E & L Transport Co.

National Labor Relations Board - Board Decisions

Jun 30, 2000

331 N.L.R.B. 640 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
E & L Transport Company, L.L.C. and Donald L.
Dunsmore and Joe M. Renedo. Cases 7–CA–
39017 and 7–CA–39029
June 30, 2000
DECISION AND ORDER
On January 9, 1998, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Respondent
and the General Counsel each filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 as modified
below, to modify the remedy as stated below, and to set
forth a new Order in light of these modifications.
1. The General Counsel has excepted to the judge’s
finding that evidence of “special circumstances” justifies a
prohibition against employees wearing union insignia on
their coveralls while loading and unloading vehicles. We
find merit in this exception.
The judge found, and we agree, that the Respondent
promulgated an “overly broad” general rule, prohibiting
employees from wearing union buttons on their work uni-
forms, for unlawful retaliatory reasons, in violation of Sec-
tion 8(a)(1) of the Act. Given this unlawful motivation, it
is immaterial that the Respondent might be able to demon-
strate “special circumstances” that would justify a narrower
rule restricting drivers’ wearing of union insignia on their
coveralls only during the loading or unloading process.3
As the Board stated in Times Publishing Co., 240 NLRB
1158, 1160 (1979), enfd. 605 F.2d 847 (5th Cir. 1979),
“once a rule is found to be generally invalid, it is invalid for
all purposes and cannot be applied as valid in part to a spe-
cific area.” We are not downplaying the Respondent’s
legitimate interest in seeking to prevent personal injury or
property damage. We are simply ruling that, in this case,
as found by the judge, the Respondent did not impose the
general rule for safety or damage control reasons, nor did it
inform its drivers of any such reasons. Rather, the Respon-
dent’s motive for promulgating the rule was to retaliate
against employees for their exercise of Section 7 rights, and
this “special circumstance” defense was an after-the-fact
attempt to disguise this motivation. To remedy that viola-
tion, the entire rule must be rescinded, and we shall modify
the judge’s recommended Order and Notice accordingly.

