[ v03 p796 ]
03:0796(121)CA
The decision of the Authority follows:
3 FLRA No. 121
UNITED STATES ARMY SUPPORT COMMAND
FORT SHAFTER, HAWAII
Respondent
and
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO
Labor Organization
Case No. 8-CA-160
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE
LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND A SUPPORTING BRIEF, AND
THE RESPONDENT FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THIS
CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND SUPPORTING BRIEF
AND THE RESPONDENT'S OPPOSITION THERETO, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION. IN
ADOPTING THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION, THE AUTHORITY
AGREES WITH HIS CONCLUSION THAT, IN THE ABSENCE OF SPECIAL
CIRCUMSTANCES, EMPLOYEES HAVE A RIGHT UNDER THE STATUTE TO WEAR UNION
INSIGNIA AT THE WORK PLACE. IN THE INSTANT CASE, THE AUTHORITY CONCURS
WITH THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT UNDER ALL THE
CIRCUMSTANCES HEREIN, INCLUDING THE SIZE AND CONSPICUOUS NATURE OF THE
UNION INSIGNIA INVOLVED, THE RESPONDENT'S ACTION IN PROHIBITING THE TWO
HOTEL SERVICE EMPLOYEES FROM WEARING THE UNION STEWARDS' BADGES IN ISSUE
WHILE DEALING WITH THE PUBLIC DID NOT VIOLATE SECTION 7116(A) OF THE
STATUTE.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-160 BE, AND
IT HEREBY IS DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
CERTIFICATE OF SERVICE
COPIES OF THE DECISION OF THE FEDERAL LABOR RELATIONS AUTHORITY IN
THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED:
GERALD M. COLE, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
350 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90071
TERRY E. THOMASON, ESQUIRE
CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
UNITED STATES ARMY SUPPORT COMMAND
OFFICE OF THE STAFF JUDGE ADVOCATE
FORT SHAFTER, HAWAII 96858
MR. GEORGE HARDY, PRESIDENT
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
2020 K STREET, N.W.
WASHINGTON, D.C. 20006
GERALD M. COLE, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
REGION 8, 350 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CALIFORNIA 90071
FOR THE GENERAL COUNSEL
TERRY E. THOMASON, ESQUIRE
CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
UNITED STATES ARMY SUPPORT COMMAND
OFFICE OF THE STAFF JUDGE ADVOCATE
FORT SHAFTER, HAWAII 96858
FOR THE RESPONDENT
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. SECTION 7101 ST SEQ., AS A RESULT OF AN
UNFAIR LABOR PRACTICE COMPLAINT, DATED NOVEMBER 16, 1979, FILED BY THE
REGIONAL DIRECTOR, REGION 8, FEDERAL LABOR RELATIONS AUTHORITY, LOS
ANGELES, CALIFORNIA AGAINST THE UNITED STATES ARMY SUPPORT COMMAND, FORT
SHAFTER, HAWAII (RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
U.S.C. 7116(A)(1) IN THAT ON OR ABOUT JUNE 9, 1979, AND CONTINUING TO
DATE, RESPONDENT HAS PROMULGATED, MAINTAINED, AND ENFORCED A RULE
PROHIBITING ITS NON-APPROPRIATED FUND EMPLOYEES AT THE HALE KOA HOTEL
FROM WEARING UNION INSIGNIA AT TIMES WHEN RESPONDENT REQUIRES THAT
EMPLOYEES WEAR A SPECIFICALLY DISTINCTIVE MODE OF DRESS INCIDENT TO THE
EMPLOYEES' DUTIES.
RESPONDENT'S AMENDED ANSWER DENIED THE ALLEGATIONS. RESPONDENT
ASSERTED THAT EMPLOYEES DO NOT HOLD AN UNRESTRICTED RIGHT TO WEAR UNION
INSIGNIA, AND ANY RIGHT TO WEAR UNION INSIGNIA WHICH MAY BE HELD BY
EMPLOYEES REQUIRED TO WEAR A SPECIFICALLY DISTINCTIVE MODE OF DRESS
INCIDENT TO THE EMPLOYEES' DUTIES WAS WAIVED IN THE COLLECTIVE
BARGAINING AGREEMENT BETWEEN THE RESPONDENT AND THE SERVICE EMPLOYEES'
INTERNATIONAL UNION, LOCAL 556, AFL-CIO (CHARGING PARTY OR UNION).
