IN RE: JOHN KIRK MISICH, Protestor.
Protest Decision 2006 ESD 323
Issued: July 8, 2006
OES Case No. P-06-265-041406-FW
(See also Election Appeals Master decision 06 EAM 61)
John Kirk Misich, a member from Local Union 174, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protestor alleged that his employer, UPS, prohibited him from wearing campaign buttons while working, in violation of the Rules.
Election Supervisor representative Christine M. Mrak investigated this protest.
Findings of Fact
The protestor is a uniformed package car driver for UPS at its Canyon Park center in Redmond, Washington. He alleged that on April 12, 2006, Redmond hub pre-load manager Vince Dahline directed him to remove two campaign buttons from his hat. The buttons supported the Leedham and Scott slates. The protestor was on the clock but had not yet left the hub to go to his truck. The facts of this protest are not in dispute; at issue is whether uniformed package car drivers may wear campaign paraphernalia during pre and post-route time.
According to the protestor, he has worn campaign buttons in full view of management for months but always removed them upon leaving the hub to commence his route per past practice. The protestor has observed on-car supervisor Dave Beyruti and center manager Robert Morgan remind drivers to be sure to take off non-conforming hats before hitting the road.
A May 15, 1997 directive issued by Ken Hall, director of the Parcel and Small Package Trade Division of the IBT, to principal officers, UPS local unions and UPS contract campaign field coordinators, identified that "[e]mployees who are not required to wear uniforms may wear buttons or other insignia showing their support of the union or the union's contract campaign. Employees who are subject to a uniform requirement may wear buttons when they do not come into contact with the public, for example, while at a center or hub." (emphasis supplied) Paul Austin, a UPS business agent at the Bellevue Center in the same hub, confirmed that drivers perform their pre- and post-route duties in an area that is isolated from the customer counter area.
Investigation found that union and management witnesses differ as to the established past practice of wearing campaign buttons.
Pat Frey, Senior Business Representative for Local 174, has worked for UPS on and off since 1975 and has worked for Local Union 174 since 1997. Frey described the past practice consistent with the protestor's view, that uniformed employees can wear campaign paraphernalia until they leave the hub. Local Union 174 business agent Dan Dzilenski has worked for UPS since 1989 and also supports this view. Rick Hicks, who headlined the slate that defeated the incumbent Dan Scott slate in the delegate and alternate delegate election, agreed that many of his supporters wore buttons on their uniforms at the hub on the clock. Derek Wattle, a uniformed driver for 10 years, stated that he has seen many drivers wear campaign buttons in the building on the clock and has heard supervisors tell drivers to remove non-conforming items before leaving the building. Scott Curley, a long time UPS uniformed driver and opponent of the current Local Union 174 Scott administration, agreed with his political opponents that there is a past practice of drivers wearing campaign paraphernalia on duty while at the hub.
UPS managers Murray Bourque, District Labor Relations Manager, Judy Bomparte, Seattle Division Manager, Jim Bryant, District Labor Relations Manager (1995-2004), Paul Austin, Business Manager for the Bellevue Center, John Meyer, Bellevue Center Manager (2001), and Paul Austin, Business Manager for the Bellevue Center, all told our investigator that all drivers must be in full and proper uniform at the start of their shift. Bourque and Bryant both distinguish the protest at hand from the protest decided in Scott, 2001 EAD 455 (September 18, 2001), aff'd, 01 EAM 92 (October 1, 2001). According to Borque and Bryant, the driver in Scott was allowed to be out of uniform as he was performing additional pre-load work outside of his normal duties during a period when the facility was understaffed. This precedent is discussed more fully below.
While UPS management agreed that the policy was for drivers to be in uniform, they acknowledged that the wearing of buttons, union pins, etc. was tolerated. Washington District Retention Manager Bob Newbury state that he has seen nonconforming attire at the Redmond facility on more than one occasion; however, he did not recall seeing campaign items. Meyer, however, stated that he has seen drivers wearing campaign objects in the hub, but he did not know whether they were on the clock. Austin recalled seeing campaign pins on drivers' uniforms prior to the start of the shift, as did Bob Gish and Dave Sheridan, two other UPS managers.
