IN RE: TOM STRICKLAND, Protestor.
Protest Decision 2011 ESD 212
Issued: April 14, 2011
OES Case Nos. P-236-033011-FW
Tom Strickland, member and secretary-treasurer of Local Union 81 and delegate candidate on the Strickland/Schoen slate, filed a post-election protest pursuant to Article XIII, Section 3 of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). While filed as a post-election protest, the protest alleged that "threats, intimidation and potential acts of violence" had been directed at a local union member during the pre-election period, more than a week prior to the ballot count in Local Union 81's delegate election. Specifically, the protestor alleged that delegate candidate Craig Wood made threats of physical violence against Mike James, vice-president of Local Union 81 and a supporter of the Strickland/Schoen slate.
Election Supervisor representative Michael J. Miller investigated this protest.
Findings of Fact
Protestor Strickland and Wood were the only candidates nominated for Local Union 81's single delegate seat. At the ballot count held on March 28, 2011, Wood defeated Strickland by eight votes.
Wood previously held union office in 2002 to 2006 and later was employed by the union as a full time business agent from 2006 to 2008. After his tenure as business agent, Wood filed a claim against Local Union 81 for back pay and accrued vacation and holiday benefits. The claim was initially upheld in administrative proceedings, which the union appealed by suit filed in the Circuit Court of Multnomah County, Oregon. On March 14, 2011, a jury held that the local did not owe Woods the accrued wages he had claimed. The validity of Wood's claim against the local union was an issue the Strickland/Schoen slate raised during the delegate election campaign.
On March 19, the evening before the local union's regular membership meeting and nine days prior to the delegate election ballot count, Strickland received a telephone call from vice-president Mike James in which James complained that Wood had called him and threatened him with physical violence. As Strickland related it, Wood accused James of slandering him concerning the lawsuit; he threatened to "gut" him at the membership meeting scheduled for the next day if he persisted.
Strickland and James spoke again about Wood's alleged threats the next day, at the executive board meeting that preceded the regular membership meeting. Shortly thereafter, during the membership meeting, James initiated a verbal confrontation with Wood on the record. James' statements during the confrontation were made from the podium microphone and were audible to Strickland and the other meeting participants, but Wood's response, made from the membership gallery, was not picked up by the audio system and was characterized by Strickland as muffled and indistinct.
On March 27, a week after the membership meeting and the day before the ballot count, Local Union 81 member Dave Ward called Strickland to tell him he was sitting near Wood at the March 20 meeting and heard Wood threaten to "rearrange James' belly button" during their heated verbal exchange. Two days after learning this additional information, Strickland filed the protest.
With respect to timeliness of the protest, Stickland acknowledged that he knew of the alleged threat on March 19, ten days before he filed the protest. He claimed he did not file at that time because he considered the dispute between Wood and James to be a "he said/he said" conflict in which the accuser and the accused were the only witnesses. As such, he believed the threat could not be proven and thought a protest of it futile. Strickland stated that he decided to file only after Ward provided corroboration to James by alleging that Wood made an additional threat at the membership meeting.
James and Ward each told our investigator that he supported the Strickland/Schoen slate, but neither campaigned for the slate.
Wood admitted to our investigator that he called James on the evening of March 19. Wood said he and James both worked as freight drivers for YRC. Wood claimed he had learned from another member that James had called members to tell them that Wood had lied in court during the trial of the lawsuit over the back pay claim. Wood said he was told that James claimed those lies were the reason the jury decided against Wood. Wood admitted that he was unhappy to hear of James' activity. He agreed that the tone and subject matter of his call with Wood were confrontational. He stated that James' statements to members were lies, and he demanded that James stop slandering him. Wood emphatically denied stating that he would "gut" James; instead he said he told James that he would expose James' lies at the membership meeting the next day and "get" him in that fashion.
At the membership meeting the next day, Wood said that James defended his actions from the podium, well before the time the floor was opened for questions and comments. According to Wood, James demanded that Wood stop making threatening calls to his home, to which Wood responded that he made no threats against James or anyone else. Wood told our investigator that he accused James of calling members and lying about his part in the lawsuit; he said he also characterized James' actions as political and a ploy to cause voters to support Strickland's candidacy over his. Wood expressed surprise to our investigator that he had been accused of saying that he would "rearrange James' belly button" and he expressly denied making that statement. He admitted, however, that the open argument was heated, but denied that any threats of physical violence were made.
Our investigator also interviewed retired member Richard De Wolf, who had attended the March 20 membership meeting and was seated in the members' gallery near Wood. De Wolf confirmed both James' and Wood's description of the confrontation at the membership meeting. His recollection was consistent with the statements claimed to have been made by both the parties to the argument, which he characterized as a heated verbal exchange, one of a number that had occurred between James and Wood during prior membership meetings. He stated that he did not hear Wood make any threats during the exchange, either openly or under his breath. He also claimed that no threats were made after the argument was ended, before or after the meeting closed.
The meeting minutes confirmed that all parties interviewed were present at the meeting; they also note the verbal exchange between James and Wood.
Analysis
We first address the apparent untimeliness of this protest. While this March 29 protest was characterized as a post-election protest under Article XIII, Section 3 of the Rules, its only post-election attribute was the date of its filing. Article XIII, Section 3 of the Rules defines post-election protests as "protests concerning election day or post-election day conduct." Here, the conduct complained of occurred more than a week before the ballot count. That fact makes this case a pre-election protest, which is governed by the filing requirements of Article XIII, Section 2.
Article XIII, Section (2)(b) requires pre-election protests to be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protests shall be waived." According to his protest, Strickland knew of the alleged threat of physical harm against James on March 19 when James called him to complain about the threat Wood allegedly made. However, he filed the protest on March 29, the day after the ballots cast for delegate were counted and Strickland knew his campaign had failed. His only explanation for his failure to file timely was that he initially believed that the claims made by James were uncorroborated and therefore could not be proven. This belief does not excuse untimely filing. Accordingly, we DENY the protest on this basis.
Were we to consider the protest on the merits, we would deny it. Article VII, Section 12(g) prohibits retaliation for activity protected by the Rules. James' action in calling members in support of his chosen candidates in the delegate election is protected activity and, if proven, the Wood's alleged threats of physical violence could constitute a threat of retaliation for the exercise of that protected right. However, the evidence presented by James to establish the alleged threat is directly rebutted by Wood. Additional evidence provided by Strickland of a second threat by Woods against James is directly rebutted by another witness, in this case a retiree who appears to be the only witness with no direct stake in the outcome of the election. As such, the evidence is insufficient to support the claim the protest made.
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, 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 212
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 Hall 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
Craig Wood
3873 SW 9th Court
Gresham, OR 97030-6532
crashawood@yahoo.com
Tom Strickland, Secretary-Treasurer
Teamsters Local Union 81
1874 NE 162nd Ave.
Portland, OR 97230
tom@teamsters81.org
Michael J. Miller
P.O. Box 25385
Los Angeles, CA 90025
miller.michael.j@verizon.net
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
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