1 The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
2 In adopting the judge’s conclusion that the Respondent violated, inter
alia, Sec. 8(a)(4) of the Act by issuing a written reprimand to employee
Donald Dunsmore, we rely solely on the evidence showing that the Respon-
dent’s discipline was in retaliation for Dunsmore’s filing of an unfair labor
practice charge with the Board.
No exceptions were filed to the judge’s conclusion that the Respondent
did not violate the Act by telling Charging Party Donald Dunsmore that
internal union campaign signs were prohibited in or on the Respondent’s
trucks (JD fn. 18 and Conclusion of Law 7).
3 We note, in any event, that the “special circumstances” exception is nar-
row. As the judge noted, a rule which curtails an employee’s right to wear
union insignia at work is presumptively invalid, and can be justified only
where special circumstances exist which make the rule necessary to main-
tain production or discipline, or to ensure safety. Kendall Co., 267 NLRB
963, 965 (1983) (special circumstances based on safety considerations
justified employer’s dress code policy).
Assuming the Respondent subsequently promulgates a narrower rule,
Member Brame would agree with the judge that the Respondent could
establish “special circumstances” that justify a prohibition against drivers
wearing any buttons or other insignia on their coveralls while loading and
unloading vehicles from its car carriers in order to prevent personal injury
and vehicle damage during this process.
2. On September 20, 1996, the Respondent’s terminal
supervisor, Mike Ervin, told driver Ed Reese to remove
two stickers that Reese had placed on his safety helmet.
Reese pursued this matter with Chris Trimble, the Respon-
dent’s assistant terminal manager. After contacting an offi-
cial in the Respondent’s labor relations department, Trim-
ble reaffirmed Ervin’s directive that Reese had to remove
the stickers. Because Reese wanted to file a grievance in
order to test the propriety of this order, he refused Trim-
ble’s repeated demands to remove the stickers until Trim-
ble issued him a grievable 1-day suspension. The record
shows that Reese received a written document signed by
Trimble informing him of this suspension.
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by disciplining
Reese for failing to remove the stickers from his safety
helmet. The General Counsel has excepted, however, to
the judge’s failure to provide any backpay for Reese’s loss
of work. Although the record is unclear as to whether
Reese actually served this 1-day suspension, we grant the
General Counsel’s exception and, accordingly, we will
further modify the judge’s remedy to make Reese whole
for any loss of earnings he may have suffered by virtue of
the Respondent’s discrimination against him, plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4 We shall also modify the judge’s conclu-
sions of law, order, and notice to reflect the written suspen-
sion that the Respondent issued to Reese.
AMENDED CONCLUSION OF LAW
Substitute the following for the judge’s Conclusion of
Law 4.
“4. By suspending employee/alternate union steward Ed
Reese on September 20, 1996, for failing to remove stick-
ers from his safety helmet, the Respondent has engaged in
conduct that violates Section 8(a)(3) and (1) of the Act.”
4 The Respondent will have the opportunity to show in compliance that
Reese did not incur any loss of earnings and thus is entitled to no backpay.
331 NLRB No. 83
E & L TRANSPORT CO. 641
ORDER
The National Labor Relations Board orders that the Re-
spondent, E & L Transport Company, L.L.C., Wayne,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Subjecting its employees to excessive scrutiny by
conducting a search of company trucks for internal union
campaign literature, including using a camera to take pic-
tures, because the affected employees engaged in activity
protected by the Act.
(b) Impliedly threatening employees with termination
because of internal union campaign literature found in their
company trucks.
(c) Announcing to employees that its rules prohibit em-
ployees from placing stickers and/or signs on bump hats.
(d) Threatening employees with termination because of
their failure to remove stickers and/or signs from bump
hats.
(e) Harassing employees and ordering them to remove
internal union campaign stickers from their bump hats.
(f) Promulgating an overly broad rule prohibiting em-
ployees from wearing internal union campaign buttons on
their uniforms and ordering employees to remove buttons
from their uniforms.
(g) Referring to employees as troublemakers in an at-
tempt to coerce, restrain, and interfere with employees’
rights guaranteed by Section 7 of the Act.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
disciplinary action issued to employees Donald Dunsmore
and Ed Reese and remove from its files any reference to
this unlawful discipline, and within 3 days thereafter notify
the employees in writing that this has been done and that
the discipline it imposed will not be used against them in
any way.
(b) Make whole Ed Reese for any loss of earnings and
other benefits he suffered as a result of the discrimination
against him, in the manner set forth in section 2 of this de-
cision, supra.
(c) Return to the status quo existing before September
15, 1996, with respect to its practice of allowing employees
to wear buttons and pins on uniforms and stickers on bump
hats, and rescind the rule prohibiting the wearing of stickers
on bump hats and the wearing of buttons and pins on uni-
forms.
(d) Within 14 days after service by the Region, post at its
facilities in Woodhaven, Wayne, Dearborn, Flat Rock,
Detroit and Wixom, Michigan; Chicago, Illinois; Cincin-
nati and Lorain, Ohio; Milwaukee, Wisconsin, and Lafay-
ette, Indiana, copies of the attached notice marked “Appen-
dix.”5 Copies of the notice, on forms provided by the Re-
gional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notice to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since September 15, 1996.
(e) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT subject our employees to excessive
scrutiny by conducting a search of company trucks for in-
ternal union campaign literature, including using a camera
to take pictures, because the affected employees engaged in
activity protected by the Act.
WE WILL NOT impliedly threaten employees with ter-
mination because of internal union campaign literature
found in their company trucks.
WE WILL NOT announce to employees that our rules
prohibit employees from placing stickers and/or signs on
their bump hats.

5 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
WE WILL NOT threaten employees with termination
because of their failure to remove stickers and/or signs
from their bump hats.
WE WILL NOT harass our employees and order them to
remove internal union campaign stickers from their bump
hats.
WE WILL NOT promulgate an overly broad rule
prohibiting our employees from wearing internal union
campaign buttons on their uniforms and order employees to
remove buttons from their uniforms.
WE WILL NOT refer to our employees as troublemak-
ers in an attempt to coerce, restrain, and interfere with em-
ployees’ rights guaranteed by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the disciplinary action issued to Donald
Dunsmore and Ed Reese and remove from our files any
reference to this unlawful discipline, and within 3 days
thereafter notify these employees in writing that this has
been done and that the discipline we unlawfully imposed
will not be used against them in any way.
WE WILL make whole Ed Reese for any loss of earn-
ings and other benefits he suffered as a result of the dis-
crimination against him, in the manner set forth in the
Board’s decision.
WE WILL return to the status quo existing before Sep-
tember 15, 1996, with respect to our practice of allowing
employees to wear buttons and pins on their uniforms and
stickers on their bump hats.
WE WILL rescind the rule prohibiting the wearing of
stickers on bump hats and the wearing of buttons and pins
on uniforms.

