IN RE: LEEDHAM SLATE, Protestor.
Protest Decision 2006 ESD 319
Issued: July 9, 2006
OES Case No. P-06-304-062906-HQ
(See also Election Appeals Master decision 06 EAM 57)
The Tom Leedham campaign 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 Local Union 89 delegate Darrell Hall, a Leedham supporter, was assaulted on June 28, 2006 at the site of the IBT convention in Las Vegas, Nevada because of his opposition to the candidacy of James Hoffa, in violation of the Rules.
Election Supervisor representatives J. Griffin "Griff" Morgan investigated this protest.
Findings of Fact
The Leedham slate filed a protest alleging that Darrell Hall, a delegate from Local Union 89 and Tom Leedham supporter, was punched and knocked unconscious early on Thursday morning, June 29, 2006 while singing karaoke. The Leedham slate alleged that the motivation for the attack was political and based on solely on Hall's support for Leedham. The protest identified Randy Korgan, a Local 63 Union delegate, as the assailant.
The Election Supervisor's representative interviewed 11 witnesses.
Lynn Wheatley, an alternate delegate from Local Union 89 in Louisville, Kentucky, stated he went to the Ellis Island Casino with Local Union 89 members Darrell Hall, Jim Leslie, Mark Smith, Mark Horsley, L.A. (Allen) Hall and Phil Pennington on June 28, 2006, arriving very late in the evening. The Ellis Island casino faces Koval Lane, across from the rear parking lot and service area of Bally's Hotel. Wheatley estimated that sometime around midnight, he and Horsley were sitting in the Ellis Island restaurant about 30 feet from the karaoke stage when Darrell Hall began to sing. Wheatley was on his cell phone and looked away from the stage. When he looked back, Hall was down. Wheatley did not see what happened to Hall but heard another patron say that the man who hit Hall went out the door. Wheatley, Horsley, Leslie, Allen Hall and Matt Latso, a member of Local Union 639 who was in the bar, gave chase. Wheatley stated that they caught up with 3 men in the Koval Lane parking lot of Bally's Hotel. One of the men was wearing a light colored shirt, another was wearing a red T-shirt and the third was wearing a black shirt. Wheatley stated that the guy in the red shirt balled up his fist and stated: "Are you with the Tom Leedham scum slate? Are you going to rat us out?" Wheatley stated that cooler heads prevailed and, rather than escalate confrontation, his group walked back to the bar to check on Hall. Wheatley stated that EMS was called and that Hall, who was conscious, told them he was fine. Las Vegas Police were called and took a report.
Mark Smith, a Local Union 89 alternate delegate, stated he was at the Ellis Island karaoke bar with the other Local Union 89 members at the time of the incident. Smith stated that he had the most to drink and did not witness much. He did not see Hall get hit and did not see who hit him. He did not join the chase of the reported attackers that ended at the Bally's Hotel parking lot. He did see Hall lying unconscious on the stage with blood on his face.
Darrell Hall, the victim, stated he had a few beers and wanted to sing karaoke. He got his group to go to the Ellis Island karaoke bar around 11:00 p.m. He was sitting at a booth with Smith, Allen Hall, Leslie and Pennington. When his name was called, he went to the stage at what he estimated was 12:30 a.m. He introduced himself by saying: "Kentucky is in the house, and f-ck Hoffa." He said he then started to sing You've Lost That Loving Feelin'. A few bars into the song, Hall stated he was blindsided. He did not see anyone coming and did not see who hit him. He was knocked unconscious and woke up looking at the ceiling after a period of time he could not determine. He told responding EMS medics that he was OK. The police came and took a report.
Allen Hall, another Local Union 89 delegate, said the group arrived at the bar close to midnight and Hall went up to sing about an hour later. Allen Hall said he was watching Hall sing from his booth through a crowd of people. He said Hall went down. At first he thought Hall had fallen off the stage; Allen Hall went up to assist him. The disc jockey told Allen Hall that Hall had been hit. A female patron in the bar told Allen Hall that a "short stocky guy" in a black shirt and tan pants hit Hall and then ran. She pointed in the direction of Bally's Hotel. Wheatley, Allen Hall, Leslie, Horsley and Latso ran toward Bally's. They caught up with 3 men: a large man in an orange/red T-shirt, a man in a light colored shirt, and a short man in a black shirt. Allen Hall said the men denied hitting Hall. Allen Hall stated that the large man in the orange/red shirt asked: "Are you going to rat out a fellow Teamster?" Allen Hall did not recall any comment about the Tom Leedham "scum" slate. Allen Hall told the 3 men that the police were called and asked them to wait if they did not do anything. The men walked away into Bally's Hotel, and the Local Union 89 members returned to Ellis Island to see about Hall.