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN FORT
SHAFTER, HAWAII. /1/ THE GENERAL COUNSEL, FLRA AND THE RESPONDENT WERE
REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE
POST-HEARING BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL TO THE COMPLAINT, UNTIL ON OR ABOUT OCTOBER
1, 1979, RESPONDENT EMPLOYED VARIOUS EMPLOYEES PAID FROM NONAPPROPRIATED
FUNDS, INCLUDING EMPLOYEES WHO WERE EMPLOYED AT THE HALE KOA HOTEL,
HAWAII.
2. AT ALL TIMES MATERIAL TO THE COMPLAINT, THE UNION WAS THE
EXCLUSIVE REPRESENTATIVE OF A UNIT OF SUCH EMPLOYEES, INCLUDING
APPROXIMATELY 500 EMPLOYEES AT THE HALE KOA HOTEL.
3. RESPONDENT AND THE UNION ENTERED INTO A COLLECTIVE BARGAINING
AGREEMENT, APPROVED APRIL 11, 1979, WHICH WAS IN EFFECT AT ALL TIMES
MATERIAL AND UNTIL OCTOBER 1979. (GENERAL COUNSEL'S EX. 2). ARTICLE 16
OF THE AGREEMENT PROVIDED, IN PART, AS FOLLOWS:
ARTICLE 16
UNIFORM
SECTION 1. WHERE THE EMPLOYER REQUIRES THAT EMPLOYEE(S) WEAR A
SPECIFICALLY DISTINCTIVE OR
UNUSUAL MODE OF DRESS INCIDENT TO THE EMPLOYEE'S ASSIGNED DUTIES,
SUCH PRESCRIBED UNIFORMS
SHALL BE PROVIDED BY THE EMPLOYER IN SUCH QUANTITY AS TO ALLOW THE
EMPLOYEE(S) TO MAINTAIN A
NEAT AND CLEAN APPEARANCE WITHOUT REQUIRING THE CLEANING OF THE
UNIFORM ON A DAILY
BASIS. EMPLOYEES WILL WEAR SUCH UNIFORMS AS PRESCRIBED BY THE
EMPLOYER . . . AND WILL NOT
ALTER, CHANGE OR OTHERWISE TAILOR THE PRESCRIBED AND ISSUED UNIFORMS
WITHOUT THE EXPRESS
CONSENT OF THE EMPLOYER . . .
* * * *
SECTION 5. AS USED IN THIS ARTICLE, THE TERM 'UNIFORM' SHALL MEAN A
SPECIFIC AND
DISTINCTIVE ARTICLE OF APPAREL SPECIFICALLY PRESCRIBED FOR WEAR BY
EMPLOYEES BY THE EMPLOYER
. . .
4. ARTICLE 16, SECTION 1 WAS TAKEN FROM A PREVIOUS AGREEMENT BETWEEN
THE PARTIES AND
PLACED IN THE APRIL 1979 AGREEMENT WITHOUT CHANGE. ARTICLE 16,
SECTION 5, DEALING WITH WHAT
CONSTITUTES A UNIFORM, WAS CHANGED FROM THE PRIOR AGREEMENT TO
INCLUDE PRESCRIBED COLOR
SCHEMES.
5. NEGOTIATION CONCERNING ARTICLE 16, SECTION 1, OF THE PREVIOUS
AGREEMENT, TOOK PLACE IN
1974 AND EARLY 1975. THERE WAS NO DISCUSSION CONCERNING THE WEARING
OF UNION
INSIGNIA. HOWEVER, IT WAS DISCUSSED AND AGREED THAT IF AN EMPLOYEE
SHOULD COME TO WORK WITH A
LEI, SWEATER, SCARF, OR GAUDY JEWELRY, THE RESPONDENT, UNDER ARTICLE
16, SECTION 1, COULD ASK
THE EMPLOYEE NOT TO WEAR SUCH AN ITEM. (TR. 26-27).
