Esquivel, 2021 ESD 167

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: EDGAR ESQUIVEL,                     )           Protest Decision 2021 ESD 167

                                                                        )           Issued: October 28, 2021

Protestor.                                           )           OES Case No. P-181-100821-FW

____________________________________)

Edgar Esquivel, member of Local Union 952, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Sean O’Brien threatened him, in retaliation for activity protected by the Rules.

Election Supervisor representatives Michael Miller and Jeffrey Ellison investigated this protest.

Findings of Fact

Sean O’Brien and supporters of the O'Brien-Zuckerman 2021 slate campaigned at the UPS Aliso Viejo in Orange County CA on October 6, 2021.  With O’Brien were Eric Jimenez, John Green, and Danny Herbert, respectively, secretary-treasurer (principal officer), president, and vice president of Local Union 952, which has jurisdiction of the site.  Also campaigning were Lindsay Dougherty, member of Local Union 399 and a candidate for West region vice president on the slate, as well as Amy Gorton and Josh Staheli, respectively, the communications director and a business agent for that local union.  Brian Rainville, campaign representative for the slate, was also present, as was Miguel Aceves, a Local Union 952 steward at Albertson’s.

Protestor Esquivel is employed as a package car driver at the site.  He has been an activist with Teamsters for a Democratic Union, an independent committee under our Rules, for a lengthy period but broke with TDU over its decision to endorse O’Brien for IBT General President.  Esquivel has not endorsed either slate in the pending election, although he has stated his intention to support 6 candidates down-ballot on the O'Brien-Zuckerman 2021 slate.  He has published 2 articles concerning the election that are critical of O’Brien.[1]  In addition, he has made frequent posts to Facebook groups, criticizing most of the candidates on the ballot as “old guard hofficers[2] gunning for power … who have waged open war against reform.”

For 2 hours on October 6, O’Brien and the others campaigned at UPS Aliso Viejo, along the 4-foot wide concrete sidewalk employees use to walk from the parking lot to the security blockhouse where they screen into work.  Immediately adjacent to the blockhouse, a 25-foot long metal railing separated the sidewalk from a parallel asphalt drive.  O’Brien campaigned to arriving employees near the end of the line of campaigners, immediately outside the blockhouse, with most arriving members passing between him and the railing.  The 3 officers of Local Union 952, Jimenez, Green, and Herbert, stood in the driveway facing O’Brien and arriving members, leaning against the railing.  Aceves, the Albertson’s steward, stood in the center of the sidewalk closest to the blockhouse door, prepared to hand a campaign rack card to any member who had reached his position without obtaining one.

O’Brien told our investigator he offered a handshake and greeted each member with “I’m Sean O’Brien.  I’m running for General President.  I’d appreciate your support.” 

In this setting, Esquivel arrived for work at about 8:20 a.m.  He walked past the campaigners, accepted a rack card from Amy Gorton, and reached O’Brien’s position.  According to Esquivel, “O’Brien approached me and said, ‘Hi, I’m Sean O’Brien.’  I replied, ‘Hi, I’m Edgar Esquivel.’”  At this, according to Esquivel, “O’Brien’s pleasant demeanor immediately changed into a darker mood.  His eyes got big, and he turned red.”  Esquivel said he shifted to speak to the local union officers briefly, whereupon, “[a]s our conversation concluded, O’Brien approached me and told me to post facts.  I replied that all my posts were backed by legitimate sources.  O’Brien then told me to be careful, in a threatening tone of voice, as I walked towards the guard shack.  I assured him that I was always careful and that we don’t have bullies in Orange County.”  To our investigator, Esquivel characterized O’Brien’s comments as “pure thuggery,” elaborating that, in his mind, there was no question O’Brien was threatening him with retaliation for Esquivel’s negative articles and longstanding opposition to him.  

Esquivel filed this protest, telling our investigator that he took O’Brien’s comments as a threat because of his protected campaign activities.

