Protest Decisions

February 15, 1996

VIA UPS OVERNIGHT

Tony Ford & Sam Carter

February 15, 1996

Page 1

Tony Ford

1213 Auten Road

Charlotte, NC 28216

Jim Hill

40009 Whisperwood Court

Matthews, NC 28105

Sam Carter

1617 Andover Street

Concord, NC 28027

Arthur Hackworth

175 Linfield Drive

Menlo Park, CA 94025

Tony Ford & Sam Carter

February 15, 1996

Page 1

Re:              Election Office Case Nos.              P-381-LU71-SEC

P-386-LU71-SEC

Gentlemen:

Two protests originating from Local Union 71 have been filed pursuant to the Rules for the IBT 1995-1996 International Union Delegate and Officer Election (“Rules”).

John A. “Tony” Ford, president of Local Union 71, and James A. “Jim” Hill, secretary-treasurer of Local Union 71, filed a protest (docketed as P-381-LU71-SEC) against the

Sam Carter slate, a slate of candidates for delegate from the local union, alleging that: 

(1) Sam Carter posted campaign material on a company bulletin board at Yellow Freight System, Inc. (“Yellow Freight”); (2) the Sam Carter slate improperly used a list of telephone numbers of union members for campaign purposes; and (3) the slate improperly used a set of labels containing membership addresses for campaigning.

Mr. Carter responds that:  (1) he did not post or instruct anyone to post campaign literature on a company bulletin board; (2) he did collect members’ phone numbers to campaign for local union office but denies using any numbers to campaign for delegate; and (3) he did not obtain a membership mailing list or labels.

Tony Ford & Sam Carter

February 15, 1996

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The Sam Carter slate filed a protest (docketed as P-386-LU71-SEC) against the

Tony Ford slate, alleging that Ray Hait and Ted Mullis, supporters of the Ford slate, obtained access to campaign inside of the CF Motorfreight Charlotte terminal (“CF”), while the

Tony Ford slate is not permitted to campaign inside of the terminal.

Mr. Hait and Mr. Mullis deny campaigning inside of CF.  CF denies knowledge that there was campaigning at its facility.  It states that it has a policy prohibiting campaigning in its terminal.

Because the protests originate from the same local union and involve similar legal issues, the Election Officer consolidated these protests for decision.

Adjunct Regional Coordinator Maureen Geraghty investigated the protests.

I.  Posting Campaign Material on Company Bulletin Board

On Sunday, January 28, 1996, a Sam Carter campaign flyer was seen inside of a glass-enclosed, locked company bulletin board at the Yellow Freight terminal in Charlotte,

North Carolina.  The flyer was not attached to the bulletin board but apparently had been slid under the glass enclosing the bulletin board.  Ted Sowers, Yellow Freight’s line-haul dispatch manager, states that he is the only person with keys to the bulletin board and that the board is used solely for the employer’s notices.  He did not give the Sam Carter slate permission to post a flyer on the company board and has not seen any campaign notices inside of the board.  He recalls checking the board on January 29, 1996 and did not see a campaign flyer there on that day.

The use of employer bulletin boards is governed by Article VIII, Section 11(d) of the Rules, which states, in pertinent part:

No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity . . . Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

Here, there is no evidence that Yellow Freight expressly or implicitly permitted the Carter slate to post a flyer on the company bulletin board.  In fact, it appears that there was no preexisting right to post campaign literature on the bulletin board.  Moreover, it appears that the literature was posted for only one day.  Based on these circumstances, the Election Officer does not find a violation of Article VIII, Section 11(d).

II.  Use of Telephone Lists

Tony Ford & Sam Carter

February 15, 1996

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Mr. Ford contends that Mr. Carter stole membership telephone lists when he left his local union office in January 1996 and will use such lists to campaign for delegate.  Mr. Ford bases these current allegations of improper use of union telephone lists on a pattern of telephone bank contacts to members by Mr. Carter in past elections, including the prior local union and delegate election.[1]  Mr. Carter does not deny that he has used member telephone lists to contact voters in prior elections, but states that his slate is not conducting a telephone bank in the current election.  The protester was unable to provide the name of any member contacted by the Carter slate by telephone. 

