Protest Decisions

Mike Deszcz and Edgar Esquivel 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 Don Brewster assaulted them at the IBT convention in retaliation for their candidacy against him and his slate in Local Union 952’s delegates election.

            Election Supervisor representative Chris Mrak investigated this protest. 

Findings of Fact

            Protestors Deszcz and Esquivel unsuccessfully sought election as delegates on the Reform952 Members for Sandy Pope slate in Local Union 952’s delegates election, losing to theKelly-Metcalfe 952 Membership Save Our Union slate.  Don Brewster, local union vice president and business agent, won the sixth ranked delegate position of the twelve delegate and six alternate delegate positions contested in that election. 

            Although not elected as delegates, Deszcz and Esquivel traveled to Las Vegas for the IBT convention to support Sandy Pope’s effort to achieve nomination to the union-wide ballot for the position of General President. 

            Their protest alleged that at about 2:30 a.m. on Thursday, June 30, Deszcz and Esquivel were sitting at Sully’s bar in Bally’s hotel when Brewster “came up behind us, hit us both in the back, grabbed us by our shirts, and pulled us off of the stools we were sitting on.”  The protest further alleged that Deszcz’s glasses “were bent and fell off, and his nose slightly cut,” and that Esquivel suffered minor scratches on the back of his neck.  The protest asserted that Brewster “shouted that he would kill us on numerous occasions and concluded by calling us ‘TDU pieces of shit.’”

Investigation showed that Esquivel and Deszcz arrived in Las Vegas late in the evening of Wednesday, June 29.  After walking around the casino a bit, they entered Sully’s bar at about 2:30 a.m. (Thursday, June 30).  They saw other people from their local union already in the bar sitting at a table.  Esquivel and Deszcz told our investigator they sat on a couple of bar stools to drink their beers.  Brewster came up behind them, hit Esquivel on the back of his neck with an open palm, grabbed his shirt collar and tried to drag him off his stool.  With his other hand, Brewster grabbed at Deszcz's shirt.  According to Esquivel, Brewster yelled, “I'll fucking kill you motherfuckers.”  According to Deszcz, Brewster yelled to others who sought to intervene, “They’re pieces of shit,” and to Deszcz and Esquivel, “I’m gonna kill you.”  Both said Brewster made his threat to kill twice.  When first attacked, Deszcz spun around to try to defend himself and pushed Brewster away, saying “Bring it on, you piece of shit.”  In the ensuing altercation, Deszcz’s glasses were knocked off and bent and his nose was scratched enough to bleed.  Esquivel’s neck was scratched.  According to Deszcz and Esquivel, other Teamsters in the bar who had been sitting with Brewster intervened to separate Brewster and them.  According to Esquivel, Brewster told those who intervened, “They’re fucking TDU pieces of shit.”  Deszcz did not recall hearing the reference to TDU in the heat of the melee.  Both said that security arrived promptly.

            After the incident, Esquivel and Deszcz went to the hotel security office and gave reports.  Deszcz told security he wanted to file a police report against Brewster.  Security summoned a police officer from the Las Vegas Metropolitan Police Department.  The police officer interviewed Esquivel, Deszcz and Brewster and viewed the hotel videotape.  The officer issued citation #110630-0403 against Brewster for misdemeanor battery. 

            Brewster told our investigator he did not recall much detail about the incident and conceded only that he grabbed the shirt of one of the protestors.  He said he did not know why they were making a big deal of it.  Brewster said he was sitting at a table talking with friends when Deszcz and Esquivel looked over at him and laughed.  Brewster said he walked over to them and asked what they were laughing at.  According to Brewster, they replied with “something smart” and Brewster responded by grabbing at Deszcz’s shirt.  Brewster conceded he is bigger than Deszcz but felt the physical interchange was “a mutual thing.”  He denied calling them “TDU pieces of shit,” saying he does not care about TDU and is not invested in the partisan stuff.  Brewster said he had been drinking but did not admit to being intoxicated.   

            We reviewed security videotape of the incident supplied by Caesars.[1]  The color videotape[2] was recorded from a ceiling-mounted security camera that viewed the bar and surrounding area inside Sully’s bar.  The bar itself is arranged in a square, with four equal-length bar sections arranged at right-angles one to the next, and the corners of the square anchored by three-foot square pillars, twenty-five feet in height, that reach from floor to ceiling.  The bartenders work inside the square bar; the patrons sit on barstools with short backs on the outside of the square.  Six barstools line each of the four sides of the square.  Extending away from the bar, the floor is black and white tile for approximately eight feet, where carpeting begins.  The camera viewpoint showed the backs of patrons sitting on the two adjacent sides of the square bar nearer the camera, facing away from the camera, and the faces of patrons sitting on the more distant sides of the bar, facing toward the camera.  In addition, the camera range also captured patrons standing near the bar and those sitting at tables further away. 

             The videotape displayed the running time on a 24-hour clock in the lower left of the frame and the date in the lower right.  The segment produced to us commenced at about 2:30 a.m. on June 30.  It showed that roughly half of the stools at the bar were occupied.  Esquivel was sitting on a barstool in the furthest right position, immediately adjacent to the corner pillar at the right side of the frame, with his back to the camera.  Deszcz was sitting to Esquivel’s left, on barstool located second from right.  They remained in those seats for the first fifteen minutes of the videotape segment.  During this same period, Brewster was seen sitting at a table on the far side of the bar area, at the top-center of the video image.  On a direct line, the parties were 40 to 50 feet from and in sight of each other.  At 02:48:52, the video showed Brewster rise from his table and walk toward and then along the side of the bar.  He took sixteen steps from that table, taking a route along the far side of the bar, and rounded the far right pillar, arriving immediately behind Esquivel and Deszcz.  His pace was deliberate but unhurried.  From their barstools, Esquivel and Deszcz could observe Brewster seated at his table and the path he took to their location, except when he disappeared from their view when rounding the three-foot-square pillar.  Brewster’s walk took 10 seconds.

