Protest Decisions

              January 26, 1999

VIA FIRST-CLASS MAIL

John McCormick

January 26, 1999

Page 1

Leedham Slate

c/o Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

John McCormick

6574 O’Hare Street

Portage, IN 46368

Raul Rodriguez

13882 Stagecoach Circle

Victorville, CA 92392

Ralph Ekelman

13338 Foxrun

Victorville, CA 92392

Randy Korgan, Organizer

Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Sam Stewart

c/o Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Ken Haarala, Business Agent

Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Al Wihal

c/o Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Wes Krinker

c/o Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Albert Rivadaneyra

7618 Granby Avenue

Rancho Cucamonga, CA 91730

Vera Cook

c/o Tom Leedham Campaign Office

P.O. Box 15877

Washington, DC 20003

Mauricio Terrazas

3800 Bradford Street, #233

La Verne, CA 91750

Ed Reynoso

3917 Yellowstone Circle

Chino, CA 91710

Dick Walden

c/o Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Joe Foss

c/o Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

Randy Cammack, Sec.-Treas.

Teamsters Local Union 63

845 Oak Park Road

Covina, CA 91724

John McCormick

January 26, 1999

Page 1

John McCormick

January 26, 1999

Page 1

Arthur Z. Schwartz, Esq.

Kennedy, Schwartz & Cure

113 University Place

New York, NY 10003

Hoffa Slate

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue NW, Suite 500

Washington, DC 20036

John McCormick

January 26, 1999

Page 1

Re: Election Office Case No. PR-339-LU63-EOH

Gentlemen:

A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by John McCormick, a member of Local Union 705 and a candidate for secretary-treasurer on the Tom Leedham “Rank and File Power” Slate (“Leedham Slate”); Raul Rodriguez, a member of Local Union  630; and Vera Cook, Ralph Ekelman, Wes Krinker, Alberto Rivadeneyra and Mauricio Terrazas,[1] all members of Local Union 63.  The protest was filed against the following Local Union 63 officers and members: Joe Foss; Ken Haarala, president; Randy Korgan, organizer; Ed Reynoso, trustee; Dick Walden and Al Wittal, business representatives; and Sam Stewart.  The protesters, all Leedham Slate supporters, allege that the charged parties intimidated, harassed and surveilled them while they were campaigning in support of the Leedham Slate, in violation of the Rules.  They further allege that the charged parties campaigned to members who were on work time.

The charged parties deny all of the allegations and contend that the interaction between the two groups of campaigners was simply heated argument and debate.  They also assert that the protesters themselves distributed campaign literature to workers who were still on the clock.  The Election Officer deferred this protest for post-election review pursuant to his authority under Article XIV, Section 2(f)((2) of the Rules.

The protest was investigated by Election Office Staff Attorney Peter F. Gimbrère.

On October 8, 1998, at approximately 4:00 p.m. the protesters arrived at the United Parcel Service (“UPS”) facility located in Ontario, California and began campaigning for the Leedham Slate.  When the protesters arrived at the facility, a number of Local Union 63 representatives were already present and actively campaigning for James P. Hoffa and the Hoffa Unity Slate (“Hoffa Slate”).  As the protesters began campaigning, more Local Union 63 representatives arrived to campaign for the Hoffa Slate.

John McCormick

January 26, 1999

Page 1

The protesters and the charged parties presented different versions of what occurred at the facility. The allegations against each individual and their responses to the allegations are set forth separately  below.

I.              Alleged Actions of Mr. Korgan

According to Mr. Rodriguez and Ms. Cook, when Mr. Korgan arrived at the facility, he swerved his car at Mr. McCormick and only turned away “at the last second.”  None of the other protesters or charged parties witnessed this alleged incident.  Mr. Korgan stated that when he pulled into the driveway, he slowed his automobile down from ten to approximately five miles an hour and swung his car into the opposing lane of traffic in order to get around a group of people congregated in the roadway.  He stated that he could not tell who was standing in the road and had no idea that Mr. McCormick was in the group.  He then swung back into the entrance lane and proceeded on to park his car.

Ms. Cook and Messrs. Rodriguez, McCormick and Rivadeneyra all assert that

Mr. Korgan used foul, intimidating, and provocative language against them as well as constantly interrupting them as they attempted to campaign with members.  Mr. Korgan described the nature of his exchange with the Leedham supporters as “friendly debate.”

Messrs. Krinker and Kane allege that Mr. Korgan took photographs of the Leedham supporters with a Polaroid camera while they were campaigning.  Neither of them saw any of the photographs.  According to Mr. Korgan, he took his camera out of his car to document the fact that Leedham campaign signs were hanging on the employer’s fence and that one Leedham supporter’s automobile was illegally parked.  He states that he took two photographs of the signs on the fence and one photograph of the illegally parked car in order to preserve evidence of what he viewed as violations of the Rules.  Mr. Korgan was unable to provide the photographs to the Election Office and did not remember if any of the Leedham supporters showed up in the photographs.  A number of other members campaigning with Mr. Korgan stated that he informed them at the time that his purpose for taking the photographs was for the sole purpose of documenting a potential Rules violation.

