Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RUSSEL HILKE,                            )           Protest Decision 2021 ESD 117

                                                                        )           Issued: June 1, 2021

Protestor.                                           )           OES Case No. P-144-052121-FW

____________________________________)

Russel Hilke, member of Local Union 542 and delegate candidate on the Members For Members 542 slate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that a candidate and supporters of the Members First slate violated the Rules by harassing and intimidating candidates and supporters of the Members For Members 542 slate while campaigning at the UPS San Marcos hub on May 19, 2021.

Election Supervisor representatives Deborah Schaaf, Bruce Boyens, Jim Devine, and Michael Miller investigated this protest.

Findings of Fact and Analysis

            Local Union 542 will elect 10 delegates and 6 alternate delegates to the IBT convention.  The Election Supervisor refused to certify the results of the original election, finding that Rules violations committed by members and supporters of the Members For Members 542 slate may have affected the results of the election.  Accordingly, a rerun election was ordered.  Four candidates for delegate on the Members For Members 542 slate were disqualified from the rerun election.

The instant protest alleged impermissible campaign conduct by supporters of the Members First slate.  The Rules prohibit retaliation and threats of retaliation for activity protected by the Rules.  Article VII, Section 12(g).  Violence and threats of violence for campaign activity may constitute prohibited retaliation. 

Loud, rude, aggressive, or obnoxious behavior in the course of campaigning is protected by the Rules, provided the behavior does not cross the line into violence or threats of violence or retaliation.  Thus, the activity of a counter-campaigner was found not to violate the Rules in Yocum, 2000 EAD 18 (September 6, 2000), aff’d, 2000 EAM 5 (September 18, 2000), where the counter-campaigner hovered in the vicinity of campaigners for some 45 minutes, called them names, including vulgar ones, told members not to sign their petitions, told members that the candidates the campaigners supported had stolen from the union and nearly bankrupted it, but did not commit violence or threaten violence.  The Election Administrator held that the counter-campaigner’s “behavior may have been loud, rude and obnoxious, and it may have succeeded in convincing union members not to sign … petitions, but his conduct in the UPS parking lot, during non-work hours, constitutes an exercise of free speech that cannot be censored.”  See also, Jorgensen, 2000 EAD 72 (December 26, 2000) (heated nose-to-nose argument while campaigning that did not result in violence did not violate the Rules); Rodriguez, 2000 EAD 45 (November 3, 2000) (counter-campaigner who shadowed campaigner for 45 minutes, repeatedly and loudly calling the candidate the campaigner supported “a crook,” did not violate the Rules); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides in the context of petitions being signed did not violate the Rules); Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words were exchanged with a few pushes but no violence); Zuckerman, 2005 ESD 38 (December 15, 2005) (no violation where campaigner’s conduct was “loud, rude and obnoxious” but stopped short of physical violence).  We look to the totality of the circumstances to determine whether threatening language so interferes with the right to campaign that it violates the Rules.  Williams, 2001 EAD 201 (February 27, 2001). 

Intimidation, however, may constitute retaliation, which the Rules prohibit.  Zuckerman, 2015 ESD 7 (July 15, 2015).  Intimidation occurs where a member engages in physically or verbally aggressive behavior that constitutes a palpable threat of imminent harm.  Hoffa-Hall 2011, 2011 ESD 323 (September 11, 2011), aff’d 11 EAM 57 (September 16, 2011) (verbal confrontation and touching person’s arm not intimidation); Pope, 2011 ESD 309 (August 5, 2011) (verbal confrontation followed by intentional striking and knockdown violated Rules); Passo, P-469-LU705-CHI (February 29, 1996) (intent to provoke physical confrontation violated Rules), aff’d in relevant part, 96 EAM. 124 (March 13, 1996); Lopez, P-456-LU743-CHI (April 10, 1996) (finding “I’ll kill you” to violate Rules in light of ongoing animosity between the parties); Smith, P-600-LU150-CSF (April 30, 1996) (finding remark “you’ll be taken out of here in a body bag” to violate Rules); Kelly, P-600-LU705-CHI (March 27, 1991) (finding aggressive threat to “kick their ass” made in a menacing manner to be harassment in violation of the Rules).

