Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN and                        )           Protest Decision 2016 ESD 340

            HOFFA-HALL 2016,                       )           Issued: December 15, 2016

                                                                        )           OES Case Nos. P-330-072316-FW   

            Protestors.                                          )                       & P-333-072616-FW

____________________________________)                      

Fred Zuckerman, candidate for IBT General President 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 Alex Moran, a supporter of Hoffa-Hall 2016, struck Richard Galvan while the latter was leafleting on behalf of Teamsters United. 

Hoffa-Hall 2016 filed a pre-election protest, alleging that Galvan provoked the incident and made aggressive physical contact with Moran. 

Each protest alleged that the respective respondent violated the Rules.

            Election Supervisor representative Michael Miller investigated these protests.  They were consolidated for decision.

Findings of Fact and Analysis

Richard Galvan is a long-time member of Local Union 396 and an employee of UPS.  During the current election cycle, he ran for and lost an election for delegate to the IBT convention on a slate that supported Teamsters United.  In addition, he was nominated for IBT vice president for the West region at the IBT convention on the Teamsters United slate but did not achieve the 5% secret ballot vote threshold among West region convention delegates to be nominated to the rank-and-file ballot.  The winning slate in the Local Union 396 delegates and alternate delegates election was headed by the local union’s principal officer, Ron Herrera, who also was nominated for IBT vice president for the West region on the Hoffa-Hall 2016 slate.  Herrera and the other West region vice president candidates on the Hoffa-Hall 2016 slate achieved the 5% convention delegate vote threshold and were nominated to the rank-and-file ballot.  Because the Teamsters United slate did not successfully nominate any vice president candidates for the West region to the ballot, Herrera and the other Hoffa-Hall 2016 slate candidates for the West region were declared elected at the conclusion of the convention.

Alex Moran is also a long-time member of Local Union 396 and an employee of UPS at its hub in Cerritos, CA.  During the current election cycle, he ran for and won a position as alternate delegate to the IBT convention on the slate headed by Ron Herrera.  Moran and Galvan have known each other for many years.

On Friday, July 22, 2016, three weeks after the convention concluded, Galvan, Zuckerman, and some fifteen additional supporters of Teamsters United appeared in the employee parking lot at the UPS Cerritos hub to canvass arriving and departing UPS employees in support of the candidates on the Teamsters United slate.  Other persons campaigning with Zuckerman and Galvan were members variously of Local Unions 396, 572, 952, and 63, all of which are situated in southern California.  The campaigners arrived at approximately 5 p.m. and planned to remain until 8 or 9 p.m. in order to campaign among arriving twilight shift employees and departing day shifters.

Alex Moran clocked off duty at the Cerritos hub and exited the employee door adjacent to the employee parking lot per his usual routine at about 6 p.m. that day.  He told our representative he was surprised to see nearly twenty campaigners fanned out in the parking lot to solicit support for General President candidate Zuckerman among employees who were arriving and departing the job.  Moran said he did not know several of the campaigners, including the first who approached him.  Moran said he spoke with the campaigner, whom he subsequently learned was Local Union 952 member Edgar Esquivel, for several minutes, having what Moran characterized as a good exchange of political views.  After about five minutes, Moran said he heard Richard Galvan, who during this time was speaking to someone else several feet away, say and then repeat to Esquivel, “Don’t waste your time,” suggesting that Moran was a staunch Hoffa-Hall 2016 supporter who would not be dissuaded from that loyalty.  After several of these statements from Galvan, which Moran characterized to our representative as “taunts,” Moran said Esquivel then called Herrera a foul name, and Moran responded in kind, uttering expletives at Esquivel “for bad mouthing my boss,” Herrera.  At that point, Moran said Galvan approached him quickly and deliberately, pushing himself into Moran.  Moran reacted instinctively by raising his right forearm to protect himself from what he expected would be a forceful collision from Galvan.  Moran said that as soon as Galvan pushed himself into Moran, Galvan said to Moran, “Don’t push me!” so as to claim that Moran was the aggressor and had run into Galvan rather than the other way around.  Moran said that Galvan, suddenly feigning indignance at Moran’s claimed contact with him, then threw down his sunglasses and tried to lunge back at Moran to engage him in a fight.  As Galvan did so, Moran said some four bystanders, Zuckerman included, stepped in to hold Galvan back from attacking Moran.  At that point, Moran said he quickly walked away, got in his car, and drove off.  Moran insisted to our representative that Galvan’s taunts started the whole incident and set Moran off so that the two started trading expletives.  Moran said that Galvan lunged at him in attack mode, offensively pushing himself against Moran, and then claimed that Moran had pushed him.  Moran said that when he drove off, he saw that Zuckerman, Galvan, and the other Teamsters United supporters still handbilling and talking to members who were coming and going from the hub.   Moran stated that no police were called, and no incident report was requested or filed.  In summary, Moran denied assaulting or shoving Galvan, denied using clenched fists, and denied in any way offensively engaging in physical contact with Galvan during the July 22 incident.  Moran further asserted that Galvan’s aggressive and unprovoked conduct suggested to him that the confrontation was “staged” to make. 

