December 7, 1995
VIA UPS OVERNIGHT
Samuel M. Carter
December 7, 1995
Page 1
Samuel M. Carter
1617 Andover Street
Concord, NC 28027
Tony Ford
1213 Auten Road
Charlotte, NC 28216
Chris Jackson
1055-G Hearn Street
Rock Hill, SC 29732
Hugh Hagler
1002 Dooley Drive
Charlotte, NC 28227
Willie Rivers
6033 Queensborough Court
Charlotte, NC 28216
Curtis Cunningham
P.O. Box 1266
Monroe, NC 28111
R. V. Durham, President
Teamsters Joint Council 9
1200 The Plaza
Charlotte, NC 28205
Teamsters Local Union 71
5000 N. Tryon Street
Charlotte, NC 28213
Samuel M. Carter
December 7, 1995
Page 1
Re: Election Office Case No. P-217-LU71-SEC
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-96 IBT International Union Delegate and Officer Election (“Rules”) by
Samuel M. Carter, president of Local Union 71, on October 31, 1995. The Election Officer deferred this protest for consideration post-election pursuant to Article XIV, Section 2(f)(2) of the Rules.
Mr. Carter alleges that an opposing slate of candidates for delegate and alternate delegate, headed by Tony Ford, solicited and accepted campaign contributions from Consolidated Motor Freight (“Consolidated”), an employer, in violation of Article XII, Section 1(b)(1) of the Rules. Mr. Carter also alleges that a Consolidated representative
Samuel M. Carter
December 7, 1995
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interrogated a supporter of his slate and, thus, interfered with the member’s right to campaign, in violation of Article VIII, Section 11(f) of the Rules.
Mr. Carter’s allegations of campaign contributions from Consolidated to the Tony Ford slate of candidates[1] are severalfold. He alleges that Local Union 71 member Oscar Cloninger sold a raffle ticket to the spouse of a Consolidated representative, Jay Hancock, with the intent to raise money for Mr. Ford’s slate, and that Mr. Ford’s slate accepted Mr. Hancock’s impermissible contribution. Mr. Carter also alleges that, on several occasions, Consolidated permitted members of Mr. Ford’s slate to campaign on company property during work hours by selling raffle tickets and distributing t-shirts. In addition, he alleges that Consolidated granted special privileges to Mr. Ford’s slate, including access to company bulletin boards, fax machines and special parking privileges. Finally, Mr. Carter alleges that a Consolidated manager interrogated a supporter of Mr. Carter’s slate and encouraged that union member to support Mr. Ford’s slate.
This protest was investigated by Regional Coordinator J. Griffin Morgan. During the investigation, more than a dozen individuals were contacted, and numerous documents submitted by the parties were reviewed.
I. Factual Background
Local Union 71's nomination meeting for delegate and alternate was held on
September 8, 1995, and ballots for these elections were counted on November 9. Local
Union 71's officer elections also occurred this fall, and ballots for that election were counted on October 10.
In the election for delegate, two of the four delegate positions were won by members of Mr. Carter’s slate, and the alternate position was won by Mr. Carter’s slate as well. The results were as follows:
Delegates
Rank Name Vote Slate
1 Linda Green 646 Sam Carter Slate
2 Tony Ford 639 Tony Ford Slate
3 Hugh Hagler 595 Tony Ford Slate
4 Ronnie Cook 592 Sam Carter Slate
5 Willie Rivers 581 Tony Ford Slate
6 Jim Runyon 568 Sam Carter Slate
7 Sam Carter 566 Sam Carter Slate
8 Chris Jackson 555 Tony Ford Slate
Samuel M. Carter
December 7, 1995
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Alternate Delegates
1 Bobby Bolin 593 Sam Carter Slate
2 Curtis Cunningham 576 Tony Ford Slate
II. Employer Campaign Contribution
A. Raffle Tickets
Mr. Ford’s slate sponsored a raffle earlier this year to raise campaign funds. The raffle’s grand prize was a 1957 “Chevy Classic built by Tony Ford.” Between April and May 1995, Mr. Cloninger, a driver employed by Consolidated and a supporter of Mr. Ford’s slate, sold between 10 and 20 raffle tickets at a cost of $10 each to Diane Hancock.[2] Ms. Hancock is married to Jay Hancock, a terminal manager with Consolidated. Mr. Cloninger states that he originally solicited Mr. Hancock to purchase tickets, but Mr. Hancock expressed concern over a disclaimer printed on the ticket which stated “Teamster Employers Not Eligible.” After seeking advice from Mr. Ford as to the appropriateness of Mr. Hancock’s participation, at Mr. Ford’s suggestion, Mr. Cloninger sold the ticket to Ms. Hancock instead to evade the prohibition against employer participation. A drawing was held on September 16, and a ticket purchased by Ms. Hancock was drawn as the winner. The car titled was later in Mr. Hancock’s name.
