Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: TEAMSTERS UNITED,               )           Protest Decision 2016 ESD 344

                                                                        )           Issued: December 15, 2016

            Protestor.                                           )           OES Case No. P-373-100616-SO     

____________________________________)                      

Teamsters United 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 Ken Wood, candidate for IBT vice president – South region on the Hoffa-Hall 2016 slate, assaulted a member in violation of the Rules.

            Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

The protest alleged that Ken Wood, president of Local Union 79, principal officer of Joint Council 75, and IBT vice president – South region, shoved Dustin Ponder, member of Local Union 512, while both were campaigning in the employee parking lot at the UPS hub in Jacksonville FL on Thursday morning, October 6, 2016.  Wood denied the allegation.

Investigation showed that Wood, Local Union 512 president Jim Shurling, and members Kurt Gookins, and Tina Bladgett campaigned in support of Hoffa-Hall 2016 at UPS Jacksonville beginning at about 8:00 a.m.  Part-time pre-loaders got off work at 8:30 that morning and full-time employees began their day shift.  When several pre-loaders who supported Teamsters United got off work, they saw the Hoffa campaigners at the gate and decided to campaign on behalf of their slate also.  They were Dustin Ponder, Dave Schneider, Fernando Figueroa, Richard Blake, and Connell Crooms.  They positioned themselves on the opposite side of the gate from the Wood contingent. 

The protest identified Ponder as the victim of Wood’s alleged shove.  Ponder told our representative he had just gotten off work at about 8:30 a.m., and he and some of his co-workers went to the parking lot to campaign on behalf of the Teamsters United slate during shift change.  Ponder stated that Wood and several other Hoffa-Hall 2016 supporters were out there also.  Ponder told our representative that he used to be a member of Local Union 79, of which Wood is principal officer, and that he and Wood had had “issues” in the past before Ponder transferred to Local Union 512.  Ponder stated that, as they were completing the campaigning, Wood noticed him and called to him, “Hey, it’s Ponder.  Why don’t you grow some balls instead of running from local to local?”  Ponder understood Wood’s comment to be a reference to Ponder’s campaign activity at several local unions in Florida, including Wood’s Local Union 79.  Ponder said Wood then turned his back and continued walking toward the gate.  Ponder called after him, asking Wood how much money he made.  Ponder said Wood then turned around and walked back to Ponder, saying, “More than you and if you would grow some balls, you might be able to make more money, too.”  With that, Ponder said Wood pushed Ponder on the shoulder, apparently for emphasis.  Ponder said David Schneider told Wood, “If you touch my friend again, I am going to call the police.”  Ponder stated emphatically that Wood did not shake his hand and touch his shoulder; instead, he said Wood’s only contact with him was a push on the shoulder.

Schneider, campaigning with Ponder, told our representative that shortly after he finished his shift as a pre-loader at the hub, he noted a collection of people, including some of the Local Union 512 officers and Wood, at the gate campaigning and distributing flyers.  He said it was around 9 a.m. and it was raining.  Schneider stated that he and several of his co-workers who are Teamsters United supporters retrieved their campaign literature from their vehicles and starting talking to people and campaigning also.  Schneider stated there was bantering back and forth between the two groups while they were campaigning.  He said they were on one side of the gate outside the parking lot and the other group was on the other side of the gate. 

Schneider stated that, after a period of time, the Hoffa campaigners appeared to be getting ready to leave.  Schneider said by this time that Ponder was passing out flyers on the same side of the gate as Wood, and Wood shook Ponder’s hand as Wood was getting ready to leave.  As he did so, Wood said, “Oh, hey, it’s Ponder, the guy who’s being going all around the state from local to local saying all kinds of bad stuff about us.”  Schneider said that Wood then released Ponder’s hand and said something else that Schneider did not hear.  Wood then turned and was walking away.  As he did so, Schneider said Ponder called after him, “Hey, Ken, how many salaries are you collecting?  How much money do you make?”  Schneider stated that Wood walked back to Ponder and hit him on the shoulder with the back of his hand and said, “A lot more than you do,” and gave his shoulder a shove.  Schneider said that he could not state verbatim what Wood said at that point because he could not hear too well, but Ponder told him later it was something to the effect that if Ponder grew some balls, he could make more money also.  Schneider stated he yelled at Wood, “If you lay hands on that man again, I am going to have you arrested.”  Schneider stated that, in his mind, Wood’s touching of Ponder was assault. 