E & L TRANSPORT COMPANY, L.L.C.

Linda Rabin Hammell, and Kristen Niemi, Esqs., for the General
Counsel.
Donald R. Scharg and Thomas A. Pinch, Esqs., of Bloomfield
Hills, Michigan, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Detroit, Michigan, on June 4–6, 1997. A charge
was filed by Donald Dunsmore, an individual, in Case 7–CA–
39017 on September 23, 1996, and he filed an amended charge on
November 8, 1996. The charge in Case 7–CA–39029 was filed by
Joe Renedo on September 25, 1996.1 The order consolidating
cases, consolidated complaint and notice of hearing (the com-
plaint) was issued on December 30. Briefs were received from the
parties on or about August 18, 1997. On the entire record, includ-
ing my observation of the demeanor of the witnesses, and after
considering the briefs filed by the parties, I make the following

1 All dates are in 1996 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
E & L Transport Company, L.L.C. (E & L or Respondent), a
corporation, engages in the transportation of automobiles for vari-
ous automobile manufacturers. It maintains its headquarters in
Wayne, Michigan, and as pertinent, has facilities at Woodhaven,
and Wixom, Michigan; Lorain, Ohio; and Chicago, Illinois. The
Respondent admits the jurisdictional allegations of the complaint
and I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It is admitted and
I find that Local 299, International Brotherhood of Teamsters,
AFL–CIO (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues for Determination
E & L is engaged in the business of transporting new vehicles,
primarily manufactured by Ford Motor Company, to automobile
dealerships. Its headquarters and offices are located on Michigan
Avenue, near Ford’s assembly plant, in Wayne, Michigan. The
Company has six terminals: Woodhaven, Michigan; Cincinnati
and Lorain, Ohio; Chicago, Illinois; Milwaukee, Wisconsin; and
Lafayette, Indiana. With respect to the Woodhaven terminal, driv-
ers load out of E & L’s facilities in the Detroit Metropolitan Area,
which in addition to Woodhaven includes facilities in Dearborn,
Wixom, Flat Rock, Detroit, and two facilities in Wayne, Michi-
gan.
E & L’s Detroit area drivers, at issue in this case, have been
represented for over 40 years by the Union. The bargaining rela-
tionship is governed by the National Master Automobile Trans-
porters Agreement and the Central and Southern Areas Supple-
mental Agreement, the most recent of which contracts are effec-
tive from May 22, 1995, through May 31, 1999. E & L has be-
tween 350 and 375 employees at its Woodhaven terminal, includ-
ing about 190 active truckdrivers, as well as mechanics, clerical
workers, dispatchers, and managerial employees. The Woodhaven
terminal covers about 215 acres and uses about 110 acres, which
includes its buildings, as well as parking for the vehicles to be
transported and for the E & L trucks. As many as 75 to 100 trucks
can be accommodated by the loading area at one time.
Wayne has three separate shipping yards and a truck parking
area, which occupy about 16–18 acres, in addition to its office
area. About 55 drivers operate out of the Wayne facility. The
Michigan truck plant and Wayne assembly dock areas of E & L’s
Wayne facility can each accommodate about 25 trucks at a time.
At each terminal, the highest level managerial employees are
the terminal manager and assistant terminal manager. Gerald
Clemens and Chris Trimble were employed in these positions,
respectively, at the Woodhaven Terminal in 1996. The next level
of management at the terminals are operations/loading supervi-
sors, yard supervisors, and shop supervisors. Both Woodhaven
and Wayne have three operations/loading supervisors. Mike Ervin
was the operations/loading supervisor with the most contact with
drivers at the Woodhaven terminal in 1996. At the Wayne facility,
Jim Donlin, Ted Marcott, and Sean McCarty were opera-
tions/loading supervisors.2 Operations/loading supervisors manage
the activities of drivers on a day-to-day basis at Woodhaven and
2 McCarty, Donlin, and Marcott’s names are spelled in a variety of ways
in this record. I have adopted the spelling of these men’s names from Re-
spondent’s brief as it should be the most informed source on this matter.
E & L TRANSPORT CO. 643
Wayne, including helping drivers with loads, auditing loads, and
instructing how to load trucks with particular vehicles. They also
deal with matters concerning the drivers and problems the drivers
might be having, set up dispatching boards, and handle any prob-
lems with deliveries or delays.
None of the supervisors is solely a loading supervisor. Each has
operations supervising responsibilities. Therefore, the supervisors
spend as much as half of their time inside the facility offices,
rather than outside with the drivers during loading. Though they
may go outside four to six times a day, the operations/loading
supervisors do not know which drivers they will see or how many
drivers they may see, as drivers come to the facility at varying
times, load their vehicles and then leave. Not all drivers are in
contact with supervisors on a regular basis, though regular contact
is not unusual. E & L also employs a shop supervisor who super-
vises the mechanics and also interacts with drivers.
For approximately 10 years, E & L has required that its drivers
wear uniforms and supplies them to the drivers. The uniforms
consist of shirts, pants, and coveralls. The coveralls are supposed
be worn while loading and unloading automobiles. Since the first
of 1996, it has required the drivers to wear hard hats it calls
“bump” hats, during the loading and unloading process. It main-
tains the following rules involving solicitation and distribution:

