ELECTION APPEALS MASTER
IN RE:
JOHN KIRK MISICH, Protestor.
06 Elec. App. 061 (KC)
AMENDED ELECTION APPEAL ORDER NO.
This matter is an appeal from the Election Supervisor's decision 2006 ESD 323 issued July 6, 2006.
A hearing was held before me on July 19, 2006. The following persons were heard by way of teleconference: Jeffrey J. Ellison, Esq., Steven Newmark and Christine Mrak on behalf of the Election Supervisor, Joel Barras, Esq. and Gary Tocci, Esq. on behalf of United Parcel Service, Inc., Murray Bork, District Labor Manager for UPS Washington District, Dan Gilenski, Business Agent of Local 174, Pat Frye, Business Agent of Local 174, Roger Niedermeyer, Secretary-Treasurer of Local 162 and Barbara Harvey, Esq. on behalf of John Misich the protester.
The issue raised on this appeal is whether UPS has the right, under the National Labor Relations Act, federal case law precedent, and the previous decisions of the various IBT election overseers under a federal consent decree and the ongoing oversight of a United States Judge, to prohibit its employees from wearing campaign buttons while working in non-public areas with no public interface or contact.
The Election Officer concluded in a thoroughly convincing investigation and analysis, that UPS, under the uncontraverted facts of this case, does not have such a right, and granted the protest.
The principle finding is that a pre-existing right to wear campaign buttons in the work place in issue is clear, settled and binding. Indeed, the record demonstrates that UPS has previously acquiesced in this settled right on the national basis. Its belated claim that wearing the buttons in non-public areas presents a threat to employer discipline and productivity is conspicuously lacking both evidence and logic.
The arguments of counsel urging a reversal of the decision are conclusively refuted by any fair and sensible reading of the numerous election cases that have addressed precisely this issue in previous IBT election cycles. For a detailed and utterly irrefutable attack on the UPS arguments, see the superb submission of record dated July 17, 2006 to the Election Appeals Master from Barbara Harvey Esquire, counsel for the protester. The argument of UPS that the rights in question were waived by the Local Union 174 in the Western Region Supplemental Agreement to the collective bargaining agreement I reject, and note the helpful submission on this point by Patrick Frey, Senior Business Agent of the Local.
Accordingly, the decision of the Election Supervisor is in all respects affirmed.
SO ORDERED:
__/s/________________
Kenneth Conboy
Election Appeals Master
Dated: August 9, 2006