez struck Berg as alleged by the protest. The evidence we gathered, including Berg's credible account of the incident, the video surveillance corroborative of Berg's account, and Lopez's admission that his hand struck Berg in the mouth, demonstrates that Lopez approached Berg in an aggressive manner, yelled at him in a loud voice, and struck him quickly, sharply, and forcefully, without provocation in the course of the confrontation that Lopez initiated. The statements of Dolceta Lopez, Peters, Johnson, and Le Creperie's Garcia corroborated the general circumstances of the incident (including separating the two men at the end) even if none of them could say definitely that they saw Lopez strike Berg. Considering all the evidence, we find that Lopez inflicted violence on Berg; he committed an intentional and forceful act in striking Berg. We find that Lopez's action was not defensive in nature, as he alleged, and was not inadvertent and benign conduct that might occur in a scuffle.
Further, we find that Lopez engaged in these acts because of Berg's protected activity under the Rules. This incident was preceded by a lengthy delegate campaign period that resulted in the election of Lopez's slate of delegates and the defeat of Berg's candidates, a period that was marked by a number of protests by Berg against Lopez and Lopez's employer, Local Union 743, alleging violations of the Rules that were said to affect the results of that election. In the context of the enmity between Berg and Lopez that resulted from the heated delegate campaign, announcement had just been made at the convention on June 27 that Berg's name would appear on the ballot for IBT Central Region vice president. Lopez's verbal conduct that immediately preceded his battery of Berg included insults of Leedham and TDU and corresponding verbal attacks on Berg as a "loser," demonstrating that his verbal and then physical attack on Berg had a political motivation.
It is well-established that violence can constitute retaliation under the Rules. Thus, in Teller, P1086 (December 27, 1991), Election Officer Holland found a 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. In Stefanski, P282 (January 22, 1996), aff'd, 96 EAM 94 (February 21, 1996), Election Officer Quindel found a violation where a member seized another by the arm in a menacing manner and ordered him to leave the facility where he was campaigning. In Rogowski, P859 (August 13, 1996), a violation was found where a member pulled another's shirt collar and pushed him from behind with his elbow. See also, Smith, 91 EAM 51 (January 29, 1991) (violation where member was struck on the back of the head for expressing unpopular political beliefs). In such cases, there must be evidence that either expressly or inferentially connects the conduct to activity protected by the Rules. Rogowski, supra.
Some conduct has been deemed so minor as not to cross the threshold necessary to establish retaliation. Loud, heated, rude or obnoxious behavior directed at another member for his protected activity does not violate the Rules. Wasilewski, 2000 EAD 14 (August 14, 2000); Rodriguez, 2000 EAD 45 (November 3, 2000); Jorgensen, 2000 EAD 72 (December 26, 2000); Duncan, 2006 ESD 247 (May 16, 2006). Similarly, in Rudolph, P861 (August 29, 1996), no violation was found where tempers flared briefly on each side, words and a few pushes were exchanged, but both sides took action to end the incident. In Zuckerman, 2005 ESD 38 (December 15, 2005), we found no violation where one campaigner went "nose-to-nose" with another and "fairly gently" moved his forearm into the other's chest.
These cases together illustrate the Election Appeals Master's instruction that the alleged violent act must be "intentional and forceful" to violate the Rules. The act need not, however, meet a criminal standard or induce a law enforcement agency or prosecuting attorney to devote the resources or exercise the discretion to investigate a criminal case or initiate a criminal proceeding against the alleged perpetrator of the battery. Whether an alleged act may also violate public law is, in this context, not germane to the Election Supervisor's determination that it violates the Rules.
These cases also demonstrate that the intentional and forceful act taken against the member need not cause injury in order to violate the Rules. Teller, Stefanski, Rogowski, and Smith found prohibited election-related violence even though no injury resulted. In this context, we decline to hold that an intentional and forceful act of violence is permissible under the Rules so long as injury is avoided. While injury is a fact to be assessed during the investigative inquiry, Leedham Slate, 2006 ESD 319 (July 9, 2006), aff'd, 06 EAM 57 (July 21, 2006), the absence of injury will not excuse or otherwise mitigate violence. As Election Officer Holland declared, "violence … has absolutely no place in the conduct of fair, honest, and open elections, pursuant to the Election Rules." Smith, supra. We will not create a "no injury, no foul" exception to the established precedent and inject substantial uncertainty into an area that is presently settled. Such a rule would also be irreconcilably inconsistent with the established holding that a "palpable threat of actual harm" - without consummating violence - nonetheless violates the Rules. Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001). Where a threat of harm can violate the Rules, we will not hold that actual violence that does not injure is permitted.
Accordingly, we GRANT the protest.