            O’Brien denied making any threats or using words or actions that could be construed as such.  He told our investigator he greeted Esquivel just as he had other members, with an open hand for a handshake, which Esquivel refused.  O’Brien said to Esquivel, “Hi, I’m Sean O’Brien, I’m running for General President.”  Esquivel responded: “I know who you are. I’m Edgar Esquivel.”  At this, O’Brien said, “Oh, I read your stuff online; just make sure it’s accurate.”  O’Brien said that Esquivel replied, “I have my sources.  It’s accurate.”  O’Brien said Esquivel then moved to speak briefly with Jimenez, Green and Herbert.  At the end of that conversation, in which O’Brien did not participate, O’Brien said he told Esquivel, “Have a good day. Be safe out there.”    O’Brien said that as Esquivel walked away toward the security entrance, Esquivel said “I’m always safe.  Don’t worry about me. We don’t have bullies in Orange County.”

O’Brien denied to our investigator that he shifted to “a darker mood,” stating instead that he remained pleasant, even, and polite throughout the brief interaction with Esquivel.  O’Brien stated it was Esquivel, not him, who was aggressive and impolite in his tone and responses.  O’Brien stated his salutary “be safe out there” phrase was something he used with all members as a statement of best wishes in a time of covid. 

We obtained and reviewed the UPS security footage of the incident.  The security camera was mounted above the door UPS employees used to enter the security blockhouse.  Its wide-angle view, rendered in color, included, from left to right, the asphalt driveway, the metal railing against which were leaning Jimenez, Green, and Herbert, the 4-foot concrete sidewalk on which O’Brien was standing, and, behind O’Brien, a paved brick area that was adjacent to the security blockhouse exit portal.  From the camera’s perspective, employees using the sidewalk to get to the blockhouse entered the scene from the top of the image and moved directly down the image toward the entry portal at the bottom of the scene.  The video has no audio component.

The security video of Esquivel’s interaction lasts for 1 minute and 20 seconds.  It commenced at 8:20:35[3] a.m. with Esquivel’s entry.  At 8:20:37, he receives a rack card from Gorton.  He arrives at O’Brien’s position at 8:20:38, where O’Brien offers his right hand.  Esquivel does not take it.  O’Brien appears to touch the left elbow of Esquivel’s jacket in greeting.  For 3 seconds, from 8:20:38 to 8:20:41, Esquivel and O’Brien look directly at each other and appear to speak.  At 8:20:42, Esquivel turns slightly to his right and appears to address Jimenez, who is standing across the railing from Esquivel, flanked by Green and Herbert.  The 2 speak for 5 seconds.  During this period, Esquivel is in profile to O’Brien, with O’Brien standing approximately 2 feet away from Esquivel’s left elbow.  At 8:20:47, Esquivel turns to O’Brien, nodding and speaking for 6 seconds.  Esquivel then turns back to Jimenez at 8:20:53 and the 2 appear to speak for several seconds, until 8:21:10, with Jimenez doing most of the speaking.  During this period, O’Brien does not speak to Esquivel or the union officers.  At 8:21:04, O’Brien turns around to his right to greet an employee who is passing behind him.  A second employee passes behind O’Brien at 8:21:11 and a third at 8:21:15; O’Brien turns to greet them as well.  While O’Brien is engaged with these members, Esquivel continues to speak with the officers, speaking with Green, to Jimenez’s left at 8:21:10.  Green makes a brief statement, and Esquivel responds with a longer statement that continues to 8:21:30.  Esquivel then reaches for and shakes the hands, in succession, of Green, Jimenez, Herbert, and finally steward Aceves, stepping forward 2 feet for the final handshakes, and completing this activity at 8:21:36.  During this time, O’Brien is 2 to 3 feet from Esquivel’s left elbow, observing but not participating.  Esquivel steps backward to his original location, right hand on the railing, for some final remarks to the union officers.  At 8:21:45, Esquivel steps toward the security entrance.  As he does, O’Brien pats Esquivel’s upper left arm and appears to speak to him.  Esquivel appears to reply, as he walks toward the security entrance, to O’Brien’s left.  As he does so, O’Brien begins to turn to his right, away from Esquivel.  Something Esquivel says at 8:21:52 causes O’Brien to turn back toward Esquivel, as Esquivel exits the camera’s view.  O’Brien then appears to look at Aceves, smile broadly, and open his palms in reaction to Esquivel’s final words.

