Protest Decisions

February 16, 1996

VIA UPS OVERNIGHT

Samuel M. Carter

February 16, 1996

Page 1

Samuel M. Carter

1617 Andover Street

Concord, NC 28027

Tony Ford

1213 Auten Road

Charlotte, NC 28216

Hugh Hagler

1002 Dooley Drive

Charlotte, NC 28227

Curtis Cunningham

P.O. Box 1266

Monroe, NC 28111

Chris Jackson

1055-A Hearn Street

Rock Hill, SC 29732

Willie Rivers

6033 Queensborough Court

Charlotte, NC 28216

Samuel M. Carter

February 16, 1996

Page 1

Re:              Election Office Case No. P-377-LU71-SEC

Gentlemen:

The Sam Carter slate, a slate of candidates for delegate from Local Union 71, filed a protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT Interna-tional Union Delegate and Officer Election (“Rules”) concerning a notice posted by Local Union 71.  The notice reports on the status of two post-election protests, one concerning the local union delegate elections and one concerning the local union officer elections.  The protester alleges that the notice attacked the Sam Carter slate, in violation of Article VIII, Section 8(a) of the Rules which restricts union-financed publications.  Additionally, the protester alleges that the protest contributes to the candidacy of the Tony Ford slate of delegate candidates in violation of Article XII, Section 1(b)(3), which prohibits the use of union resources to promote a candidacy.

Tony Ford, president of Local Union 71, responds that the notice is an accurate communication concerning matters of interest to the membership and was intended to address any confusion regarding the status of the delegate and officer elections.

Samuel M. Carter

February 16, 1996

Page 1

Adjunct Regional Coordinator Maureen Geraghty investigated the protest.

Mr. Carter was president of Local Union 71 until he was defeated by Mr. Ford in the local union officer election held on October 10, 1995.  A slate led by Mr. Carter ran against a slate led by Mr. Ford in Local Union 71’s delegate election held November 9, 1995.  By decision dated December 7, 1995, based on protests considered post-election, the Election Officer invalidated the results of Local Union 71’s delegate election and ordered a re-run election. Mr. Ford appealed the Election Officer’s decision, which was affirmed by the Election Appeals Master on December 20, 1995.  Mr. Ford sought reconsideration from the Election Appeals Master, who denied reconsideration by decision dated January 19, 1996.[1]  

The slate of candidates for officer led by Mr. Carter filed a post-election protest with Joint Council 9 pursuant to the IBT Constitution challenging the results of the election. While the post-election protest concerning the officer election was pending before Joint Council 9, Mr. Ford was installed as Local Union 71 president on January 13, 1996.  On January 19, 1996, Joint Council 9 dismissed the protest concerning the officer election.  The Carter slate of candidates for local union officer appealed the Joint Council decision to the IBT General Executive Board (“GEB”).[2]

On January 19, 1996, the Election Officer notified Local Union 71 that the local union delegate election would be held February 16, 1996.  By decision dated January 22, 1996, the GEB ordered the officer election to be re-run on February 29, 1996.  However, the local union states that it did not receive the GEB decision until January 29, 1996.   On January 23, 1996, the Regional Coordinator sent the local union an official notice from the Election Officer concerning the delegate elections, with instructions to post the notice in accordance with the Rules on all union bulletin boards.  On February 2, 1996, the local union mailed to its members a notice prepared by the IBT concerning the re-run of the officer election.

This protest concerns a notice dated January 24, 1996 drafted by Local Union 71 which directed its stewards to post on union bulletin boards.  The notice, which was placed on union letterhead showing Mr. Ford as local union president, is headed “Notice to All Members / Election Protests” and begins, “There is so much confusion about the status of the delegate election and Local Union officer election that we decided to give everyone an up-to-date report.” The notice was not required under the Rules and was not therefore subject to the requirement stated in Article II, Section 4(g) that it be on letterhead that has no names of Union officers, business agents, staff or the like.

Samuel M. Carter

February 16, 1996

Page 1

              The notice is one page divided into two sections.  The first section entitled “Local Union Officer Elections” begins by stating that “[t]he Sam Carter slate filed a protest with Joint Council 9 in Charlotte to set aside our election of officers.”  The installation of the new officers is reported, as well as the hearing held before the Joint Council on October 27 “where a number of witnesses testified to what went on during the election campaign.”  The notice states that “[o]n Monday, [the local union] received the decision of the Joint Council which dismissed all of the protests.”