6. THE PARTIES STIPULATED AS FOLLOWS CONCERNING THE INCIDENTS IN
ISSUE, AND I SO FIND:
(1.) AT ALL TIMES MATERIAL HEREIN, EMPLOYEE MICHAEL DALLAS WAS A CART
WAITER FOR
RESPONDENT. AS A CART WAITER, HE WAS REQUIRED BY RESPONDENT TO WEAR
A UNIFORM. IN MAY 1979,
HE BECAME A SHOP STEWARD FOR THE UNION. IN JUNE 1979, MR. DALLAS
BEGAN WEARING A STEWARD'S
BADGE ON HIS UNIFORM, INCLUDING TIMES WHEN HE DEALT WITH CUSTOMERS OF
THE HALE KOA
HOTEL. RESPONDENT REQUIRED WAITERS TO WEAR A UNIFORM CONSISTING OF
BROWN SLACKS, A WHITE
SHIRT, VEST OR JACKET, A BOW TIE AND A HALE KOA HOTEL NAME TAG. ON
JUNE 9, 1979, DALLAS WAS
TOLD NOT TO WEAR THE STEWARD'S BADGE BY ERNEST BODNER, MAITRE D' AND
A SUPERVISOR OF
RESPONDENT WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE.
MR. BODNER THEN GAVE
MR. DALLAS A WRITTEN LETTER OF COUNSELING CONCERNING THE WEARING OF
THE STEWARD'S BADGE AS A
VIOLATION OF RESPONDENT'S UNIFORM REQUIREMENT. THEREAFTER, MR.
DALLAS CEASED WEARING THE
STEWARD'S BADGE.
(2.) HENRY HOLTHAUS IS A FRY COOK EMPLOYED BY RESPONDENT AT THE HALE
KOA HOTEL WHO WAS ALSO
APPOINTED A STEWARD FOR THE UNION IN MAY 1979. FRY COOKS WERE
REQUIRED BY RESPONDENT TO WEAR
A WHITE UNIFORM. HOLTHAUS WORE A STEWARD'S BADGE FOR APPROXIMATELY 2
WEEKS WITHOUT
INCIDENT. ON JUNE 22, 1979, HE WAS TOLD BY EXECUTIVE CHEF ROLF
WALTERS, A SUPERVISOR WITHIN
THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE, THAT HE COULD NOT
WEAR HIS STEWARD'S BADGE
WHEN DEALING WITH THE PUBLIC. ON THE AVERAGE, MR. HOLTHAUS' WEEKLY
DUTIES INCLUDING SERVING
THE PUBLIC ON THE BUFFET LINE THREE TIMES A WEEK AND AT LUAUS TWICE A
WEEK, WHERE HE WAS ALSO
REQUIRED TO WEAR WHITES.
(3.) AT ALL TIMES RELEVANT TO THE MATTERS IN ISSUE THE RESPONDENT HAS
ENFORCED ITS POLICY
THAT WHEREVER THERE IS A UNIFORM REQUIREMENT NO ALTERATION OF THAT
UNIFORM IS PERMITTED
WITHOUT PRIOR APPROVAL BY THE RESPONDENT. SINCE JUNE 1979, AS NOTED
ABOVE, STEWARDS OF THE
UNION WITH A UNIFORM REQUIREMENT HAVE NOT WORN ANY STEWARD'S BADGES
WHEN DEALING WITH THE
PUBLIC.
(4.) AN EXAMPLE OF THE STEWARD'S BADGE WORN BY BOTH DALLAS AND
HOLTHAUS MAY BE ADMITTED
INTO EVIDENCE AS GENERAL COUNSEL'S EXHIBIT NO. 4. /2/
(5.) IN JANUARY OR FEBRUARY 1979, THERE WAS ONGOING CONSTRUCTION
BEING PERFORMED AT THE
HALE KOA HOTEL. ONE WEEK WITH THEIR PAYCHECKS, RESPONDENT
DISTRIBUTED A PATCH WHICH IT
REQUESTED THAT EMPLOYEES PLACE ON THEIR UNIFORMS (FOR THE PURPOSE OF
AIDING CUSTOMER RELATIONS
DURING THE CONSTRUCTION PROJECT). SOME EMPLOYEES DID PLACE THIS
PATCH ON THEIR SHIRT SLEEVES
WHEN DEALING WITH THE PUBLIC FOR THE PERIOD OF ABOUT A WEEK. A COPY
OF THIS PATCH MAY BE
ADMITTED INTO EVIDENCE AS GENERAL COUNSEL'S EXHIBIT NO. 5. /3/
(6.) THE LETTER OF COUNSELLING RECEIVED BY MICHAEL DALLAS MAY BE
ADMITTED INTO EVIDENCE AS
GENERAL COUNSEL'S EXHIBIT NO. 6.
