[ v41 p85 ]
41:0085(11)CA
The decision of the Authority follows:
41 FLRA No. 11
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by prohibiting a bargaining unit employee from wearing a Union button on his uniform during duty hours. The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. On consideration of the entire record, we adopt the Judge's findings, conclusions and recommended Order. See U.S. Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 38 FLRA 701 (1990) (INS), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-70078 (9th Cir. Jan. 28, 1991). See also U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 38 FLRA 1256 (1991), petition for review filed sub nom. Immigration and Naturalization Service v. FLRA, No. 91-4153 (5th Cir. Feb. 28, 1991).(*)
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Army and Air Force Exchange Service, Fort Drum Exchange, Fort Drum, New York, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees by prohibiting mobile sales associates or similarly situated employees from wearing the "AFGE UNITY IS POWER" button or similar Union insignia while on duty.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Permit mobile sales associates and similarly situated employees to wear the "AFGE UNITY IS POWER" button or similar union insignia while on duty.
(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Respondent's Chief Executive and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.
WE WILL NOT interfere with, restrain, or coerce our employees by prohibiting mobile sales associates or similarly situated employees from wearing the "AFGE UNITY IS POWER" button or similar Union insignia while on duty.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL permit mobile sales associates and similarly situated employees to wear the "AFGE UNITY IS POWER" button or similar union insignia while on duty.
(Activity)
Dated: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.
FOOTNOTES:
(If blank, the decision does not have footnotes.)
*/ In particular, we reject the Respondent's reliance on Burger King Corp. v. National Labor Relations Board, 725 F.2d 1053 (6th Cir. 1984) (Burger King), which was cited by the Authority in INS as an example of a case in which special circumstances had been found to justify a prohibition on the wearing of union insignia. As noted in INS, the employer in Burger King, "a nationally operated enterprise, derived much of its recognition from its uniform public image, and consequently, there was a need for uniformity[.]" 38 FLRA at 717. See also Burger King, 725 F.2d at 1055 (court found that "special circumstances" justified the employer's ban on union insignia because, in part, the employer was "a national fast food chain deriving much of its recognition from its uniform public image."). In this case, the Judge found, and we agree, that the Respondent did not establish such special circumstances or need for uniformity.