OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: FRED ZUCKERMAN, ) Protest Decision 2015 ESD 36
) Issued: October 13, 2015
Protestor. ) OES Case No. P-048-091315-MW
____________________________________)
Fred Zuckerman, member and principal officer of Local Union 89 and candidate for International office on the Teamsters United slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Mike Philbeck, principal officer of Local Union 651, improperly interfered with his right to campaign in Local Union 651’s parking lot before, during and after a union meeting.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
On Saturday, September 12, 2015, Local Union 651 in Lexington, Kentucky held its nominations meeting for its local union officers election. Protestor Zuckerman traveled from Louisville to Local Union 651 early that morning, using the occasion to campaign for International office in the local union parking lot. Soon after Zuckerman arrived at about 8:30 a.m., he began campaigning for International office among local union members who were arriving for the 10 a.m. nominations meeting.
In the local union officers election, the incumbent slate of officers, True Blue Teamsters, are opposed by the Team Teamsters slate. Candidates from both slates observed Zuckerman campaigning in the local union parking lot when they arrived for the nominations meeting. Thus, Brad Simpson said he arrived at the union hall between 9:30 and 9:40 a.m. that morning and saw Zuckerman in the parking lot campaigning. Simpson said he went inside the building after speaking briefly with Zuckerman about the Teamsters United slate for International office.
Gary Blake, another candidate on Team Teamsters, told our investigator he arrived at the union hall for the nominations meeting around 9:40 a.m. and saw Zuckerman in the parking lot and spoke to him. Blake confirmed that Zuckerman was promoting his candidacy for International office. Blake said he asked Zuckerman what the Teamsters United slate intended to do differently than the incumbent IBT administration, and Zuckerman discussed the issues with him and several local union members clustered around him in the parking lot.
Mike Philbeck, a candidate to retain his position as local union president on the True Blue Teamsters slate, told our investigator he arrived at the hall between 9:00 and 9:30 a.m. that morning and saw Zuckerman in the parking lot. He did not speak with Zuckerman.
Mike Watson, a candidate for reelection as local union secretary-treasurer on the True Blue Teamsters slate with Philbeck, saw Zuckerman in the parking lot when he arrived that morning.
After Simpson and Blake spoke with Zuckerman and then entered the union hall shortly before 10 a.m., Zuckerman continued speaking with rank and file members arriving for the meeting, telling them he was a candidate for International office and discussing the issues of that election. Zuckerman did not distribute campaign literature in the parking lot, nor did he attempt to enter the building. Rick Cofer, a Local Union 651 retiree, arrived at the union hall about 9:50 a.m. and saw Zuckerman in the parking lot. Cofer said Zuckerman told him he was campaigning for International office. Cofer introduced Zuckerman to several Local Union 651 members. Zuckerman explained to the members the objectives of the Teamsters United slate.
After listening to Zuckerman for a few minutes, Cofer tried to enter the union hall to attend the nominations meeting, but Philbeck told him he could not come in because he was not an active member. Candidate Simpson, inside the union hall, observed that Philbeck was upset Zuckerman was in the parking lot. Simpson said Philbeck told him to go tell Zuckerman he had to leave the premises. Simpson complained aloud that Philbeck should deliver the message himself but then went back out to the parking lot and conveyed the message to Zuckerman. Blake confirmed this interaction. He said he entered the hall at about 9:58 a.m. and immediately encountered what he termed a hostile and aggressive Philbeck, who told him and Simpson to go tell Zuckerman to leave the premises. Blake said Simpson went out to convey that message to Zuckerman and then returned and told Philbeck that Zuckerman said he had the right to be there to campaign for International office. To this, Philbeck stated that Zuckerman can “kiss my ass.”
Cofer returned to the parking lot, where he heard Simpson tell Zuckerman that Philbeck said he had to leave the premises. Zuckerman told Simpson to tell Philbeck he had right to be there. Cofer confirmed that Simpson then came out and stated that Philbeck said Zuckerman could “kiss his ass.”
Philbeck said he expected the nominations meeting to be “emotional.” He said he told Cofer he had to leave the building because he was not a member; Cofer complied. Philbeck then said he told Simpson, a candidate on the opposing slate, to tell Zuckerman that he was “not to be in this meeting.” In the presence of Blake, Philbeck specifically said he told Simpson to tell Zuckerman that he was not allowed in the building. Philbeck told our investigator he thought Zuckerman would attempt to enter. Philbeck then called the police because of what he said were past threats of physical violence by Zuckerman. At 10:01 a.m., he told the person chairing the meeting to call it to order.
