Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: DON FAUTH, DAN RAISOR,      )           Protest Decision 2016 ESD 176

            and BRET REYNOLDS,                 )           Issued: April 20, 2016

                                                                        )           OES Case Nos. P-149-020616-MW  

            Protestors.                                          )                       & P-151-020616-MW

____________________________________)                                                                  

Don Fauth, member and delegate candidate in Local Union 89, filed a pre-election protest in Case No. P-149-020616-MW pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Dan Raisor and Bret Reynolds, members and alternate delegate candidates in Local Union 89, filed a pre-election protest in Case No. P-151-020616-MW.  Both protests alleged that one or more members or supporters of the Zuckerman-Bolton slate made impermissible threats of physical violence.[1]

Election Supervisor representative Joe Childers investigated these protests.  They were consolidated for decision here.

Findings of Fact

            Local Union 89 is entitled to elect eighteen delegates and eighteen alternate delegates to the IBT convention.  At its nominations meeting held January 6, 2016, two full slates and no unaffiliated candidates were nominated.  Ballots were mailed February 5 and were counted March 2.  All candidates on the Zuckerman-Bolton slate received more votes than any candidate on the Hourly Workers Unite to Lower Dues! slate.  On 3,273 ballots counted, the margin between the winning delegate candidate with the fewest votes and the losing delegate candidate with the most votes was 981; the corresponding margin in the alternate delegates race was 975.

            On February 4, 2016, members and supporters of the Hourly Workers Unite slate campaigned at the mid-afternoon shift change in and near employee parking lots at Jeffboat, a barge manufacturer in Louisville, Kentucky under the jurisdiction of Local Union 89.  David Dorton and Clark Pritchard, respectively, candidates for delegate and alternate delegate on the Hourly Workers Unite slate, were leafleting in a Jeffboat parking lot near Gate 7 and the Lighthouse Restaurant when they were approached by Wesley Koch, a steward at Jeffboat and candidate for alternate delegate on the Zuckerman-Bolton slate.  According to Dorton, Koch yelled at them that they were on his turf now and to get out of there.  Dorton said he replied to Koch that he was a dues paying member, that his father had fought in World War II, and that he had every right to be there.  Dorton said Koch replied: “Fuck you and your father.”  When Dorton refused to engage Koch in response to this taunt, Koch turned to protestor Fauth and Tommy Riddle, candidates for delegate on the Hourly Workers Unite slate, who were leafleting across the street in another Jeffboat parking lot.

            Fauth told our investigator he and Riddle were leafleting when a member of the Zuckerman-Bolton slate they did not know approached Fauth, questioned his support for the Hoffa-Hall 2016 slate and asked specifically how the Hourly Workers Unite slate was going to “lower the dues.”  While Fauth was answering this question, Koch approached from across the street, interrupted Fauth’s conversation and demanded to know what was going on.  Fauth turned toward Koch and stated that he was talking to someone, at which point Koch stated to Fauth, “Get the fuck out of my face,” and aggressively placed both hands on Fauth’s chest and pushed him.  Fauth stumbled back two steps and then recovered and approached Koch but did not touch him, at which point Koch shouted “I’ll put you on the concrete.”  Koch then turned to Riddle and stated, “And I’ll put you on the concrete too.” 

Riddle confirmed Fauth’s account of the episode, including that Koch shoved Fauth and threatened to put both Riddle and Fauth “on the concrete.”  In addition, Dorton told our investigator that when he heard voices raised across the street, he turned and witnessed Koch place his hands on Fauth and push him.  Pritchard told our investigator that Koch was very agitated that day and was “jumping around,” talking about how he was going to “kick someone’s ass” and yelling that Hourly Workers Unite slate members were “talking shit” about him on Facebook.  Pritchard stated that when Koch crossed the street to confront Fauth and Riddle, he heard Koch berate them and heard Koch use the “F-bomb.”  Although Pritchard heard Koch’s aggressive words, he said he was not in a position to see Koch shove Fauth.

Jeff Cooper and Jim Kincaid, respectively, delegate and alternate delegate candidates on the Zuckerman-Bolton slate, told our investigator that while they were in the vicinity but were busy talking to members and did not witness the incident involving Koch and Fauth.

