OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: RICHARD GALVAN, ) Protest Decision 2011 ESD 237
) Issued: April 27, 2011
Protestor. ) OES Case No. P-115-020811-FW
____________________________________)
Richard Galvan, member of Local Union 396, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that a supporter of the Herrera slate improperly interfered with his campaign rights.
Election Supervisor representative Maureen Geraghty investigated this protest.
Findings of Fact
Local Union 396 is entitled to 13 delegates and 13 alternate delegates to the IBT convention. Two slates of candidates were nominated on January 8, 2011. The Ron Herrera slate, led by local union officers and business agents, competed against the Galvan Respect and Dignity slate, comprised of stewards and rank-and-file members. At the tally conducted March 1, the Herrara slate won with more than 65% of votes cast.
At 7:15 a.m. on February 7, the day before ballots were mailed, Galvan and alternate delegate candidates Jose Iniguez and Frank Aguilar arrived at the UPS Olympic hub in Los Angeles to distribute Galvan slate campaign literature to local union members employed there. Frank Flores, Robert Granados and David Wuence, also Galvan slate candidates, arrived between 7:30 and 8 a.m. and joined the leafleting.
UPS-Olympic has two employee parking lots, both located across a public street from the worksite. To reach the facility from their vehicles, employees cross the street to a public sidewalk and then turn up the sidewalk to the main employee entrance.
Juan Gutierrez, UPS-Olympic shop steward and supporter of the Herrera slate, arrived at the hub at 7:25 a.m. Gutierrez observed Galvan and Granados standing near the employee entrance and complained to security that UPS did not permit campaigning next to the employee entrance.
At about 7:30 a.m., security personnel asked Galvan and his fellow slate members to relocate to the public sidewalk area or the employee parking lot area. Galvan does not allege he had the right to campaign next to the employee entrance, and he agreed to move to the public sidewalk area once security requested it.
Galvan and Granados then stood on the public sidewalk employees use to enter the facility. Soon, Aguilar came and stood near them and began distributing Galvan slate material too.
Shortly thereafter, Gutierrez, standing about three feet from Galvan, began questioning Galvan about his candidacy and statements contained in Galvan’s campaign literature. Gutierrez admitted to our investigator that he verbally challenged Galvan and asked him repeatedly why he had quit his position with the local union. Galvan first remained silent and then told Gutierrez he was not going to answer. Gutierrez persisted to the point of berating Galvan over and over again as to why he quit and demanding he name the twelve stewards Galvan’s campaign literature claimed as slate members. Galvan told Gutierrez repeatedly he was rude and obnoxious. Gutierrez admitted he did not cease and continued to verbally challenge Galvan. Gutierrez also admitted he walked alongside employees entering the employee entrance and challenged them to ask Galvan why he quit and did not allow Galvan to talk uninterrupted with employees. Instead, Gutierrez admitted he intentionally interrupted every time he saw Galvan talking to an employee because he wanted to interfere with Galvan’s efforts to gain supporters. Gutierrez also admitted that as Galvan was talking to employees about his candidacy, he yelled at Galvan to talk louder so everyone could hear what he was saying and hear his explanation for quitting.
Galvan stated about a dozen members employed at the facility walked nervously and hurriedly around him to avoid dealing with Gutierrez’s aggressive harassment and interference. Galvan further stated a great many more employees expressed sympathy and were interested and respectful of his presence and ignored Gutierrez.
At about 7:40 a.m., Percy Martinez arrived at the facility to campaign for the Ron Herrera slate. Martinez serves as business agent for UPS-Olympic. When Martinez arrived, Gutierrez was still berating and challenging Galvan.
At 7:50 a.m., as Gutierrez was still walking between Galvan and Aguilar, he bumped Galvan. Galvan told our investigator that Gutierrez intentionally bumped him with his shoulder and said “Fuck you” as he passed. Gutierrez denied the contact was intentional. Instead, he said he was walking toward Galvan when Galvan moved unexpectedly, and he inadvertently bumped into him from behind and used the back of his hand to push Galvan out of the way. Gutierrez denied he used any force and claimed he used the back of his hand simply to avoid bumping into Galvan more forcefully. Both agreed Galvan responded: “Juan, you are not going to start brushing up against us.” Galvan stated Gutierrez immediately walked away because he must have known he had gone too far. As Galvan described it, Gutierrez walked off by himself and made no attempt to interact any further with Galvan or his fellow campaigners that day. Frank Flores then approached Gutierrez and admonished him for his conduct. Gutierrez explained to Flores, “I have nothing against you personally or any other Galvan supporter, but I just do not trust Galvan and he should be willing to honestly explain his record.” At about 8:10 a.m., Gutierrez went inside the hub and remained there.
Galvan did not move away from Gutierrez or the sidewalk area and did not report the matter to security.