Jim Leslie, a Local Union 89 delegate, stated he was sitting in the booth with Hall and other friends from his local union. He could see the stage if he craned his neck and looked over his shoulder. Hall's name was called. Hall said, "I am going to sing," stating further that, "I am going to introduce myself by saying: 'Kentucky is in the house. F-ck Hoffa." Hall then went to the stage. Leslie did not hear his introduction and did not see Hall get hit. He did hear a commotion and heard that Hall had been hit. When Leslie got to the stage, Hall was lying on his back. The security guard told Leslie that he saw 4 guys run out. Leslie, Wheatley, Allen Hall, and Horsley went outside and asked people standing in parking lot if they saw anyone. A lady pointed out the way some guys had gone. Leslie and his friends caught up with some guys in the parking lot of Bally's. One of the guys they caught up with asked if they were following him. Leslie asked him, "Why did you hit a Teamster brother?" Another guy in a red shirt answered: "Why? Are you going to rat out a Teamster brother?" Leslie said he repeated: "Why did you hit a Teamster brother?" Leslie said that Allen Hall then said: "Guy you hit is a 29-year Teamster brother." According to Leslie, the man wearing the red shirt then started to act aggressively, and one of his friends, in a light colored shirt, pulled him back. Leslie did not hear any reference to Leedham in the parking lot. The guys Leslie and his friends caught up with then went into Bally's Hotel. Leslie and his friends returned to Ellis Island to attend to Hall.
Matt Latso, a member of Local Union 639 in Washington, D.C., attended the convention as a guest and to help staff Leedham campaign activities. Latso went to Ellis Island for dinner around 9:00 p.m. with Richard Berg, John Zeraw, Kelly Brutcher, Jim Jacobs and Chris Roos. Roos and Latso stayed at Ellis Island after dinner and the rest of their party left. Earlier in the evening, while waiting to be seated for dinner, Latso and Randy Korgan conversed at Ellis Island. Korgan defended Hoffa and questioned Leedham's sexual orientation. Latso defended Leedham and questioned Hoffa's sexual orientation as well as the authenticity of his Teamsters membership. The conversation between Latso and Korgan did not escalate to shouting. Latso stated that Korgan was wearing a red T-shirt and tan shorts. Latso said he knew Korgan from meeting him at the convention earlier in the week. Latso said he did not see Hall get hit. After Hall was hit, Latso ran with the Local Union 89 members after the men they thought had hit Hall. When they caught up with the men, one of them was Korgan. Latso recalled Korgan saying: "You wouldn't rat out a fellow Teamster would you?" Latso did not hear Korgan make a reference to Leedham in the parking lot. Latso stated that Korgan and another guy went into the lower entrance to Bally's and a guy with a dark shirt and a guy with a light shirt went up the hill into the side entrance to Bally's. Latso returned to Ellis Island. After returning to Ellis Island, Latso heard a witness, whose name he thought was Adam (last name unknown), describe the assailant as wearing a dark shirt and a second guy wearing white or a light colored shirt.
Randy Korgan was an alternate delegate from Local Union 63 in Los Angeles. He was interviewed twice by phone with Local Union 63's attorney, Joseph Kaplan, on the calls. Korgan stated that he went with Ron Almarez, Craig Quiroz, and Juan Delgado to Ellis Island for dinner. Korgan stated that he was wearing a red Quicksilver shirt. Korgan stateed that he suffers from colorblindness, but that his wife told him his shirt was red. He stated that the best he could tell, Almarez was wearing a tan shirt, Delgado was wearing a dark shirt, either black or brown, and he was not sure what Quiroz was wearing. Korgan confirmed that earlier in the evening he had a political discussion with Latso. He said the discussion was friendly and in the vein of "we are all Teamster brothers." Korgan said that Latso told him that Hoffa was never a Teamster and Korgan said he worked the docks when he was younger. Latso accused Hoffa of being a corporate lawyer. Toward the end of the discussion, Korgan stated he promised to mail Latso some information on one of the topics they were discussing. Korgan said that he was in the karaoke bar with his friends when a ruckus broke out just as they were leaving. He said they left when the ruckus broke out because they wanted to avoid any problems. After Korgan and his companions left, Korgan stated that some guys came after them. Korgan said they asked him: "Who are you?" Korgan stated that nobody accused him of hitting their friend. Korgan told them that they did not see what happened. Korgan stated that the men told him that the cops were coming. Korgan said they went into Bally's. Korgan said there is no place to hide in Bally's. Korgan denied asking the other men: "Are you going to rat out a Teamster brother?" Korgan stated he heard something like that but does not know who said it. Korgan said it might have come from the guys that caught up with him and his friends in the parking lot. Korgan stated that he left Las Vegas later that night because the Teamsters had just obtained a card check with UPS Freight (formerly Overnite) and he wanted to get to work on the card check campaign. Korgan stated that he works as both a business agent and organizer for Local Union 63.