The Company prohibits posting any materials on com-
pany premises, equipment and bulletin boards.
Non-employees of E & L Transport Company and
Transportation Releasing, Inc. are prohibited from soliciting
or distributing at any time on Company premises.3
Employees are prohibited from soliciting during working
time.
Employees are prohibited from distributing materials
during working time and in working areas.
The Company will enforce the above policies uniformly.

The complaint alleges that Respondent disparately enforced the
above quoted rules by:
1. About September 17, at its Wixom facility, by its agent Jim
Donlin, subjecting its driver employee Donald Dunsmore to ex-
cessive scrutiny by conducting a search of his company truck for
internal union campaign literature, including using a camera to
take pictures.4
2. About September 18, outside a restaurant in Taylor, MI, by
its agent Lawrence F. Murray:

a. Advising Dunsmore that internal union campaign signs
were prohibited in or on Respondent’s trucks.
b. Subjecting Dunsmore to excessive scrutiny by con-
ducting a search of his truck for internal union campaign lit-
erature and/or campaign signs.
c. Impliedly threatening Dunsmore with termination be-
cause of internal union campaign literature found in his com-
pany truck.

3. About September 20, at its Woodhaven facility, by its agent
Murray, orally announcing to employees that its rule prohibited
employees from placing stickers and/or signs on bump hats.

