IN RE: MARIA ASHLEY ALVARADO, Protestor
Protest Decision 2010 ESD 31
Issued: September 28, 2010
OES Case No. P-029-090710-FW
In Alvarado, 2010 ESD 28 (September 21, 2010), we found that Pacific Coast Producers (PCP) violated the Rules by enforcing a work rule that prohibited employees from wearing campaign stickers on employee bump hats in the workplace. We directed PCP to refrain from enforcing the work rule with respect to campaign stickers and to post a notice on workplace bulletin boards. We denied the other allegations made in the protest.
In Alvarado, 2010 ESD 30 (September 24, 2010), we stayed our decision with respect to the finding made and remedy directed against PCP in order to consider an objection PCP raised that compliance with the remedy we ordered might place it in violation of food safety regulations promulgated by the Food and Drug Administration. PCP's stated concern was that stickers might not adhere to bump hats in the humid environment of its production facilities, with consequent risk of food contamination if they did not.
As a food processing plant, PCP is subject to the FDA's good manufacturing practices codified at 21 CFR Part 110. Under these regulations, PCP's plant management "shall take all reasonable measures and precautions to ensure … [that] …[a]ll persons working in direct contact with food, food-contact surfaces, and food-packaging materials … conform to hygienic practices while on duty to the extent necessary to protect against contamination of food." 21 CFR §110.10(b). Such practices include "[r]emoving all unsecured jewelry and other objects that might fall into food, equipment, or containers …" 21 CFR §110.10(b)(4) (emphasis supplied). Given this regulation, PCP appears to have a lawful basis for regulating stickers on bump hats to reasonably insure that they do not detach and potentially contaminate food.
Investigation showed that PCP affixes stickers to bump hats identifying the wearer by name and department. For this purpose, it uses vinyl labels supplied by a vendor named DuraLabel. The adhesive is suitable for indoor and outdoor use and meets PCP's obligation to insure that the labels will not detach and fall into food.
Further investigation confirmed our original findings that employees at each of PCP's plants where members of Local Union 601 are employed wear a variety of stickers on their bump hats without interference by supervision. Such stickers include national flags, religious symbols, sports logos, and campaign stickers. Until the instant matter arose, PCP supervision apparently either enforced the no-sticker rule only sporadically or assessed on a case-by-case basis that a given sticker appeared to be affixed firmly and did not present a risk of falling off.
After investigation of the matter, we adhere to the finding we previously made that employees have a pre-existing right derived from federal labor law to wear union emblems and emblems supporting or opposing candidates in internal union elections in the workplace. As alluded to in our previous decision, this pre-existing right is not without limitation. Thus, an employer may prohibit the wearing of partisan emblems where employees meet the public or interact with customers in the course of their duties. This exception is inapplicable to employees at PCP because their duties do not carry them outside the plant or into contact with customers. A second exception to the rule permits an employer to regulate the wearing of such emblems to satisfy legitimate safety concerns in the workplace. In this case, we find that the employer has a legitimate safety concern that stickers with inadequate adhesive may become detached and thereby contaminate the food product. However, the employer cannot prohibit wearing emblems unless no reasonable alternative exists to accommodate the safety concern with the right to wear. We further find that a reasonable alternative exists that will permit the wearing of stickers on bump hats without placing the employer in violation of food safety regulations.
Accordingly, we dissolve the stay issued in 2010 ESD 29 and modify the remedy we previously directed so as to permit the employer to enforce its no-sticker rule on bump hats only where the adhesive used to affix the stickers to the bump hats is inadequate to prevent the stickers from becoming detached in the workplace. We direct the employer to post the notice attached to this decision and maintain the posting through October 18, 2010, the date ballots are to be counted in the local union delegate and alternate delegate election.
To avoid problems that may arise with exercise of this right, members seeking to wear partisan stickers on bump hats (or the campaigns seeking to distribute stickers for wearing on bump hats) should present the stickers for inspection to the employer's HR representatives for inspection of the adequacy of the adhesive. Should the sticker itself have insufficient adhesive to reasonably avoid the risk of detaching and contaminating food, the member shall be permitted to affix the sticker to his/her bump hat, so long as hi-tack, clear packing tape is applied over it to insure that it does not detach.
The employer's actions in reviewing stickers for the quality of their adhesive must be carried out on non-partisan and non-discriminatory bases such that the criteria for assessing suitability of adhesive and the application of those criteria are not affected or influenced by the message the stickers display. Further, to the extent that the employer permits patriotic, religious or sports stickers on bump hats, either through non-enforcement of its policy or through on-the-spot assessment that the stickers are firmly attached, campaign stickers shall not be subjected to any more rigorous examination or standards than these.
We emphasize, however, that our decision permitting stickers on bump hats is limited to union and campaign stickers during the period of the campaigns for local union delegates and alternate delegates and for International officers.[1] The pre-existing right we find here is derived from federal labor law, which permits employees to engage in concerted action for mutual aid and protection against the employer. The right does not extend to emblems that do not implicate labor law or union governance rights. Thus, our ruling is not to be read to require the employer to permit employees to wear national flag emblems, sports logos, religious symbols, or other images that are unrelated to union support or union election.
Further, although members are permitted to wear union stickers and union campaign stickers with suitable adhesive on their bump hats, in the special circumstances presented here the employer may bar employees from wearing partisan buttons, as they may more easily become detached and fall into food or food equipment.
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 31
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
Roger Brooks
blackbeard@iglide.net
Dick Ehrler
Vice President, Human Resources
Pacific Coast Producers
P.O. Box 1600
Lodi, CA 95241-1600
dehrler@pcoastp.com
John M. Skonberg
Littler Mendelson, P.C.
650 California Street, 20th fl.
San Francisco, CA 94108
JSkonberg@littler.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
for the 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 28, 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 bump hats while working. In food processing plants, such emblems must be have sufficient adhesive to insure that they do not fall off and potentially contaminate food or equipment.
The Election Supervisor will not permit interference with rights protected by the Rules.
The Election Supervisor has directed Pacific Coast Producers not to enforce any policy or rule that prohibits wearing of campaign stickers on bump hats in the workplace on work time. However, PCP management may inspect the stickers to insure, on a non-discriminatory basis, that they have sufficient adhesive to remain affixed to the bump hats. PCP management may require that stickers deemed to have insufficient adhesive by themselves to adhere to bump hats be held on with hi-tack, clear packaging tape.
This decision applies only to stickers concerning unions or union elections. It does not affect the employer's right to enforce its no-sticker policy with respect to national flags, religious symbols, sports logos, and the like.
The Election Supervisor has issued this decision in Alverado, 2010 ESD 30 (September 28, 2010). You may read this decision at http://www.ibtvote.org/protests/2010/2010esd030.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.
[1] As indicated, the date ballots are to be counted in the local union delegates and alternate delegates election is October 18, 2010; tallying of ballots in the International officer election will be completed in November 2011.