November 4, 1998
VIA FIRST CLASS MAIL
David L. Dethrow
November 4, 1998
Page 1
David L. Dethrow
2843 Radnor Street
St. Charles, MO 63301
William A. Moore, President
Teamsters Local Union 696
P.O. Box 8129
Topeka, KS 66608
Tom Leedham Campaign Office
P.O. Box 15877
Washington, DC 20003
John McCormick
6574 O’Hare Street
Portage, IN 46368
Paul Heiman
20045 W. 119th Street
Olathe, KS 66061
David L. Dethrow
November 4, 1998
Page 1
Re: Election Office Case No. PR-308-LU688-EOH
PR-309-LU41-EOH
Gentlemen:
Related pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by David Dethrow, a member of Local Union 688, and Paul Heiman, a member of Local Union 41. The protesters allege that on September 25, 1998, while campaigning with John McCormick, candidate for general secretary-treasurer on the Leedham Slate, they were stalked, threatened and intimidated by William Moore, president of Local Union 696, and Ken Clark, a business agent of Local Union 696, in violation of the Rules.
Messrs. Moore and Clark deny that they stalked, threatened or intimidated the protesters. Mr. Moore states that any alleged disagreement with the protesters was not related to campaigning. Rather, Mr. Moore claims that the altercation was precipitated by Mr. Heiman’s comments to Mr. Clark about Mr. Moore and the protesters’ attempts to provoke fights with other members of Local Union 696 while they campaigned. Mr. Moore also claims that the protesters violated the Rules when they campaigned inside the building of Payless Shoes and without signing in at the security desk.
The protest was investigated by Election Office Staff Attorney Kathryn A. Naylor.
David L. Dethrow
November 4, 1998
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On September 25, 1998, the protesters and Mr. McCormick campaigned at UPS, Payless Shoestore, Medevac and General Merchandise in Topeka, Kansas.
The protesters and Mr. Moore presented different versions of what occurred. According to the protesters, they arrived at the General Merchandise warehouse and drove behind or alongside the building searching for employees or an entrance to the building. When the protesters found neither employees nor an entrance, they made a u-turn and proceeded towards the front of the building. The protesters claim they then noticed Mr. Moore in a Ford pick-up veering towards their van, at a faster than normal speed for the area[1] and he swerved towards their van at least three times. As a result, Mr. Dethrow steered his van further to the right each time the Ford pick-up steered to the left and then stopped his van to avoid colliding with
Mr. Moore’s pick-up. Mr. Dethrow told the investigator that he did not think Mr. Moore was trying to collide with his vehicle but he believed Mr. Moore intended to block their path.
The protesters remained in their van when Mr. Moore exited his Ford pick-up and approached the protesters’ van. Mr. Moore walked around the protesters’ van and approached Mr. McCormick on the passenger side of the van. Mr. Moore placed his hands on the van, stuck his head partially through the window and said to Mr. McCormick, “I don’t mind if you campaign here.” Mr. Moore then immediately turned his attention to Mr. Heiman sitting in the back seat and said, “Heiman, if you think I’m a dickhead, why don’t you get out and we’ll settle this now.”[2] Mr. Heiman then replied, “You know what I think of you, nothing has changed.” Mr. Moore then repeated “get out and we’ll settle this now,” a couple more times. Mr. Heiman stepped out of the van, and Mr. Moore stepped back from the protesters’ van and said, “Okay Heiman go ahead and hit me.” Mr. Moore made this statement a couple of times. Mr. Heiman remained at the side of the van with approximately 10 feet between himself and Mr. Moore. At this point, Mr. Dethrow stated that he noticed Mr. Clark standing at the rear of his van about 20 feet away. Within seconds, Mr. McCormick got out of the van, stepped between Messrs. Moore and Heiman and told Mr. Heiman, “Get back in the van; we don’t need to do any of this; we can file an election protest.” Messrs. Heiman and McCormick returned to the van.
According to the protestors, Mr. Moore approached the van again, and asked
Mr. McCormick, “What did Leedham do with all the money that was stolen from the IBT?”
