Vasquez, 2021 ESD 106

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: JAIME VASQUEZ,                         )           Protest Decision 2021 ESD 106

                                                                        )           Issued: April 14, 2021

Protestor.                                           )           OES Case No. P-126-032621-FW

____________________________________)

Jaime Vasquez, member and principal officer of Local Union 542, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that members and supporters of the Members for Members 542 slate impermissibly wore campaign shirts and hats in the employer’s workplace.

Election Supervisor representative Jim Devine investigated this protest.

Findings of Fact and Analysis

            The right of an employee to wear a campaign button, hat, or t-shirt on work time in a work area generally is a preexisting right protected under Article VII, Section 12(d) of the Rules.  See Republic Aviation Corporation v. NLRB, 324 U.S. 793 (1945); Malta Construction, 276 NLRB 1494 (1985), enf’d, 806 F.2d 1009 (11th Cir. 1986); Saavedra, P509 (May 1, 1996).  Narrow exceptions exist to this broad right for employer rules limiting or prohibiting employees from wearing partisan emblems when meeting with the public or where they may present a safety, hygiene, or production issue.  Kelder, 2016 ESD 65 (January 8, 2016) (employer violated the Rules by directing an employee to remove a campaign shirt while working, where the employee had no contact with the public and the shirt was inoffensive); Blanchet, P228 (January 3, 1996) (employee has a right to wear two inch campaign button on the job where considerations of safety or customers inapplicable); Vaule, 2006 ESD 140 (March 17, 2006) (employee who does not interact with public has preexisting right to wear campaign button in workplace); Alvarado, 2010 ESD 31 (September 28, 2010) (campaign stickers on “bump hats” in cannery are permitted, provided they are firmly affixed so to avoid falling into sanitary product).

            The protest here alleged that UPS employees who work pre-sort and who drive feeder trucks violated the Rules by wearing partisan shirts and hats while working.  Investigation showed that pre-sort employees do not meet with the public while performing their duties.  As such, they have no uniform and are permitted to wear personal clothing.  UPS labor relations confirmed to our investigator that the only limitations on their wear while working is a requirement of closed-toe, non-slip shoes.  Otherwise, UPS does not restrict partisan garb in the workplace, and the preexisting right of pre-sort members to wear such clothing is protected by Article VII, Section 12(d).

Feeder drivers, in contrast, drive on public roads and highways and are seen by the public while working.  Given this fact, UPS requires that they wear UPS uniforms, and uniform policy prohibits them from wearing partisan shirts and hats while performing their jobs.  Investigation showed that one feeder driver identified by the protest routinely wore a campaign ballcap to work and inside the hub.  However, he did not wear the ballcap after he entered his truck and drove onto public streets. 

On these facts, we find that the pre-sort employees had the protected right to wear partisan shirts and hats in the workplace.  We further find that the feeder driver was prohibited by the employer from wearing a partisan hat while working on the street, that this prohibition was valid under the Rules, and that the driver complied with the prohibition.  Accordingly, we DENY 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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 106

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