IN RE: JEFF DUNCAN, Protestor.
Protest Decision 2006 ESD 247
Issued: May 16, 2006
OES Case No. P 06 177-022706-MW
Jeff Duncan, member and alternate delegate candidate of Local Union 614, filed a pre election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005 2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that the principal officer of the local union threatened retaliation against him for protected activity, in violation of the Rules.
Election Supervisor representative Joe Childers investigated this protest.
Findings of Fact
On February 24, 2006, Duncan was present at the offices of Local Union 614 to observe the delivery of ballots and candidate literature to the post office for mailing. While there, he asked Joe Medrano, the local union's election officer, a question about the security of the key to the post office box. Duncan stated that, while he was asking the question, local union president Earl Walker entered the room. Medrano put the question to Walker, who answered the question and told the protestor that if he did not like the answer, to file an election charge. According to the protest, Walker then "cuss[ed] and tr[ied] to belittle" Duncan, but Duncan "just let it pass."
Immediately following this exchange, Duncan assisted Medrano in carrying candidate literature to the parking lot. Walker approached and demanded to see the contents of the boxes that Duncan was carrying. Medrano asked Duncan to permit Walker to look inside the boxes, and Duncan complied. According to the protest, "Earl started yelling and bitchen [sic] at me again telling me how stupid I am[,] how dumb I am[,] [t]hat he=s tired of the chicken shit charges that I file." Duncan's protest describes the ensuing exchange as follows:
I told him he should know what chicken shit is[;] he sees it in the mirror.
He told me we would settle this outside in the parking lot.
I told him that is where I'm headed now.
Then Earl told me we would settle this in the parking lot after the election.
Walker recounted the following sequence to our investigator. Medrano told him that UTAH, the United Teamsters Against Hoffa, had a problem with the key for the post office box for undeliverable ballots. Walker responded that they should file a protest since it is too late and the local union election plan was already approved. A minute or two later, Walker saw Duncan carrying boxes out of the union hall through the kitchen and became suspicious; he demanded that Duncan "open that f-cking box." Walker confirmed the verbal exchange set forth in the protest and expressed embarrassment that he let Duncan "goad" him into the exchange. He stated that he served with Duncan on the local union executive board for many years and that Duncan knew that Walker has a heart condition. Walker said problems between Duncan and himself go back several years.
Medrano characterized the exchange between Duncan and Walker as "two guys beating their chests" and words between "two kids in a schoolyard." Medrano said Walker insisted on seeing the contents of Duncan's boxes, Duncan did not resist, and it turned out to be the campaign literature of Duncan's slate. Medrano did not see any physical confrontation or believe violence was imminent. Later, although Duncan told Medrano he did not feel comfortable returning to the union hall with Walker there, Duncan returned to observe the re-stuffing of the envelopes because of a problem discovered at the post office. Walker also returned and there were no further problems between the two.
Analysis
As a candidate in the delegate and alternate delegate election, Duncan was entitled to observe the election officer transport his slate's literature and the ballots to the post office for mailing. Rules, Article IX, Sections 2 and 5, respectively. Duncan was exercising his right under the Rules on February 24 at the offices of Local Union 614.
Article VII, Section 12(g) of the Rules states:
Retaliation or threat or 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 threat of violence can constitute intimidation and retaliation. 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); Passo, P469 (February 29, 1996), aff'd, 96 EAM 124 (March 13, 1996) (finding intent to provoke physical confrontation to violate Rules); Kelly, P600 (March 27, 1991) (finding threat to "kick their ass" made in menacing manner to violate Rules). The threat of violence must be "immediate and serious" to amount to a Rules violation. Cooper, 2005 ESD 8 (September 2, 2005); Echeveria, 2006 ESD 66 (February 3, 2006) (Rules violation if a "palpable threat of actual harm," quoting Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 015 (January 19, 2001)).
The Rules also recognize that loud and sensational language is part of the election process, and the Rules do not bar that sort of zealous campaigning. Jorgensen, 2000 EAD 72 (December 26, 2000); Rodriguez, 2000 EAD 45 (November 3, 2000); Yocum, 2000 EAD 18 (September 1, 2000) (loud, rude and obnoxious behavior of union steward as member attempted to have other members sign petition not unlawful); Wasilewski, 2000 EAD 14 (August 14, 2000) (words exchanged between two sides in the context of petitions being signed); Rudolph, P861 (August 29, 1996) (no violation where tempers flared briefly on each side, words were exchanged and a few pushes).
In evaluating the totality of the circumstances, including the lengthy partisan electoral history between Duncan and Walker, the facts that Walker did not invade Duncan's personal space, did not strike or attempt to strike Duncan, and did not impede Duncan's ability to walk where he desired, any threat to "settle this outside in the parking lot" did not rise to the level of a Rules violation because it could not be considered to be "immediate and serious," especially where Walker postponed the threatened confrontation to "after the election." Furthermore, nothing presented here suggests that a vulgar comment by a competing candidate limited or deterred Duncan's participation as a candidate in the ongoing election.
Accordingly, we DENY the 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax:(212)751 4864
Copies of the request for hearing must be served upon the parties, as well as upon the Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 247
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Jeffrey Duncan
1583 Giddings Road
Pontiac, MI 48348
Earl Walker, President
IBT Local Union 614
131 University Drive
Pontiac, MI 48342
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com