Our representative questioned Schneider about the hand shake and shoulder push he said he saw, asking whether Wood shook Ponder’s hand and put his other hand on his shoulder while doing so.  Schneider said it was possible Wood had his hand on Ponder’s shoulder when he shook hands, but the incident that concerned Schneider, where Wood hit Ponder in the shoulder with the back of his hand, was a separate incident from the handshake.  Schneider said Wood shook Ponder’s hand before he started walking toward the gate to leave, and he pushed Ponder’s shoulder when he returned to Ponder.

Schneider told our representative that when he yelled at Wood about arrest if Wood touched Ponder again, Tina Padgett, a UPS Jacksonville employee, chief steward, and supporter of Hoffa-Hall 2016 who was campaigning there as well, said, “Really, Dave?  That’s how you want to play this?”

A third Teamsters United campaigner, Fernando Figueroa, told our representative he stood right next to Ponder while they were passing out flyers, and Wood was on that side of the gate also.  Figueroa said they were out there 15 to 30 minutes when Wood and Ponder began talking back and forth.  Figueroa said Wood said something to Ponder about him “going all around the state saying a bunch of stuff about us.”  Figueroa said that, as Wood was leaving, Ponder asked Wood how much money he made last year.  Figueroa said that Wood stopped and came back to Ponder, saying “A lot more than you did,” putting his hand on Ponder’s shoulder and pushing him.  Figueroa said he was shocked to see Wood push Ponder.  Figueroa said Wood told Ponder that he should grow some balls and maybe he could make more money.   

Our representative asked Figueroa whether he saw Wood shake Ponder’s hand and place his hand on his shoulder.  Figueroa said he saw Wood shake Ponder’s hand and thought that was when Wood pushed Ponder.  Figueroa was asked whether there was only one incident of contact between Wood and Ponder or two incidents; one with the hand shake and the other with the shoulder push, as Schneider indicated.  Figueroa said he thought there was only one incident, where Wood shook Ponder‘s hand and pushed his shoulder while shaking his hand.

Figueroa added that when he went to his car to get his campaign material immediately after clocking off work, Wood tried to hand him a flyer.  Figueroa said he told Wood, “No, thank you, I’m supporting the opposition.”  Figueroa said that Wood shook his hand very aggressively nonetheless.

The remaining Teamsters United campaigners, Blake and Crooms, did not respond to our representative’s requests to learn what they had observed.  Blake did not return phone messages.  Our representative was informed that Crooms has a hearing deficit and that he should be contacted by email; she did so but her email message was not returned.

Wood told our representative that he and Shurling arrived at the facility about 8:00 a.m., where they campaigned with others outside the gate for about an hour and a half.  He said the opposition showed up as well, campaigning on the opposite side of the gate.  Wood stated he was getting ready to leave when Ponder came up.  Wood said he knew Ponder because he used to be in Local Union 79 but he did not immediately recognize him because he had grown a full beard since the last time Wood saw him.  Wood said that someone pointed Ponder out to him.  Wood said that Ponder came over to him and they had a brief conversation about the UPS contract and Hoffa.  Wood said they shook hands and he put his left hand on Ponder’s shoulder and wished him good luck.  Wood said the other part-time employee, later identified to Wood as Schneider, “screamed” loudly, “If you put your hands on him again, I’m going to call the police.”  Wood said he was shocked at this statement because he had done nothing to Ponder that would warrant such a response.  He said he and Shurling then left the facility.