            Koch told our investigator that he had an altercation with a member of the Hourly Workers Unite slate he could not identify.  He said he confronted members of the slate about how they intended to “lower the dues,” and maintained that they were intentionally deceiving members.  He also said he was upset because things had been said about him on Facebook.  Koch maintained that Dorton approached him and called him and his slate members “suckasses” and other derogatory names, but Koch did not remember whether he told Dorton “fuck you.”  Koch said that after the exchange with Dorton, he crossed the street to Fauth and Riddle.  He admitted that he told Fauth to “get the fuck out of my face,” but denied that he shoved Fauth.  He also denied that he made a comment about putting anyone on the concrete.  In an effort to establish his good character, Koch told our investigator that he had been a steward at Jeffboat for ten years and that he regularly coached Little League and volunteered at his local courthouse as an advocate for abused and neglected children.

            The protest filed by Raisor and Reynolds concerned an incident the same day at a different location, the Edgewood parking lot at UPS’s Louisville airport hub.  There, some five members each of the competing slates leafleted arriving and departing employees in the same general vicinity.  The protestors told our investigator that shortly after Stephen Piercey, campaigning with the Zuckerman-Bolton supporters, made a phone call, an additional ten to twelve supporters of Zuckerman-Bolton, including Koch, arrived and surrounded Raisor and Reynolds.  At least two of the Zuckerman-Bolton supporters vocally began to threaten to “whip their asses.”  The most aggressive was Koch, stating that he was going to “knock out” a member of the Hourly Workers Unite slate.  Another supporter of the Zuckerman-Bolton slate who worked at Holland Freight but whose name the protestors did not know, threatened to “beat your ass,” referring to Raisor, and whip anyone who came to Holland to campaign for the Hourly Workers Unite slate.  No punches were thrown and no physical violence occurred.  After several minutes, Reynolds and Raisor moved past the Zuckerman-Bolton supporters and resumed campaigning without further incident.

            Kincaid, the alternate delegate candidate on the Zuckerman-Bolton slate, told our investigator that he was present at the Edgewood parking lot.  He identified Rusty Villier, a delegate candidate on his slate, as a Holland Freight worker who was also present.  He denied to our investigator that he heard any threats and stated that Villier is a “quiet guy” who would not be expected to threaten anyone.  Zuckerman-Bolton delegate candidate Jeff Cooper could not provide any information to our investigator concerning alleged threats that evening.

            Koch admitted to our investigator that he spoke to the opposing slate members at the Edgewood parking lot.  He accused those slate members of trying to start a fight.  He admitted that he was upset with members of the Hourly Workers Unite slate because they had posted derogatory comments in response to Piercey’s flattering biography of him on Local 89’s Facebook page.  He stated that he has a “clean record” and denied that he threatened anyone at UPS on the night of February 4.

Analysis

            We deferred this pre-election protest for post-election consideration pursuant to Article XIII, Section 2(f)(2).  Generally, post-election protests shall be considered and remedied only if the alleged violation may have affected the outcome of the election, a claim not asserted here by any protestor.  However, “any timely protest alleging improper threats, coercion, intimidation, acts of violence or retaliation for exercising any right protected by these Rules shall be considered and remedied without regard to whether the alleged violation affected the outcome of an election.”  Id.

We find that Wesley Koch committed battery on Don Fauth by striking him in the chest forcefully and shoving him backwards.  Koch committed an intentional and forceful act, an aggressive action that was not inadvertent and benign.  Berg, 06 EAM 58 (July 26, 2006).  We further find that Koch made immediate threats of violence and did so with the purpose of retaliating against Fauth because of the candidacies of Fauth and the other members of the Hourly Workers Unite slate in opposition to those of the Zuckerman-Bolton slate candidates.

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.  Violence can constitute retaliation within the meaning of the rules. Teller, P1086 (December 27, 1991) (finding 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); Stefanski, P282 (January 22, 1996), aff’d, 96 EAM 94 (February 21, 1996) (finding a violation where a member grabbed another’s arms in a menacing manner and ordered him to leave the facility where he was campaigning); Smith, 91 EAM 51 (January 29, 1991) (finding a violation where a member was struck on the back of the head for expressing unpopular politic beliefs); Rogowski, P859 (August 13, 1996) (violation to pull the protestor’s shirt collar and push him from behind with his elbow in front of other members); Pope, 2011 ESD 309 (August 5, 2011) (knocked to ground); Deszcz & Esquivel, 2011 ESD 310 (August 12, 2011) (battery).

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.