(7.) THIS STIPULATION MAY BE ENTERED INTO EVIDENCE AS GENERAL
COUNSEL'S EXHIBIT
NO. 3. (FOOTNOTES ADDED).
MR. DALLAS SOMETIMES WORE HIS STEWARD'S BADGE IN ADDITION TO THE HALE
KOA HOTEL NAME TAG
AND SOMETIMES IN PLACE OF THE HALE KOA HOTEL NAME TAG. HE WORE THE
STEWARD'S BADGE OVER THE
POCKET AREA OF HIS UNIFORM. THE HOTEL NAME TAG IS APPROXIMATELY THE
SAME SIZE AND WORN IN THE
SAME LOCATION.
8. IT IS A TRADITION FOR HOTELS TO HAVE THEIR OWN IDENTIFICATION
BADGES SO THAT CUSTOMERS
CAN READILY IDENTIFY EMPLOYEES.
9. RESPONDENT RECEIVED SOME COMPLAINTS FROM CUSTOMERS CONCERNING THE
WEARING OF THE
STEWARD'S BADGES AS DESCRIBED ABOVE. THESE CUSTOMERS OBJECTED TO THE
BADGES, OTHER THAN THE
HOTEL IDENTIFICATION NAME TAG, BEING WORN, AND QUESTIONED WHETHER THE
EMPLOYEES WERE WORKING
FOR THE HOTEL OR THE UNION. ONE CUSTOMER WAS PARTICULARLY DISTURBED
AND REMARKED THAT HE
COULD NOT UNDERSTAND WHY EMPLOYEES WERE WEARING THE UNION NAME TAG IN
A MILITARY DINING ROOM.
10. RESPONDENT TOOK THE ACTION DESCRIBED ABOVE BECAUSE IT CONCLUDED
THAT THE WEARING OF
THE UNION BADGES BY EMPLOYEES WHILE SERVING THE PUBLIC WAS NOT PART
OF THE PRESCRIBED UNIFORM,
WOULD CAUSE FURTHER CUSTOMER COMPLAINTS, ANTAGONIZE CUSTOMERS, AND
IMPACT ADVERSELY ON
BUSINESS. THE HALE KOA HOTEL ONLY SERVES MILITARY PERSONNEL, THEIR
DEPENDENTS AND THEIR
GUESTS. IT HAS A NARROW PROFIT MARGIN AND MUST BE SELF-SUPPORTING TO
STAY IN BUSINESS.
11. THE EMPLOYEES WERE NOT RESTRICTED FROM WEARING THE BADGES AT
TIMES WHEN THEY WERE NOT
SERVING THE PUBLIC OR WERE OUT OF THE VIEW OF THE GUESTS.
12. AS A WAITER, A SUBSTANTIAL PORTION OF SHOP STEWARD MICHAEL
DALLAS' WORK DAY WAS SPENT
SERVING THE PUBLIC. HE CAME IN CONTACT WITH OTHER EMPLOYEES AS WELL
IN THE DINING ROOM.
13. PURSUANT TO THE NEGOTIATED AGREEMENT, THE RESPONDENT PROVIDED
SPACE ON OFFICIAL
EMPLOYEE BULLETIN BOARDS FOR THE POSTING OF UNION NOTICES AND SIMILAR
INFORMATIONAL MATERIAL
AND, UPON REQUEST, MADE MEETING SPACE AVAILABLE FOR UNION MEETINGS
WITH EMPLOYEES OF THE UNIT.
14. IN OCTOBER 1979 THE HALE KOA HOTEL WAS TRANSFERRED FROM THE
COMMAND OF THE RESPONDENT
AND TRANSFERRED TO THE UNITED STATES ARMY ADJUTANT GENERAL CENTER.
