Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                      )           Protest Decision 2015 ESD 7

                                                                        )           Issued: July 15, 2015

            Protestor.                                           )           OES Case No. P-004-060115-FW     

____________________________________)          

            Fred Zuckerman, member of Local Union 89 and candidate for International office, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Marty Frates and Robert Korgan engaged in intimidating, threatening, and coercive behavior outside a campaign event at which Zuckerman and others were speaking.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact

            Fred Zuckerman announced his candidacy for International office in August 2014.  On Sunday, January 25, 2015, Zuckerman and Tim Sylvester[1] appeared at a rally at a local VFW hall in City of Industry, a Los Angeles suburb, at the invitation of Richard Galvan[2], a member of Local Union 396.  The event was headlined as “Take Back Our Union” and was advertised on social media and by flyer and word of mouth.

            Marty Frates is secretary-treasurer and principal officer of Local Union 70 in Oakland, California.  When he learned of the event, he told our investigator that he called Galvan, the event’s organizer, to ask whether he would be permitted to attend.  He said Galvan called back a few hours later to say that he would not be welcome because he did not support Zuckerman and Sylvester.  Frates said he told Galvan he was going to come anyway. 

            Frates had a UPS grievance meeting in San Diego beginning Monday, January 26.  He flew to San Diego Saturday morning, January 24, rented a car at the airport there, spent the night at a hotel in greater Anaheim, and arrived at the City of Industry event at about 9:30 a.m. on Sunday, January 25.  Frates submitted copies of paid receipts and a personal check demonstrating that he paid the costs of the hotel and incremental car rental, gas, and airport parking expenses from personal funds.  The balance of his travel expenses were associated with the UPS meeting and were absorbed by Local Union 70.

            When he arrived at the VFW hall, Frates sought entry to the event.  Just as Galvan had said previously, Frates was told at the front desk that he would not be allowed entry, so he stood outside and passed out two flyers to any person attending the meeting who would take them.  He introduced himself, said he was not a Hoffa supporter, but added that people needed to be told the truth about Zuckerman and Sylvester.  He said he told people he was there to “talk and meet folks” so that they knew there was another viewpoint.  One flyer, titled “Take Care of Your Own Local Union First!,” criticized Sylvester and Zuckerman for their respective administrations of Local Unions 804 and 89, where they are principal officers.  The other flyer focused on pension issues.  Frates said he remained at the VFW hall until shortly after the 10 a.m. start of the meeting, when everyone was inside.  He estimated that he distributed his flyers to between 75 and 100 attendees.  He first passed out his flyers from a spot immediately outside the front door of the hall.  When someone from the front desk asked him to move off the hall’s property, Frates said he moved to the public sidewalk in front of the hall and continued his distribution. 

            Frates said he did not take photos or otherwise gather names of attendees, and there is no contrary evidence. 

            Also present at the event was Randy Korgan.  Korgan is employed as business agent and organizing director for Local Union 63, the main office of which is about 10 miles from the VFW hall.  Korgan and his girlfriend, a Joint Council 42 employee, sought entry and were denied by Lupe Hernandez.  When Korgan asked why, Hernandez replied, “You know why.”  This reply angered Korgan, and he started to argue, saying “I have no political agenda.” He told our investigator, “I genuinely wanted to hear why they’re running,” referring to Sylvester and Zuckerman.  Hernandez did not buy Korgan’s pitch, but he deferred to Frank Halstead, another of the event’s organizers, to handle Korgan.  Halstead repeated to Korgan that he would not be allowed inside, and Korgan continued his argument with “if you see that I become disruptive, then you can throw me out.”  When this offer did not persuade, Korgan said he decided to remain just outside the entrance and be vocal.  Korgan said he spoke with several people walking into the event, telling them he had not been allowed in and asking them if they thought that was fair.  He said he remained at the event for “two or three hours,” repeating his displeasure at not being allowed in and exhorting anyone who would listen that the event organizers were treating him unfairly.

            Like Frates, Korgan said he did not take photos or otherwise gather names of attendees, and there is no contrary evidence.

            Frates and Korgan both said they did not arrive together or know in advance that the other would be present.

            Several witnesses told our investigator that Frates and Korgan were a disconcerting presence at the event.  Witnesses agreed that Frates accepted the decision barring him from entering the hall even though he appeared unhappy with it. 

