Barry, 2016 ESD 334

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KEVIN BARRY,                            )           Protest Decision 2016 ESD 334

                                                                        )           Issued: November 30, 2016

            Protestor.                                           )           OES Case No. P-374-100616-NE     

____________________________________)                      

Kevin Barry, member of Local Union 25, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Hoffa-Hall 2016 received impermissible employer contributions in two forms, a Hoffa-O’Brien sticker affixed in an employer’s workplace, and union stewards wearing partisan shirts while working.

            Election Supervisor representative Peter Marks investigated this protest.

Findings of Fact and Analysis

Investigation showed that a Hoffa-O’Brien sticker was displayed at the service desk of the Boston Convention and Exhibition Center.  The sticker was removed the day after the protest here was filed.  We have held the posting of campaign material on employer property to be an improper endorsement of a candidate by an employer.  Hoffa-Hall 2016, 2016 ESD 64 (January 8, 2016).  However, the prompt removal of the improper endorsement has often been held sufficient remedy for the protest. Id. See also, Halstead, 2006 ESD 386 (October 26, 2006); Wright, 2006 ESD 361 (October 2, 2006); Leedham Slate, 2006 ESD 301 (July 5, 2006); Halstead, 2005 ESD 31 (June 6, 2005); Domeny, 2001 EAD 499 (October 5, 2001); Speak, 2001 EAD 239 (March 14, 2001). 

On these facts, we deem this first aspect of the protest RESOLVED.

With respect to the protest’s additional allegation that union stewards wore partisan shirts in the workplace, investigation showed that the stewards were not employed on a full-time basis as stewards; instead, they routinely performed the work of the bargaining unit, from which they were released periodically to conduct union business.  Generally, employees may wear partisan shirts, buttons, and other emblems in the workplace, subject to two important exceptions.  The first exception permits the employer to prohibit such partisanship among employees who meet or interact with the public.  Vaule, 2006 ESD 140 (March 17, 2006) (employee who does not interact with public has pre-existing right to wear campaign button in workplace).  The second exception forbids union representatives from wearing partisan material when conducting union business with the employer.  Bennett, 2006 ESD 80 (February 14, 2006).  The stewards here admitted wearing the partisan shirts in the workplace on occasion but denied doing so when meeting with management; there is no contrary evidence.

Accordingly, we DENY this second aspect of the 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.  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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 334

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