August 27, 1998
VIA UPS OVERNIGHT
Luis Ortiz
August 27, 1998
Page 1
Luis Ortiz
3924 West Muriel Drive
Glendale, AZ 85308
Jacqueline L. Edgmon
1512 West Garden Street
Mesa, AZ 85201
Bob Justus
11301 Air Base Road
Adelanto, CA 92301
Gil Torres
3817 West Lewis
Phoenix, AZ 85009
John D. Reynolds
5751 West Beryl Avenue
Glendale, AZ 85302
Andrew Marshall, Secy.-Treas.
Teamsters Local Union 104
1450 South 27th Avenue
Phoenix, AZ 85009
Jim Edgmon
1512 West Garden Street
Mesa, AZ 85201
Luis Ortiz
August 27, 1998
Page 1
Re: Election Officer Case No. PR-158-LU104-RMT
PR-165-LU104-RMT
Gentlepersons:
Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”). Luis Ortiz, Jacqueline Edgmon and Gil Torres, members of Local Union 104, along with Bob Justus, a member of Local Union 63, filed a protest (PR-158) on June 28, 1998, on behalf of Jim Edgmon, a retired member of Local Union 104,[1] and against John Reynolds, a member of Local Union 104 and an IBT International Representative. In response, Mr. Reynolds filed a protest (PR-165) on July 7, 1998, against Mr. Edgmon.
Luis Ortiz
August 27, 1998
Page 1
In PR-158, the protesters claim that while Mr. Edgmon was campaigning on behalf of the Hoffa Slate, Mr. Reynolds physically harassed and threatened him, in violation of the Rules. In PR-165, Mr. Reynolds claims that Mr. Edgmon physically assaulted him. Both men deny the allegations in the opposing protest. The protesters in PR-158 claim that Mr. Reynolds’ protest is untimely.
The protests were investigated by Regional Coordinator Jonathan Wilderman.
Witnesses to the incident underlying the two protests stated that, on June 27, 1998, Local Union 104 held a special membership meeting at the union hall from 9:00 a.m. to 10:30 a.m. Before the meeting started, Mr. Edgmon was distributing and selling Hoffa campaign paraphernalia in the parking lot adjacent to the union hall. The witnesses agree that, at one time, Mr. Reynolds and Mr. Edgmon were near to each other in the parking lot and that Mr. Reynolds was speaking about Mr. Hoffa.
Mr. Edgmon and Mr. Reynolds each describe the encounter as more confrontational, each charging the other with misbehavior. According to Mr. Edgmon, Mr. Reynolds approached him, made a demeaning remark about Mr. Hoffa and Hoffa supporters, and ordered Mr. Edgmon out of the parking lot. Mr. Edgmon states that he reacted to the remark by shoving Mr. Reynolds away from his face with an open-handed push to the shoulder. Mr. Reynolds, on the other hand, states that while he was talking to several people about fines levied against Mr. Hoffa by the Election Officer, Mr. Edgmon approached him and made a derogatory remark. When Mr. Reynolds turned away, Mr. Edgmon hit Mr. Reynolds in the back with his fist. Thus, while Mr. Edgmon admits touching Mr. Reynolds, he characterizes the conduct as an open-handed shove, while Mr. Reynolds states he was hit on his back.
The other witnesses statements did not resolve this conflict concerning the incident. In any event, nothing else happened between the two men. After the altercation, Mr. Reynolds proceeded into the union meeting and Mr. Edgmon resumed his campaign activities in the parking lot.
Article VIII, Section 11(a) of the Rules confirms the right of all IBT members to participate in campaign activities. Article VIII Section 11(f) of the Rules further provides as follows:
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.
Luis Ortiz
August 27, 1998
Page 1
This section is violated when, in response to protected activity, members engage in physically or verbally aggressive behavior that threatens actual harm. Passo, P-469-LU705-CHI et seq. (February 29, 1996) (finding intent to provoke physical confrontation violates Rules), aff’d in relevant part, 96 - Elec. App. - 124 (KC) (March 13, 1996).
In the absence of harassment or a credible threat of harm, however, the Election Officer will view heated arguments as part of “the natural discourse that arises as a result of campaign-related activities” and not as retaliation prohibited by the Rules. Furst, P-949-LU430-PNJ (October 9, 1996) (“heated discussion” between protester and charged party does not violate Rules). See Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995) (local union president did not violate Rules by following, hovering near and blocking path of campaigning member); Corriea, P-930-LU150-CSF (September 12, 1996) (fact that charged party, much taller than protester, stood over latter’s desk did not constitute violation, as charged party “was not aggressive or violent, nor did he threaten aggression or violence in any way”).
With respect to Mr. Edgmon’s allegations against Mr. Reynolds, the evidence establishes that a heated discussion occurred between Messrs. Reynolds and Edgmon. The evidence, however, does not establish any physically or verbally aggressive behavior that threatened actual harm. Thus, the exchange was not conduct that violated the Rules.
As to Mr. Reynolds allegations against Mr. Edgmon, Article XIV, Section 2(b) of the Rules requires that all pre-election protests be filed “within two (2) working days of the day the protester becomes aware or reasonably should have become aware of the action protested or such protest shall be waived.” As Mr. Reynolds filed his protest more than a week after the event in question and admittedly in response to Mr. Edgmon’s allegations, the Election Officer finds his protest untimely. In any event, the evidence of the same heated discussion, viewed from Mr. Reynolds perspective, does not establish conduct that violated the Rules.
Accordingly, the protests are DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
Luis Ortiz
August 27, 1998
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Jonathan Wilderman, Regional Coordinator
[1] Article XIV, Section 1 of the Rules states that only IBT members, the International Union or its subordinate bodies may file protests with the Election Officer. While retirees do not have standing to protest alleged violations of the Rules, a limited exception has been established for allegations regarding retaliation or violence. See Branch, CONV-22 (July 18,1996); O’Donnell, P-1344-LU938-CAN (January 16, 1997).