Mr. McCormick replied, “We’ve talked about this before, we don’t need to discuss this any further.” Mr. McCormick then told Mr. Dethrow to leave. Mr. Dethrow drove around
David L. Dethrow
November 4, 1998
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Mr. Moore’s vehicle and stopped in front of the building. The protesters state that the entire incident happened very quickly and lasted a matter of minutes.
Mr. Moore claims that he was at home on vacation on September 25, 1998. During the morning, Mr. Moore states that he received a telephone call from an employee or member who told him that the protesters were distributing campaign flyers at UPS and trying to provoke a fight with Mr. Clark by referring to Mr. Moore as a dickhead. Upon hearing this report,
Mr. Moore states he went to UPS, but the protesters were no longer campaigning there.
Mr. Moore claims that later in the morning, he was informed that the protesters were campaigning inside the Payless Shoestore facility without appropriate permission and without checking with security. Mr. Moore also claims that he was told that the protesters were thrusting their campaign literature at members after the members told the protesters to leave and insisted that this was a Hoffa shop. Mr. Moore states that he went to General Merchandise because he was told that the protesters were asking members for directions to that location.
Mr. Moore admits that when he turned on Topeka Boulevard on his way to General Merchandise, he was behind the protesters’ van. Mr. Moore claims that when the protesters made a u-turn, he “nosed” his vehicle towards their van. Mr. Moore denies veering towards the protesters’ van at a high speed, although he stated that in order to get the protesters’ attention he moved his vehicle from left to right. Mr. Moore denies that he threatened Mr. Heiman and that the following occurred when he approached the protesters’ van and addressed Mr. McCormick, according to notes supplied by Mr. Moore.
Moore: “I have no quarrel with your right to campaign here for as long as you wish, as long as you do so legally and within the guidelines set by the Election Officer. In fact, from what I have heard you have already received a very warm welcome at a couple of places. But, I do have a problem when your idea of campaigning is calling another Teamster and principal officer a dickhead, like your associate Heiman is doing.”
Heiman: “It is no surprise, you know what I think of you anyway.”
Moore: “It is unfortunate for me to have to listen about this stuff from such a non-entity as yourself, but I feel sorry for you. You must obviously be feeling a lot of stress, animosity and inferiority in order to have to try to boost your self esteem by being vulgar and disrespectful to another Teamster. If you have such a problem, take it away from the campaigning and direct it directly at me. If you want to relieve that stress, get out and do so. I will give you the first three swings. Then we will get it off your chest and settle your disrespect.”
Heiman: “You know what I think of you.”
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November 4, 1998
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Moore: “I never really cared what you think, either do something or shut up and go on.”
McCormick: “That’s it, we have an election charge now, we can go.”
Moore: “What for? Because nobody here wants you, is that a charge? John, the only thing I ask of you is to have your slate pay back the money already stolen from the Treasury of the IBT before you travel around spending any more money.
McCormick: We’ve discussed this before and never got anywhere, I have no money and I do not know what you are talking about.
After the incident occurred at General Merchandise, the protesters claim that Mr. Moore followed their van for several miles on Topeka Boulevard. Mr. Dethrow maintains that Mr. Moore would have continued to follow them when they turned off Topeka Boulevard, had he not been stuck in traffic. Mr. Moore denies following or stalking the protesters after leaving General Merchandise. Mr. Moore maintains that immediately upon leaving General Merchandise, he drove past the protesters who were parked in front of the facility, and stopped to use a public telephone approximately a mile away. After calling his wife, Mr. Moore states that he returned to town via Topeka Boulevard because it is the most direct and convenient route, and not to follow the protesters.
Mr. Clark denies any collusion between himself and Mr. Moore to threaten or intimidate the protesters at General Merchandise. Mr. Clark states that prior to going to General Merchandise, he did not speak with Mr. Moore regarding his derogatory reference to Mr. Heiman. Mr. Clark also denies any knowledge of Mr. Moore’s plans to go to General Merchandise. Mr. Clark claims that the purpose of his visit to General Merchandise involved union business with a steward and was not related to the protesters’ campaigning at the facility. Mr. Clark further maintains that he did not overhear the exchange between Mr. Moore and the protesters at General Merchandise.
