Protest Decisions

IN RE: Alfonso Valdez,
Protest Decision 2001 EAD 377
Issued: May 24 2001
OEA Case No. PR041811WE

Alfonso Valdez, member of Local 741, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He alleges that Tim McCarthy and Peter Sharp, members of Local 741, were both fired from their job at Allied Systems ("Allied") after McCarthy allegedly assaulted Sharp on April 13, 2001 in retaliation for Sharp's support of Valdez and Richard Foulkes, in the Local 741 delegate election, which concluded on April 5, 2001.

Election Administrator representative Lisa Sonia Taylor investigated this protest.

Findings of Fact

Valdez and Foulkes ran for delegate and alternate delegate on the Strong Teamsters for Change slate ("ST slate") in the Local 741 delegate elections. Valdez filed this protest on behalf of Sharp, a supporter of the ST slate and an employee of Allied at its Renton, Washington facility. On April 13, 2001, Sharp was involved in an altercation with McCarthy, another Allied employee at the facility. Both men were fired for unprovoked physical assault.

McCarthy supported the Pardo/Thompson Unity slate during the Local 741 delegate elections. On April 5, 2001, Roger Pardo and Ken Thompson were elected delegate and alternate delegate. Pardo is a relative of Local 741 secretary-treasurer Joey Gasca.

Sharp and McCarthy have been involved in several altercations before April 13 and Allied management previously threatened to terminate them if there was another. See Valdez, 2001 EAD 304 (April 16, 2001), aff'd, 01 EAM 64 (May 7, 2001). Valdez claims that Allied should not have punished Sharp because McCarthy attacked him in retaliation for his support of the ST slate in the Local 741 delegate election.

McCarthy claims that tension between he and Sharp is due to stressful working conditions, which have led to tension among many employees. McCarthy claims that he gave his co-workers "a lot of guff" in the break room. He admits that he has a "foul mouth" and a bad temper, and that as a result he had been required to attend anger management classes. He further admits that he has had many problems with his temper vis-à-vis Sharp, which has resulted in the confrontations between the two.

McCarthy further claims that Sharp aligned himself with the ST slate, which he believes had as its goal to make the current local union leadership look like "mobsters." McCarthy speculates that his temper made him an easy target for Sharp and other supporters of the ST slate. He believes that Sharp wants to portray him as a "leg breaker" and deliberately provokes him so that these confrontations would occur. McCarthy, however, maintains that his actions on April 13 had nothing to do with the delegate election.

In statement dated February 8, 2001, Sharp described what he referred to as "the pattern … of harassment against [him] on the part of the Gasca family members and their supporters." The first incident he described occurred on May 29, 2000, and involved McCarthy. Sharp alleged in that statement that on that date McCarthy "chest butted" him and repeatedly threatened him with violence. He further claims that McCarthy's harassment has continued since that date

In another statement dated April 17, 2001, Sharp claimed that while he was loading his truck the afternoon of April 13, 2001, McCarthy "scream[ed] obscenities from his moving vehicle" and taunted him. Sharp stated that McCarthy approached him and hit him "with a closed fist to [his] right chest which stunned and shocked [him]." Sharp stated that he thought that McCarthy was going to kill him. Sharp called the police and his supervisor Mr. Charles Guslander. According to Sharp, the police did not "press charges" because there was "no visible sign of battery or blood flowing." Sharp stated that Guslander fired him without just cause.

McCarthy also submitted a statement regarding the altercation. McCarthy stated that he always tried to avoid Sharp at work. He admitted that on this day he and Sharp engaged in a mutual exchange of obscene gestures, but maintains that Sharp was the aggressor. He stated that Sharp approached him with a glass bottle in his hand. According to McCarthy he stretched out his hand with his palm open to defend himself and his hand hit Sharp's right shoulder. McCarthy confirmed that the police did not pursue the matter because there was no sign of battery.

According to McCarthy, after a meeting between the company and the union on May 14, 2001, both he and Sharp were offered conditional reinstatement to their jobs.

Analysis

Article VII, Section 11(g) of the Rules prohibits "[r]etaliation or threat of retaliation … for exercising any right guaranteed by … the Rules." Prohibited retaliation includes violence against an IBT member motivated by his or her exercise of protected rights under the Rules. Waldron, 2001 EAD 195 (February 27, 2001). In order to prove that violence was retaliatory, however, evidence must at least support the inference that the violent act was in response to activity protected by the Rules.

In this case, the evidence is insufficient to support such an inference. Instead, we conclude that the hostile relationship between McCarthy and Sharp, which was most recently manifested in the April 13 incident, predates the delegate election and has remained consistent in tone since May 2000. We also find no evidence showing that McCarthy's April 13 confrontation with Sharp was caused or aggravated by Sharp's exercise of his protected rights under the Rules. Rather, we conclude that the incident is merely a continuation of the longstanding personal hostility between these two individuals.

Accordingly, this protest is DENIED.

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 Administrator 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:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005 (fax: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

2001 EAD 377

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