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Office of the Election Supervisor for the International Brotherhood of Teamsters

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JUAN GUTIERREZ,                      )           Protest Decision 2011 ESD 239

                                                                        )           Issued: April 27, 2011

            Protestor.                                           )           OES Case No. P-185-022811-FW

____________________________________)

            Juan Gutierrez, 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 Paul Uribe threatened him in violation of the Rules.

            Election Supervisor representative Rochelle Goffe investigated this protest.

Findings of Fact

            Uribe was nominated for delegate on the Galvan Respect and Dignity slate at Local Union 396’s nominations meeting held January 8, 2011.  Gutierrez was not a candidate in the delegates election. 

            At a general membership meeting held February 27, 2011, Gutierrez served as sergeant at arms.  He stood in the rear of the assembly hall, adjacent to the doors.  He alleged that shortly after the meeting minutes were read at the start of the meeting, Uribe exited the assembly hall.  Uribe’s path took him past Gutierrez.  Gutierrez said that Uribe stared at him while proceeding to the door and, when Uribe was closest to him, Uribe lunged in his direction.  Gutierrez said he leaned away from the lunge, and no contact was made.  Uribe continued on his way out the door and said nothing.  Gutierrez likewise said nothing.  About five minutes later, Gutierrez said that Uriber reentered the room; Gutierrez noticed that Uribe was now wearing gloves, something he did not observe on Uribe’s hands previously.  Gutierrez also noticed that Uribe was staring at several individuals who were present.  Gutierrez reported nothing further concerning the incident.

            Uribe stated that, soon after the meeting started, he received a call on his cellphone.  He exited the hall to take the call.  He chose a path out of the hall along the wall to avoid disturbing others.  He denied lunging at Gutierrez or in his direction.  He said he has known Gutierrez for some 25 years and did not single him out for anything.  Uribe acknowledged that he had gloves on during the entire meeting, even when he first exited the hall to take the phone call, because he said his hands were cold.

            Ruben Tiscarero, a UPS driver who serves as shop steward, was present at the meeting and observed Uribe’s actions.  He told our investigator he saw Uribe walk through the meeting.  As Uribe passed Gutierrez, he made what Tiscarero said was a “weird movement, like he was going to say something – a lunge, then he kept walking.”  Tiscarero said he would not have thought the incident was weird except for the fact that Uribe was on the opposition slate.   Tiscarero described Uribe’s action as “kind of strange – almost aggressive.”  Nothing was said by either party, and Tiscarero did not feel the need to call for assistance. 

About five minutes later, Tiscarero said that Uribe returned and kept pulling on his gloves and staring at Gutierrez.  Again, Uribe said nothing and kept walking.  According to Tiscarero, “It might not be a big deal – I don’t know – you would have to know the guy’s intent.  If someone had said something it might have escalated.” 

Analysis

            Article VII, Section 12(g) prohibits threats for activity protected by the Rules.  We do not find a prohibited threat on the facts presented here, as there was neither touching nor menacing behavior on Uribe’s part sufficient to present a palpable threat to Gutierrez of imminent harm.  Further, we find insufficient evidence to link Uribe’s alleged behavior to activity protected by the Rules.

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, 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 239


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