II.              Alleged Actions of Mr. Stewart

Messrs. Rodriguez and McCormick assert that Mr. Stewart distributed campaign literature to members that were driving UPS trucks through the entrance to the facility and that Mr. Stewart, while present outside of the facility to campaign, utilized a company phone located in the guard house for approximately twenty minutes.  The protesters presented no evidence to show that Mr. Srewart’s phone call consisted of campaign conversation.  Mr. Ekelman asserts that Mr. Stewart “rushed” him, brushed up against his chest, intimidated him and attempted to provoke a fight.

John McCormick

January 26, 1999

Page 1

Mr. Stewart responds that while he was outside of the facility some drivers would stop to ask him questions about union business.  He denies ever handing out any campaign literature to any of the drivers.  He states that after Mr. Ekelman made a “derogatory comment” about a past president of Local Union 63, he rushed up to Mr. Ekelman, argued with him, and demanded an apology.  He denies that he brushed up against Mr. Ekelman’s chest and states that the only physical contact he had with any of the Leedham supporters was some “friendly” shaking of the hands.

III.              Alleged Actions of Mr. Reynoso

Mr. Rodriguez alleges that Mr. Reynoso annoyed, intimidated and provoked him and that he also campaigned to members who were working.  Mr. McCormick asserts that Mr. Reynoso intimidated him, used profanity, and grabbed some literature out of a member’s hands. 

Mr. Ekelman states that Mr. Reynoso “rushed” him, brushed up against his chest, intimidated him and attempted to provoke a fight.  Mr. Krinker alleges that Mr. Reynoso interrupted him when he was attempting to campaign with a member.  Mr. Rivadeneyra contends that

Mr. Reynoso intimidated a number of Leedham supporters by shining a red laser light on them.  Finally, Mr. Kane alleges that Mr. Reynoso threatened him with retaliation for his support of the Leedham Slate by stating that “UPS might fire you again.”

Mr. Reynoso states that he never engaged in any aggressive or threatening physical contact with any of the Leedham supporters, that he never removed any campaign literature from any member’s hands, and that he did not campaign to members that were still working.  He further asserts that he never threatened Mr. Kane with retaliation, that he does not own a red laser light, and that he did not engage in any of the alleged conduct.

IV.              Alleged Actions of Messrs. Haarala, Wittal, Walden and Foss

Mr. Krinker alleges that he was threatened by Mr. Haarala who came over to him and stated that “[while] we were on different sides this time, maybe we should talk some time.” 

Mr. Rivadeneyra alleges that Mr. Wittal used abusive and profane language against him and attempted to prevent him from campaigning with members by interrupting him.  Despite including them as charged parties in the protest, the protesters failed to allege any Rules violations by Messrs. Walden and Foss.

Mr. Haarala responds that while there was “interaction and debating” between the groups of supporters, there was no intimidation or physical contact.  He adds that he witnessed Leedham supporters distributing campaign literature to members that were still working.  Mr. Wittal states that he “entered into a debate” with Mr. Rivadeneyra, which turned into an argument.  He adds that he witnessed Mr. Kane carrying campaign literature into the employer facility when

Mr. Kane’s shift started.

John McCormick

January 26, 1999

Page 1

V.              Legal Analysis and the Election Officer’s Findings

The Rules, at Article VIII, Section 11(a), guarantee to members the “right to participate in campaign activities, including the right to run for office, to support or oppose any candidate, to aid or campaign for any candidate, and to make personal campaign contributions.”  This basic right, so essential to the goal of a free election, is reinforced in Article VIII, Section 11(f) which 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.

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”).

With respect to surveillance of campaign activity, the Election Officer has found that “surveillance or creating the appearance of surveillance is violative of the Election Rules because it is destructive of the fundamental safeguards of . . . free and fair elections outlined in the Consent Decree and the Election Rules.”  Pollack, P-008-LU732-NYC (October 29, 1990), aff’d, 90 - Elec. App. -  8 (November 7, 1990).

The accounts of witnesses from the opposing campaigns differ in a number of areas.  The witnesses tend to describe their own actions as reasonable.  Misconduct alleged by one side is explained by the other side as innocuous when viewed in context.  It is difficult to make credibility determinations where submitted written statements conflict and witnesses are not interviewed in person.  Nevertheless, by piecing together facts stated commonly in the submitted statements the Election Officer is able to determine the facts necessary to resolve the protest.

John McCormick

January 26, 1999

Page 1

The Election Officer finds, based on the limited evidence provided, that no Rules violations occurred.  All parties, except Mr. Ekelman, agree that there was no actual physical contact between the Leedham and Hoffa supporters.  While the submitted statements show that the argument and debate between the groups of supporters contained heated and abusive language, none of it ever threatened physical harm to any person. 

The Election Officer credits Mr. Korgan’s account that he drove his automobile to avoid a group of campaigners and not to threaten Mr. McCormick.  All of the statements support the conclusion that the massed protesters were occupying parts of the sidewalk and street.  That situation provides an adequate explanation for Mr. Korgan’s driving maneuver.  Regarding the allegation of using the laser pointer, even if Mr. Reynoso did the act alleged, in this context it is not a violation of the Rules. 

Finally, the Election Officer credits Mr. Korgan’s statement, corroborated by others, regarding the photographs. Even if Leedham supporters were incidentally photographed, that does not rise to the level of targeted surveillance that the Rules would condemn as retaliation.  Taking photographs of an illegally parked car and the pro-Leedham banner hung on the employer fence in order to preserve evidence for a potential protest does not constitute improper surveillance.

Accordingly, the protest is 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

John McCormick

January 26, 1999

Page 1

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