ELECTION APPEALS MASTER
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IN RE KEVIN BARRY,
2015-2016 EAM 34 (KAR) (ESD 334 and 336) PROTESTOR
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Protest Decision 2016 ESD 334 (ESD 334) was issued on November 30, 2016. Protest Decision 2016 ESD 336 (ESD 336) was issued on December 2, 2016. Both decisions resolved protests filed by Kevin Barry, a member of Local Union 25.
Decisions of the Election Supervisor
ESD 334
ESD 334 addressed a protest by Mr. Barry 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.
The Election Supervisor’s investigation showed that a Hoffa-O’Brien sticker was displayed at the service desk of the Boston Convention and Exhibition Center, but was removed the day after Mr. Barry’s protest here was filed. The Election Supervisor has 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), but that the prompt removal of the improper endorsement is generally a sufficient remedy for the violation. 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). The Election therefore deemed this aspect of Mr. Barry’s protest “resolved.”
With respect to the protest’s additional allegation that union stewards wore partisan shirts in the workplace, the Election Supervisor noted that 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 Election Supervisor found this exception not applicable in this case. 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 in this admitted to the Election Supervisor’s investigator that they had worn partisan shirts in the workplace on occasion, but denied doing so when meeting with management. The Election Supervisor found no evidence to the contrary and therefore denied the protest.
ESD 336
ESD 336 addressed a protest by Mr. Barry that an employee at Mr. Barry’s workplace violated the Rules by asking him whether he needed assistance filling out his ballot in the International officers election, specifically, that “on the morning of Oct 14, 2016,” a co-worker approached him and asked if he “needed help in filling” out his ballot. Barry replied that he did not need such assistance. Mr. Barry asserted the question put to him was a violation of his right to a secret ballot.
Article IV, Section 12 of the Rules prohibits interference with voting, viz.
No person or entity shall limit or interfere with the right of any IBT member to vote, including, but not necessarily limited to, the right independently to determine how to cast his/her vote, the right to mark his/her vote in secret and the right to mail the ballot himself/herself. No person or entity may encourage or require an IBT member to mark his/her ballot in the presence of another person or to give his/her ballot to any person or entity for marking or mailing.
The Election Supervisor observed that he has found this provision to be violated where a member asks for and receives from another member that member’s ballot. Long, 2006 ESD 82 (February 13, 2006); Berg, 2006 ESD 278 (May 30, 2006), aff’d, 06 EAM 46 (June 20, 2006); and Pope, 2006 ESD 316 (June 30, 2006), or where a member agrees to accept a ballot from another for the purpose of mailing, even where the member receiving the ballot did not request it. Teamsters United, 2016 ESD 165 (April 8, 2016); Hoffa-Hall 2016, 2016 ESD 325 (November 3, 2016). The Election Supervisor found Mr. Barry alleged neither of these violations, and that the conduct described in the protest did not in any way “interfere” with Barry’s right to vote in secret and as he saw fit, and that “in any event, Barry refused the offer of assistance.” The Election Supervisor therefore denied the protest.
Appeals of ESD 334 and ESD 336
Mr. Barry timely appealed ESD 334 and ESD 336. The appeals were consolidated for hearing. On December 16, 2016, the Election Appeals Master received written submissions from counsel for Local 25 (Local 25 Submission) and from the Election Supervisor (Election Supervisor Submission), as well as an additional submission from Mr. Barry (Barry Submission). A telephonic hearing was held on December 20, which was attended by: Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor; Peter Marks (OES Investigator); Kevin Barry; Renee Bushey, Esq., attorney for Local 25; and David J. Hoffa, Esq., attorney for the Hoffa Campaign.
With respect to ESD 334, Mr. Barry asserted that there was a history of Hoffa supporters posting campaign stickers at his worksite and questioned whether the remedy of removing the sticker provided sufficient deterrence against future violations. Mr. Barry further stated that he had observed stewards in partisan shirts meeting with management, and that his attorney was in possession of videotapes of these meetings, which had been offered to the OES investigator, but which the OES investigator declined to review. The investigator denied declining to review the videotapes.
With respect to ESD 336, Mr. Barry stated that the question whether he needed help filling out his ballot was “blatantly intimidating” because the Hoffa supporter posing the question was driving a forklift, and in effect forced Mr. Barry to state that he was not voting for the Hoffa slate.
Decision of the Election Appeals Master
It is well established that the decision of the Election Supervisor is entitled to deference and may be reversed only for an abuse of discretion. In this case, I find no abuse of discretion in the Election Supervisor’s determinations regarding the sticker or the questioning regarding the ballot. I do find, however, that the decision regarding the wearing on partisan shirts merits further investigation, i.e., review of the videotapes in the possession of Mr. Barry’s attorney.
Conclusion
For the foregoing reasons, the appeal of ESD 334 with respect to the posting of Hoffa Campaign sticker is denied and ESD 334 is AFFIRMED. With respect to the wearing of partisan shirts by stewards while meeting with management, ESD 334 is remanded for consideration of the videotapes to be supplied by Mr. Barry. Mr. Barry is directed to deliver the videotapes to the Election Supervisor no later than January 3, 2017. The appeal of ESD 336 is DENIED and ESD 336 is AFFIRMED.
SO ORDERED.
/s/____________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: December 27, 2016