Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: FRED ZUCKERMAN,                      )           Protest Decision 2015 ESD 8 (corrected)

                                                                        )           Issued: July 16, 2015

            Protestor.                                           )           OES Case No. P-003-060115-FW                 

____________________________________)

            Fred Zuckerman, member of Local Union 89 and candidate for International office, filed a pre-election protest pursuant to Article XIII, Section 2(a) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Local Union 396 member Robert Stansbury engaged in acts of intimidation and surveillance at a political event, in violation of the Title I of the LMRDA.

            Election Supervisor representative Michael Miller investigated this protest.

Findings of Fact

            Robert Stansbury is a member and sergeant-at-arms of Local Union 396, an appointed position he has held for the past 6 or 7 years.  He is a 31-year Teamster and works full-time as a UPS feeder driver at the hub located in Cerritos, CA.  Ron Herrera is secretary-treasurer and principal officer of Local Union 396 and, at the time of the incident that is the subject of this protest, an International Trustee of the IBT,[1] elected to that position in 2011 as part of the Hoffa-Hall 2011 slate.

Richard Galvan is also a member of Local Union 396.  In addition, Galvan is a former officer candidate of the local union and, at the time of the incident here, was again a candidate for local union office.  Galvan sought nomination as a candidate for IBT vice president for the Western region as part of the Gegare slate at the 2011 IBT convention but did not tally the minimum number of delegate secret ballot votes at the convention required to win a place on the union-wide ballot.

Galvan led a slate of candidates for Local Union 396 office for the Fall 2014 elections called the Putting Members 1^st Slate.  Galvan’s slate was contesting the election against Herrera’s slate.  Galvan’s slate hosted a fundraiser that is the subject of this protest on Saturday, September 20, 2014 at the American Legion hall in Montebello, CA. 

A featured speaker at the Galvan slate fundraiser was Fred Zuckerman, the president and principal officer of Local Union 89 in Louisville, KY, and the protestor here.  Zuckerman was a candidate for IBT vice president – Central region on the Gegare slate in 2011 and appeared on the Central region ballot then.  On August 8, 2014, Zuckerman formally announced his candidacy for International office in the 2016 IBT election.  His appearance at the September 20 fundraiser was to support Galvan’s candidacy in the local union election and to promote his own candidacy for International office.

Zuckerman’s appearance at the Galvan slate fundraiser was publicized in advance and was the subject of widespread activity on social media.  Stansbury told our investigator he learned of Zuckerman’s impending appearance and decided to attend the event because he “just wanted to see what was going on over there.”

Stansbury told our investigator he showed up at the event at about 2 p.m.  He did not attend as a supporter of Galvan but instead as an opponent.  He wore a 2011 campaign t-shirt for Hoffa-Herrera (the shirt bore a “Hoffa-Herrera” logo on the front; the graphic filling the back of the shirt read “Vote Ron Herrera for IBT Trustee – Los Angeles, California”).  Stansbury chose his clothing with purpose.  He said it was like wearing a Celtics shirt to a Lakers game.  He was accompanied by his wife.

Stansbury said he was familiar with the building from his experience as a UPS package car driver in that area.  He said he made no attempt to enter the fundraiser, stating he did not intend to pay the $10 admission charge that would go to support a slate he opposed.  He said he went to the front door but did not see anyone there, so he walked around to the side of the building where he saw men barbecuing for the event.  There, he said, several men recognized him.  They told him he had no business there as a Herrera supporter. 

Stansbury then took up a position on the sidewalk where it crossed the driveway into the Legion hall parking lot.  He alternately stood there and walked slowly back and forth across the drive for the next 30 minutes, smoking a cigar and talking to members as they arrived for the event.  He did not distribute leaflets or flyers.

Bill Ulloa, a retired Local Union 396 member who staffed the door to the event, told our investigator he first saw Stansbury at the venue at about 1:30 p.m.  As members began arriving, Ulloa said that several appeared unnerved by Stansbury’s presence outside.  Ulloa said members asked when entering the event, “Why is he here?,” referring to Stansbury.  According to Ulloa, Stansbury told some members, “Don’t go in there.  They are a bunch of liars.”  To others, he said, “We will remember faces and report back.”

