Temen, 2017 ESD 368

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: SCOTT TEMEN,                             )           Protest Decision 2017 ESD 368

                                                                        )           Issued: January 14, 2017

            Protestor.                                           )           OES Case No. P-366-092116-MW           

____________________________________)                      

Scott Temen, member of Local Union 710, 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 Todd Anderson threatened him, in violation of the Rules.

            Election Supervisor representative Joe Childers investigated this protest.

Findings of Fact and Analysis

Protestor Temen is a driver for ABF Freight and was elected as alternate delegate to the IBT convention as a member of the Rebuild 710 slate in Local Union 710’s delegates and alternate delegates election.  Anderson is a UPS Freight driver and steward at his worksite; he was also the lead delegate candidate on the 710 Restore the Pride slate and was a candidate for International Trustee on the Teamsters United slate of International officer candidates.

Temen and Anderson have known each other for more than two decades.  They first worked together at Consolidated Freightways before that company’s cessation of operations in 2002.  Later they were both employed at UPS Freight.  Temen was discharged from employment at that employer approximately five years ago because of a yard accident.  Temen subsequently obtained employment at ABF.

The relationship between Temen and Anderson at present is adversarial.  According to Anderson, this is because Temen tried to get Anderson to lie for him concerning the yard accident at UPS Freight that resulted in his dismissal there.  Anderson said he refused to do so and, as a result, Temen has carried a grudge against him since that time.  Temen contradicted Anderson’s account in this regard, telling our representative that Anderson was not involved in any way in the yard accident and Temen did not ask him to lie or cover up the facts.  According to Temen, he and Anderson had no difficulty in their relationship until the 2016 delegates and alternate delegates election in Local Union 710, when they were members of opposing slates; as a result of this political contest, Temen said that Anderson now refuses to talk to him.

The circumstances giving rise to this protest began early in the morning of Monday, September 19, 2016, at approximately 4:00 a.m. CDT, when Anderson made a post on the Chicago Teamsters United Facebook page.  According to Temen, the post apparently had spelling or grammatical errors, which prompted Temen to reply to it by writing that it would be nice if Anderson could write a coherent sentence.  According to Temen, Anderson then replied to Temen with, “Who do you support?”  Temen answered, according to Anderson, in a “real negative” way, sending Anderson a private Facebook message that among other things said, “You’re an ass.”  These posts and the private Facebook message were deleted before the protest was filed and were unavailable for our representative’s review.

The incident that is the subject of this protest occurred later that same day, Monday, September 19, 2016.  That evening, the Chicago Bears were hosting a Monday night football contest against the Philadelphia Eagles at Chicago’s Soldier Field, with kickoff scheduled for 7:15 p.m. CDT.  According to Temen, he was driving to a pre-game tailgate mid-afternoon when he received three phone calls that he believed were made by Anderson from Anderson’s mobile phone.  Temen told our representative his phone is connected via bluetooth technology to his vehicle’s speakers so that when he makes or receives a phone call in the vehicle, the caller’s voice is audible to the passengers as on a speakerphone and, if desired, the passengers may participate in the call.  Temen stated that with him in his vehicle traveling to the game were his wife, Anastasia, Temen’s adult son, Andrew, and a friend and co-worker, Jerrod Kulpa.  Temen said the calls that are the subject of this protest came in as he was driving the vehicle on Michigan Avenue in Chicago enroute to the tailgate location.  Temen’s cellphone records produced to our representative showed that three incoming calls were received on his cellphone at 3:23, 3:24, and 3:25 p.m. CDT that day, all from “No Caller ID, unknown.”  Temen told our representative he believed each of these calls was from Anderson, Temen answered each of the calls, and each call was broadcast on the vehicle’s speakers and was heard by all occupants of the vehicle.

According to Temen, the first call began with Anderson identifying himself by name, and Temen recognizing his voice.  Temen then told our representative that Anderson said he was going to “kick your ass,” referring to Temen, and “have your head on a platter.”  According to Temen, Anderson then said that when he was elected, Temen would no longer have a job through Local Union 710.  The call then ended.

The second call came in almost immediately.  According to Temen, he recognized Anderson’s voice again, as Anderson said, “Fuck you, where do you want to meet.”  Temen told our representative that Anderson then said, “Your family is dead, wife and child.”  The call then ended.