Analysis
Under Article VII, Section 12(d) of the Rules, "no restrictions shall be placed upon candidates' or members' preexisting rights to solicit support, distribute leaflets or literature, conduct campaign rallies, hold fundraising events or engage in similar activities on employer or Union premises."
The NLRB and the courts have long held that, absent "special consideration," which includes situations where safety, employer product or equipment, or employee discipline and productivity would be threatened, the wearing of union buttons or insignia by employees is a protected activity. See Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945); Howard Johnson Motor Lodge and Chauffeurs, Teamsters and Helpers Local 364, 261 NLRD 866 (1982); Nordstrom, Inc. and Retail Store Employees Union Local 1001, 264 NLRB 698 (1982); Burger King Corp. and United Labor Unions Local 222, 265 NLRB 1507 (1982); UPS v. NLRB, 41 F.3d 1068 (6th Cir. 1994). Situations where employees are dealing with, and must project a specific image to, the public have also been regarded as "special consideration." See United Parcel Service, Inc., 195 NLRB 441 (1972); United Parcel Service and Highway and Local Motor Freight Employees Local 677 312 NLRB 596. However, the NLRB held in Enloe Medical Center and Health Care Workers Union Local 250, 345 NLRB 1 (2005), that even in cases where an employee spends much of his day interacting with the public, an employer may not restrict the employee's right to wear union insignia when working in "private" work areas, provided it is reasonably easy for him to remove said insignia upon entering "public" work areas. Misich clearly was able to remove his hat, or the campaign buttons from his hat, without difficulty.
The NLRB has extended the term "union buttons or insignia" to include a large number of items, including campaign buttons and buttons supporting union-related actions that not all union members may favor. Indeed, in Floridan Hotel, Inc. and Davison-Paxson Co., 191 NLRB 58 (1971), enforcement denied, 462 F.2d 364 (5th Cir. 1972), the Board applied the rule described in the preceding paragraph to relatively large, brightly colored union campaign buttons. Similarly, in E&L Transport Co. and Dunsmore and Renedo, 331 NLRB 640 (2000), the court noted that a ban on wearing internal union campaign buttons on uniforms could only be enforced in the presence of the "special circumstances" described above. Furthermore, in Virginia Electric and Power Co. and International Brotherhood of Electrical Workers, 260 NLRB 408 (1982), the NLRB determined that even if buttons supporting either of two different unions that were competing to represent employees at a particular worksite sparked quarrels between employees, these quarrels alone did not constitute "special consideration" and did not justify a ban on the buttons in areas where the public would not be witnesses to the quarrels. In Albertson's Inc. and Retail Clerks Union 1105, 272 NLRB 865 (1984), the NLRB ruled that an employer could not prohibit employees from wearing buttons bearing slogans referencing specific bargaining unit demands. These precedents demonstrate that the fact that such objects support a specific slate in a contested internal union election would not remove Misich's buttons from the category of permitted "union buttons or insignia" as identified by the NLRB.
While a source of preexisting rights to wear campaign buttons on employer premises is that provided by labor law, a second source is past practice. Hall, 90 EAM 1 (October 4, 1990); Brinkman, P151 (September 18, 1995), aff'd, 95 EAM 21 (October 10, 1995). Here, union and management witnesses disagree as to what the past practice is. While management clearly articulated official policy, they also acknowledged the lack of strict conformance to that policy with regard to the wearing of political paraphernalia.
In the two previous elections of International officers, the Election Officer and the Election Administrator have held that the UPS prohibition against wearing unauthorized buttons on UPS uniforms was valid and that small lapel pins bearing an American flag or IBT logo did not create a preexisting right to wear campaign material. Salazar, P881 (October 1, 1996); Epperson, P779 (July 18, 1991).