Our representative asked Wood whether he shook hands and spoke with Ponder when Ponder walked through the gate going to his car just after he finished his work shift.  Wood said he did not and noticed Ponder only when someone pointed him out after both sides had been campaigning for some time.  Wood explained that employees were coming out of the gate, and he and the other campaigners were trying to hand out flyers and ask them to vote for the Hoffa ticket.  He said he was concentrating on campaigning and was oblivious to anything else that might have been said or who was doing what. 

Our representative also asked Wood whether bantering occurred between the two factions during the campaigning; he replied he was not aware of any yelling, screaming or cursing.  Wood said the only interaction he had with anyone from the opposition was with Ponder when he came over to Wood and they shook hands.  Wood stated there were some 25 to 30 feet between the two sides at the gate where they were and the Teamsters United people were. 

Wood was advised that Ponder said he asked Wood how much he made and that Wood told him he should grow some balls and he could make more money also.  Wood stated that he talked to hundreds of people during that week and did not recall specifically what he said to anyone in particular.  He said he might have told Ponder that he could make more money if he worked full-time instead of part-time.  Wood was asked again whether Ponder asked him how much money he made and Wood stated that he could not dispute what Ponder said they talked about.  Wood stated that, if Ponder said they talked about football, he would not dispute him, but he was certain that neither he nor Ponder raised their voices to each other.  He stated that his recollection was that they talked about the UPS contract and he told Ponder he could make more money if he worked full-time.

Shurling, another campaigner for Hoffa-Hall 2016 and the Local Union 512 president, told our representative that he and Wood went to the UPS Jacksonville hub to campaign at about 8:30 in the morning during shift change.  He said that several of the part-timers, including Ponder, came out and saw them and starting making antagonistic comments toward them.  Shurling said he told his stewards who were also out there to just ignore them and hand out the campaign literature.  Shurling said there were three or four guys who went to their cars and got their campaign literature and came back and started campaigning also.  He said that all the while, they kept making comments and, he thought, trying to provoke something.  Shurling said his stewards who were out there campaigning were getting upset, and he kept trying to calm them down.  He said that Ponder yelled at Wood asking how much he made.  He said Wood went back toward Ponder and told him “a lot more than you do,” and Wood shook his hand and put his left hand on Ponder’s shoulder.  Shurling said that Schneider was across on the other side of the fence and he yelled, “Get your hands off of him; that’s assault.  If you touch him again, I’m going to call the police.”  Shurling told our representative that he thought to himself, “Are you kidding me?”  Shurling stated he was not standing immediately next to Wood the entire time they were out there and he would not have heard everything Wood said all the while they were out there; however, he said he was close enough that, if Ponder had said anything to Wood, he would have heard him.  He said he did not believe Wood would have told Ponder that he had to grow balls, because he has never known Wood to talk like that.  He said Ponder did not say anything when Wood touched his shoulder while shaking his hand; it was Schneider who yelled at Wood and Schneider was about 15 to 20 feet away from Wood and Ponder.  Shurling was emphatic that Wood did not push Ponder on the shoulder, but merely touched him while shaking his hand.  He said the thing that got him was that Ponder never said a word when Wood put his hand on Ponder’s shoulder; it was Schneider who started screaming.  Shurling stated that he then told Wood that they should just leave, and they left by the feeder gate opposite where Schneider was.  Shurling said the Teamsters United campaigners were all young and very confrontational.  Shurling stated that a hurricane was coming up the coast that day and when he and Wood were leaving, he told the Teamsters United campaigners to be safe.  Shurling said they just laughed at him.