The nominations meeting was brief and about the time it concluded, a police officer with the Lexington-Fayette Urban County Government arrived in his marked police car. According to Zuckerman, the officer entered the building and shortly reemerged and approached him. The officer told Zuckerman he had to leave the premises. Zuckerman told the officer he had the right to be on the union premises under the Rules and attempted to show him the rule on his i-pad that expressly permits campaigning in union parking lots before and after union meetings. Zuckerman said the police officer told him that Philbeck said Zuckerman had threatened him and the executive board of Local Union 651. Zuckerman replied that the allegation was false. No one claimed that Zuckerman made any threat on September 12, 2015, and Zuckerman denied doing so.
Blake said the nominations meeting did not last long and as it was ending he saw a police officer enter the building and speak to Philbeck. Blake did not overhear the conversation. Blake walked outside and observed the police officer come outside and tell Zuckerman that Philbeck claimed that Zuckerman had made threats. Blake heard Zuckerman tell the officer that he did not threaten Philbeck and that he had “a court order” permitting him to be on the premises. Blake said the police officer was courteous the entire time.
Simpson observed the police officer leaving the building, approach Zuckerman and tell him to leave the premises. He observed Zuckerman whip out is I-Pad and tell the officer he had the right to be there. He said the police officer then went back in the building, came out and left. Simpson denied that there were any heated exchanges in the parking lot.
Philbeck did not recall precisely what he told the police officer who responded to his call. However, Philbeck told our investigator, “I don’t think I told the police officer that Zuckerman was not allowed on the premises,” meaning the real estate that included the parking lot; instead, he believed he told the officer that Zuckerman merely was not permitted in the building. Philbeck agreed that Zuckerman made no threats on the day in question. He stated that a previous threat caused him to call the police September 12.
The incident Philbeck referred to allegedly occurred some three months earlier, on June 24, 2015, when Zuckerman is said to have instructed business agent Matt Montgomery that he should “tell Mike Philbeck if he keeps telling lies on me I will rip his fucking head off.” Philbeck said he was not going to have a confrontation with Zuckerman inside the local union hall, and he called the police to prevent any such altercation.
Watson, Philbeck’s ally on the True Blue Teamsters slate, told our investigator he did not hear the conversation between Philbeck and the police officer. However, he said he clearly heard Philbeck tell Simpson to tell Zuckerman that he was not coming into the building. Watson stated he did not hear Philbeck tell Simpson that Zuckerman was not allowed on the premises.
Police Officer James Smith told our investigator he was dispatched to the union hall on September 12; however, he did not file a report because the issue was resolved while he was there. When Officer Smith arrived, Philbeck told him that Zuckerman had threatened him in the past and that he wanted him “off the property.” Smith then spoke with Zuckerman and told him Philbeck wanted him off the property. The officer said Zuckerman told him he had the right to be there, and he pulled up some rules on his i-pad. Smith was about to call his supervisor to see if he could access the Rules, but when he walked back in to speak with Philbeck, he was told things were okay, the meeting was over, and he did not need Zuckerman to leave the premises now. Smith said he then left.
Zuckerman stated that the distraction with the police officer cost him about 15 minutes he could have spent talking to members about his candidacy for International office. Cofer confirmed that the police officer kept Zuckerman detained for some time talking to him and certainly prevented him from talking to rank and file members as they left the nominations meeting. Cofer said he overheard the police officer tell Zuckerman that he had been alleged to have threatened officers of the local. Cofer said since he was not allowed in the meeting, he spent his entire time in the parking lot with Zuckerman. He never heard any conversations between Zuckerman and Philbeck or any other office staff, and never heard any threats being made.
Our investigator was provided several photographs of the police officer speaking with Zuckerman in the parking lot. In addition, we reviewed facebook postings by Philbeck claiming he called the police because of threats made against him and the executive board. One facebook posting Philbeck made on September 12 stated, “After Fred Zuckerman made physical threats to our agents and staff we had no other choice but to call Fayette County Police Dept.” This and another posting were not made on an official Teamsters Local 651 facebook page, but rather on two personal pages established by Philbeck entitled “True Blue Teamsters” and “Teamsters Local.”
Analysis
Article VII, Section 12(a) grants all union members “the right to participate in campaign activities, including … the right to distribute campaign literature (and otherwise to solicit support for a member’s candidacy) outside a meeting hall before, during and after a Union meeting, regardless of Union policy, rule or practice.”
Zuckerman exercised this right in the parking lot of Local Union 651 before, during, and after the nominations meeting for local union officers election held September 12. All evidence on the point shows that Zuckerman was campaigning for himself for International office, conduct protected by the Rules. Philbeck impermissibly interfered with Zuckerman’s right by summoning law enforcement for the purpose of removing him from union property.