Temen answered the third call, which came in promptly after the second call ended, but the caller immediately hung up without saying anything.

Our representative interviewed the other occupants of Temen’s vehicle.  Anastasia Temen told him that the caller identified himself as Todd Anderson on the first call, and she recognized his voice because she had heard him speak at the IBT convention in June 2016.  She told our representative that what she heard Anderson say on the call was “scary,” and that he was “screaming that he wanted to beat Scott’s ass.”  She stated that she heard Anderson taunt her husband to “come fight.”

Temen’s son, Andrew, age 23, was also in the vehicle.  He told our representative that he was riding to the tailgate with his father and stepmother when three calls came into the vehicle in quick succession.  According to Andrew, the calls came in over the vehicle’s speakerphone and he clearly heard the caller identify himself as Todd Anderson during the first call. Andrew said he heard the caller screaming and cussing, and his dad could not get a word in.  According to Andrew, the caller threatened Scott’s job, threatened to kick his ass, and finally threatened to kill him and his family.  Andrew heard the caller say he would find out where Scott lives and come and kill him and his family.  He said his stepmother looked at Scott while in the car and asked what was going on.  Scott told her it was a guy he worked with and they could talk about it later.

Jerrod Kulpa told our representative that he and Temen are co-workers and had been friends for about four to five months following their attendance at a truck driving competition together in June 2016.  Kulpa said he had not been involved at all with the delegate or International officers elections.  He described the phone calls to our representative, stating that during the first call that came through the caller clearly identified himself as Todd Anderson.  Kulpa said that he heard the caller state that he was going to “kill your ass” (referring to Temen) the next time Temen showed up at the union hall.  In a follow-up question, Kulpa confirmed that the words utter were “kill your ass,” not “kick your ass.”  Kulpa said that on the second call, the caller stated that he was going to come to Temen’s house, that he would stalk the house to see when he was home, and that he then threatened Temen’s wife, son and daughter.  Kulpa also heard a statement that he would show Temen who’s boss and would do everything he could to expel him from the union.  Kulpa stated that after the calls, he asked Temen who the hell that guy thought he was, and Temen told Kulpa that Anderson is running for office.

Approximately 90 minutes after the last call, Temen made a post to the Chicago Teamsters United Facebook page, the same page to which he had posted his criticism of Anderson’s writing ability that morning.  The post read:

Todd Anderson obviously I’m to [sic] busy to deal with your petty bullshit on the phone.  Nice of you to call & threaten me over the phone and block your #.  But any time you want to meet so you can kick my a$$ just let me know.  I didn’t know you would get your panties in a bunch over the truth but so be it.

Anyways like I said I’m too busy to waste my time taking [sic] to an incoherent fool. But leave a message when you want to meet. Oh BTW try removing this post. Have a nice day.

At 5:13 p.m., Dave Bernt, the administrator of the Chicago Teamsters United Facebook page, sent Temen a private Facebook message, stating:

Hey Scott, it was me who deleted post.  I don’t know what’s going on with you and Todd, let me know what is happening and I will deal, with todd [sic].  I just don’t want our campaign group to be the forum for a dispute between you two.  As you can imagine, we are very busy right now and don’t need any distractions.  Give me a call at [phone number deleted] when you have a chance.

Temen replied to this message shortly thereafter, stating:

I’ll give u a call later I’m busy right now.  But you’d better get Todd in line I’ve got 3 recorded messages[1] where he has threatened to kick my ass if this is the type you want on your slate I feel sorry for Teamsters United.  But get him in line before I bring charges to the IBT.

Bernt then replied:

I will call Todd, call me when you can.  I had no knowledge of this situation until just now.

Bernt told our representative that Temen never called him.  Bernt stated further that he deleted Temen’s Facebook post of 4:55 p.m. on September 19, 2016 and, after doing so called Todd Anderson, who denied making any calls to Temen.  Bernt also said he discovered later that Temen had taken a screenshot of his 4:55 p.m. post and reposted it on several other Facebook pages.  

Anderson denied to our representative that he had ever phoned Temen, that he had ever threatened Temen, or that he even had Temen’s cell phone number.  He confirmed he had known Temen for 25 years, back to when they worked together at Consolidated Freightways.  They had more recently worked together at UPS Freight until Temen was discharged about five years ago over an accident that occurred in the yard.  As noted above, Anderson believes Temen has held a grudge against him since that incident because Anderson refused to lie for Temen in connection with that incident. 