Korgan, on the other hand, made his displeasure with the decision barring him from the hall the focus of his statements to others outside the hall, which he continued for considerable time.  Frank Halstead, the chair of the event, told our investigator he did double-duty as chief of security.  He said going into the event he knew that Frates would be coming, but Korgan’s appearance was not expected.  When Frates arrived, Halstead refused him entry and the resulting exchange between them was cordial.  When Halstead saw that Frates was leafleting immediately outside the entrance to the hall, Halstead asked him to move to the public sidewalk and Frates complied promptly.

In contrast, Korgan was loud and belligerant nearly from the start.  Halstead said that before he saw Korgan, he saw Paul Kenny pull up and exit his car.  Halstead said that Kenny is a former officer of Local Union 630 now suspended for embezzlement.  Halstead approached Kenny and told him that he was a former Teamster and was not welcome at the event.  According to Halstead, Kenny became vocal and disagreeable but began walking back to his car.  At this point, Korgan appeared, saw Kenny, and began shouting expletives at him, railing about his conduct and demanding to know why he was there.  Kenny replied with heated words of his own, directed at Korgan.  When Kenny left, Korgan then turned to Halstead, demanding to be allowed into the event.  According to Halstead, he told Korgan no, explaining that Korgan was a strong Hoffa supporter and wanted to enter the event only to disrupt it.  Halstead said he had to stand in the doorway and block Korgan from charging in.  Halstead observed that Korgan wanted to make a scene, and he did so.  In Halstead’s view, Korgan’s behavior intimidated and unsettled other members entering the event.  Halstead said he called over Lupe Hernandez and told him to make sure that Korgan was kept outside, and a heated exchange then occurred between Korgan and Hernandez.  At that point, a VFW staffer approached Korgan, told Korgan that the hall was the staffer’s responsibility, and that he would keep out anyone he saw fit to keep out, Korgan included.  Halstead said that after this exchange Korgan continued his behavior, which Halstead described as belligerently walking back and forth in front of the front door, trying to push his argument to create a scene. 

Lupe Hernandez told our investigator that he worked the front desk of the hall on January 25, assigned to be on the lookout for known supporters of Hoffa and Herrera in order to keep them from entering and disrupting the event.  He said Korgan was excluded on that basis, but nonetheless argued at length to be allowed in, claiming that he had turned over a new leaf and was a “new guy.”  Hernandez said Korgan continued his argument outside the front door, “thumping his chest” and “making a scene,” at various times gathering members around him and “grandstanding” to them about his political views.

Frank Villa corroborated that after Korgan was told he could not enter the event, he remained a consistent and disconcerting presence immediately outside the entrance.  When Korgan was asked to move to the public sidewalk, he complied while continuing his bluster.

Dan Kane told our investigator he heard Korgan tell people entering the hall, “I can’t believe you’re going into this meeting,” while complaining that he was not being allowed in.

Rene Lopez told our investigator he heard Korgan tell people entering the hall that they “shouldn’t listen to what was going on inside” and “shouldn’t go in.”  Lopez agreed that Korgan was not blocking the entrance to the hall while carrying on his activities.

Jose Moreno said that Korgan was loud and argumentative with the front desk staff and remained at the event location for hours carrying on.

Inside the hall, all witnesses who were interviewed stated that the event commenced and concluded without disruption, that the speakers were able to make their presentations and be heard by the audience, and that the event was by the assessments of the witnesses successful.  

Analysis

This protest was timely filed as a “reachback” protest under Article XIII, Section 2(a) of the Rules, which permits protests “regarding violations of the LMRDA (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of these Rules” to be filed “within the first thirty (30) days of the date of issuance.”[3]  This protest raises issues under the free speech provisions of the LMRDA.

We turn first to the decision of Galvan and the other organizers of the Take Back Our Union to exclude Frates and Korgan from the event.  Evidence showed they did so out of concern that, if admitted, either would attempt to disrupt the meeting.  Precedent establishes that Galvan et al were well within their rights to bar from the meeting individuals they viewed as supporters of their opposition.  Thus, Election Officer Holland in Konowe, P-008-LU632-NYC (October 29, 1990), aff’d, 90 Elec.App. 8 (November 7, 1990), held that individuals required to leave a TDU meeting had no claim to a Rules violation:.