At 8:15 a.m., UPS business coordinator David Castro arrived to join business agent Martinez. Castro was a candidate for delegate on the Herrera slate. When Granados saw Martinez, he inquired about a pending grievance and Martinez told him he could not discuss it because he was off the clock campaigning. Shortly thereafter, Jose Iniguez provocatively held a camera up to Martinez’s face and took several close-up photos of Martinez. Iniguez said nothing as he did this. Martinez then retrieved his camera from his car and took several photos of Galvan, Iniguez and Granados. Shortly thereafter, Galvan approached Martinez and said, “Okay, David, I see you are helping them campaign.” Martinez nodded affirmatively.
Both sides remained at the facility until around 9:15 a.m. At that point, Galvan again approached Martinez and said, “David, we are leaving. Have a good day.”
With this protest, Galvan contends that Local Union 396 and the Herrera slate are responsible for Gutierrez’s conduct because he was acting under their direction and David Castro and Perry Martinez, employees of the local union and Herrera slate supporters, were present but did not stop Gutierrez. Galvan presented no evidence to support his claim that the local union or Herrera slate members directed Gutierrez. Further, Gutierrez denied that any local union officers or employees, or Herrera slate members instructed him to take any action. Instead, he claimed he acted on his own to oppose Galvan’s campaign efforts.
Galvan and supporters returned to UPS-Olympic to campaign on February 11. Herrera supporters also appeared at that time and campaigned in the same area. The details of that incident are described in Galvan, 2011 ESD 238 (April 27, 2011).
Analysis
Article VII, Section 12(a) of the Rules protects members’ right to campaign; it also grants “the reciprocal right to hear or otherwise receive such campaign advocacy.”
Past decisions 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); 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 vulgar or threatening language so interferes with the right to campaign that it violates the Rules. Williams, 2001 EAD 201 (February 27, 2001).
Conduct that goes beyond zealous campaigning and escalates to such a level that it drives union members away from the vicinity of campaign activity effectively deprives members of their reciprocal right to receive literature and/or solicitations of support. We exercise care in evaluating such conduct, for members also have the right to hear and assess the value of the opposing campaign message as well.
In this case, we find that Gutierrez’s conduct impermissibly obstructed Galvan’s campaign efforts. Gutierrez interposed himself between Galvan and members as Galvan was speaking with them, to the extent that Gutierrez at one point made physical contact with Galvan. Further, Gutierrez at points diverted members from meeting, talking to, and receiving literature from Galvan. At other points, Gutierrez interrupted the dialogue between Galvan and members to interject his view that Galvan was not a worthy candidate. Gutierrez admitted that he physically blocked Galvan from speaking with members and that he talked and shouted over Galvan to disrupt Galvan’s communication. Such conduct persisting over nearly a half hour drove members away from Galvan and deprived those members of the opportunity to receive Galvan’s campaign literature and his request for support.
We distinguish Gutierrez’s conduct here from that found in Galvan, 2011 ESD 238 (April 27, 2011). There, campaigners for both slates were able to deliver their respective message to members and members were able to receive those messages. In contrast, Gutierrez’s conduct here obstructed Galvan’s dissemination of his campaign message and the members’ opportunity to receive it.
Although this protest was filed pre-election, we consider it in a post-election context pursuant to Article XIII, Section 2(f)(2). Generally, post-election protests may be considered and remedied only if the alleged violation may have affected the outcome of the election. However, improper coercion may be remedied without regard to whether the alleged violation affected the outcome of the election. Article XIII, Sec. 3(b).
The wide electoral margin between the candidates on the Herrera slate and the Galvan candidates far exceeds the number of members Galvan asserted he was unable to reach because of Gutierrez’s improper conduct. Moreover, as detailed in Galvan, supra, Galvan campaigners were able to campaign successfully at UPS-Olympic a few days later, on February 11. Accordingly, we conclude that the conduct found here did not affect the outcome of the election.
Nonetheless, we find that Gutierrez’s conduct improperly interfered with Galvan’s right to campaign and the reciprocal right of members to hear and receive that campaign advocacy. Accordingly, we GRANT the protest with respect to Gutierrez’s actions.
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 Gutierrez to cease and desist from obstructive and coercive conduct under the Rules. Specifically, we order him not to interfere with the right of members to campaign and the right of other members to hear or receive that campaign advocacy.
We further order Gutierrez to sign and post on all worksite bulletin boards at UPS-Olympic the notice attached to this decision. Gutierrez must complete this posting within two working days of the date of this decision. The notice must remain posted on all such bulletin boards for a period of thirty (30) consecutive days and must not be defaced or covered up.
Gutierrez is to submit signed statements to OES verifying his compliance with this remedy within two days of posting the notices and again within two days following the date when the notices may permissibly be removed from the bulletin boards.
An order of the Election Supervisor is effective immediately unless stayed.
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, NY 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, 1801 K Street, N.W., Suite 421 L, 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
2011 ESD 237
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Richard Galvan
1208 E. Dalton Avenue
Glendora, CA 91741
patg_0706@yahoo.com
Juan Gutierrez
709 S. Euclid Ave.
Los Angeles, CA 90023
Ron Herrera, Secretary-Treasurer
Teamsters Local Union 396
880 Oak Park Road, #200
Covina, CA 91724
ronherrera@local396.net
Maureen Geraghty
426 Old Salem Road
Winston-Salem, NC 27101
mg@geraghtylawfirm.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com