Ron Almarez was a delegate from Local Union 63. He went with Korgan, Delgado and Quiroz to Ellis Island for ribs. After dinner, they went to the karaoke bar. Almarez stated that he was sitting at the bar with Korgan when he heard a ruckus. He said that Korgan grabbed him and said, "Let's get out of here." Delgado and Quiroz were not at the bar with them. Almarez thought they had gone to the restroom or the casino. Almarez stated that as he and Korgan were going out they "kind of ran into" Delgado and Quiroz. He said they all left. Almarez stated that he was staying at another hotel, across the street from Bally's and that he was not confronted in the Bally's parking lot. Almarez stated that he is 6'4" tall and weighs 320 pounds. He stated that he was wearing a tan T-shirt that said "Sancho" on it. Almarez has short black hair. He described Korgan as 6'1" weighing over 200 pounds and wearing an orange/red T-shirt. Korgan is bald. Quiroz was described by Almarez as being about 5'10" with short blondish-brown hair and wearing a black T-shirt. Almarez described Delgado as 5'7", stocky build with black hair cut to a normal length.
Paul Seckler, a security guard at Ellis Island Casino, stated that he did not see the assault, but was immediately told that the man that did the hitting was wearing a black T-shirt. He ran outside and saw a short man about 5'8" running down the sidewalk wearing a black T-shirt and appearing to take it off as he got to the corner of Koval Land and Flamingo Drive. Seckler described the individual as maybe white or maybe Hispanic with dark hair. He said that he was the smallest of the individuals that he saw running. Seckler described the other guys as larger and one of the guys as bald in a red shirt. Seckler did not give chase. He returned to the karaoke bar. He stated that the victim was unconscious for a few minutes.
Tim Welsh was the disc jockey at the Ellis Island karaoke bar. He stated that Hall was knocked out by a guy wearing a black T-shirt. He said Hall fell into him, against his leg. He stated that Hall was unconscious for about 10 minutes. Welsh heard from another person that a second guy in a white shirt struck a second blow, but Welsh did not see that occur.
Karen Dorsey is the President of Ellis Island Casino. She was interviewed on Friday June 30, 2006. She was not willing to provide the security incident report without first speaking with her attorney. Her attorney was out of town and not available until after July 4th. She did state that the assailant had been identified as Randy Korgan.
Juan Delgado is a member of Local Union 63 who came to Las Vegas for just two days and one night. He was interviewed by telephone on July 3, 2006. On his second day in Las Vegas, he went to Ellis Island to eat with Korgan, Quiroz and Almarez. Delgado could not recall what Quiroz was wearing. He said Almarez was wearing a Sancho shirt. Korgan was wearing a T-shirt, but he did not know the color. Delgado described himself as 5'6" tall, weighing 215 pounds. He said that he was wearing a light green shirt. Delgado said when they finished eating they went to the bar. Delgado said that all 4 of them were by the exit when they heard a commotion and left. Delgado said that halfway back to Bally's some guys ran up on them and said someone got hit at Ellis Island. Delgado said he did not respond, but that Korgan stated: "We did not have anything to do with it." Delgado was not sure if Quiroz said anything. Delgado stated that he had already checked out of his room at the Tropicana and that he left for home soon after the confrontation in the parking lot.
When Delgado was informed that the witnesses' descriptions, including those of his friends, made it appear that he was the assailant, Delgado stated that he wanted to confront his accusers. The Election Supervisor's representative told him that the way to have that happen was to have the Las Vegas Police arrange a line-up. Delgado was then told that the Election Office was interested in learning the truth about what happened in order to resolve issues related to the Teamsters elections. Delgado then asked what happened within the Teamsters and was told that a finding would be made as to what happened and why. If the protest was upheld then a remedy would be imposed. Common remedies included posting a notice and other forms of sanctions. Delgado stated that he wanted to speak with an attorney before he spoke further. He was told that the Election Office representative had spoken with Local Union 63's attorney and he might want to speak with him. Delgado promised to call back but has not done so.
Analysis
We find that Juan Delgado struck Darrell Hall in the face at the Ellis Island karaoke bar in the early morning hours of June 29, 2006, rendering him unconscious. Our finding is based on what those witnesses who saw the assault (including the non-IBT disc-jockey) and flight, told us about the height, size, and clothing of the assailant. We further find that Delgado's assaultive behavior was motivated directly by Hall's statement of "F-ck Hoffa."