Article XII, Section 1(a) of the Rules prohibits candidates from soliciting and accepting campaign contributions as follows:
Article IV, Section 4 of the IBT Constitution, as amended, provides:
“No candidate for election shall accept or use any contributions or other things of value received from any employers, representative of an employer, foundation, trust or any similar entity.”
The above provision is hereby made a part of the Rules.
Article XII, Section 1(b) of the Rules further prohibit contributions by employers:
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December 7, 1995
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No employer may contribute, or shall be permitted to contribute, directly or indirectly, anything of value, where the purpose, object or foreseeable effect of the contribution is to influence, positively or negatively, the election of a candidate. No candidate may accept or use any such contribution. These prohibitions are not limited to employers that have contracts with the Union; they extend to every employer, regardless of the nature of the business[.]
There is little question that Mr. Hancock is a representative of the employer. An Advisory on “Campaign Contributions and Disclosure” issued by the Election Officer on August 14, 1991, states:
Contributions received from a spouse or minor children of an employer or of a representative of an employer will be deemed contributions received from such employer or employer representative. [T]he presumption is rebuttable . . . by proving that the campaign contributions emanated from independent resources of the spouse or minor children, and that the contributing spouse or minor child is a person otherwise permitted to make campaign contributions under the Rules.
Here, no evidence has been offered to the Election Officer that would rebut the presumption that the monies contributed emanated from a source independent of Mr. Hancock. Indeed, the sequence of events here make clear that Mr. Hancock, the employer, was the real party in interest in making the contribution.
Thus, Mr. Hancock, an agent of Consolidated, contributed money to Mr. Ford’s campaign. The Election Officer therefore finds that selling of raffle tickets to Ms. Hancock violates Article XII, Section 1(b)(1) of the Rules.
B. Fax Machine
Mr. Ford admits that, Fran Jordan, a clerk at Consolidated, transmitted via facsimile machine owned by Consolidated a printer’s proof of a raffle ticket. This faxing of campaign material occurred between April and May 1995. While Mr. Ford disputes that he directed Ms. Jordan to fax the proof, he does not deny that the Consolidated fax machine was so utilized. Thus, the Election Officer finds that the use of the employer-owned fax machine benefitted Mr. Ford’s campaign and violates Article XII, Section 1(b)(1) of the Rules.
C. Campaigning by Tony Ford Slate During Work Time
Several allegations were made by Mr. Carter charging that Consolidated knowingly permitted Mr. Ford and his supporters to campaign during work time.
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December 7, 1995
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John H. Smith, a driver for Consolidated, claims to have witnessed Woody Hauser campaigning and selling raffle tickets on behalf of Mr. Ford’s slate while on work time. According to Mr. Smith, this conduct occurred at least 50 times between May and October 1995, often in view of a Consolidated dispatcher. Mr. Hauser admits to having campaigned on the employer’s property before, during and after work hours. He denies, however, as does Consolidated, that the dispatcher had any knowledge of Mr. Hauser’s campaign activities.
Paul Bieber, a Consolidated employee, claims that between July and August 1995,
Mr. Ford attempted to sell a raffle ticket to him during work hours at a Consolidated dispatch room. He also claims having seen Mr. Ford campaigning near fuel tanks located on Consolidated property. Mr. Ford does not deny these allegations.
Henry Dale Glovanovitch, a Consolidated employee, claims that between July and September 1995, he witnessed Mr. Ford during work hours and on company property (a Consolidated drop and hook pad) removing campaign t-shirts from a truck owned by Consolidated and distributing them to Consolidated employees. Mr. Ford admits to the activity alleged, but claims that it occurred only once. Mr. Glovanovitch also claims to have seen Mr. Ford campaigning during work time near a Consolidated drop and hook pad and, on one occasion, to have been solicited by Mr. Ford to purchase tickets. Mr. Ford denies these allegations.
Consolidated denies that employees were ever permitted to campaign during work time on its property.
Article VIII, Section 11(a) of the Rules states in relevant part that, “[n]o candidate or member may campaign during his/her working hours. Campaigning incidental to work is not, however, violative of this section.”