(TR. 5). HOWEVER, FOR
PURPOSES OF THIS CASE, THE PARTIES AGREE, IN COMPLIANCE WITH
BARGAINING AGREEMENTS, THAT ANY
RULING INVOLVING THE RESPONDENT WILL ALSO BE APPLICABLE TO THE HALE
KOA HOTEL. (TR. 51).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE ISSUE PRESENTED FOR DETERMINATION IS WHETHER RESPONDENT'S ACTION
IN PROHIBITING THE TWO HOTEL SERVICE EMPLOYEES FROM WEARING THEIR UNION
STEWARD'S BADGES WHEN DEALING WITH THE PUBLIC VIOLATED SECTION
7116(A)(1) OF THE STATUTE. /4/
THE RIGHT OF EMPLOYEES TO WEAR SMALL, NEAT, INCONSPICUOUS,
NON-PROVOCATIVE UNION INSIGNIA AT WORK HAS BEEN RECOGNIZED IN BOTH THE
PRIVATE /5/ AND PUBLIC /6/ SECTORS. IN DETERMINING WHETHER THERE HAS
BEEN A VIOLATION OF SUCH A RIGHT UNDER THE STATUTE, OR WHETHER THERE MAY
BE PRESENT THE KIND OF "SPECIAL CIRCUMSTANCES" WHERE THE AGENCY MAY
RESTRICT SUCH A RIGHT, IT IS APPROPRIATE TO EXAMINE THE FACTS AND
BALANCE THE COMPETING RIGHTS AND OBLIGATIONS TO ALL CONCERNED. /7/
ARTICLE 16, SECTION 1 OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDES
THAT, "EMPLOYEES WILL WEAR SUCH UNIFORMS AS PRESCRIBED BY THE EMPLOYER
(OR A PERSONALLY OWNED SUBSTITUTE NOT PRESCRIBED, BUT AUTHORIZED BY THE
EMPLOYER) AND WILL NOT ALTER, CHANGE OR OTHERWISE TAILOR THE PRESCRIBED
AND ISSUED UNIFORMS WITHOUT THE EXPRESS CONSENT OF THE EMPLOYER."
AS NOTED ABOVE, THE PRESCRIBED UNIFORM FOR WAITERS CONSISTS OF BROWN
SLACKS, A WHITE SHIRT, VEST OR JACKET, A BOW TIE, AND A HALE KOA HOTEL
NAME TAG. THUS, A PARTICULAR NAME TAG, THE HALE KOA HOTEL NAME TAG, IS
A PRESCRIBED PART OF THE UNIFORM IN THE CASE OF WAITERS. THE PRESCRIBED
UNIFORM FOR FRY COOKS IS A WHITE UNIFORM. A HOTEL NAME TAG IS NOT
PRESCRIBED FOR FRY COOKS.
THE CONTRACTUAL PROVISION AND ITS BARGAINING HISTORY DO NOT
DEMONSTRATE A CLEAR AND UNMISTAKABLE WAIVER OF THE RIGHT TO WEAR SMALL,
NEAT, INCONSPICUOUS NON-PROVOCATIVE UNION INSIGNIA. HOWEVER WHILE THE
BADGES IN ISSUE ARE NEAT AND NON-PROVOCATIVE, /8/ THEY ARE NOT SMALL OR
INCONSPICUOUS. /9/ THEY ARE APPROXIMATELY 3 INCHES LONG AND 1 1/2
INCHES WIDE, THE CUSTOMARY SIZE OF A NAME TAG AND THE APPROXIMATE SAME
SIZE AS THE HALE KOA HOTEL NAME TAG.
THE BARGAINING HISTORY INDICATES AGREEMENT BY THE PARTIES ON THE VIEW
THAT THE WEARING OF A LEI, SWEATER, SCARF, OR GAUDY JEWELRY WOULD
CONSTITUTE AN ALTERATION OR CHANGE OF THE PRESCRIBED UNIFORM, AND THAT
SUCH AN ITEM COULD NOT BE WORN WITHOUT THE EMPLOYER'S APPROVAL. IN MY
VIEW, SINCE THE STEWARDS' BADGE IS APPROXIMATELY THE SAME SIZE AS THE
HOTEL NAME TAG, THE RESPONDENT COULD REASONABLY REGARD ITS SIZE AND
CONSPICUOUS NATURE AS CONSTITUTING AN ALTERATION OR CHANGE OF THE
PRESCRIBED UNIFORM AND, THUS, BEING WAIVED UNDER THE AGREEMENT FROM
BEING WORN BY EMPLOYEES WITHOUT THE PRIOR CONSENT OF THE RESPONDENT.
