IN RE: MARIA ASHELY ALVARADO, Protestor,
Protest Decision 2010 ESD 28
Issued: September 21, 2010
OES Case No. P-029-090710-FW
Maria Ashley Alvarado, member, president, and delegate candidate of Local Union 601, timely filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Maria Serrato, member and delegate candidate on an opposing slate, violated the Rules by forcibly removing a campaign sticker from the bump hat of an Alvarado supporter and then enlisting the support of management to require all employees to remove campaign stickers from their bump hats.
Election Supervisor representatives Chris Mrak, Rochelle Goffe and Paul Hall investigated this protest.
Findings of Fact
Protestor Alvarado is the lead delegate candidate on the "No Mas Lucio" slate. Lucio Reyes is the lead delegate candidate on the "We Don't Make Promises, We Deliver" slate, on which Maria Serrato is also a delegate candidate. Alvarado alleged that Serrato forcibly removed a No Mas Lucio sticker from the bump hat of Ricardo Villegas. Bump hats, similar to hard hats, are worn by all or virtually all bargaining unit members at Pacific Coast Producers' Woodland, California plant where Serrato and Villegas work.
Serrato told our investigator that on September 4, a sink malfunctioned in the kitchen where she works as a supervisor. She placed a call for a maintenance mechanic, and Ricardo Villegas showed up to fix the sink. While he assessed the sink malfunction, a group of employees including Serrato, Villegas and others bantered about the upcoming delegate election, among other things. Several employees discussed a leaflet critical of Lucio Reyes, and they asked Serrato what she thought. Serrato, a delegate candidate on Reyes' slate, said she replied that Reyes had a good record and that she supported him. Serrato asked Villegas what he thought; according to her, he replied that he didn't care. Villegas then removed his bump hat so he could get under the sink to examine the malfunction. At this, Serrato noted the "No Mas Lucio" sticker affixed to his bump hat and told him that stickers were not allowed on bump hats. According to Serrato, Villegas agreeably began to remove the sticker, but the gloves he wore made the task difficult. As he began to pull his gloves off, Serrato asked if he wanted help. She then pulled the remainder of the sticker off. According to Serrato, she, Villegas and the others were laughing during this exchange. She denied forcibly removing the sticker against the wishes of Villegas or committing an act of violence, as the protest alleged.
The account Villegas gave our investigator denied any improper action on Serrato's part. He stated that he was called to the kitchen area of PCP Woodland to fix a garbage disposal. Serrato, whom he has known a long time and considers a friend, was also present. The two spoke and exchanged jokes while he worked on the sink. Villegas told our investigator he does not recall any discussion about the "No Mas Lucio" sticker on his bump hat. He denied that Serrato told him he could not wear the decal or that she removed the sticker, either with or without his permission. Villegas denied that he was singled out for his political opposition to Reyes. He also denied that he was intimidated or coerced by the interaction with Serrato.
Finally, Villegas told our investigator that two days after he fixed the sink in the kitchen area, management posted a notice on the bulletin board in the check-in area reiterating the work rule prohibiting stickers of any kind on bump hats. Dick Ehrler, PCP's vice president of human resources, told our investigator that the employer's "best practices" rules prohibited stickers and decals on bump hats. However, Ehrler could not provide evidence as to how strictly this rule was enforced.
Travis Tisserand, a production superintendent at PCP Woodland, repeated to our investigator the company policy that stickers are not permitted on bump hats. He stated that he has occasionally seen logos and foul statements on the hats and has directed the employees wearing them to remove the messages. He recalled last doing so in 2009. Tisserand stated that on a recent date he could not pinpoint he found employee Kenny Longmiller with a roll of campaign stickers passing them out to other employees. According to Tisserand, Longmiller had a sticker on his bump hat and another employee was affixing one. Tisserand said he told the employees to "cut it out" and also told them that stickers were not permitted on their hats.
Ted Parmentier, a PCP employee at the Oroville plant located some 70 miles from the Woodland facility at issue in this case, told our investigator that he has seen decals depicting flowers, crosses, and the Teamsters logo at his plant. He said he believed the rule as enforced was that stickers were permitted on bump hats so long as they were not offensive and did not fall off. Parmentier is a delegate candidate on protestor Alvarado's slate.
Burl Hammons, a business agent who is also a delegate candidate on Alvarado's slate, told our investigator that he has responsibility for the contract administration at PCP Oroville. He stated that he has seen stickers supporting Reyes on bump hats at Oroville.
Roger Brooks contacted our investigator at the request of protestor Alvarado. He is a supply room attendant at PCP Woodland. He stated that the "good manufacturing practice" policy stated that no stickers were allowed on bump hats but indicated that the rule was observed in the breach. He stated he has seen football and soccer team insignia, and American and Mexican flags on bump hats.