The video did not display any change in O’Brien’s demeanor during the period Esquivel was present – no “darker mood,” bulging eyes, or reddening.  Indeed, O’Brien appeared to be affable throughout.  Still photos taken by Gorton early in the exchange between the 2 men showed O’Brien smiling pleasantly at Esquivel.

Over the 1 minute and 20 seconds of the video, a total of 6 UPS employees, Esquivel included, passed through the scene.  Of these, 2 passed Esquivel and O’Brien during their initial encounter; O’Brien did not greet them.  O’Brien greeted the remaining 3 while Esquivel was engaged with the local union officers.

There is little disagreement between the recollections of the words O’Brien and Esquivel said to each other, except in O’Brien’s final comment.  O’Brien relayed to our investigator that he told Esquivel, “Be safe out there,” a phrase he said he used repeatedly, month after month, in his campaigning.  Jimenez, Green, Herbert, Aceves, Rainville, Gorton, and Staheli corroborated O’Brien’s repeated use of the phrase that day, asserting that he uttered the same phrase to Esquivel. 

In contrast, Esquivel said that O’Brien said, “Be careful,” which Esquivel construed ominously, in light of what he understood to be O’Brien’s history of making threats.  Esquivel’s immediate response to O’Brien – “I’m always safe” and “We don’t have bullies” here – reflected his understanding of the statement. 

In resolving the conflict in the precise language O’Brien used – “be safe” vs. “be careful” and its tone – the other witnesses are mostly unhelpful and, in some ways, are simply not believable in denying that they heard anything.  Several witnesses claimed they did not hear the initial exchange between the 2 men because they were preoccupied campaigning to other members or were too far away.  Thus, Jimenez said he heard O’Brien and Esquivel introduce themselves but did not hear what was said after that because he “was still glad-handing large numbers of members coming and going.”  The security video contradicts this statement.  Jimenez is seen watching the exchange from his position at the railing.  He did not greet any arriving members (only 5 pass the men while Esquivel is present; 2 were ungreeted and O’Brien alone greeted the other 3).  Jimenez denied hearing any statement from Esquivel about “bullies.”  We find that Jimenez offers nothing to resolve the factual issue this protest presents.

Green likewise is unhelpful here.  He told our investigator he did not hear the exchange between O’Brien and Esquivel because he was standing “some distance from them,” yet the security video showed him less than 6 feet from Esquivel when Esquivel first arrived, and nearly touching him at the railing when Esquivel began to move to the security entrance.

Herbert, who the video showed stood at the railing 8 to 10 feet from Esquivel and O’Brien, said he heard no words spoken at all.

Aceves, standing 4 feet directly in front of O’Brien and Esquivel and looking at them for the duration of Esquivel’s time there, likewise said he heard nothing.

Witnesses who said they heard something included Gorton, who video showed was the last campaigner employees encountered before reaching the railing and who handed Esquivel a rack card, said Esquivel rebuffed an offered handshake from O’Brien and “muttered something unintelligible” when meeting him.  Gorton stated that, when Esquivel moved to the security entrance, O’Brien said in a friendly voice, “Take care, be safe out there,” and Esquivel responded by “calling O’Brien a bully.”  Gorton was adamant that O’Brien did not say “Be careful,” and she denied there was anything retaliatory or threating in O’Brien’s demeanor.

Another witness who heard words O’Brien and Esquivel uttered was Staheli, who Esquivel passed on his way to O’Brien’s location.  Staheli said he heard O’Brien tell Esquivel, “Oh, I’m one of your biggest fans.  I follow you on the internet.  Just make sure it’s the facts you’re printing.”  Staheli did not hear or could not recall any response from Esquivel.  Then, as Esquivel moved to the security entrance after a brief conversation with local union officers, Staheli heard O’Brien tell Esquivel, “Be safe out there,” which Staheli said he had heard O’Brien tell members in virtually any exchange he had had with them.  Staheli said he heard Esquivel reply by saying “something about bullies.”

