Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RICHARD GALVAN,                   )           Protest Decision 2016 ESD 170

                                                                        )           Issued: April 13, 2016

            Protestor.                                           )           OES Case No. P-185-022316-FW

____________________________________)

            Richard Galvan, member of Local Union 396 and candidate for delegate and for International office, 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 David Enriquez interfered with campaign activity of another member, in violation of the Rules.

            Election Supervisor representative Denise Ventura investigated this protest.

Findings of Fact and Analysis

            Local Union 396’s election plan provided for the election of twelve delegates and fourteen alternate delegates to the IBT convention.  The January 31, 2016 nominations meeting resulted in a contested election between two full slates and no unaffiliated candidates.  Protestor Galvan led the Galvan Local 396 Teamsters United slate; local union principal officer Ron Herrera led the Ron Herrera Local 396 slate. 

Kemein Bougere is employed at UPS Cerritos.  On February 17, he was on lunch break in a break room at the worksite.  Also present in the room were approximately twelve other employees.  Bougere distributed several copies of a campaign flyer supporting the Galvan slate and attacking the Herrera slate to those present and left several additional copies on a table for others to pick up.

David Enriquez is employed at UPS Cerritos and is a local union steward there.  Near the end of the lunch break, Enriquez entered the lunch room and, according to Bougere, picked up a flyer from the several that were on the table, looked at it, and asked who put them there.  Bougere replied that he did.  Enriquez then crumpled up the flyer in his hand and threw it away.  At this, Bougere said, “You can’t do that; I put it on the table for people to read.”  According to Bougere, Enriquez replied, “I read it, and now I’m throwing it away!”  Bougere claimed that Enriquez then “was in my face saying, ‘You pig!’”  Bougere said that Enriquez then walked toward the door, turned toward Bougere, and said, “Put your shoes on!”  Bougere had taken his shoes off while in the break room.  Bougere told our investigator that Enriquez implied with his statement about Bougere’s shoes that Bougere should go outside and fight Enriquez.  Bougere did not accept what he thought was a challenge to fight, and the incident ended there. 

A witness eating lunch in the break room told our investigator that Enriquez picked up one of the flyers, appeared to read it, wadded it up, and then threw it away.  This witness said that Enriquez was loud and confrontational to Bougere.  When the witness heard Bougere tell Enriquez that he was going to grieve Enriquez’s conduct, Enriquez responded with, “You’re going to what?!”  The witness told our investigator he believed Enriquez was very unprofessional.

Another witness told our investigator that Enriquez came into the break room, pointed to a flyer on the table and angrily demanded of Bougere, “Is this your flyer?”  As he crumpled the flyer up he shouted, “Why are you passing this stuff around?”  This witness then said that Enriquez called Bougere a “pig” and “ordered” him to put his boots on, a directive the witness construed as an offer to fight.  The witness said that Bougere did not take the bait.

A third witness was sitting at the table with Bougere when Enriquez entered.  According to this witness, Enriquez demanded to know if the witness had placed the flyers on the table.  The witness responded merely with a smile.  Enriquez picked up a flyer and wadded it up, at which Bougere said, “Leave it there; let the people read the flyer.”  Enriquez disregarded Bougere’s statement and threw the flyer away.  Bougere told Enriquez, “I’m going to write you up.”  Enriquez replied, “What did you say?  You look me in the eye when I talk to you!”  Enriquez then told Bougere to put his shoes on.  Bougere replied, “No.”  Enriquez called Bougere a pig and then left.

Enriquez told our investigator that he went into the break room to take his break and noticed some literature on a table, two tables and an aisle away from where Bougere was sitting.  Enriquez said he picked up one of the flyers, read it, and threw it away.  Bougere yelled that he should not do that and, according to Enriquez, “was getting really loud.”  Enriquez said Bougere had his shoes off and his feet propped on the table.  Enriquez said, “Put your shoes on; don’t be a pig.”  Enriquez denied initiating any kind of fight or trying to do so.  According to Enriquez, the flyer featured a photo of Ron Herrera and Rome Aloise and stated Ron Herrera’s “running mate” had been busted for corruption.[1]  According to Enriquez, “Those things are being passed around every single day.”  He “figured they had plenty to go around; it was my property to do with as I pleased,” so he threw it away.  He never grabbed anything out of anybody’s hand, nor did he pick up and dispose of all copies of the flyer that were on the table.

            A witness Enriquez identified to our investigator said he entered the break room after the incident started.  He said Enriquez “just walked in and picked up the flyer from the table.  I saw him read it; he threw it away.”  The witness said he did not hear what was said but denied that Enriquez got in Bougere’s face.  The witness heard Bougere say, “You can’t do this.”  However, the witness said Enriquez did not threaten Bougere or tell him to come outside.  The witness heard Enriquez comment on Bougere’s shoes because Bougere’s shoes were off.  Enriquez “told him to put them on, have some respect for everybody around here.”  The witness said “Bougere shouted pretty loud.  Enriquez did not shout at all; he talked to him all professional.”

            The Rules permit campaigning in non-work areas on non-work time.  Bougere’s distribution of materials in the break room during lunch break was protected by the Rules, as was the right of members to receive the campaign message.  Article VII, Section 12(a).  Bougere fully exercised his right to distribute literature during this incident, and all members who wished to receive the message exercised their right to do so.  Enriquez had the right to receive Bougere’s message as well, which he did.  Enriquez also had the right to reject the campaign message and to counter-campaign, which he also did, by stating that he read the flyer and was throwing it away.  The Rules protect such counter-campaigning. 

Article VII, Section 12(g) prohibits threats for activity protected by the Rules.  However, a threshold must be crossed before threats or violence will be found to violate the Rules.  Jorgensen, 2000 EAD 72 (December 26, 2000); Rodriguez, 2000 EAD 45 (November 3, 2000); Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior of union steward as member attempted to have other members sign petition not unlawful); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides in the context of petitions being signed).  To find an improper threat, activity must constitute a palpable threat of imminent harm.  Ramos, 2006 ESD 65 (February 3, 2006).  Construing the facts most favorably to the protestor (which we do here solely for purposes of analysis), Enriquez’s behavior was, at worst, loud, rude and obnoxious but not any threat of harm to Bougere.  Accordingly, we DENY the protest.  Galvan, 2011 ESD 130 (February 21, 2011). 

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 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

            2016 ESD 170 

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