On October 13, 1998, the Election Officer issued a resolution that arose at the same facility as the one in the instant protest. Dzilenski, PR254. In that case, a UPS supervisor directed a driver to remove a campaign pin worn at the hub while on the clock. According to that decision, UPS agreed to allow uniform employees to wear campaign paraphernalia during working hours so long as they were removed before interfacing with customers.
In a 2001 protest also arising at the Redmond hub, UPS acknowledged that employees who do not meet the public, including people performing pre-load work, may wear campaign paraphernalia while pre-loading trucks. Scott, supra.
The significance of wearing campaign paraphernalia while in the presence of unrelated third parties has also been addressed by the Election Administrator. In an October 10, 2000 advisory, the Election Administrator noted that "while union officers, business agents, and employees may wear campaign emblems during working hours and while engaged in their regular union business, they may not wear such emblems when representing the union before or with an unrelated third party. Advisory on Wearing of Campaign Buttons and Other Emblems (October 10, 2000).
Counsel for UPS stated that the UPS policy does not violate the Rules or any other laws. He relies on a previous decision in which the Election Officer found that the prohibition against wearing campaign paraphernalia for employees who come in contact with the public did not violate the Rules. Krutchen, 98-Elec. App. 377 (KC)(PR-205). However, the Krutchen decision merely underlines the distinction made between employees in and out of the public view.
In addition, UPS counsel distinguished the instant case from the one in Vaule, 2001 ESD 140 (March 17, 2006), where the Election Supervisor held that the protestor had the right to wear a campaign button while working in a Coca-Cola warehouse. UPS argued that, unlike in Vaule, the instant case involves employees who meet or interact with customers or the public. We disagree. We find that the scope of the instant case involves the isolated instances where uniformed drivers are not interacting with the pubic, but instead are out of public view, such as at the hub.
Previous Election Office authority as well as UPS's own directive has clearly differentiated an employee's right to wear campaign buttons based on whether the employee is in public view. Therefore, we find that uniformed UPS employees have a right to wear campaign paraphernalia while working as long as the employees are not in contact with the public.
Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
The Election Supervisor orders UPS to refrain from prohibiting or interfering with the pre-existing right of IBT members to wear partisan campaign buttons during work time or on work premises while not in contact with the public. The Election Supervisor further orders UPS to post the attached notice on all company bulletin boards at its Redmond, Washington facility that are maintained for communicating with IBT members. The notice shall remain posted through November 30, 2006, and UPS shall supply an affidavit of compliance within 3 working days of receipt of this decision.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20006-1416, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 323
NOTICE TO TEAMSTERS MEMBERS FROM
THE ELECTION SUPERVISOR FOR THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
The Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules") protect the right of all IBT members to support candidates of their own choosing for International offices.
The Rules protect the preexisting rights of employees who do not interact with customers or the public to wear campaign emblems on buttons, t-shirts or hats while working.
The Election Supervisor will not permit interference with rights protected by the Rules.
The Election Supervisor has ordered UPS not to enforce any policy or rule that prohibits wearing of campaign buttons in the workplace or on work time. However, UPS may permissibly bar employees from wearing campaign buttons during the periods of their work time when they meet or interface with UPS customers or the public.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity which violates the Rules should be filed with Richard W. Mark, Election Supervisor, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, telephone: 888-IBT-2006, fax: 202-454-1501, email: electionsupervisor@ibtvote.org
_______________________________________
Richard W. Mark
Election Supervisor
This is an official notice prepared and approved by Richard W. Mark, Election Supervisor for the International Brotherhood of Teamsters. It must remain posted for through November 30, 2006 and must not be defaced or covered up.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
John Kirk Misich
16218-33rd Avenue SE
Mill Creek, WA 98012
Gary Tocci
Reed Smith LLP
2500 One Liberty Place
Philadelphia, PA 19103
gtocci@reedsmith.com
Dan Scott
Secretary-Treasurer, Local Union 174
14675 Interurban Ave. S., Suite 303
Tukwila, WA 98168-4652
Christine M. Mrak, Esq.
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com