The Election Officer finds that Mr. Ford and Mr. Hauser engaged in the alleged campaign activities. Mr. Hauser does not deny Mr. Smith’s allegations. Mr. Ford does not deny the substance of Mr. Bieber’s testimony. In fact, Mr. Ford admits that he distributed campaign t-shirts from his truck during work hours on at least one occasion. Moreover, the Election Officer finds Mr. Glovanovitch’s account of all three incidents to be credible. Thus, Mr. Ford’s slate violated Article VIII, Section 11(a) of the Rules.[3]
D. Access to Company Bulletin Boards and Parking Lot
Samuel M. Carter
December 7, 1995
Page 1
Mr. Carter’s allegation that Mr. Ford’s slate of candidates was provided special access privileges to company bulletin boards and parking spaces is without merit. Numerous interviews of individuals and an inspection of the Consolidated terminal were undertaken during the investigation. Three bulletin boards are located on the employer’s premises. One bulletin board, upon which employees advertised a variety of personal items, is designated for general employee use. Both slates of candidates hung literature on this bulletin board. Neither of the two additional bulletin boards, one designated for employer use and the other for official union business, were found to contain campaign materials. There was no evidence to support Mr. Carter’s allegation that Mr. Ford’s slate was given special privileges to use these bulletin boards.
Similarly, Mr. Carter’s allegation of special parking privileges is unsupported by the evidence. An onsite investigation found that Consolidated has two parking lots, one designated for union employee use and the other designated for management use. Because of overcrowding in the employee parking lot and the availability of extra space inside the management lot, spaces are made available to union employees on a first-come, first-served basis. No preference was given by the company to any candidate, thus no Rules violation occurred.
III. Allegation of Interference With Member’s Political Rights
Section 11(f) of the Rules states in relevant part that “[r]etaliation or threat of retaliation by . . . 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.” Mr. Carter alleges that a Consolidated payroll clerk, Mike Hart, attempted to interfere with the right of a Consolidated employee, Jerome Boswell, to support Mr. Carter’s slate of candidates.
The investigation into this allegation included a meeting with Mr. Hart. While not a member of the union, Mr. Hart also is not a manager for the company. As a payroll clerk, Mr. Hart performs clerical functions and does not have the authority to hire, fire or discipline. He works with Mr. Boswell in a small trailer outside the main terminal building. A conver-sation between Mr. Hart and Mr. Boswell took place in which Mr. Hart is alleged to have remarked on a hat being worn by Mr. Boswell, “What are you doing with a Carter Hat?”
Mr. Boswell stated, “That’s all I could get,” to which Mr. Hart “jokingly” replied, “I might be able to get you a Ford hat.” Mr. Hart states that he was referring to a cap left behind in his office by a union member earlier assigned to his office.
Based on the accounting of the incident by Mr. Hart, who the Election Officer finds to be credible, the Election Officer finds that no Rules violation occurred. Mr. Hart did not attempt to intimidate Mr. Boswell nor influence his political rights or decisions as protected under the Rules.
V. Conclusion
Samuel M. Carter
December 7, 1995
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The Rules provides that post-election protests shall be considered and remedied only if the alleged violation may have affected the outcome of the election. Thus, a violation of the Rules is not grounds for setting aside an election unless there is a reasonable probability that the outcome of the election may have been affected by the violation. Wirtz v. Local Unions 410, 410A, 410B & 410C, Int’l Union of Operating Engineers, 366 F.2d 438 (2d Cir. 1966). To determine whether an effect exists, the Election Officer determines whether the effect was sufficient in scope to affect the outcome of the election and/or whether there is a causal connection between the violation and the results or outcome of the election. Dole v. Mailhandlers, Local 317, 132 L.R.R.M. 2299 (D.C.M.D. Ala. 1989). Since the Election Officer has already determined that the Rules have been violated, the issue thus becomes whether the violations affect the outcome of the election.
The Election Officer determines that these violations may have affected the outcome of the election. A total of 1,238 ballots were cast and received from the U.S. Postal Service, and the number of valid ballots counted totaled 1,194. Only 11 votes separated the candidate winning the final delegate position and the candidate finishing just behind.[4] The Election Officer takes special notice that the acceptance of contributions from an employer is a serious violation of the Rules. In light of these violations and the close election herein, the delegate election in Local Union 71 is declared void and a new election, which will be conducted by the Election Officer, is directed. The Election Officer will be in communication with all of the nominated candidates with respect to the details of the re-run election.
Therefore, based on the foregoing, the protest is GRANTED as to the allegations of employer contributions and campaiging on work time; and a re-run election is ordered.
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, Esquire
Latham and Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax 212-751-4864
Samuel M. Carter
December 7, 1995
Page 1
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
J. Griffin Morgan, Regional Coordinator
[1]Members of the Tony Ford slate include Mr. Ford, Chris Jackson, Willie Rivers, Hugh Hagler and Curtis Cunningham.
[2]It could not be determined exactly how many tickets were purchased by Ms. Hancock. All parties agreed, however, that at least 10 but no more than 20 tickets were sold to her.
[3]Based upon interviews with Consolidated representatives and witnesses to the company’s operations, however, the Election Officer finds that Consolidated did not intentionally assist Mr. Ford’s slate of candidates in their campaign for delegate and alternate.
[4]Ronnie Cook won the fourth delegate position with 592 votes; Willie Rivers received 581 votes.