Several witnesses observed Stansbury taking photos as he stood and paced outside.  Thus, among others, Hugo Flores saw Stansbury with a camera, taking photos of individuals as they approached the hall, and Ulloa saw Stansbury taking photos of individuals and the cars they arrived in. 

Jose Moreno, a Galvan supporter, walked out to Stansbury and took several photos to document his activity.  Moreno is a member of Local Union 396 and drove Zuckerman to and from the event from his hotel.  The digital properties of Moreno’s photos show they were taken over a few minutes starting at 2:29 p.m.  The photos depict Stansbury alternately standing on the sidewalk facing pedestrians as they approached the building or walking back and forth across the driveway entrance.  After taking the photos, Moreno returned to the building and spoke with Galvan about the situation.

When Galvan, the host of the event, learned of Stansbury’s activity, he told Zuckerman, who decided to go outside to confront Stansbury.  Zuckerman told our investigator that he, Galvan and a few others approached Stansbury, and Zuckerman introduced himself and asked Stansbury what he was doing.  According to Galvan, Stansbury’s first response was, “Oh, I’m taking a stroll.”  Then Stansbury said, “We don’t need people from Kentucky coming here and telling us what to do.”  Jose Moreno told our investigator that Stansbury said, “Why don’t you go back to Kentucky?”[2]  Galvan and Moreno independently told our investigator that Stansbury mocked Zuckerman’s accent.  Zuckerman noted the camera in Stansbury’s hand and told him that if he was taking photos, he was violating the election rules.  According to Zuckerman, Stansbury did not respond to this information. 

Galvan picked up Zuckerman’s statements and told Stansbury he would call the police if Stansbury continued.  Stansbury told our investigator that when he concluded that Galvan really would call the police, he texted Jay Phillips, president of Local Union 396 and a member of Herrrera’s slate, to ask if he was breaking any law or election rule by being present outside Galvan’s event. 

Galvan indeed called the police, and two officers from the Montebello PD appeared.  They assessed the situation and spoke with Stansbury and Galvan separately, advising Zuckerman and Galvan that Stansbury was within his rights on the public sidewalk adjacent to the hall.  A photo of Stansbury with a police officer places the event at 2:52 p.m.  Shortly after, the police left the scene.

Phillips told our investigator that, although he was aware of the Galvan event in advance because of the promotion around it and knew that Zuckerman would be attending, he did not know that Stansbury was present until he received Stansbury’s text mid-afternoon.[3]  Phillips said that Stansbury’s text reported that he was present at the event and was being told to leave; the text asked Phillips what he should do.  Phillips told our investigator he thought this was an “odd situation,” so he said he called Stansbury rather than text him back.  He reached Stansbury immediately, got the details of the situation from him, and then told Stansbury that he should leave because the event was a fundraiser for the opposition and they had told him he was not welcome.  Phillips said Stansbury indicated he would leave promptly.

Stansbury phoned Herrera later that evening to give him a “heads up” about the situation.  Stansbury said that Herrera told him it would have been better had he left. 

With respect to photography, Stansbury admitted to our investigator that he took a single photo of one person who came to the event and entered the hall.  Stansbury said he did not know who the person was.  Further, he said he took the photo only after Moreno took several photos of Stansbury.  Stansbury produced the photo to our investigator.  Stansbury denied to our investigator that he took any photos other than the one he supplied.  Stansbury used his mobile telephone to take the photo. 

Stansbury further denied sending or sharing any photo or photos he took at the Galvan event to or with Phillips or Herrera, and Phillips and Herrera both denied seeing any such photography.

The protest was first sent to the Election Supervisor in September 2014.  However, as neither the Rules nor an election agreement were in effect, we deferred action altogether.  The protest was then filed with the IBT, which conducted an investigation through its legal department.  The IBT issued a decision to the protestor concluding that no misconduct related to the IBT International Officer Election had been committed.  The investigative materials were turned over to OES.

Stansbury admitted to the IBT investigator that he took multiple photos during his time at the Galvan event.  Although the IBT’s investigator requested production of the photos taken, Stansbury did not turn over any photos to the investigator.[4]

Phillips also was interviewed by the IBT investigator.  He initially told the investigator that he thought he received a photo from Stansbury.  After checking, however, Phillips corrected his statement to the investigator and denied receiving any photo or photos from Stansbury.