THE RECORD REFLECTS THAT THE IMAGE OF THE HOTEL IS ESSENTIAL FOR
BUSINESS AND PUBLIC RELATIONS. IT IS TRADITIONAL FOR HOTELS TO HAVE
THEIR OWN IDENTIFICATION BADGES SO THAT CUSTOMERS CAN READILY IDENTIFY
EMPLOYEES. (TR. 32-33). /10/ IN THIS CASE, SOME CUSTOMERS WERE
CONFUSED AS TO WHETHER THE WAITER WAS EMPLOYED BY THE HOTEL OR THE
UNION. SOME EMPLOYEES WERE ALSO CONFUSED ABOUT THE WEARING OF THE TWO
NAME TAGS. (TR. 40-41). THE PROHIBITION AGAINST THE WEARING OF THE
STEWARDS' NAME TAG WAS, THUS, A VALID EXERCISE OF THE RESPONDENT'S
RIGHT, ON THE BASIS OF BUSINESS JUDGMENT, TO AVOID CONFUSING CUSTOMERS
AND PROTECTING ITS IMAGE BY NOT AUTHORIZING THE WEARING OF A FOREIGN
NAME TAG AS PART OF THE PRESCRIBED UNIFORM. CF. NLRB V. HARRAHS CLUB,
337 F.2D 177 (9TH CIR. 1964); DAVISON-PAXON CO. V. NLRB, 462 F.2D 364,
371 (5TH CIR. 1972); AFGE, NATIONAL IMMIGRATION AND NATURALIZATION
SERVICE COUNCIL AND DEPARTMENT OF JUSTICE, INS, FLRC NO. 76A-26, 5 FLRC
104(1977).
IT SHOULD BE EMPHASIZED, HOWEVER, THAT THE RECORD REFLECTS THAT
RESPONDENT ALSO TOOK INTO CONSIDERATION SOME COMPLAINTS APPARENTLY
HAVING NOTHING TO DO WITH THE SIZE, CONSPICUOUS NATURE, OR CONFUSION
CAUSED BY THE STEWARD'S BADGES. THESE WERE SIMPLY CUSTOMER OBJECTIONS
TO UNION BADGES BEING WORN IN A MILITARY DINING ROOM. IN MY VIEW, THESE
COMPLAINTS ARE ENTITLED TO NO WEIGHT, EVEN THOUGH RESPONDENT MIGHT FEAR
A DIMINUTION OF BUSINESS IF CUSTOMERS ARE ANTAGONIZED BY UNION BUTTONS.
SUCH CUSTOMERS MAY NOT BE AWARE OF EMPLOYEE RIGHTS UNDER THE STATUTE.
THE MERE FACT THAT EMPLOYEES COME INTO CONTACT WITH CUSTOMERS WHO MIGHT
BE OFFENDED BY UNION BUTTONS DOES NOT CONSTITUTE SUCH SPECIAL
CIRCUMSTANCES AS TO DEPRIVE EMPLOYEES OF THE RIGHT OF WEARING OTHERWISE
PROPER UNION INSIGNIA. /11/
THE GENERAL COUNSEL CONTENDS THAT IN ADDITION TO BEING A PROTECTED
EMPLOYEE RIGHT UNDER THE STATUTE, THE BADGES IN ISSUE ARE NEEDED BY THE
UNION TO PROVIDE NOTICE TO EMPLOYEES OF THE IDENTITIES OF THE TWO
STEWARDS. ONE OF THE STEWARDS SPENDS MOST OF HIS TIME SERVING THE
PUBLIC AS A WAITER. THUS, THE GENERAL COUNSEL ASSERTS THAT IN
PREVENTING HIM FROM WEARING THE STEWARD BADGE WHILE SERVING THE PUBLIC,
THE RESPONDENT EFFECTIVELY PREVENTS HIM FROM DISPLAYING HIS BADGE TO
OTHER EMPLOYEES AND ALERTING THEM TO THE FACT THAT HE IS THEIR UNION
REPRESENTATIVE.
