Protest Decisions

IN RE: RICHARD GALVAN, Protestor.
Protest Decision 2011 ESD 130
Issued: February 21, 2011
OES Case No. P-090-011911-FW

Richard Galvan, member of Local Union 396, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that business agent Victor Mineros engaged in threatening behavior against Galvan because of his protected activity, in violation of the Rules.

Election Supervisor representative Rochelle Goffe investigated this protest.

Findings of Fact

Galvan is the lead delegate candidate on a slate competing in Local Union 396's delegates and alternate delegates election. According to the protest, he went to the local union hall on January 14 to turn in an amended slate declaration form and other election documents. While there, he saw business agent Mineros in the lobby. Galvan stated that he greeted Mineros, asking how he was doing. According to Galvan, Mineros replied simply with a grunt. As Mineros began to turn away, Galvan said, "Wow. Attitude." Mineros turned back to Galvan and said, "I am nothing but a stupid fucking truck driver." Galvan told Mineros to relax and show some respect. The protest states, "At this point he became completely belligerent and started screaming profanities and repeatedly used the 'f' word. I told him to calm down and go relax in his office. He yelled, you can't tell me what to do and told me to shut up. I told him to show some class and he stated, 'I'll show you' and started toward the door to enter the lobby where I was standing. At that point, President Jay Phillips spoke quietly to him. Victor moved in towards the office and seemed to settle down."

Mineros submitted a written statement to our investigator. It stated the following:

I'm walking from the restroom to the office. I entered the foyer, standing waiting to get buzzed in. Richard Galvan walked in behind me. I turned around, looked, and then turned back. Richard slapped my back, then says "What's up, Vic" with a sarcastic look on his face. I ignored him. I was buzzed in, then walked towards the break room, got a bottle of water and returned to the main office intending to go to my office downstairs. Richard again said "What's the animosity?" I said, "There is no fucking animosity." Richard said, "Don't cuss" loud and aggressively! I said, "I'm a truck driver, that's just the way I talk." Richard said "Don't lower yourself to their standards." Then I told him, "You can't take a little cussing?" He then repeated several times, "You're lowering yourself" then I walked away, while he kept aggressively staring at me.

Phillips, the local union president, told our investigator that he observed the exchange between Galvan and Mineros. When Galvan entered the lobby, Phillips came out of his office to insure that everything was going smoothly. Phillips called Rosie Frias, the office clerical assisting Galvan over to him and suggested that if Galvan had significant questions he call Michael Miller of OES so that he would have completely accurate information. According to Phillips, Mineros had exited the office area to use the rest room and was buzzed back in. Phillips said he heard Galvan say "What's up with all the animosity?" to Victor. Phillips said that Galvan asked this in a loud voice three times. Victor responded "I don't have any fucking animosity." Phillips said Galvan replied, "Don't you dare cuss at me," to which Mineros replied, "I'm a truck driver; that's the way I talk."

Phillips characterized Galvan's role as taunting Mineros. At no time was there any direct physical confrontation or explicit threats. Phillips did not interpret Mineros' behavior as intimidating.

Office clericals Rosie Frias and Delia Ortiz told our investigator that they did not observe any interaction between Galvan and Mineros. Ricardo Hidalgo, an IBT organizer, said he twenty to thirty feet away from Galvan and Mineros. He did not hear what was said but observed that neither behaved aggressively toward each other.

All witnesses except Galvan told our investigator that they support the slate opposing Galvan's slate.

Analysis

Article VII, Section 12(g) prohibits threats for activity protected by the Rules. However, a threshold must be crossed before threats or violence will be found to violate the Rules. 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). To find an improper threat, activity must constitute a palpable threat of imminent harm. Ramos, 2006 ESD 65 (February 3, 2006).

Even if the facts were construed most favorably to the protestor (which we do here solely for purposes of analysis), Mineros' behavior was, at worst, loud, rude and obnoxious but not any threat of harm to Galvan. Moreover, after Phillips spoke to him, Mineros withdrew from the confrontation. 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:

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
        2011 ESD 130

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Richard Galvan
1208 E. Dalton Avenue
Glendora, CA 91741
patg_0706@yahoo.com

Ron Herrara, Secretary-Treasurer
Teamsters Local Union 396
880 Oak Park Road, #200
Covina, CA 91724
ronherrera@local396.net

Rochelle Goffe
1234 22^nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com