Protest Decisions

           Sandy Pope, by counsel, 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 Ben Speight, a Hoffa-Hall 2011 supporter, struck Sandy Pope supporter Jason Ide at the IBT convention, in violation of the Rules.

            Election Supervisor representative J. Griffin Morgan investigated this protest. 

Findings of Fact

On Thursday morning, June 30, 2011, candidates for IBT General President and General Secretary-Treasurer were nominated at the IBT convention in Las Vegas.  James P. Hoffa, Fred Gegare and Sandy Pope each were nominated for the position of General President.  That evening, secret ballot voting was conducted to determine which nominated candidates would appear on union-wide ballot.[1] 

Late on Thursday afternoon, supporters of the three candidates stood outside the convention hall distributing campaign literature to delegates as they left the convention and walked to the voting area.  At that time, Ben Speight collided with Jason Ide, knocking Ide to the floor.  This protest followed.

Ide is the president of Local Union 814 in Long Island City, New York, and was the local union’s lone delegate.  His local union shares office space with Local Union 805, whose president is Sandy Pope.  Ide supports Pope’s campaign for IBT General President.  Ben Speight is an organizer for Local Union 728 in Atlanta, Georgia, and was an alternate delegate from that local union.  He is a supporter of Hoffa’s re-election campaign.

Ide told our investigator that that he and Speight have known each other for several years, having met at various Teamster conferences and events.  Ide stated that at about 4:40 p.m. he was standing outside the convention center reading a piece of Hoffa-Hall 2011 campaign literature.  Ide was wearing a blue Pope campaign T-shirt and holding the campaign flyer close to his face.  He said he was struck in the side of his chest and knocked to the floor.  Ide stated that he was hit so hard that he went flying backward through the air.  He said he was shocked by the blow but popped right back up from the floor.  When he stood up, he saw Speight standing in front of him wearing an angry look.  According to Ide, a couple of other guys got between Ide and Speight, put their hands in front of Speight and told him to calm down.  Some of the men who got in front of Speight were wearing red Hoffa vests and some were not.  Ide did not recall if any of the individuals were wearing sergeant-at-arms badges.  Ide recalled Speight stating “this guy plays Italian soccer.”  Ide and Speight did not exchange words.  Ide reported the incident to hotel security.[2]  He then voted at about 6:15 pm.  Ide stated that after the incident he was concerned for his personal safety.

Speight confirmed that he and Ide have known each other for several years and that they met when they were in college and working with Students Against Sweatshops in the early 2000s.  Speight stated that he left the convention hall around 4 p.m. because his cell phone needed to be recharged.  As he walked out of the hall, Speight saw Ide and greeted him.  Speight said that when Ide saw that Speight was wearing a Hoffa shirt, Ide rolled his eyes and said, “Oh, that’s cute.”  Speight continued to his room but acknowledged to our investigator that Ide’s comment made him angry.  Speight returned to the convention hall about a half hour later.  He stated that as he walked toward the hall he saw Ide walking toward him with his head down.  Speight said that they walked into each other with their shoulders colliding.  Speight stated that he did not intend to knock Ide down, but that he did not go out of his way to avoid the collision.  He explained that Ide’s comment about his Hoffa shirt made him mad.  “Did I intend to knock him down?  No.  Did I go out of my way to avoid contact?  No.”  Speight stated some members got between him and Ide.  A Pope supporter said “I can’t believe you hit him.”  Speight replied, “he took a flop like an Italian soccer player.”  Speight did not believe the collision was hard enough to knock Ide down.  He thought Ide fell down in order to make a political statement out of the incident.  Speight returned to the convention.  He stated to our investigator that it was a regrettable incident, a silly incident and unnecessary.

Gary Marconi is a business agent and elected delegate from Local Union 206 in Portland, Oregon; he is also a Pope supporter.  Marconi stated that he had just walked past Ide, who was reading a campaign flyer, prior to the collision and did not see what happened.  He turned around afterwards and heard a guy say, “I did not hit him; he took a flop.”  Marconi stated he did not know the guy who made the statement, but Ide told him later that Ide had known him for some time.  Marconi confirmed that some Hoffa supporters got between the guy and Ide after the incident.

Analysis

We find that Ben Speight struck Jason Ide with his shoulder, knocking him to the floor.  We further find that Speight did so with the purpose of retaliating against Ide for Ide’s comment about Speight’s Hoffa shirt.

Article VII, Section 12(g) of the Rules prohibits “retaliation or threat of retaliation by … any member of the IBT … against a Union member … for exercising any right guaranteed by” the Rules.

As we noted in Berg, 2006 ESD 397 (December 6, 2006), aff’d, 07 EAM 80 (January 8, 2007):

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.

Applying this precedent, we find that Ide’s comment about Speight’s shirt and Speight’s angry response together provide the nexus necessary to establish prohibited retaliation under the Rules.  Ide’s comment on Speight’s Hoffa shirt, delivered with the negative punctuation of an eye-roll, was protected speech under the Rules even though it angered Speight.  By making that statement, Ide did not consent, implicitly or otherwise, to being assaulted for his views.  This contact was not accidental:  Speight concedes that Ide’s comment angered him, and that he took the opportunity to obstruct and make hard contact with Ide when Ide happened to be walking in his direction.  Speight’s own description of events establishes the retaliation nexus. 

We do not credit Speight’s claim that Ide fell down (or “flopped” or “took a dive”) in order to make the force of Speight’s blow appear to be more severe than it was.  We find that Speight’s statement to that effect, made the moment after he struck Ide, was an effort to minimize the incident.

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 the following relief:

1.    Ben Speight shall cease and desist from any further retaliation, threat of retaliation, violence and threat of violence against any member of the IBT.

2.    Ben Speight shall pay a fine of $250[3] to the Office of the Election Supervisor within 5 working days of receipt of this decision.  Speight shall pay the fine solely from personal funds.  When paying the fine, Speight 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 Speight will refuse any such offer, transfer, or contribution.

3.    Local Union 814 and Local Union 728 shall post the notice attached to this decision on all union bulletin boards under their respective jurisdictions and shall be responsible for maintaining such posting through November 30, 2011.  The posting shall be completed within two working days of the date this decision issues; within three working days thereafter, each local union shall submit a compliance affidavit to OES.

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.