ALTHOUGH THE RECORD SHOWS THAT THERE ARE APPROXIMATELY 500 EMPLOYEES
IN THE UNIT AT THE HALE KOA HOTEL, THERE WAS NO SHOWING OF HOW MANY
STEWARDS THERE ARE AMONG THE WAITERS AND COOKS, OR THAT THE UNION'S
OTHER MEANS OF COMMUNICATION WITH UNIT EMPLOYEES ARE INADEQUATE TO
INFORM EMPLOYEES OF THE IDENTITIES OF THEIR UNION STEWARDS, SUCH AS
NOTICES ON BULLETIN BOARDS, THE WEARING OF LESS CONSPICUOUS STEWARDS'
BADGES, THE WEARING OF THE BADGES IN ISSUE OUTSIDE THE PUBLIC VIEW, OR A
COMBINATION OF THESE ALTERNATIVES.
AFTER CONSIDERING ALL THE CIRCUMSTANCES, AND PARTICULARLY THE SIZE
AND NATURE OF THE STEWARDS' BADGES, IT IS CONCLUDED THAT A PREPONDERANCE
OF THE EVIDENCE DOES NOT ESTABLISH THAT RESPONDENT'S ACTION IN
PROHIBITING THE TWO HOTEL SERVICE EMPLOYEES FROM WEARING THE UNION
STEWARDS' BADGES IN ISSUE WHILE DEALING WITH THE PUBLIC VIOLATED SECTION
7116(A) OF THE STATUTE, AS ALLEGED.
IT IS NOTED PARTICULARLY THAT THE RESTRICTION IS PURSUANT TO AND
CONSISTENT WITH THE RESPONDENT'S LONG-STANDING POLICY OF ENFORCING ITS
PRESCRIBED UNIFORM REQUIREMENT, THERE IS NO EVIDENCE OF A DISCRIMINATORY
PURPOSE, AND UNIFORMED EMPLOYEES ARE ALLOWED TO WEAR THE UNION STEWARDS'
BADGES IN ISSUE WHEN THEY ARE NOT SERVING THE PUBLIC.
RECOMMENDATION
UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
C.F.R. 2423.29(C):
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-62 BE, AND
IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 10, 1980
WASHINGTON, D.C.
SERVICE SHEET
CASE NO. 8-CA-160
COPY OF DECISION AND ORDER
DATED MARCH 10, 1930
"DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE GARVIN LEE
OLIVER WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
BY: (SIGNATURE)
GERALD M. COLE, ESQUIRE
REGIONAL ATTORNEY
FEDERAL LABOR RELATIONS AUTHORITY
REGION 8, 350 SOUTH FIGUEROA STREET
10TH FLOOR
LOS ANGELES, CA. 90071
TERRY E. THOMASON, ESQUIRE
CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
UNITED STATES ARMY SUPPORT COMMAND
OFFICE OF THE STAFF JUDGE ADVOCATE
FORT SHAFTER, HAWAII 96858
REGULAR MAIL:
MR. GEORGE HARDY, PRESIDENT
SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL-CIO
2020 K STREET N.W.
WASHINGTON, DC 20006
ASSISTANT DIRECTOR
LABOR-MANAGEMENT RELATIONS
U.S. OFFICE OF PERSONNEL MANAGEMENT
1900 E STREET N.W.
WASHINGTON, DC 20415
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET N.W., ROOM 7469
WASHINGTON, DC 20424
ONE COPY TO EACH REGIONAL DIRECTOR
OFFICE OF THE GENERAL COUNSEL
FEDERAL LABOR RELATIONS AUTHORITY
1900 E STREET, N.W., ROOM 7469
WASHINGTON, DC 20424
/1/ THE TRANSCRIPT AT PAGE 14, LINE 16 IS HEREBY CORRECTED TO DELETE
THE WORDS, "WITHIN 24 HOURS."