Article VII, Section 12(g) of the Rules prohibit "retaliation or threat of retaliation by … any member of the IBT … against a Union member … for exercising any right guaranteed by" the Rules.
As we noted in Berg, 2006 ESD 315 (June 29, 2006):
It is settled that violence may constitute prohibited retaliation under the Rules. Teller, P1086 (December 27, 1991) (finding violation where a local trustee grabbed a member by the arm, tapped a finger into his chest, grabbed him by the jacket collar and pushed him against the wall); Stefanski, P282 (January 22, 1996), aff'd, 96 EAM 94 (February 21, 1996) (finding violation where a member grabbed another's arms in a menacing manner and order him to leave the facility where he was campaigning); Smith, 91 EAM 51 (January 29, 1991) (finding violation where a member was struck on the back of the head for expressing unpopular political beliefs); Rogowski, P859 (August 13, 1996) (violation to pull the protestor's shirt collar and push him from behind with his elbow in front of other members.) Violence ... has absolutely no place in the conduct of fair, honest and open elections, pursuant to the Election Rules. Smith, supra.
Hall's coarse statement and Delgado's impulsive response together provide the nexus necessary to establish prohibited retaliation under the Rules. Hall's statement, no matter how unwise in the setting of the Ellis Island karaoke bar, is nonetheless protected speech under the Rules. By making his political statement, he did not consent, implicitly or otherwise, to being assaulted for his views.
Were we to hold that "fighting words" provide an exception to the firm rule that "violence has absolutely no place" in Teamsters elections, we would re-write established precedent and inject substantial uncertainty into an area that is presently settled. A "fighting words" exception would place us in the untenable position of evaluating whether a violent reaction to political speech was justified. We decline the invitation to such a morass that this case presents and hold that Delgado violated the Rules by punching Hall in response to Hall's political statement.
Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order the following relief:
1. Juan Delgado shall cease and desist from any further retaliation, threat of retaliation, violence and threat of violence against any member of the IBT.
2. Juan Delgado shall pay a fine of $500 to the Office of the Election Supervisor within 5 working days of receipt of this decision. Delgado shall pay the fine solely from personal funds. When paying the fine, Delgado shall submit an affidavit stating that the fine is paid solely from personal funds, that no other person, IBT member, candidate, slate, or campaign has transferred or contributed any funds to him for the purpose of paying all or part of the fine, and that Delgado will refuse any such offer, transfer, or contribution.
3. Local Union 63 and Local Union 89 shall post the notice attached to this decision on all union bulletin boards under their respective jurisdictions and shall be responsible for maintaining such posting through November 30, 2006.
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 Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, 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 319
NOTICE TO ALL MEMBERS OF
IBT LOCAL UNIONS 63 AND 89
FROM ELECTION SUPERVISOR RICHARD W. MARK
The Rules for the 2005-2006 IBT International Union Delegate and International Officer Election ("Rules") protect the right of each member "to participate in campaign activities, including the right to run for office, to support or oppose any candidate, [and] to aid or campaign for any candidate." The Rules further prohibit retaliation or threat of retaliation by the Union against a Union member for exercising any right guaranteed by the Rules is prohibited.
The Election Supervisor has found that on June 29, 2006, Juan Delgado, a member of Local Union 63, punched and knocked out Darrell Hall, a member of Local Union 89 and delegate to the IBT convention, in reaction to a statement Hall made about the IBT's General President. This assault occurred in Las Vegas, the site of the IBT convention in Las Vegas, Nevada.
The Election Supervisor will not tolerate such retaliation or violence.
The Election Supervisor has ordered Delgado to cease and desist from any further retaliation against any member for their exercise of rights protected by the Rules. The Election Supervisor has further ordered Delgado to pay a fine of $500.00 from personal funds. The Election Supervisor has further ordered Local Unions 63 and 89 to post and maintain this notice on all union bulletin boards under their respective jurisdictions through November 30, 2006.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org.
Dated: July 6, 2006
_________________________________________
Richard W. Mark
Election Supervisor
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted through November 30, 2006 and must not be defaced or covered up.
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
David J. Hoffa
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 E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Randy Korgan
P.O. Box 1
Bloomington, CA 92316
Juan Delgado
c/o IBT Local Union 63
845 Oak Park Road
Covina, CA 91724
Randy Cammack, Secretary-Treasurer
IBT Local Union 63
845 Oak Park Road
Covina, CA 91724
Darrell Hall
459 Washburn Lane
Taylorsville, KY 40071
darrellhall@bellsouth.net
Fred Zuckerman, Secretary-Treasurer
IBT Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fzuckerman@teamsters89.com
J. Griffin "Griff" Morgan
Elliot, Pishko & Morgan
500 West Fourth Street
Winston-Salem, NC 27120
jgmorgan@epm.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com