Galvan’s version of events differed markedly from Moran’s.  Galvan told our representative that he and the other campaigners arrived about 5:15 p.m. and campaigned among arriving and departing UPS employees.  At about 6 p.m., Galvan said that Moran came outside and started loudly challenging the Zuckerman group, claiming they were bad-mouthing Ron Herrera without justification.  According to Galvan, Moran was talking with Esquivel and anyone else within hearing distance, and then got in Esquivel’s face and started to taunt him, yelling two expletives at him.  At this point, Galvan said he approached the two and told Moran, “You are nothing but a punk.”  Galvan said that Moran then turned on Galvan, and with two clenched fists shoved Galvan hard in the chest, pushing him back.  Galvan stated that but for the others gathered around who pulled Moran away, a fight would have ensued.  Galvan said that Moran’s shove was strong and deliberate, an action that Galvan considered an assault.  Nonetheless, the incident ended quickly, and Galvan, Zuckerman, and their group continued to canvass the Cerritos UPS employees until the shift changes were completed at about 8:15 p.m. 

No surveillance camera or cell phone video captured the scene, so our representative interviewed several additional witnesses.  Esquivel, the campaigner who engaged Moran when Moran came out of the building, is an 18-year member of Local Union 952 who ran unsuccessfully for delegate on a slate aligned with Teamsters United in that local union and continued to campaign for Zuckerman’s Teamsters United slate in the Los Angeles metropolitan area thereafter.  At the Cerritos hub on July 22, Esquivel said he had a fairly civil exchange about contracts and employee benefits with Moran until Moran said to Esquivel, “What are you doing with these losers, they could not even get 21 [sic] votes to get on the ballot at the convention.”[1]  At that point, Esquivel told our representative that Richard Galvan, who was standing nearby and overheard Moran’s statement, said to Esquivel, “You’re wasting your time,” referring to his discussion with Moran.  Esquivel said that Moran then began “hurling expletives” at Galvan.  Galvan, in response, came charging over at Moran, who responded by putting up his arm to fend Galvan off and shoved Galvan back with both arms.  Esquivel said he could not see if Moran’s hands were balled into fists or open-palmed when he shoved Galvan because the incident occurred suddenly and unexpectedly.  Esquivel said that Galvan then tried to charge back at Moran, but a group of men converged on the incident and restrained Galvan.  According to Esquivel, it took “a bunch of guys” to restrain Galvan from charging back at Moran.  There was no other physical contact between the two men.  Everyone walked away once it was clear that Galvan and Moran were going to stay away from each other, and the latter man left to go to his car, where he hung out a while and watched the rest of the goings on before he left a few minutes later.  Three UPS parking lot security guards were standing within reasonable range of the confrontation, but none got involved or asked any questions.  The police were not called, and the matter ended with Moran driving away.  Esquivel and his group stayed on and continued leafletting. 

Jimmy Morris told our representative that he clocked off duty at his UPS Cerritos job on July 22 at the same time that Moran did and followed Moran out into the employee parking lot.  Morris said both he and Moran were immediately approached by a Teamsters United campaigner Morris did not know but who he later learned was Esquivel.  Morris said that Moran and Esquivel had a frank one-on-one exchange about some campaign issues, notably employer payment of employee health insurance premiums, during which Morris said he stayed to the side, ready to leave the worksite.  Morris said that after some five minutes of conversation between Moran and Esquivel, he heard Galvan begin to taunt Moran, “bad mouthing” Herrera and shouting expletives.  Morris said that Galvan then charged at Moran, deliberately shoulder-bumping him aggressively and offensively.  Moran reacted defensively and raised his right forearm to fend Galvan off.  Morris said that, at that point, several men stepped in and pulled Galvan back.  Galvan pulled against this restraint and attempted to swing at Moran, but Moran stepped back out of range of Galvan.  Moran and Morris then went to their respective vehicles and left the worksite.  Morris told our representative that the incident felt to him that it was staged by Galvan to provoke Moran into a physical altercation.