We reject each of Philbeck’s defenses to the protest. First, we credit witness statements that Philbeck asked that Zuckerman be removed from the property (including the parking lot). We do not credit Philbeck’s claim that he merely sought to prevent Zuckerman’s entry to the building. Thus, Officer Smith told our investigator that Philbeck told him to remove Zuckerman from the property, and the officer went out to the parking lot from the building to persuade Zuckerman to leave the the local union’s property. Although Philbeck and Watson claim that Philbeck merely directed Simpson to tell Zuckerman not to enter the building, Zuckerman never made any attempt to do so or give any indication he was considering it. Under these circumstances, we find it implausible that Philbeck would direct Simpson to tell Zuckerman merely to stay out of the building, especially where Philbeck did not tell Cofer he could not enter until Cofer attempted to do so. Instead, we credit Simpson and Blake, who both said that Philbeck directed Simpson to tell Zuckerman to leave the property. We further conclude that Zuckerman’s refusal to forfeit his campaign right to remain in the parking lot prompted Philbeck’s call to the police.
We also reject Philbeck’s second defense, that his action interfering with Zuckerman’s campaign rights was justified by a threat Zuckerman allegedly issued. We make no determination here whether the utterance attributed to Zuckerman was made. Even if it were, however, it could not constitute a threat under the Rules because it did not constitute an palpable threat of imminent harm. Galvan, 2011 ESD 238 (April 27, 2011). The utterance is said to have been made June 24 and the union meeting occurred September 12; this delay defeats any argument that the threat, if made, was imminent. Further, the terms of the alleged threat stated that it would be carried out only if Philbeck “keeps telling lies on me.” In this sense, the alleged threat contained a contingency fully within Philbeck’s control. Echeveria, 2006 ESD 66 (February 3, 2006) (steward’s threat to attack opponent did not violate Rules, where statement included contingency that did not occur.)
For these reasons, we find no justification for Philbeck’s interference with Zuckerman’s campaign rights, and 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. “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.” Hailstone & Martinez, 10 EAM 7 (September 14, 2010).
We direct Philbeck and Local Union 651 to cease and desist from interfering with members’ campaign rights generally and their parking lot access rights in particular.
Within three (3) days of receipt of this decision, we direct Local Union 651 to post the notice attached to this decision titled “Notice to Members of Local Union 651” on all union worksite bulletin boards under the local union’s jurisdiction. We impose this remedy to inform members of their rights under the Rules and of the violations committed by Philbeck. Within three (3) days of completing the posting, Local Union 651 shall submit a declaration of posting to our office.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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, 34th 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 17th Street, N.W., Suite 375, 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 36
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Teamsters Local Union 651
100 Blue Sky Parkway
Lexington, KY 40509
mphilbeck@teamsters651.org
Robert Baptiste
Baptiste & Wilder, P.C.
1150 Connecticut Ave., NW, Suite 315
Washington, DC 20036
rbaptiste@bapwild.com
Joe Childers
201 W. Short Street, #300
Lexington, KY 40507
childerslaw81@gmail.com
Bill Broberg
1108 Fincastle Road
Lexington, KY 40502
wbroberg@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
for the International Brotherhood of Teamsters
1050 17th Street, N.W., Suite 375
Washington, D.C. 20036
202-429-8683
844-428-8683 Toll Free
202-774-5526 Facsimile
ElectionSupervisor@ibtvote.org
www.ibtvote.org
October 13, 2015
Richard W. Mark
Election Supervisor
NOTICE TO MEMBERS OF TEAMSTERS LOCAL UNION 651
The Election Supervisor has found that Local Union President Mike Philbeck violated the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”) by interfering with the campaign rights of Fred Zuckerman.
On September 12, 2015, the date of the local union’s nominations meeting for its local union officers election, Philbeck violated the Rules by calling the police to have Zuckerman removed from the union hall parking lot where he was campaigning for International office. All IBT members have the right to campaign in the union hall parking lot before, during, and after union meetings.
The Election Supervisor will not permit any such violations of the Rules. The Election Supervisor has ordered Philbeck and Local Union 651 to stop interfering with members’ campaign rights generally, and with the right to campaign in the local union parking lot in particular.
The Election Supervisor has issued this decision in Zuckerman, 2015 ESD 36 (October 13, 2015). You may read this decision at https://www.ibtvote.org/Protest-Decisions/esd2015/2015esd036.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1050 17th Street, N.W., Suite 375, Washington, D.C. 20036, telephone: 844-428-8683, fax: 202-774-5526, email: electionsupervisor@ibtvote.org.
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted on this bulletin board through November 30, 2015 and must not be defaced or covered up.