OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: JUAN GUTIERREZ, ) Protest Decision 2011 ESD 239
) Issued: April 27, 2011
Protestor. ) OES Case No. P-185-022811-FW
____________________________________)
Juan Gutierrez, 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 Paul Uribe threatened him in violation of the Rules.
Election Supervisor representative Rochelle Goffe investigated this protest.
Findings of Fact
Uribe was nominated for delegate on the Galvan Respect and Dignity slate at Local Union 396’s nominations meeting held January 8, 2011. Gutierrez was not a candidate in the delegates election.
At a general membership meeting held February 27, 2011, Gutierrez served as sergeant at arms. He stood in the rear of the assembly hall, adjacent to the doors. He alleged that shortly after the meeting minutes were read at the start of the meeting, Uribe exited the assembly hall. Uribe’s path took him past Gutierrez. Gutierrez said that Uribe stared at him while proceeding to the door and, when Uribe was closest to him, Uribe lunged in his direction. Gutierrez said he leaned away from the lunge, and no contact was made. Uribe continued on his way out the door and said nothing. Gutierrez likewise said nothing. About five minutes later, Gutierrez said that Uriber reentered the room; Gutierrez noticed that Uribe was now wearing gloves, something he did not observe on Uribe’s hands previously. Gutierrez also noticed that Uribe was staring at several individuals who were present. Gutierrez reported nothing further concerning the incident.
Uribe stated that, soon after the meeting started, he received a call on his cellphone. He exited the hall to take the call. He chose a path out of the hall along the wall to avoid disturbing others. He denied lunging at Gutierrez or in his direction. He said he has known Gutierrez for some 25 years and did not single him out for anything. Uribe acknowledged that he had gloves on during the entire meeting, even when he first exited the hall to take the phone call, because he said his hands were cold.
Ruben Tiscarero, a UPS driver who serves as shop steward, was present at the meeting and observed Uribe’s actions. He told our investigator he saw Uribe walk through the meeting. As Uribe passed Gutierrez, he made what Tiscarero said was a “weird movement, like he was going to say something – a lunge, then he kept walking.” Tiscarero said he would not have thought the incident was weird except for the fact that Uribe was on the opposition slate. Tiscarero described Uribe’s action as “kind of strange – almost aggressive.” Nothing was said by either party, and Tiscarero did not feel the need to call for assistance.
About five minutes later, Tiscarero said that Uribe returned and kept pulling on his gloves and staring at Gutierrez. Again, Uribe said nothing and kept walking. According to Tiscarero, “It might not be a big deal – I don’t know – you would have to know the guy’s intent. If someone had said something it might have escalated.”
Analysis
Article VII, Section 12(g) prohibits threats for activity protected by the Rules. We do not find a prohibited threat on the facts presented here, as there was neither touching nor menacing behavior on Uribe’s part sufficient to present a palpable threat to Gutierrez of imminent harm. Further, we find insufficient evidence to link Uribe’s alleged behavior to activity protected by the Rules.
Accordingly, we DENY the 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, NY 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 239
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
Richard Galvan
1208 E. Dalton Avenue
Glendora, CA 91741
patg_0706@yahoo.com
Juan Gutierrez
709 S. Euclid Ave.
Los Angeles, CA 90023
Ron Herrera, Secretary-Treasurer
Teamsters Local Union 396
880 Oak Park Road, #200
Covina, CA 91724
ronherrera@local396.net
Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.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