Zuckerman told our representative that, after arriving at the Cerritos hub on July 22, he dispersed most of the campaigners across the large employee parking lot and even out to an overflow parking area to campaign, while he and Galvan remained close to the employee entrance.  Zuckerman said that when Moran appeared he discussed health benefits with Esquivel, an exchange Zuckerman said was “conversational” until Moran started to taunt Galvan, who was nearby, with “you just couldn’t get your 21 votes.”  Although Zuckerman said he heard Moran’s taunt, he had walked away when he heard over his shoulder the exchange between Esquivel and Moran grow heated.  Zuckerman said he heard Esquivel tell Moran, “Herrera sold you out.”  At this, Zuckerman said that Galvan approached Moran, who responded by quickly shoving Galvan in the chest with two clenched fists.  Zuckerman responded to this interaction by approaching the two quickly and saying, “Leave it alone.”  Zuckerman helped to restrain Galvan from “pouncing on” Moran, and others restrained Moran.  The incident ended as quickly as it began, and the UPS security guard nearby took no action to get involved.  Zuckerman told our representative that his first reaction was to let the matter go unreported as a minor annoyance.  He reconsidered when Galvan told him that Moran was a steward and alternate delegate.  Zuckerman filed the protest, reasoning that intimidation and physical assault had no part in the election process and that Moran should have known better.

Leslie Garrett told our representative that she is a long-time member of Local Union 63 and is employed as an office clerical at YRC.  She was elected as a delegate from that local union on a pro-Hoffa slate headed by principal officer Randy Cammack.  Despite this, Garrett told our representative that she adopted an increasingly “pro-change” political stance, for which she does not apologize, and she attended the IBT convention as an independent.  She subsequently aligned herself with Zuckerman and Teamsters United, and was present at UPS Cerritos on July 22 to campaign for the Teamsters United candidates.  She stated that campaigning that day was proceeding without incident until two men came out of the building and started to engage Esquivel in what Garrett said was a “spirited discussion” on a variety of topics, most of which she could not hear.  She said the exchange was not loud and did not attract attention, but then she noticed an increase in volume between Galvan, who was standing a short distance away, and the UPS employee she later learned was Moran.  Garrett herself was about ten feet from Esquivel when she first heard the tone of the discussion escalate.  She told our representative that she saw Galvan rush Moran in a threatening way as if to charge him.  The next thing she heard was Galvan saying, “Hey man, don’t touch me!”  This drew a response from Moran, “No, you touched me!”  Garrett said that Moran raised his right forearm in front of his face and used it to physically push Galvan away.  Garrett said that Moran’s fists were balled up, but she said he did not use them to push Galvan away.  She heard both men use expletives toward each other, and she decided to get involved “to put an end to this.”  She intervened and physically pushed Galvan away from Moran because Galvan was attempting to charge at Moran “in attack mode.”  Some other campaigners helped her restrain Galvan, and Moran and the other UPS employee with him walked away.  Garrett said the incident ended there, and the Zuckerman team continued campaigning as before.  Garrett said that the UPS security guards nearby did not get involved, nor were they asked to take any action.  Garrett told our representative that Galvan’s actions could be perceived as threatening because of the way he charged at Moran.

Our representative interviewed four additional witnesses, none of whom added appreciably to the evidentiary record.  Thus, Anthony Garcia, a Teamsters United campaigner employed by YRC who is a member of Local Union 63, said the discussion between Moran and Esquivel evolved into a spirited one between Moran and Galvan, with Moran repeatedly walking up to Galvan, the first time raising his left forearm to Galvan’s chest and pushing him back, and the second time raising his right forearm and pushing Galvan again.  Garcia’s recollection was at odds in key respects to the evidence from the other witnesses, and we give it little weight.

Omar Moreno, a Teamsters United campaigner who is a member of Local Union 572, told our representative he heard an antagonistic, spirited exchange between Moran and Galvan but did not want to get involved, so he kept busy talking to others nearby.  He said he did not hear any expletives or observe any threatening behavior or physical contact between the two men.  He said he was unaware there had been any physical altercation between the two or that a protest had been filed.