Analysis

As was the case in Zuckerman, 2015 ESD 5 (July 1, 2015) and Zuckerman, 2015 ESD 7 (July 15, 2015), this protest was timely filed as a “reachback” protest under Article XIII, Section 2(a) of the Rules, which permits protests “regarding violations of the LMRDA (including violations of the IBT Constitution) allegedly occurring prior to the date of issuance of these Rules” to be filed “within the first thirty (30) days of the date of issuance.”[5] 

The Election Supervisor has jurisdiction to consider and decide only those protests that relate to the election of delegates and alternate delegates and the election of International officers.  We have no jurisdiction to remedy alleged violations with respect to the election of local union officers.  Lockhart, 2006 ESD 264 (May 24, 2006).  As the Galvan event had as a purpose the raising of campaign funds for a local union officers election, we must first assess whether we have jurisdiction to decide it.

We conclude that we have such jurisdiction because of the following facts: protestor Zuckerman publicly declared his candidacy for International office in August 2014, more than a month before the event at issue here.  He attended the event here to support Galvan in his local union office candidacy and also to make the case for his own candidacy for International office.  Zuckerman’s appearance at the event was publicized in advance, and the evidence demonstrates that Stansbury’s decision to come to the event was motivate in substantial part by Zuckerman’s appearance there.  Stansbury wore a campaign t-shirt that referenced a campaign for International office (albeit from 2011), and his remarks to Zuckerman demonstrated convincingly that he knew who Zuckerman was and that Zuckerman was there to promote his candidacy for International office.  These facts persuade us that the conduct complained of by the protestor was intended to display opposition to Zuckerman’s candidacy for International office.  Accordingly, we find jurisdiction to decide this protest.

Turning to the merits, we conclude that Stansbury committed no violation of the LMRDA by coming to the Galvan event, standing on the sidewalk, patrolling the driveway entrance, wearing a partisan t-shirt, and telling persons walking into the event that they should not go in and that the speakers inside were a “bunch of liars.”  This conduct was campaign activity in opposition to Zuckerman’s candidacy.  It was his right under the LMRDA to engage in such activity.  Precedent establishes persuasively that Stansbury need not refrain from political speech merely because candidates he opposes are speaking.  See Zuckerman, 2015 ESD 7 (July 15, 2015).

Had Stansbury’s conduct stopped there, we would deny the protest.  However, evidence establishes that he took photos of members walking into the event and photos of their vehicles and in particular the license plates of their vehicles.  He did so openly so those photographed and other observers would know that he was documenting their attendance.  He accompanied this conduct with the statement that “We will remember faces and report back.” 

            Article VII, Section 12(a) guarantees members “the right to participate in campaign activities, including the right to … support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  This basic right is reinforced by Article VII, Section 12(f), which prohibits “[r]etaliation or threat of retaliation … against a Union member … for exercising any right guaranteed” by the Rules.  Any act that constitutes coercion, interference or harassment of any member in the exercise of these essential rights is forbidden.  Surveillance is one of those prohibited acts.

The free speech provisions of the LMRDA guarantee members “the right to meet and assemble freely with other members” and “to express any views, arguments, or opinions.”  29 USC 411(a)(2). 

            In Pollack, P-008 (October 29, 1990), aff’d, 90 Elec.App. 8 (November 7, 1990), Election Officer Holland concluded that officers of Local Union 732 violated the Rules when, after being removed from a TDU meeting, rented the room directly across the hall and observed members enter and exit the meeting.  He wrote:

IBT members have the right to gather and discuss issues concerning the election of delegates and alternate delegates to the International Convention free from interference.  Similarly, I find that the actions of the local officials in subjecting IBT members attending the TDU meeting to surveillance or creating the appearance of surveillance to be violative of the Election Rules.  Such surveillance or the appearance of surveillance is destructive of the fundamental safeguards of … free and fair elections outlined in the Consent Decree and the Election Rules.

In Giacumbo, P-210 (December 5, 1995), aff’d, 95 EAM 45 (December 18, 1995), Election Officer Quindel found that a known Carey supporter violated the Rules by camping in the lobby of a club where candidate Hoffa was having a fundraiser and making a record of names of those attending.