Rainville, the campaign manager, also heard some of the verbal exchange.  He told our investigator that a man he “later learned” was Esquivel walked past him toward O’Brien.  He heard O’Brien give his standard introduction, “Hi, I’m Sean O’Brien. I’m running for General President.”  Rainville heard Esquivel respond, “I’m Edgar Esquivel, I know who you are,” in a tone Rainville said was “nasty.”   Rainville said O’Brien responded, “I know who you are as well. I’ve seen you on the internet.”  At that point, according to Rainville, “someone” said something about getting facts straight, to which Esquivel replied, “I always get my facts straight.”  Rainville claimed to our investigator that “there was so much member pedestrian traffic and everything happened so fast” that he thought nothing of the exchange at the time and kept interacting with members, while ignoring everything else.  Despite this claimed distraction, Rainville remembered O’Brien telling Esquivel to “be safe” as Esquivel approached the employee entrance, to which Esquivel retorted, “I’m always safe. We don’t need bullies around here.”  As noted, there was sparse pedestrian traffic while Esquivel was present.  In addition, the security video showed Rainville was standing within 6 feet of Esquivel and was focused only on the exchange between Esquivel and O’Brien.

We are left to witness recollections of the exchange because investigation did not produce an audio recording of the encounter.  O’Brien told our investigator he knew of no video or audio other than what might have been recorded by a security camera.[4]  Gorton, who security video showed was standing immediately to Rainville’s left, said she “knew of no video.”  Rainville, in his initial interview with our investigator, said flatly that he “knew of no video or audio” during the campaigning but that Gorton was present to take still photos.

The UPS security footage, produced to us after witness interviews were completed, showed, however, that Rainville appears to have recorded the full encounter between Esquivel and O’Brien on his iPhone.  When our investigator reinterviewed Rainville, he admitted to recording the encounter.  He said he did so because he knew of Esquivel’s critical writings about O’Brien and knew also that Esquivel worked at the Aliso Viejo hub.  Rainville said he recorded the video “because I thought there was going to be a fight,” and because Esquivel “is a nasty guy.”  Rainville said he and O’Brien had discussed Esquivel’s critical writings previously.  He said also that O’Brien was aware Esquivel worked at Aliso Viejo before they arrived there to campaign. 

Campaigners knew and discussed the likelihood that Esquivel would show up for work while they were campaigning that morning and would come face-to-face with O’Brien.  Steward Aceves, who presented as a guarded witness who said he heard nothing of the exchange between O’Brien and Esquivel that took place 4 feet in front of him, told our investigator that he had never met Esquivel before but heard about him that morning on the campaign line before Esquivel showed up for work.  The only explanation for this foreknowledge on Aceves’s part is that others discussed Esquivel’s anticipated arrival in his presence.  And Rainville was watching for Esquivel, and ready to record the scene, because he believed there was a potential for conflict with O’Brien. The security video showed that Rainville appeared to track Esquivel with his phone for the entirety of Esquivel’s approach to O’Brien, the exchange he had with O’Brien, and his move toward the security entrance.  Security video showed that Rainville lowered his phone briefly – but appeared not to turn off the “record” function – while Esquivel was in extended discussion with local union officers, but he raised the phone again as Esquivel moved toward and entered the security portal.  The last second of the security video showed Rainville touching the screen of his iPhone with his thumb, action consistent with turning the “record” function off.

We requested that the O'Brien-Zuckerman 2021 campaign produce the video the security footage showed Rainville recorded.  The audio track of Rainville’s recording may have had evidence relevant to the issue of the language the principals in this protest used, and the audible tone and tenor of their exchange. 