A counter-campaigner has the same right to campaign as a campaigner.  Counter-campaigners may permissibly campaign in a location where the opposition is already present, provided they do not physically interfere with the right of members to pass, or otherwise engage in coercive behavior.  Zuckerman, 2015 ESD 7 (July 15, 2015). A counter-campaigner may permissibly wear partisan garb, tell people they should not listen to the opposition, and call supporters of the opposition names.

Local Union 542 represents hundreds of drivers and sorters employed at the UPS hub at the corner of Bingham Drive and Armorlite Drive in San Marcos CA.  Employees working there park their vehicles in a sprawling lot of some 240 spaces situated on the southwesterly portion of the property.  Fencing funnels employees reporting for work into a chute some 18 to 20 feet wide and 65 to 75 feet long.  The chute is separated from the Bingham Drive sidewalk to the west by a 6-foot chain-link fence and to the east from parked UPS trucks by another 6-foot fence topped with barbed wire.  The chute leads to a painted walkway that crosses a work yard into the sorting and loading facility.  The chute also provides a concrete pad for parking motorcycles.  A security booth sits at the north end of the chute, closer to the facility, but was not staffed at the time of the incident at issue in this protest; further, the security camera mounted on the booth was not operational.[1]

The campaigning.  Two campaigners supporting the Members For Members 542 slate began campaigning in the chute at about 7 a.m. on Wednesday, May 19, 2021.  At that time, package car drivers were reporting for day shift and pre-sort employees were leaving the facility after their overnight and early morning shifts.  As such, members were entering and exiting the facility through the chute.  The campaigners set up a table and canopy tent next to a few parked motorcycles.  One of the campaigners, Andrew Jones, is a candidate for alternate delegate on the Members for Members 542 slate.  The other campaigner, Craig Chappell, was formerly a candidate for delegate on the slate; he was disqualified from the rerun election.  Vasquez, 2021 ESD 109 (April 27, 2021); aff’d, 2021 EAM 16 (supplement) (May 11, 2021).  Jones works at UPS San Marcos; he continued to campaign until approximately 8:40 a.m., when he entered the facility to report for work.  Chappell campaigned until approximately 9 a.m.  After 8 a.m., Sammy Vivanco, a delegate candidate on the Members for Members 542 slate, arrived and joined the campaigning.[2]

At around 7:15 a.m., Jose Gonzalez arrived and began campaigning for the Members First slate.  He was joined approximately 15 minutes later by Luis Tatenco.  At about 8 a.m., Ricardo Palomares arrived and joined Gonzalez and Tatenco, campaigning for Members First.  All three are UPS employees at San Marcos; Palomares is a delegate candidate on the Members First slate.

Jones, the alternate delegate candidate for Members For Members 542, told our investigator that he campaigned in the chute while standing behind the table that displayed campaign literature.  Chappell stood out in the parking lot and engaged members as they headed into the chute.  Jones said that when Gonzalez arrived and began campaigning for Members First, Gonzalez moved in on whomever Chappell was speaking with and, according to Jones, “would be almost yelling” that Members For Members 542 were cheaters, liars, and should not be believed.  Gonzalez repeatedly told members that Chappell was disqualified as a delegate by a judge.  Gonzalez had papers in his hand, and he sometimes shook the papers at Chappell saying he was disqualified.  According to Jones, Gonzalez continued this activity with nearly every member Chappell engaged.  Jones said that he occasionally spoke up and said that he, Jones, is not a liar or a cheat.  When Gonzalez heard this, he turned to Jones and said, “I’m not talking to you.”  Jones said that after he corrected Gonzalez a few times, Tatenco, a fellow campaigner with Gonzalez, “charged” at Jones and told him he could not talk to Gonzalez that way.  Jones said that Tatenco leaned over the table and shook his finger as he made this statement.  Jones said he felt intimidated by Tatenco’s physical approach and was grateful the table was between them.  Jones said that, even though he is 6’3” and Tatenco is approximately 5’5”, he is not drawn to physical confrontation and found Tatenco’s approach rude and assaultive.