In our initial decision, we found that Lopez fled the site of the convention in the immediate aftermath of the incident and that such flight was evidence that Lopez knew he had violated the Rules. In making that finding, we did not credit Lopez's explanation that his wife insisted that they move to another lodging to avoid encountering Berg, finding that Lopez, as a prominent Hoffa supporter, was in an environment at the convention site where Hoffa supporters were ubiquitous and his safety therefore not at risk. This was especially the case given our finding that Lopez committed the violence and Berg did not. On appeal, the Election Appeals Master observed:
Much is made in the Election Supervisor's decision of the accused's guilt being established by evidence of flight from the scene of the "crime" and evasion of the investigator's questions. At the Hearing, however, it was established that the accused merely moved across the street, and that he voluntarily presented himself to investigators the very next day.
On these facts, I reject the inference of "guilt" relied upon by the Election Supervisor and strike from the record those investigative findings predicated upon the improperly drawn inference.
Because of this holding, we do not rest any of our factual findings on what we previously found to be Lopez's flight from the convention site. We note, however, that the factual record on which the Election Appeals Master made his ruling was incomplete. Thus, Lopez not only checked out of the hotel where the incident occurred early on the morning after the June 27 incident, he also absented himself from the convention for all of June 28 and part of June 29. In addition, he did not present himself for questioning "the very next day," June 28; instead, he came in late in the afternoon of June 29, nearly 2 days after the incident. During that interview, he stated that he stayed away from the convention on June 28 because his lawyer told him to do so. The lawyer was told by our investigator on June 28 that she sought to interview Lopez. While these facts would, in our view, permit a finding of flight from which we could infer guilt, we expressly do not hold, as the evidence of guilt is established persuasively from the sources cited here.
The remand investigation also did not substantiate that an arrest warrant had issued for Lopez, as Sgt. Spencer of Paris hotel security had told our investigator. The reported fact was included in the initial decision as part of the general background and as possibly related to Lopez's removing himself from the convention hotel after the incident. Whether in fact such a warrant was issued, however, does not affect our ultimate conclusion that all elements necessary to find a Rules violation were established in the initial and remand investigations.
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 the following relief:
1. Richard Lopez shall cease and desist from any further retaliation, threat of retaliation, violence and threat of violence against any candidate for International office or against any member of the IBT.
2. Richard Lopez shall pay a fine of $1,000 to the Office of the Election Supervisor within 5 working days of receipt of this decision. Lopez shall pay the fine solely from personal funds. When paying the fine, Lopez shall submit an affidavit stating that the fine is paid solely from personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that Lopez will refuse any such offer, transfer, or contribution.
3. Richard Lopez shall not accept from Local Union 743 the per diem authorized by his local union for attendance at the IBT convention. In the event he has already received such per diem from the local union, he shall reimburse the amount to the local union. The local union shall supply an affidavit documenting that Lopez has not been paid or retained the per diem. Said affidavit shall be supplied to our office within 5 working days of receipt of this decision.
4. Local Union 743 shall post on all union bulletin boards under its jurisdiction the notice attached to this decision and shall be responsible for maintaining such posting for a period of 30 consecutive days.
In our initial decision, we ordered Lopez to forfeit his delegate credentials, and we barred him from the convention site. Those provisions were implemented before the appeal was decided. Accordingly, we need not order the same relief again.
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 397
NOTICE TO ALL MEMBERS OF IBT LOCAL UNION 743
FROM ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") protect the right of each member "to participate in campaign activities, including the right to run for office, to support or oppose any candidate, [and] to aid or campaign for any candidate." The Rules further prohibit retaliation or threat of retaliation by the Union against a Union member for exercising any right guaranteed by the Rules.
The Election Supervisor has found that Richard Lopez violated the Rules by striking Richard Berg because of Berg's political activity protected by the Rules. The Election Supervisor has ordered Lopez to cease and desist from such activity, and has further ordered Lopez to pay a fine of $1,000.00 from personal funds, and to refund to Local Union 743 certain reimbursement of expenses received from the local union for his attendance at the IBT convention. The Election Supervisor has also ordered Local Union 743 to post and maintain this notice on all union bulletin boards under its jurisdiction for 30 consecutive days.
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. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
____________________________________
Richard W. Mark, Election Supervisor
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 30 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
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
Richard Berg
1336 Argyle Street
Chicago, IL 60640
Richard Lopez
606 North 6th Avenue
Maywood, IL 60163
Robert Walston, President
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
William Widmar III
IBT Local Union 743
4620 South Tripp
Chicago, IL 60632
Dolores Hall
1000 Belmont Place
Metairie, LA 70001
Hall1000@cox.net
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
ellisonesq@aol.com