The notice summarizes the Joint Council decision, stating that the Joint Council found that the protest was not sufficiently specific, reviewed all of the evidence and dismissed “each protest.”  The notice points out that the decision found that the Sam Carter slate “engaged in the same conduct that they accused the Tony Ford slate of committing in their protest.”  The following portion of the Joint Council decision is quoted:

[I]f both slates were engaged in the same conduct and were therefore on relatively equal footing, it could be argued that each side’s conduct canceled out the advantages and effect upon the outcome by the other.  Furthermore, if both sides were doing it, it seems unfair to the membership to have to incur the expense of another election under such circumstances.

The notice advises that the local union expects that an appeal will be filed to the GEB.

The second half of the notice is headed “Delegate Election.”  The notice acknowledges the decision of the Election Officer ordering a re-run election and states that Mr. Ford appealed the decision “arguing, in addition to other points, that the protest was untimely filed.”  The notice notes that the protest was “filed many weeks after the two-day deadline for filing protests.”  The notice reports that the Election Appeals Master upheld the Election Officer’s decision and that Mr. Ford requested reconsideration of the Appeals Master’s decision.  The decision on reconsideration is quoted as finding that “‘indeed, Mr. Carter appears not to have timely filed his protest.’” The notice reports that on reconsideration, the Election Officer was upheld, and that there will be a rerun election for delegates to the IBT Convention.  The notice gives the date of mailing of the ballots in the delegate elections and the ballot count.

The protester argues that the notice, insofar as it mentions the Sam Carter slate, is negative in its emphasis.  The protester is particularly troubled by the portion of the notice quoting the joint council as questioning conduct by the Sam Carter slate in the officer election and suggesting that a re-run election, which was the aim of the protest filed by the Carter slate, would be “‘unfair to the membership.’”  The protester also asserts that the section of the notice concerning the delegate election places undue emphasis on the allegation that the Carter

slate’s protest concerning the delegate elections was untimely.

Article VIII, Section 8(a) of the Rules states that a union-financed publication or communication may not be “used to support or attack any candidate or the candidacy of any person.”

              The Election Officer has consistently used the “tone, timing and content” test in determining when a publication constitutes campaigning.  Jacob, P-071-LU319-EOH

(September 7, 1995), aff'd, 95 - Elec. App. - 19 (KC) (October 3, 1995); Martin, P-010-IBT-PNJ, et seq. (August 17, 1995), aff’d, 95 - Elec. App. - 18 (KC) (October 2, 1995).  She also “reviews the specific context in which the communication takes place.”  Jacob, supra. 

Samuel M. Carter

February 16, 1996

Page 1

“[U]nion officers retain both the right and responsibility to exercise the powers of their office to advise and report to the membership on issues of general concern.” Martin, supra.  In Blake, P-245-JC42-CLA (December 18, 1996), aff’d, 96 - Elec. App. - 54 (January 12, 1996), the Election Officer held that reports on the results of protest decisions are legitimate subjects for union-financed publications, even if the communication is critical of a candidate.

Here, the notice contained legitimate reporting of newsworthy activities of legitimate interest to the members.  While the notice, which contains references to the timeliness of

Mr. Carter’s protest and the “unfairness” of a re-run election, has an editorial slant towards Mr. Ford, it nevertheless accurately reports the procedural status of the two post-election protests, one concerning the officer elections and one concerning the delegate elections, and summarizes the respective basis of the most recent decision in each appeal procedure.  While the notice issued after the GEB reversed the joint council, and the reversal is not reported in the notice, there is insufficient evidence that the local union was on notice of the GEB decision when the notice was posted.  As the Election Appeals Master recently noted in a case involving reporting on decisions of the Election Officer which were adverse to General President Ron Carey:

I note . . . that the instant article focused exclusively on decisions adverse to Mr. Carey and that the article made specific reference to Mr. Carey’s candidacy.  This, however, does not diminish the fact that the article was newsworthy in content and generally objective in tone.  On the facts of this appeal, I am unwilling to conclude that the . . . editorial decisions and reportorial style went beyond the scope of legitimate journalism and carried the article into the realm of improper union-financed campaign literature.

(Footnotes omitted.)  In Re: Blake, 96 - Elec. App. - 54 (KC) (January 12, 1996.)

Similarly, this notice, considered in context, the tone and content of notice does not attack the Carter slate in violation of the Rules.  

The protest is DENIED.

Samuel M. Carter

February 16, 1996

Page 1

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