Tina Padgett is a chief steward who campaigned with Wood and Shurling for Hoffa-Hall 2016 that day.  She told our representative that, when she was leaving the building getting off work, she saw Wood, Shurling, and Local Union 512 vice president Margie Tillman handing out flyers.  Padgett said that Tillman handed her some flyers, so she stayed and helped them hand out flyers.  She said that several others did also.  She said “the other group” then came out and they started handing out flyers also.  She identified the ones she knew as Dave Schneider, Dustin Ponder, Connell Crooms, and Fernando Figueroa.  Padgett stated the Teamsters United campaigners almost immediately started “slandering” Hoffa and became very belligerent.  She said they started cursing and calling Hoffa bad names.  Padgett stated that she felt members could have a difference of opinion but there was no call to be belligerent and carrying on the way they were.  She said it did not last too long because members walking by were getting disgusted and leaving.  She said that Tillman went inside the facility and Wood and Shurling started to leave. 

Padgett stated that when Ponder first came out of the building, Wood spoke to him, but she did not hear what was said.  She said that Wood’s back was to her, but he looked like he was introducing himself.   She said that when Wood and Shurling got ready to leave, they came over to her and gave her a hug.  She said they then turned to leave and Ponder yelled to Wood, asking him how much money he made.  She said that Wood responded, “A lot more than you, and you want to know why?”  Padgett said she was talking to someone else at that time and did not hear any more, but she saw Wood shake Ponder’s hand and put his other hand on Ponder’s shoulder.  Padgett said that Wood always shakes hands that way; she said she saw him do it to several other people that day.  She said that Schneider then yelled that if Wood touched Ponder again, he would have Wood arrested.  She said she was standing next to Schneider and turned and asked him, “What is wrong with you?”   

Padgett said that after Wood and Shurling left, just she and Kurt Gookins remained to campaign for Hoffa-Hall 2016.  She said that Gookins and Schneider went back and forth in their bantering and calling each other “a bunch of names.”  Padgett stated that she worked with Schneider, and she said she called over to him saying she did not know why he was acting the way he was.  She said that three of the Teamsters United campaigners then walked toward her in response to her statement to Schneider, and she told our representative she was not going to allow them to “gang up on her” because she was talking only to Schneider.  She said that Schneider responded that when she talks to him she is talking to all of them.  She said they had words and she would not back down.  She said that Schneider later came up to her and apologized for some of the things he said to her.  She said that before that, she begged Gookins not to leave her out there alone and he said he would not.

Gookins told our representative he works as a pre-loader at the UPS Jacksonville hub.  He stated that he, Wood, Shurling, Padgett, and some of the other Local Union 512 officers were passing out flyers at the hub on October 6.  He said that the officers and Wood were out there when he got off work that morning and he joined them in handing out flyers and talking to his co-workers who were also getting off work.  Gookins said some other guys came out and started handing out flyers for the other candidates.  He said he knew Connell Crooms because he works with him but was not familiar with the others who were campaigning for the opposite slate.  Gookins said the guys apparently went out to their cars and got campaign material because he saw them coming back from the parking area carrying flyers.  He said that when they started handing out flyers, a man he later learned was Schneider became very hostile and started yelling stuff about Hoffa.

Gookins said that, looking at the gate, Shurling, Wood, and Padgett were to the left of the gate and the Teamsters United people were to the right.  According to Gookins, the campaigners did not stay in one spot, however; instead, they wandered around the area to talk to employees who were walking to and from their cars.  Gookins stated that Schneider began cursing about Hoffa selling them out, and he was yelling over other people trying to talk to the members.  Gookins said that Schneider told him he was “a piece of shit” and Hoffa was “a fucking sell-out.”  Gookins said that Schneider did not know him or even his name but said what he did to him purely because he was handing out Hoffa flyers.  Gookins said that Ponder was talking to him, trying to get a point across about his candidates, but Schneider was hostile and yelling.

