Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: PETER SULLIVAN,                      )           Protest Decision 2016 ESD 197

                                                                        )           Issued: May 5, 2016

            Protestor.                                           )           OES Case No. P-129-012816-GP     

____________________________________)                                                                  

Peter Sullivan, member of Local Union 104, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Mitch Gallagher harassed a Teamsters United supporter, in violation of the Rules.

            Election Supervisor representative Mary Campbell investigated this protest.

Findings of Fact and Analysis

Local Union 104 is entitled to elect nine delegates and three alternate delegates.  Two full slates and two unaffiliated delegate candidates competed for these positions.  The Teamsters United AZ slate was led by protestor Sullivan; the Andy Marshall Unity slate was led by local union principal officer Andrew Marshall.

The protest alleged that on January 27, 2016, three delegate candidates on the Teamsters United AZ slate were campaigning in an employer parking lot at a UPS facility when Mitch Gallagher, a member employed by UPS who also serves as a union steward at that facility, walked past them speaking on his phone.  Gallagher was heard to say, “Yeah, I see that fag; he’s here standing right in front of me.”  Three witnesses corroborated the protest allegation.  Gallagher did not deny it.

Investigation showed that Gallagher did not interfere with or disrupt the candidates’ campaign activity, nor did his words cause or tend to cause members to avoid the campaigners.

The protest urged that Gallagher’s harassment not be allowed under the Rules, further asserting that there be imposed a zero tolerance for sexual orientation discrimination.

We DENY this protest.  The Rules protect the right of members such as the campaigners to engage with other members in support of their candidacies and those they support for election.  We find they were able to exercise their rights fully on the occasion at issue here.

The Rules also protect the right of a member opposing the political speech to express his opposition, even where the words he chooses are rude, obnoxious, and offensive.  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).  Here, we find that Gallagher’s language did not interfere with the campaigners’ right to campaign.

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 375, 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

            2016 ESD 197

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