Brooks also stated that on September 8 he went to the HR office to speak with Denise Fairbanks about his qualifications to drive a forklift during the off-season when most employees are on layoff. He said he frequently visits the office to deliver personnel paperwork there. Shortly after leaving HR, Brooks said he received a phone call from Fairbanks. According to Brooks, Fairbanks told him Lucio Reyes had just called to inform her that Brooks was forcing employees to wear "No Mas Lucio" stickers. Brooks asked Fairbanks if Reyes had used the word "force;" Fairbanks replied that he had. Brooks, stating to our investigator that he knows Fairbanks well, joked with Fairbanks that she had seen his gun holster when he had just been in the office. He then asked Fairbanks for clarification of the policy. She replied that stickers were prohibited by the "good manufacturing practices" policy. Brooks suffered no disciplinary or other adverse action arising from his contact with Fairbanks.
Analysis
We first address the protest allegation that Serrato committed an act of violence in forcibly removing the sticker from Villegas' bump hat. Article VII, Section 12(g) prohibits retaliation or threats of retaliation against any member for exercising any right guaranteed by the Rules. Although Villegas began removing the sticker and Serrato finished the job, we find no evidence to support the allegation that it was done forcibly, violently, or in a context to suggest retaliatory or coercive motivation. Accordingly, we DENY this aspect of the protest.
We turn next to the allegation that Serrato enlisted the support of management to prohibit display of partisan campaign stickers on bump hats. There is no evidence to support that Serrato did so. Accordingly, we DENY this aspect of the protest as well.
With respect to the allegation that Lucio Reyes sought uniform enforcement of the employer's "no stickers" standard, we find no violation of the Rules. Nearly every witness acknowledged that the employer standard was enforced, although most also indicated that the principal focus of enforcement addressed 1) images or words that managers found offensive and 2) loose stickers or decals that might present a sanitation issue. To the extent that Reyes attempted to influence enforcement of the rule to bar "No Mas Lucio" stickers, we find that management already was enforcing the standard irrespective of any request from a partisan in the election. Accordingly, we DENY the aspect of the protest that alleged discriminatory enforcement of the employer's rule barring stickers on bump hats.
Having found no candidate or slate supporter used violence, coercion or employer resources to enforce the employer's rule, we nonetheless find that the employer violated the Rules by enforcing its "no sticker" rule, even on the non-discriminatory basis that this case presents.
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 NLRB 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. There is no suggestion that the PCP employees who are members of Local Union 948 have any interaction with the public. Accordingly, this category of "special consideration" does not permit enforcement of a rule prohibiting the wearing of union buttons or insignia.
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), enf. den., 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 the stickers at issue in this case from the category of permitted "union buttons or insignia" as identified by the NLRB.
We find that the instant case is controlled by the decision in Vaule, 2006 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 because he did not meet or interact with customers or the public and because the button did not implicate the safety or sanitation interests of the employer.
Accordingly, we GRANT this aspect of 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 directs Pacific Coast Producers to refrain from prohibiting or interfering with the pre-existing right of IBT members to wear partisan campaign buttons and stickers on their clothes and bump hats during work time or on work premises while not in contact with the public. The Election Supervisor further orders PCP to post the attached notice on all company bulletin boards California facilities that are maintained for communicating with IBT members. The notice shall remain posted through October 18, 2006, the date ballots are to be counted in Local Union 601's delegate and alternate delegate election.
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
Suite 1000
885 Third Avenue
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, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, 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
2010 ESD 28
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Lucio Reyes, Secretary-Treasurer
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
lreyes601@sbcglobal.net
Maria Ashley Alvarado, President
Teamsters Local Union 601
745 E. Miner Ave.
Stockton, CA 95202
europeartmuseum@yahoo.com
Dick Ehrler
Vice President, Human Resources
Pacific Coast Producers
P.O. Box 1600
Lodi, CA 95241-1600
dehrler@pcoastp.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Michael J. Miller
1611 Granville Ave., #8
Los Angeles, CA 90025
miller.michael.j@verizon.net
Paul Hall
9840 Mixon D
Dallas, TX 75220
paul.hall9840@att.net
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
Office of the Election Supervisor
International Brotherhood of Teamsters
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
202-429-8683
877-317-2011 Toll Free
202-429-6809 Facsimile
electionsupervisor@ibtvote.org
www.ibtvote.org
Richard W. Mark
Election Supervisor
September 22, 2010
TO: All members of Teamsters Local Union 601
FROM: Richard W. Mark, Election Supervisor
The Rules for the 2010-2011 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 t-shirts or bump hats while working.
The Election Supervisor will not permit interference with rights protected by the Rules.
The Election Supervisor has directed PCP not to enforce any policy or rule that prohibits wearing of campaign emblems in the workplace or on work time.
The Election Supervisor has issued this decision in Alverado, 2010 ESD 28 (September 22, 2010). You may read this decision at http://www.ibtvote.org/protests/2010/2010esd028.htm.
Any protest you have regarding your rights under the Rules or any conduct by any person or entity that violates the Rules should be filed with Richard W. Mark, 1801 K Street, N.W., Suite 421L, Washington, D.C. 20006, telephone: 877-317-2011, fax: 202-429-6809, email: electionsupervisor@ibtvote.org.
This is an official notice of the Election Supervisor and must remain posted on this bulletin board until October 18, 2010.