It is not a violation of the Election Rules for a campaign organization or member caucus to limit attendance or participation in their meetings to individuals who share their beliefs or objectives.  The fact that the leaflet advertising the TDU meeting in question stated that the meeting was open to all Local 732 members, and that the Konowe protestors were members of Local 732, does not restrict the right of TDU to ask the Konowe protestors and other Local 732 officials to leave.

That holding has been followed in all ensuing supervised International Officer Elections.  In 1996, the Election Officer concluded that “members gathered for [a] TDU meeting had a right under the Rules to limit their meeting to individuals who shared their electoral beliefs or objectives.  ‘If a member or candidate does not wish to associate with another member or candidate…, various sections of the Rules protect that wish.’  Baudo, P-680-LU344-SCE (April 3, 1996), aff’d, 96 Elec.App. 165 (KC)(April 12, 1996).  Freedom of association is a fundamental political right included in Article VIII, Section 11(a)’s basic guarantee: ‘All union members retain the right to participate in campaign activities…’[4]  Thus, with respect to the International officer election, members have the right to associate with like-minded members and to exclude others if they choose.”  Rudolph, P-861-TDU-PNW (August 29, 1996),  See also Richards, 2000 EAD 27 (September 27, 2000), aff’d, 00 EAM 8 (October 23, 2000).

            Based on this authority, exclusion of Frates and Korgan from the Take Back Our Union event was supported by the Rules and by extension the LMRDA, because the event sponsors had the right to limit attendance to their event under the Rules for reasons relating to shared political beliefs and avoiding disruptions in the meeting.

            Outside the event, however, Frates and Korgan each had the right to engage in campaign activity.  Thus, Frates had the free speech right to leaflet in opposition to Zuckerman and Sylvester and to speak with members entering the event.  Similarly, Korgan had the free speech right to complain to arriving members about his exclusion from the event and to do so in a loud and even obnoxious manner.  Neither Frates nor Korgan obstructed the entrance to the hall or physically interfered with the right of members to enter.

            The rental of the VFW hall included its grounds, and the event organizers therefore had authority to exclude Frates and Korgan from the property as well as the building.  They could not, of course, require that the men leave the public sidewalk in front of the building, and once they were directed to leave the area on the property adjacent to the front door so as not to obstruct entry, Frates and Korgan remained free to have campaign contact with members on the public sidewalk.

            The protest alleged threatening, harassing, intimidating, and coercive behavior – and in particular, surveillance – of members by Frates and Korgan.  The evidence disproves the allegations.  First, no evidence whatsoever of surveillance was presented.  Second, Frates’s conduct cannot be fairly described as anything more than leafleting, which is conduct protected, not prohibited, by the LMRDA and the Rules.

            We find Korgan’s behavior to be loud and, at times, rude, aggressive, and obnoxious.  Nonetheless, we find it too is protected by the LMRDA and the Rules.  Intimidation constitutes retaliation, which is prohibited by the Rules.  To reach a finding of intimidation, evidence must show that a member engaged in physically or verbally aggressive behavior that threatens actual harm.  Hoffa-Hall 2011, 2011 ESD 323 (September 11, 2011), aff’d 11 EAM 57 (September 16, 2011) (verbal confrontation and touching person’s arm not intimidation); Pope, 2011 ESD 309 (August 5, 2011) (verbal confrontation followed by intentional striking and knockdown violated Rules); Passo, P-469-LU705-CHI (February 29, 1996) (finding intent to provoke physical confrontation to violate Rules), aff’d in relevant part, 96 Elec.App. 124 (KC) (March 13, 1996); Lopez, P-456-LU743-CHI (April 10, 1996) (finding “I’ll kill you” to violate Rules in light of ongoing animosity between the parties); Smith, P-600-LU150-CSF (April 30, 1996) (finding remark “you’ll be taken out of here in a body bag” to violate Rules); Kelly, P-600-LU705-CHI (March 27, 1991) (finding aggressive threat to “kick their ass” made in a menacing manner to be harassment in violation of the Rules).  Korgan’s behavior did not approach prohibited intimidation under the Rules or the LMRDA.

            For these reasons, 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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 350, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2015 ESD 7

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