The Rules, at Article VIII, Section 11(c), prohibit the use of union resources in campaigning unless the union is reimbursed at fair-market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.  Here, however, there is no evidence that the Carter slate has used member telephone numbers to campaign in the delegate election.  Nor is there sufficient evidence to find that Mr. Carter stole the membership list in question. Therefore, there is no violation of the Rules.

III.  Use of Membership Mailing List and Labels

Mr. Ford contends that Mr. Carter stole a set of membership labels from the local union and has used those labels to mail campaign literature and to create membership lists for campaign purposes. There is evidence that a set of membership mailing labels was missing from the local union office in December 1995, but there is insufficient evidence that

Mr. Carter took the labels.  There is no evidence that Mr. Carter has conducted a general membership mailing.  Rather, the protester’s allegation is based upon a mailing to four or five local union members.

Mr. Carter admits mailing campaign literature to some selected members using a computerized set of mailing labels of the addresses of approximately 200 members.  The labels were generated by one of his supporters at home and were prepared from addresses he had accumulated while he was principal officer of the local union.   

Tony Ford & Sam Carter

February 15, 1996

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The Rules, at Article VIII, Section 11(c), prohibit the use of union resources in campaigning unless the union is reimbursed at fair-market value for such assistance, and unless all candidates are provided equal access to such assistance and are notified in advance, in writing, of the availability of such assistance.  Here, however, there is insufficient evidence that Mr. Carter obtained a set of mailing labels from the local union.   In Chentnik, Case No. P-223-LU325-CHI, et seq. (December 18, 1995), aff’d, 95 - Elec. App. - 52 (January 8, 1996), the Election Officer recognized that the use for campaign purposes of information such as member names and telephone numbers acquired by union officials in the course of their duties does not violate the Rules.  While Mr. Carter obtained members’ addresses during the course of his tenure as union officer, there is no evidence that these were official union lists or that he obtained these for the purpose of campaigning for local union delegate.  Accordingly, there is no evidence that Mr. Carter improperly used union resources for campaign purposes.

IV.  Alleged Campaigning in Break Room

During the morning of January 31, 1996, Ray Hait and Ted Mullis went to the break room at the CF Charlotte terminal to leave campaign literature there supporting the Tony Ford slate.  Both Mr. Hait and Mr. Mullis are CF employees.  However, they were not currently working at CF due to leave-related injuries.  While in the break room, the two briefly discussed the respective merits of the Ford slate and the Carter slate with employees who were there on break.  CF Group Operations Manager Bob Daminski advises that while CF permits campaign material to be placed in the break room, but it does not allow campaigning in its break room unless the employee is on the premises as part of his or her work day and on break.  Mr. Daminski denies any knowledge of campaigning by Mr. Hait or Mr. Mullis.

The Carter slate alleges that CF employee James Runyon has been denied access to the CF break room for campaigning and that CF enforces these rules in a discriminatory manner.

No evidence has been presented that Mr. Runyon has been denied such access during this election campaign.

         The Rules, at Article VIII, Section 11(d), provide:

No restrictions shall be placed upon candidates’ or members’ preexisting rights to use employer or Union bulletin boards for campaign publicity.  Similarly, no restrictions shall be placed upon candidates’ or members’ preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fund-raising events or engage in similar activities on employer or Union premises.  Such facilities and opportunities shall be made available to all candidates and members on a nondiscriminatory basis.

Similarly, the Rules broadly permit campaigning by employee-members during break times and non-working hours.  Article VII, Section 11(a) and (b).

There is no evidence that CF expressly or implicitly permitted Mr. Hait or Mr. Mullis to campaign in the break room.  In fact, the evidence presented indicates that the company was not aware of their presence in the break room, and since both are out of work due to injuries, such campaigning would have violated company policy.  Similarly, the protester has presented no evidence that CF has enforced its policy in a discriminatory manner.  Therefore, the Election Officer does not find CF violated the Rules.  Although the protest is also filed against the John Ford slate, there is no evidence that such campaigning violated the election Rules.

Based on the foregoing, the protests are DENIED. 

Tony Ford & Sam Carter

February 15, 1996

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Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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 and 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, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:               Kenneth Conboy, Election Appeals Master

Maureen Geraghty, Regional Coordinator