The threat of violence can also constitute retaliation.  Smith, P600 (April 30, 1996) (finding remark “You’ll be taken out of here in a body bag” to violate rules); Lopez, P456 (April 10, 1996) (finding “I’ll kill you” to violate rules); Passo, P469 (February 29, 1996), aff’d, 96 EAM 124 (March 13, 1996) (finding intent to provoke physical confrontation to violate rules); Kelly, P600 (March 27, 1991) (finding threat to “kick their ass” made in menacing manner to violate rules).  To find an improper threat, activity must constitute a palpable threat of imminent harm. Ramos, 2006 ESD 65 (February 3, 2006); Torres, 2011 ESD 236 (April 27, 2011) (no impermissible threat where no touching or menacing behavior); Galvan, 2011 ESD 238 (April 27, 2011) (same); Gutierrez, 2011 ESD 239 (April 27, 2011) (same).

These cases together illustrate the instruction of Election Appeals Master Conboy that violence, to constitute prohibited retaliation under the Rules, must be an “intentional and forceful act and not an inadvertent and benign contact occurring in a scuffle.”  Berg, 06 EAM 58 (July 26, 2006).  Under this standard, conduct need not make out all the elements of a criminal offense, or rise to the level that would lead a law enforcement agency or prosecutor to investigate or prosecute an alleged 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.  Nor is there any requirement that the intentional and forceful act 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 excusable under the Rules so long as injury is avoided.  Such a rule would be irreconcilable 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.  

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.  Whether conduct amounts to retaliation under the standard stated in Berg standard requires consideration of the specific facts and circumstances established in the protest investigation.  In the case of either violence or the threat thereof there must be evidence which either expressly or inferentially connects the conduct which is alleged to be improper to an activity protected by the rules.  Rogowski, supra.

Applying the precedents to the specific facts of these protested incidents, we find that Koch’s angry and physical engagement with Fauth and then Riddle in direct response to campaign activity by those two provides the nexus necessary to establish prohibited retaliation under the Rules.  Specifically, Fauth and Riddle were campaigning, responding to a member’s question about their political positions, which constituted protected speech under the Rules even though it angered Koch.  By campaigning, Fauth did not consent, implicitly or otherwise, to being physically assaulted for his views, and neither Fauth nor Riddle consented to being verbally threatened.  Koch’s two-handed shove was not accidental:  Koch conceded that political statements made by Hourly Workers Unite slate members and supporters angered him.  We find he took the opportunity to make hard contact with Fauth when the opportunity to do so was presented.  The facts of this case more than adequately establish the retaliation nexus. 

            In sum, Koch violated the Rules with his violent action against Fauth.  He further violated the Rules by stating in the immediate aftermath of his violent act that he would commit further violence against Fauth and violence against Riddle.  In the context of the actual violence just committed, the statements to Fauth and Riddle constitute “palpable threat of imminent harm.”

            In contrast, we find no Rules violation at the Edgewood parking lot.  Although two persons, Koch and reputedly Villiers, uttered words that could be perceived as threatening, we find they equally were perceived as mere verbal and juvenile sparring and puffing that was not intended to lead to and did not result in violence.  The proof of this point is that the incident resolved without violence and with resumption of campaigning.

For these reasons, we GRANT the protest with respect to Koch’s violence and threat of violence at Jeffboat and deny the remaining allegation against Koch.

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 DISQUALIFY Wesley Koch from serving as alternate delegate or delegate from Local Union 89 to the IBT convention.  We further order that Koch is barred from all premises used by the IBT, committees, and officers of the IBT for convention and convention-related activities, including the entirety of Bally’s and Paris Las Vegas, the convention space, casinos, restaurants, hotel guest rooms, and other space, for the period June 20 through and including July 3, 2016.  Should Koch violate this order barring his presence in the specified locations, we will hold the elected delegates and alternate delegates of Local Union 89 responsible for any additional remedy.

            We further order Local Union 89 to post the notice attached to this decision on all worksite bulletin boards under the local union’s jurisdiction and maintain that posting through July 1, 2016, the last day scheduled for IBT convention proceedings.  Local Union 89 shall complete this posting no later than April 25, 2016 and shall submit an affidavit of compliance to OES no later than April 27, 2016.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) 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 176

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 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st 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

Don Fauth

cfauth@twc.com

Dan Raisor

raisord@bellsouth.net

Bret Reynolds

bretarian69@yahoo.com

Anthony Blair

799 Equinox Blvd

Mt. Washington, KY 40047

absb@twc.com

Teamsters Local Union 89

3813 Taylor Blvd.

Louisville, KY 40215

Teamsters89@aol.com

Joe Childers

201 W. Short St, Ste 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 212

Ann Arbor, MI 48104

EllisonEsq@aol.com