Anderson told our representative that he worked a late shift that carried over into the early morning hours of September 19, 2016.  When he came home, at approximately 4:00 a.m., he posted on the Chicago Teamsters United Facebook page something concerning the Teamsters United campaign.  He then took a nap and when he woke he saw Temen’s reply, which he saw as a derogatory remark about Anderson’s ability to write a coherent sentence.  Anderson then posted, in reply to Temen, “Who do you support?” Anderson removed the posts from the Facebook page.  According to Anderson, Temen then got really negative. He said that Temen sent Anderson a private Facebook message stating, “You’re an ass.” However, Anderson was not able to provide a screenshot or copy of that private message to our representative.

Anderson stated that he went back to work later on September 19, 2016 and, at the time Temen and the other witnesses said the calls were received, was driving a UPS Freight truck in Iowa.  At our representative’s request, Anderson provided cell phone records, printed for him at a local Sprint store, for each of three cell phone numbers on Anderson’s account.  None of these records showed any call to Temen’s cell number, whether on September 19, 2016 or at any other time during the one-month billing cycle that included that date.

Anderson claimed that he heard from other people he would not identify that Temen was after him. He stated that he had heard from other drivers that Temen’s wife was a witness to a threatening call supposedly made by Anderson to Temen.  He then again denied that he had called Temen at all and stated that he did not have anything against Temen.  Anderson acknowledged that he and Temen were on opposing slates during the delegate election, but he denied that he had ever spoken to Temen’s wife, at the IBT convention or elsewhere.   

This protest asserts that Anderson made threats against Temen prohibited by the Rules.  The credible evidence persuades us that a person identifying himself as Todd Anderson called Temen’s mobile phone on Monday afternoon, September 19, 2016 and made vile and abhorrent threats of violence and death against Temen and his family.  We find this evidence credible because it is corroborated by three witnesses in addition to Temen, although we note that two of the witnesses are related by blood or marriage to him, and we further note that particular details recounted by the witnesses contain inconsistencies.[2]  In addition, we have a screenshot of call activity on Temen’s phone that afternoon which shows three incoming calls in consecutive minutes beginning at 3:23 p.m.  Moreover, in the aftermath of the calls, Temen acted in a manner that was consistent with receiving threats by posting to a Facebook page that the threats had been made and having a private Facebook message exchange with the page administrator repeating that the threats had been made.

On the other side of this factual dispute, we have Anderson’s denial that he made the calls Temen reported receiving.  This denial is supported by billing records demonstrating that no calls made to Temen’s mobile phone originated from Anderson’s mobile phone.  The evidence at Temen’s end does not contradict because there is no identification of any cell phone associated with Anderson’s cell phone account as the source of the call.  Consistent with Anderson’s denial of responsibility to us is his denial of knowledge of the threats and responsibility for them to Bernt in the immediate aftermath of the calls.

We recognize that Anderson could have made the calls from a phone other than a cell phone for which he was the account holder.  That scenario is implausible, and we reject it as a possibility given that Anderson was in Iowa on a freight run at the time the calls were made, that pay phones are increasingly scarce, and that a call from a borrowed landline in Iowa to a mobile phone in Chicago would have incurred a toll charge to which the person or business lending the phone may have objected. 

The threats attributed to Anderson are grossly disproportionate to the apparent motivating event, the mild criticism that Temen made of Anderson’s grammatical skills, a criticism that Anderson promptly deleted.  Anderson’s immediate response to Temen’s Facebook post was a mild query: “Who do you support?”  The calls that are the subject of the protest came nearly twelve hours after Temen’s Facebook post and contrast sharply with Anderson’s immediate reaction.  Timing alone shows that the calls were not an immediate and impassioned reaction by Anderson to Temen’s criticism; the reported content of the calls is not consistent with Anderson’s earlier response.  In our assessment, these circumstances weigh against the likelihood that Anderson made the calls.

Summing up, we find the calls were received by Temen but there is not persuasive evidence that the calls were made by Anderson.  Applying the preponderance of credible evidence standard by which we find facts, we DENY this protest for insufficient evidence.

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

            2017 ESD 368

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