Article VIII, Section 11(f) of the Rules provides as follows:
Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
David L. Dethrow
November 4, 1998
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This section is violated when, in response to protected activity, members engage in physically or verbally aggressive behavior that threatens actual harm. Passo, P-469-LU705-CHI et seq. (February 29, 1996) (finding intent to provoke physical confrontation violates Rules), aff’d in relevant part, 96 - Elec. App. - 124 (KC) (March 13, 1996). In the absence of harassment or a credible threat, however, the Election Office will view even heated arguments as part of “the natural discourse that arises as a result of campaign related activities” and not retaliation under the Rules. The section does not proscribe “the natural discourse that arises as a result of campaign-related activities,” even if heated. Furst, P-949-LU430-PNJ (October 9, 1996) (“heated discussion” between protester and charged party does not violate Rules). See Dunn, P-110-LU25-BOS (July 28, 1995), aff’d, 95 - Elec. App. - 8 (KC) (August 21, 1995) (local union president did not violate Rules by following, hovering near and blocking path of campaigning member); Corriea, P-930-LU150-CSF (September 12, 1996) (fact that charged party, much taller than protester, stood over latter’s desk, did not constitute violation, as charged party “was not aggressive or violent, nor did he threaten aggression or violence in any way”).
The Election Officer credits the protesters’ version of the exchange between Messrs. Heiman and Moore at General Merchandise. All parties, including Mr. Moore, told the investigator that the incident transpired very quickly and lasted for three to five minutes. The Election Officer notes that Mr. Moore’s account of the exchange would have taken longer than five minutes.
The Election Officer credits the protesters’ allegation that Mr. Moore told Mr. Heiman to hit him. Mr. Heiman told the investigator that he had no intention of hitting Mr. Moore when he got out of the vehicle and that although he was not absolutely certain, he did not believe that Mr. Moore would hit him. The Election Officer notes there was no physical contact between Messrs. Moore and Heiman, and when Mr. Heiman returned to the vehicle, Mr. Moore did not continue to goad Mr. Hieman to fight. Under the circumstances here, the Election Officer finds that Mr. Moore was enraged and motivated by Mr. Heiman’s derogatory reference to him in front of a business agent and members of his local union, not Mr. Heiman’s support for Tom Leedham.[3] Both Messrs. Heiman and Moore informed the investigator that there has been tension and animosity between them as a result of internal union and joint council matters not relating to the International Officers Rerun Election.
David L. Dethrow
November 4, 1998
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The evidence failed to establish that Messrs. Moore and Clark stalked the protestors or conspired to meet at General Merchandise and intimidate the protesters. The protesters stated that Mr. Clark stood about 20 feet from them during the altercation, did not make any threats or attempt to interfere with Messrs. Heiman and Moore. There is also insufficient evidence to establish that Mr. Moore followed their van on Topeka Boulevard for several miles to intimidate them. The fact that Mr. Moore did not follow the protesters when they turned off Topeka Boulevard and Mr. Moore’s claim that the route was the most direct way to town tends to refute the allegations.
The Election Officer, however, strongly cautions Mr. Moore that threatening, intimidating or harassing another member based on partisan political positions or activity in the rerun election constitutes a gross violation of the Rules and will be dealt with accordingly.
Based on the foregoing, the protests are DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
[1]The protesters state that the General Merchandise warehouse is situated in an industrial park-type setting, with trucks and semitrailers parked alongside the docks of the warehouse.
[2]Mr. Heiman admits that during a conversation with Business Agent Clark at UPS prior to this incident, he referred to Mr. Moore as a dickhead.
[3]The Election Officer does not regard Mr. Moore’s comments to Mr. McCormick about Mr. Leedham stealing funds from the IBT treasury as aggressive or threatening, but rather as a “heated discussion” that does not violate the Rules.