Chappell corroborated much of Jones’s evidence.  He told our investigator that Gonzalez “would begin yelling” that Chappell was a liar, cheater, and cannot be trusted.  Chappell said Gonzalez had a copy of the notice from the election complaint showing he had been disqualified.  Chappell said that Jones at one point told Gonzalez to stop harassing Chappell.  Chappell said that Tatenco “charged at Jones and trapped him” behind the campaign table, “pointing his finger only inches away from” Jones’s face.  Chappell thought Tatenco was going to hit Jones, but he did not. 

Vivanco, the third campaigner for Members For Members 542 and a delegate candidate on the slate, did not return repeated phone calls or emails to our investigator seeking his evidence concerning the incident.  Protestor Hilke did not list Vivanco as a witness when he filed the protest.  When we learned Vivanco was present during the incident, we sought to interview him.  After repeated efforts to reach Vivanco, we asked Hilke to prod Vivanco to cooperate with our investigation.  Despite these efforts, Vivanco did not answer our investigator’s phone calls or call back.  He responded by email, in which he declined a telephone interview, stating he “does not have time to talk over the phone since I drive for a living.”[3]  We infer from Vivanco’s declining to be interviewed that his evidence would not substantiate the allegations made in the protest.

            Gonzalez, the Members First campaigner, told our investigator that he and other Members First campaigners called out to members who were speaking with Chappell, Jones, or Vivanco with words to the effect, “Don’t believe what they are saying – here’s the proof,” and showed the notice of disqualification from the Vasquez decision.  To the opposing campaigners themselves, Gonzalez and the others said, “You guys are liars and cheaters.”  Routinely, according to Gonzalez, Chappell or another campaigner replied, “Hoffa paid off the judge and the Election Supervisor,” or “They all got paid off by Hoffa, just like it works in Mexico.”  Gonzalez said that the Members First campaigners responded, “Not here, not in this country.  Here’s the proof,” again referring to the remedial notice.  Gonzalez stated that at one point, there was a heated exchange between Jones, for the Members For Members 542 slate, and Tatenco, of Members First.  Gonzalez told our investigator that Jones, who is much taller than Tatenco, leaned over and yelled at Tatenco, with each pointing a finger at the other.  This progressed to a point where Jones pounded his fist on the table.   Gonzalez said there was no physical contact, but he saw that Jones was aggressive and overbearing. At this point it was just “voice over voice,” and Gonzalez was worried that the argument might escalate into a physical altercation, but that did not happen.

            Tatenco told our investigator that, while campaigning, he noticed Gonzalez and Jones in an increasingly loud exchange, with Jones yelling at Gonzalez that “you’re not (expletive) letting me talk!”, emphasizing his point by slamming his fist down on the table that was between the two men.  When Tatenco saw and heard this, he went over to try to defuse the situation.  Tatenco said Jones was leaning over the table into Gonzalez, and Tatenco was afraid that he was going to explode and get physical with Gonzalez.  Tatenco said he walked up to the table and looked up at Jones, who was considerably taller than him.  He pointed his index finger up for emphasis and told Jones to “calm down.”  Tatenco denied the protest’s allegation that he leaned over toward Jones.  Instead, he said that Jones leaned over and bore down on him and Gonzalez.  No one threatened or touched anyone else, however.

            Palomares, the third Members First campaigner and the only delegate candidate on that slate who campaigned at UPS San Marcos that morning, told our investigator he arrived at about 8 a.m. to find Gonzalez and Jones carrying on a running, disagreeable, and loud exchange.  Palomares talked back and forth with Vivanco.  The Members First campaigners were countering the canvassing done by the Members For Members 542 campaigners by telling members they were “cheaters and liars,” offering members the Vasquez notice as proof.  According to Palomares, Vivanco was very vocal in stating that “the judge and the Election Supervisor were paid off” by Hoffa.  Palomares characterized the interaction between the two groups as loud, at time shouting back and forth.  However, there was no physical contact and no threats uttered.