/2/ THE STEWARD'S BADGE WORN BY BOTH DALLAS AND HOLTHAUS MEASURES
APPROXIMATELY 3 INCHES LONG AND 1 1/2 INCHES WIDE AND, EXCEPT FOR COLOR,
IS THE APPROXIMATE DESIGN AND DIMENSIONS AS FOLLOWS: (PICTURE OMITTED)
/3/ THE PATCH WORN BY SOME EMPLOYEES AT RESPONDENT'S REQUEST IN
JANUARY OR FEBRUARY 1979 WAS THE APPROXIMATE DESIGN AND DIMENSIONS AS
FOLLOWS: (PICTURE OMITTED)
/4/ SECTION 7116(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
"SEC. 7116. UNFAIR LABOR PRACTICES
"(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
"(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
SECTION 7102 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
"SEC. 7102. EMPLOYEES' RIGHTS
"EACH EMPLOYEE SHALL HAVE THE RIGHT TO FORM, JOIN, OR ASSIST ANY
LABOR ORGANIZATION, OR TO
REFRAIN FROM ANY SUCH ACTIVITY, FREELY AND WITHOUT FEAR OF PENALTY OR
REPRISAL, AND EACH
EMPLOYEE SHALL BE PROTECTED IN THE EXERCISE OF SUCH RIGHT. EXCEPT AS
OTHERWISE PROVIDED UNDER
THIS CHAPTER, SUCH RIGHT INCLUDES THE RIGHT--
"(1) TO ACT FOR A LABOR ORGANIZATION IN THE CAPACITY OF A
REPRESENTATIVE AND THE RIGHT, IN
THAT CAPACITY, TO PRESENT THE VIEWS OF THE LABOR ORGANIZATION TO
HEADS OF AGENCIES AND OTHER
OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE CONGRESS, OR
OTHER APPROPRIATE
AUTHORITIES, AND
"(2) TO ENGAGE IN COLLECTIVE BARGAINING WITH RESPECT TO CONDITIONS OF
EMPLOYMENT THROUGH
REPRESENTATIVES CHOSEN BY EMPLOYEES UNDER THIS CHAPTER.
/5/ REPUBLIC AVIATION CORPORATION V. NRLB, 324 U.S. 793(1963);
FLORIDAN HOTEL OF TAMPA, INC., 137 NLRB NO. 161, 50 LRRM 1433, ENFORCED
AS MODIFIED ON OTHER GROUNDS, 318 F.2D 545 (5TH CIR. 1963);
CONSOLIDATED CASINOS CORP., 164 NLRB NO. 132, 65 LRRM 1301(1967).
/6/ DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION,
AERONAUTICAL CENTER, A/SLMR NO. 117, 1 A/SLMR 556, REVERSAL IN PART ON
OTHER GROUNDS, 1 FLRC 246(1973).
/7/ DEPARTMENT OF TRANSPORTATION; FLORIDAN HOTEL OF TAMPA, INC.;
CONSOLIDATED CASINOS CORP.; ALL SUPRA, NOTES 5 AND 6; NLRB V. HARRAH'S
CLUB, 337 F.2D 177 (9TH CIR. 1964); DAVISON-PAXON CO. V. NLRB, 462 F.2D
364 (5TH CIR. 1972).
/8/ SEE CONSOLIDATED CASINOS CORP., SUPRA.
/9/ COMPARE CONSOLIDATED CASINOS CORP., SUPRA, AND ECKERD'S MARKET,
INC., 74 LRRM 1319(1970), WHERE THE UNION BUTTONS WERE THE SIZE OF A
NICKEL, FLORIDAN HOTEL OF TAMPA, INC., SUPRA, WHERE THE UNION BUTTON WAS
SMALLER THAN A DIME, AND DEPARTMENT OF TRANSPORTATION, SUPRA, WHERE THE
MEMBERSHIP PIN WAS "UNOBTRUSIVE."
/10/ CF. NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA 30(1980), WHERE THE
AUTHORITY AGREED WITH THE AGENCY'S CONTENTION THAT THE REQUIREMENT FOR
UNIFORMED EMPLOYEES TO WEAR NAMEPLATES CONSTITUTES MANAGEMENT'S CHOICE
OF "MEANS OF PERFORMING WORK" UNDER SECTION 7106(B)(1) OF THE STATUTE.
/11/ CF. CONSOLIDATED CASINOS CORP. AND FLORIDAN HOTEL OF TAMPA,
INC., SUPRA. COMPARE DAVISON-PAXON CO. V. NLRB, SUPRA, 462 F.2D AT 370
WHERE THE COURT HELD, IN PART, THAT AN EMPLOYER COULD REASONABLY BELIEVE
THAT THE WEARING OF A CONSPICUOUS UNION BUTTON WOULD CAUSE EXISTING
EMPLOYEE UNREST TO EXTEND TO THE SELLING FLOOR AND ANTAGONIZE CUSTOMERS.