In Richards (after remand), 2000 EAD 27 (September 27, 2000), aff’d, 00 EAM 8 (October 23, 2000), Election Administrator Wertheimer found that a TDU opponent violated the Rules by appearing at a TDU meeting, announcing he was there as a “watchdog,” and refusing to leave. 

The test of surveillance is an objective one.  Where the conduct “creat[es] the appearance of surveillance,” the actor’s claimed subjective motivation to the contrary is unavailing.  As Election Administrator Wertheimer noted, “The National Labor Relations Board has long applied an objective test in cases where unlawful restraint and coercion of employee rights is alleged, and, rather than focusing on motive, holds that the appropriate test is whether the challenged conduct ‘may reasonably be said … to interfere with the free exercise of employee rights under the Act.’ NLRB v. Ford, 170 F.2d 735, 738 (6^th Cir. 1948); see also, NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1045 (4^th Cir. 1997)(“creat[ion of] an impression of surveillance” violates NLRA prohibition against coercion of employee right to engage in protected union activity (emphasis supplied).); and BRC Injected Rubber Products, Inc., 311 NLRB 66, 71 (1993).” 

In addition to these precedents, we have held surveillance and the appearance of surveillance to violate the Rules as impermissible coercion in Zuckerman, 2010 ESD 62 (December 28, 2010), aff’d, 11 EAM 10 (January 28, 2011) (taking photos of members entering fundraiser).

On the evidence presented here, we find that Stansbury engaged in prohibited surveillance of members entering the American Legion hall for the Galvan event by taking photos and being seen taking photos of members and their vehicles.  Coupled with a statement that “we will remember faces and report back,” such objective evidence creates the impression of surveillance, which is inherently restraining and coercive.[6]  In making this finding, we do not credit Stansbury’s claim that he took only one photo of a member approaching the hall and did so in frustrated reaction to Moreno’s photography of Stansbury. 

Accordingly, we grant the protest with respect to surveillance.

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.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

            We direct Stansbury to cease and desist from any further or similar surveillance, creating the appearance of surveillance, or interfering with the rights of IBT members under the Final Order or the Rules to support or engage in any campaign-related activity on behalf of any candidate for delegate, alternate delegate or International officer of the IBT.

            Within three (3) days of receipt of this decision, Local Union 396 shall post on all union worksite bulletin under its jurisdiction the notice attached to this decision, in both the English language version that is attached and a Spanish language version that OES will supply.  We impose this remedy to inform members of their rights and to deter further misconduct.  The notice in both languages shall remain posted through August 31, 2015.  Within three (3) days of completing the posting, Local Union 396 shall submit a declaration of posting to our office.

            A decision of the Election Supervisor takes immediate effect unless stayed.  Lopez, 96 EAM 73 (February 13, 1996).

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 350, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2015 ESD 8

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC 20001

braymond@teamster.org

David J. Hoffa

1701 K Street NW, Ste 350

Washington DC 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

Teamsters United

315 Flatbush Avenue, #501

Brooklyn, NY 11217

info@teamstersunited.org

Louie Nikolaidis

350 West 31^st Street, Suite 40

New York, NY 10001

lnikolaidis@lcnlaw.com

Julian Gonzalez

350 West 31^st Street, Suite 40

New York, NY 10001

jgonzalez@lcnlaw.com

David O’Brien Suetholz

515 Park Avenue

Louisville, KY 45202

dave@unionsidelawyers.com

Fred Zuckerman

fredzuckerman@aol.com

Robert Stansbury

1817 Blazing Star Drive

Hacienda Heights, CA 91745

stansburybigpapa@yahoo.com

Teamsters Local Union 396

880 S. Oak Park Rd, Suite 200

Covina, CA 91724

teamsters@local396.net

Michael Miller

P.O. Box 251673

Los Angeles, CA 90025-1673

miller.michael.j@verizon.net

Deborah Schaaf

1521 Grizzly Gulch

Helena, MT 59601

dschaaf@ibtvote.org

Jeffrey Ellison

214 S. Main Street, Suite 210

Ann Arbor, MI 48104

EllisonEsq@aol.com