            Our investigators also interviewed members who encountered the campaigners that morning.  One said he arrived at around 8 a.m. and saw Gonzalez “shoving papers” into Jones’s face and yelling that Jones and his supporters were “liars and cheaters.”  This witness described the scene as “intense” and “hostile.”  A second witness did not see any confrontation between Gonzales and Jones but heard Gonzalez yelling that Members For Members 542 slate candidates were liars and cheats.  A third witness, leaving work, passed through the chute and saw Gonzalez in a “screaming tirade” directed at Members For Members 542 supporters.  This witness remained in the chute area for some 25 to 30 minutes while awaiting a ride home and did not see any altercation or feel intimidated.  A fourth witness also saw and heard Gonzalez yelling but observed no altercation or threat.  A fifth witness, in contrast to the others, said he was 120 feet away from the campaigning but nonetheless felt intimidated.  He did not report any specifics as to why he felt intimidated; he did not claim he observed assaultive or threatening behavior.

            Our investigators interviewed UPS officials as well.  Mark Sundelius, a UPS division manager, said he passed through the area and observed two sets of campaigners “having a debate” about the election that was vocal and spirited, but he heard “nothing that caused any concern whatsoever” and that they were “just bantering back and forth.”  Sundelius noticed papers being passed out; he said he thought they were copies of the posting he had seen on the union bulletin board concerning the election rerun order.  Later, he discussed the situation with his boss, Mike McPhearson.  According to Sundelius, McPhearson expressed no concern about it.  Sundelius had the impression both thought it was simply routine campaigning.

            A security representative for UPS confirmed that the camera mounted on the security booth adjacent to the chute was not operational on May 19 and that the sweep camera in the parking lot did not provide any useful evidence.  No campaigner or other witness made a smartphone video of the campaigning. 

The aftermath.  Jones, the Members For Members 542 candidate for alternate delegate, stated that when he reported to his assigned truck, he found a derogatory message written in the dust on the side of the vehicle.  The language used did not state a threat.  Jones was unable to offer any evidence that the message was related to his candidacy or the campaign activity he had just participated in. 

            Gonzalez, Tatenco, and Palomares strenuously denied writing anything on Jones’s truck, stating that their differences were political and not personal.

            Jones found the campaign experience of May 19 and the message on his truck unnerving.  He considered withdrawing his candidacy but decided not to do so after speaking with members of his slate.  He also spoke with Gonzalez and Palomares in the shop.  They treated him courteously and told him it was not too late to come over to their side.

            Palomares said he ran into Jones in the workplace and asked him if everything was okay.  According to Palomares, Jones replied that the “outside session” was “too much for me.”  The two spoke further about the issues and “agreed to disagree” about them.  Palomares said he made a plea to Jones not to let their different opinions about various contract and political issues divide them.  According to Palomares, Jones agreed, and the two gave each other fist bumps.  Palomares said he had a similar exchange with Vivanco.  We could not confirm this with Vivanco because he did not call our investigator back.

            Tatenco said he saw Jones later in the day on May 19 and asked to speak with him.  The two had what Tatenco said was “a great conversation” and smoothed over their differences.  They parted with a handshake.

            On the facts presented, we find the campaign activity of both sides that occurred at UPS San Marcos on May 19, 2021, to be protected by the Rules even though it was at times heated, boisterous, loud, angry, and discourteous.  No word or action crossed the line to constitute a palpable threat of imminent harm, and no violence occurred.

            For these reasons, we 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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:       Barbara Jones

            2021 ESD 117

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Russel Hilke

rhilke@gmail.com

Teamsters Local Union 542

Jaime Vasquez

jvasquez@teamsters542.org

Deborah Schaaf

dschaaf@ibtvote.org

Bruce Boyens

boyensb@aol.com

Jim Devine

jdevine@ibtvote.org

Michael Miller

Miller.michael.j@verizon.net

Jeffrey Ellison

EllisonEsq@gmail.com