            Immediately upon rounding the pillar, at 02:49:02, Brewster slapped the back of Esquivel’s neck aggressively with his open right hand, bringing the hand down forcibly from overhead, and grabbed Esquivel’s right shoulder at the junction with the neck.  Nearly in the same motion, at 02:49:03, Brewster struck Deszcz’s right shoulder forcibly with his open left hand, grabbed that shoulder, and pulled both men back toward him, bringing them out of their stools.  Both Esquivel and Deszcz turned in the direction of their assailant, raised their arms to defend themselves, and they held Brewster at arms’ length for the next 27 seconds of videotape.  During this span, several others joined the scene, trying to pull the men away from each other.  Thus, two men who were sitting on the far side of the bar next to the far right pillar (around the pillar from the seat Esquivel was pulled from) rose from their seats and quickly proceeded around the pillar to Brewster, Esquivel and Deszcz, and tried to pull and push Brewster away. Others joined, taking similar actions.  The first uniformed security officer arrived at 02:49:18, sixteen seconds after Brewster first struck Esquivel, joined quickly by a second, and some ten men (comprised of assailant, victims, patrons, and security) were engaged in a scrum that lasted until 02:49:30, when all were separated from each other.  Shortly after security arrived, Deszcz, who was on the left edge of the scrum, separated and stooped to the floor as if in the act of retrieving eyeglasses.[3]  After the scrum thinned, the video showed an agitated Brewster at the right edge of the throng gesturing repeatedly with his right hand in the direction of Esquivel and Deszcz, who by this time were some eight to ten feet away.  Brewster continued this action for several seconds.  By 02:49:56, all participants had departed the camera’s view, with Brewster exiting in the direction of the table he rose from at the top of the frame and Esquivel and Deszcz leaving the bar through the entrance below the bottom of the frame.

            The videotape corroborated the accounts given by Deszcz and Esquivel, showing that they were sitting on their barstools when they were forcibly struck from behind by an agitated Brewster.  The videotape revealed no provocation on their part toward Brewster and, given the placement of the pillar at the corner of the bar, showed that Brewster’s attack came without warning.

            Given their seats at the bar, we conclude it was likely that Esquivel and Deszcz saw Brewster sitting at his table across the room.  However, the videotape provided no information as to whether they laughed when they saw him, as Brewster claimed; the videotape showed they made no overt physical gestures (e.g., no pointing, no leaning as if shouting at Brewster, etc.) while sitting at the bar. 

            The videotape contradicted Brewster’s claim that he grabbed the shirt of only one of the victims, showing instead that he struck both of them and grabbed their clothing with such force as to pull them off their barstools.  Likewise, it contradicted Brewster’s claim that he had a verbal exchange with them in which they allegedly said “something smart” before he attacked; instead, the tape showed that Brewster used the pillar to conceal his final movement toward them, ultimately blindsiding them with no verbal exchange before the first blow was struck.

Analysis

 

We find that Don Brewster committed battery on Edgar Esquivel and Mike Deszcz by striking each of them on the back of the neck and grabbing their shoulders, pulling them from their barstools.  We further find that Brewster did so with the purpose of retaliating against them because of the candidate they support for International office.

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 most recently in Pope, 2011 ESD 309 (August 5, 2011), violence can constitute retaliation under the Rules.  Here, Brewster’s actions toward Esquivel and Deszcz were intentional and forceful.  Moreover, we find that it was connected to the activity of Esquivel and Deszcz in supporting a particular candidate for IBT office.  Esquivel and Deszcz demonstrated that support in their run for delegate against the slate that included Brewster, and in coming to Las Vegas to work for their candidate’s nomination.  We find that what distinguished Esquivel and Deszcz from all other patrons in Sully’s bar that morning – and what ultimately motivated Brewster to attack them – was their protected political activity.

In reaching these conclusions, we do not credit Brewster’s claim that Esquivel and Deszcz laughed when they saw him across the room.  First, we find that Brewster’s version of events was colored substantially by an effort to minimize his own misconduct, and we do not credit his claim that his victims provoked him first by a laugh from across the room and then by saying “something smart.”  In any event, we find that a laugh across the room would not have provoked Brewster, whether intoxicated or not, to attack as he did if it were not for the fact that his political opponents were the ones laughing.  We find that Brewster expressly injected politics into his attack by denigrating Esquivel and Deszcz for their support of TDU, an independent committee that has endorsed Pope for IBT General President.

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.    Don Brewster shall cease and desist from any further retaliation, threat of retaliation, violence and threat of violence against any member of the IBT.

2.    Don Brewster shall pay a fine of $500[4] to the Office of the Election Supervisor within 5 working days of receipt of this decision.  Brewster shall pay the fine solely from personal funds.  When paying the fine, Brewster 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 he will refuse any such offer, transfer, or contribution.

3.    Local Union 952 shall post the notice attached to this decision on all union bulletin boards under its jurisdiction 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, the 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.