On reinterview, Rainville admitted recording Esquivel’s exchange with O’Brien, despite his previous assertion there was no video or audio of the encounter.  He stated, however, that he deleted the video the same day he recorded it.  He said he did so because he has limited memory capacity on his iPhone and has no cloud storage backup.  As a result, he said his routine was to upload to social media photos he took during campaign events and delete the rest.  He said he followed this routine on the day in question.

Analysis

Esquivel’s protest asserts that O’Brien’s instruction to “be careful,” linked to Esquivel’s publication of criticisms of O’Brien and his candidacy, constituted impermissible retaliation under Article VII, Section 12(g) of the Rules.

The threat of violence can constitute retaliation. Smith, P600 (April 30, 1996) (finding remark “You’ll be taken out of here in a body bag” to violate rules); Lopez, P456 (April 10, 1996) (finding “I’ll kill you” to violate Rules); Passo, P469 (February 29, 1996), aff’d, 96 EAM 124 (March 13, 1996) (finding intent to provoke physical confrontation to violate rules); Kelly, P600 (March 27, 1991) (finding threat to “kick their ass” made in menacing manner to violate Rules).  To find an improper threat, the activity must constitute a palpable threat of imminent harm.  Ramos, 2006 ESD 65 (February 3, 2006); Torres, 2011 ESD 236 (April 27, 2011) (no impermissible threat where no touching or menacing behavior); Galvan, 2011 ESD 238 (April 27, 2011) (same); Gutierrez, 2011 ESD 239 (April 27, 2011) (same); Teamsters United, 2016 ESD 279 (August 1, 2016) (threats issued on convention floor violated Rules because they were palpable threats of imminent harm).  

We are persuaded by a preponderance of the evidence that O’Brien told Esquivel to “be careful” rather than to “be safe.”  We reach this conclusion because of evidence from both principals and from several campaigners that the principals discussed Esquivel’s internet postings, that O’Brien – not Esquivel – raised that subject, and that O’Brien cautioned Esquivel to be factual.  That this discussion deviated from the vast majority of greetings O’Brien had with members while campaigning supports the conclusion that he deviated as well from his standard send-off comment to reiterate to Esquivel that he be careful. 

Also weighing in Esquivel’s favor in this credibility determination is Rainville’s behavior with respect to the audio-visual recording he made that may have settled conclusively the factual issues this case presents.  We need not determine whether his deletion of the video constituted spoliation of evidence giving rise to a rebuttable presumption that the evidence was destroyed because it was harmful to O’Brien’s position.  The fact that Rainville told our investigator during his initial interview that he knew of no video – even though he recorded and deleted one – is not the demonstration of candor we expect and the Rules require, and it serves to undercut the contention the campaign advanced that O’Brien’s parting remark was his routine one.

While we find that O’Brien told Esquivel to “be careful,” we are not persuaded that those words constituted a threat prohibited by the Rules.  We reach this conclusion because the security video showed the words – which all agreed were uttered at the end of the exchange – were unaccompanied by any movement from O’Brien – clenching fists, stiffening of body, facial grimaces, “bulging eyes” – suggesting a physical threat.  Similarly, there was no reaction from Esquivel that he perceived, in real time, the words as a threat to his person or safety.  Thus, he did not recoil from O’Brien, look sharply at him, turn to face him, or exhibit any other behavior one might anticipate from a person who had just been physically threatened.

Given the context of the exchange between Esquivel and O’Brien, it is possible that O’Brien’s statement to “be careful” was a second iteration that Esquivel be factual in his internet writings and postings.  But it is equally possible that the words were spoken as a formulaic salutation in the context of the COVID-19 pandemic. 

For this reason, and because we find from the security video no subjective action by O’Brien to threaten and no subjective reaction from Esquivel that he found O’Brien’s words threatening, we DENY this protest.

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 167

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Scott Jenkins

scott@oz2021.com

Edgar Esquivel

Eesquivel1978@gmail.com

Teamsters Local Union 952

ejimenez@teamsters952.org

Michael Miller

Miller.michael.j@verizon.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com