Antonio Carranza, a Local Union 396 member employed at UPS Cerritos, was speaking with a Teamsters United campaigner in the parking lot around 6 p.m. on July 22 when he heard words exchanged a few feet away.  He turned and saw Galvan being held back from charging Moran.  Carranza did not hear of or see any physical contact between the two men, but from what he observed when he turned and looked, Galvan was behaving aggressively and Moran was not.

Carlos Silva, a Local Union 572 member campaigning for Teamsters United at UPS Cerritos on July 22, told our representative that he saw two men speaking with Esquivel around 6 p.m. that day but did not hear the discussion.  After a few minutes, Silva saw Zuckerman join the group, followed by Galvan.  Still, Silva did not hear what was said, as he was busy canvassing UPS employees in the parking lot.  Specifically, he heard no cursing or loud language.  After a brief period, Silva looked toward the group again and saw a couple of people holding Galvan back, while others held back the other two men.  Silva surmised that the men were being held to keep them from fighting each other, although he did not see or hear of any physical contact between them until our representative called to interview him.

Article VII, Section 12(a) of the Rules provides the following, in relevant part:

All Union members retain the right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions. This includes, but is not limited to, 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.

Where any candidate or other member of the Union exercises or attempts to exercise any right finder the Rules to campaign for or against the candidacy of any person for the position of delegate, alternate delegate or International Officer, members of the Union shall have the reciprocal right to hear or otherwise receive such campaign advocacy.

Article VII, Section 12(g) states:

Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.

Zuckerman’s protest asserts that Moran’s conduct constituted impermissible retaliation.  The protest of Hoffa-Hall 2016 asserts to the contrary that Galvan’s conduct rather than Moran’s constituted impermissible retaliation. 

As we noted in Cooper, 2005 ESD 8 (September 2, 2005):

Actual violence to suppress Rules-protected conduct has been found to be retaliation.  See 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 violation where a member grabbed another’s arm in a menacing manner and ordered him to leave the facility where he was campaigning).  Further, a threat of violence has also been held retaliation.  See 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); and Kelly, P600 (March 27, 1991) (finding threat to “kick their ass” made in menacing manner in violate Rules).  A threat of retaliation must be serious and immediate to amount to a Rules violation.  Past decisions recognize that loud and sensational language is part of the election process, and the Rules do not bar that sort of zealous campaigning.  See Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior not unlawful), aff’d, 00 EAM 5 (September 18, 2000); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides not unlawful); and Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words and a few pushes were exchanged).  Moreover, in the cases finding retaliation, the circumstances show that the retaliator aimed at protected activity in a way to send an immediate message to the victim, and that the victim could reasonably perceive the threat in that way.

In Zuckerman, 2005 ESD 38 (December 15, 2005), we found no Rules violation where a member aggressively chest-bumped a campaigner and attempted to head-butt him (but failed because the bill of his ballcap struck the campaigner and flew off), whereupon the campaigner raised his forearm and pushed the member away, prompting others to intervene and prevent violence.  We found that the member’s conduct “was provocative and easily could have resulted in violence [but the campaigner], to his credit, resisted the bait, and [others] appropriately intervened to avert a fight.” 

We make a similar finding here.  Although the evidence is conflicting on whether Galvan made contact with Moran, we find that Galvan, agitated and upset at Moran’s comments, rushed Moran and aggressively invaded his personal space.  As Garrett, who was allied with Galvan, put it, Galvan was “in attack mode.” This sudden and aggressive conduct by Galvan reasonably caused Moran to anticipate immediate physical contact from Galvan, and he raised his forearm to defend against that contact and restore the integrity of his personal space.  Others then intervened to prevent violence.  Although violence easily could have occurred, none did.  Therefore, no Rules violation occurred.  

For these stated, we DENY both protests.  In doing so, we distinguish this case from Fauth, Raisor & Reynolds, 2016 ESD 176 (April 20, 2016), aff’d, 2016 EAM 19 (May 2, 2016), where an alternate delegate candidate shoved an opposition campaigner, causing him to stumble backwards, the candidate following this conduct with threats to put the campaigner and his associate “on the concrete.”  We found that this conduct crossed the line to prohibited violence.  Here by contrast, Galvan approached the line but, through the actions of his fellow campaigners, did not cross it.  Moran similarly refrained from action that would violate the Rules by resisting Galvan’s implicit invitation to fight.

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 340

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