In the midst of Schneider’s loud words, Gookins said his group still tried to pass out flyers.  However, because of Schneider’s yelling, Gookins said it was difficult to talk to members as they came past because they appeared not to want any part of the campaigning that was going on.  Gookins stated Schneider escalated his loud cursing to the point that Shurling and Wood decided to leave.  As they were leaving, Ponder yelled something about what Wood made in a year.  Gookins said that Wood walked back up to where Ponder stood, shook his hand and put his other hand on his shoulder or elbow and said something that Gookins could not hear.  Gookins said that, as Wood turned to leave again, Schneider started yelling that if Wood ever touched Ponder again, he would have him arrested.  Gookins said that everybody was standing around, and Ponder did not make any claim that Wood pushed him.  Gookins said that it was only later, on Facebook, that Ponder posted a claim that Wood shoved him.  Gookins stated that Schneider was the one who started the hostility because he was yelling stuff, trying to provoke something.  He thought it was Schneider that had Ponder claim that Wood assaulted him.

Ponder posted a description of the campaigning to Facebook at 10:55 a.m. that morning, describing the interaction with Wood as follows:

As the shift was wrapping up, Ken Wood recognized me and proceeded to come up and say to me that “you have no balls” and that I’ve been running around the state “saying a whole bunch of nothing.”  As he was walking away, I asked loudly how much money he makes … He furiously ran back up to me and said, “a whole lot more than you!” and talked some other shit to me, then shoved me.

Among many other participants, Schneider and Padgett posted to the thread that followed Ponder’s post.  Ponder and Schneider initially said that Padgett was lying about the incident.  Padgett objected strongly to the label, highlighted that such an accusation was a strong one, and then addressed Ponder directly: “Did I see him shove you?  No.  Did I see his hand on your shoulder?  Yes.”  At this, Schneider and Ponder shifted tacks to claim that Padgett did not see the interaction between Wood and Ponder, even though she immediately disputed Schneider’s first reaction to it.

Article VII, Section 12(g) of the Rules 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.

The protest asserts that Wood’s conduct toward Ponder constituted prohibited retaliation.  We disagree.  We find that Wood shook Ponder’s hand and, when doing so, grasped Ponder’s right shoulder with his left hand.  Wood’s physical conduct toward Ponder was not violent or malicious.  We credit Shurling’s and Padgett’s recounting of the exchange and do not credit Ponder’s and Schneider’s version of events.  We find that Shurling and Padgett both saw the handshake, and both reacted immediately and dismissively to Schneider’s loud characterization of it as assault.  We find that, while all witnesses to the incident were partisan, Schneider distinguished himself that day as especially belligerent toward the opposition and more likely, in our estimation, to embellish the facts.  We also find significant that Ponder gave no physical or verbal reaction at the moment of his handshake with Wood that suggested Wood’s conduct was unacceptable.  On this point, we agree with Gookins’s assessment that Ponder did not regard Wood’s conduct as untoward until it was suggested to him by Schneider.

            We also find that the eyewitness accounts rendered by Ponder, Schneider, and Figueroa have many significant inconsistencies that persuade us to discount them.  While we also find Wood’s lack of specific recollection of the words he uttered to Ponder disappointing, his recollection of his physical interaction with Ponder is consistent, and plausibly so, with the accounts reported by Shurling, Padgett, and Gookins.

            We reject as hyperbole Schneider’s characterization of Wood’s conduct as “assault.”  While he likely meant “battery,” i.e., the unprivileged touching of the another’s person, we conclude that Ponder’s participation in the handshake with Wood – his right hand gripping Wood’s right hand and his right shoulder touched by Wood’s left hand – made Wood’s touching of him lawful. 

            To the claim that Wood’s use of his left hand during the handshake was improper, American culture demonstrates otherwise.  The left hand is often used in normal social interactions as part of a handshake, whether to “cup” the clasped right hands from underneath or to touch the right shoulder as Wood did to Ponder.  We find nothing untoward about Wood grasping Ponder’s shoulder during the handshake.

            Finally, we reject the claim implicit in Schneider’s accounting that Wood simultaneously shook Ponder’s hand and shoved his shoulder, finding that the maneuver Schneider described is implausible.

            For all of these reasons, we find no violation of Article VII, Section 12(g) and 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 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 344

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