3 Transportation Releasing, Inc. is a commonly owned company that is
not involved in this matter.
4 Respondent in its answer admitted the supervisory and agency status of
Lawrence R. Murray, Gerald Clemens, Jim Goltz, Chris Trimble, Ken
Bennett, Ted Marcott, Sean McCarty, Jim Donlin, Mike Ervin, Robert
Braden, Ron Kilmer and William Erb.
4. About September 20, at its Woodhaven facility, by its agents
Murray and Gerald Clemens, threatening employees with termina-
tion because of their failure to remove employee stickers and/or
signs from bump hats.
5. About October 16, at its Woodhaven facility, by its agent
Mike Ervin, stating he was at Woodhaven to harass Dunsmore
and ordering him to remove internal union campaign stickers from
his safety hat.
6. About October 16, at its Woodhaven facility, by its agent
Chris Trimble, ordering Dunsmore, under threat of reprimand and
discharge, to remove internal union campaign stickers from his
bump hat.
7. About October 16, at its Wixom facility, by its agent Ron
Kilmer, ordering Dunsmore to remove stickers from his bump hat.
8. About the end of October, at its Wayne facility, by its agents
Ted Marcott and Sean McCarty, on separate occasions, ordering
its employees to remove stickers and/or signs from bump hats.
9. About the first week of November, at its Wayne facility, by
its agents Mike Ervin and Ted Marcott, ordering employees to
remove stickers from their bump hats.
10. About October 25, at its Woodhaven facility, by its agent
Chris Trimble, orally and disparately promulgating an overly
broad rule prohibiting employees from wearing internal union
campaign buttons on their uniforms and ordering Dunsmore to
remove a button from his uniform.
11. About late October, at its Chicago facility, by its agent Wil-
liam Erb, orally and disparately promulgating an overly broad rule
prohibiting employees from wearing internal union campaign
buttons on their uniforms.
12. About October 29, at its Woodhaven facility, by its agent
Gerald Clemens, referring to Dunsmore as “the troublemaker.”
13. About September 23, at its Woodhaven facility, issuing a
written reprimand to employee/alternate Union Steward Ed Reese
for failing to remove stickers from his bump hat.
14. About September 23, at its Woodhaven facilities, by its
agents Chris Trimble and Gerald Clemens, issuing Dunsmore a
written reprimand for having internal union signs in his truck.
B. E & L’s Uniform Program and its Enforcement of Rules
Governing the Program
E & L initiated its uniform program in June 1987 at the direc-
tion of its primary customer, Ford Motor Company. Drivers are
required to comply with the program, rules, and regulations for
drivers. All of the uniforms are owned and provided by E & L.
Drivers are to wear their uniforms while on duty and to keep them
clean and neat. The uniform program was posted initially by the
dispatch window and later in the driver’s breakroom. Communica-
tions to employees of the requirement for uniforms was also ac-
complished through meetings with business agents, stewards, and
committee members. Article 31 of the collective-bargaining a-
greement permitted the Company to require the wearing of uni-
forms, and article 40(3(d)) requires that drivers maintain a “rea-
sonably neat appearance.”
Drivers must wear the company-provided uniforms while on
duty, including “all time spent in loading, unloading, driving,
delivering and when being dispatched from an E & L or other
carrier terminal.” Since January 1996, drivers have been required
to wear bump hats during the loading and unloading process.
While maintaining rules apparently prohibiting the placement of
any type insignia on company supplied uniforms without com-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
pany approval, there is considerable question raised in this record
about the actual enforcement of such rules.5
Paragraph VI of the uniform program establishes that “[d]rivers
may not alter their garments in any manner not approved by the
Company.” Moreover, the uniform program provides that “[n]o
additional patches, pins or iron-on transfers of any kind may be
affixed to the uniforms.” According to Director of Labor Relations
Lawrence Murray, this prohibition was included in a list of rules
which was posted by the Company at its dispatch windows in
1987. The rules regarding uniforms was the subject of a July 8,
1994 memorandum from E & L Vice President T. R. Atkins to all
terminal managers. The memo, after noting that the Company has
become lax in [its] uniform program, reiterated that “[a]ll employ-
ees must comply with the rules and procedures . . . and those em-
ployees not complying will be subject to disciplinary action.” The
memorandum included a list of the rules, one of which was the
rule against affixing any insignia to the uniforms. There is no
credible evidence that Detroit area terminal managers distributed
that list to drivers, or that drivers ever saw it. Woodhaven Termi-
nal Manager Clemens testified that the list is posted in the termi-
nal. However, both current steward Joe Renedo and former stew-
ard Donald Dunsmore testified that they never saw the list. They
also testified that they went to the terminal after their initial testi-
mony and looked for the list on the bulletin board where it was
allegedly posted, and could not find it. I credit the drivers’ asser-
tion that it is not so posted. In addition to their testimony, there
was evidence that on August 3, 1995, Clemens issued a memo to
drivers outlining the Company’s uniform policy. Clemen’s memo
not only fails to attach the list in question, but it omits any internal
reference to a ban on the wearing of “patches, pins or iron-on
transfers.”
The testimony of the driver witnesses was generally to the ef-
fect that drivers have long worn a variety of personal items on
their uniforms and have worn personal clothing with their uni-
forms without comment from management. Driver Dunsmore
testified that he wears a Firestone pocket protector with pens each
day while working. He also wears a personal shirt underneath his
uniform shirt, and his own jacket over his uniform while he loads,
unloads and transports new vehicles. Many of the drivers wear
their own baseball caps adorned with metal pins and buttons dur-
ing their workshifts, and have never been ordered to remove the
items. The record is also replete with evidence that Respondent
has long allowed drivers’ to display miscellaneous insignia on
their official uniforms. Many drivers have work buttons on their
uniforms, including their coveralls, on a daily basis over the past
years. Ed Reese testified that he has worn and still wears buttons
on his uniform shirt and coveralls which read as follows: “Team-
ster Car-Haulers Gearing Up for Our Future,” and “Stop Scab
Papers.” Further, Reese has seen drivers wearing the following
buttons on their uniforms and coveralls: “Don Smith for Presi-
dent—No Dues Increase—Teamster Local 299,” “We Will Fight
for Our Future,” “Hoffa ‘96—Restore the Power,” “Vote Cam-
marata Slate,” “Elect the Larry Brennan Teamster First Slate for
Local 337,” “Stop Scabs,” “Teamsters 299 Steward,” and “Ron
Carey Slate ‘96—Putting Members First.” Reese and Dunsmore
specifically recalled driver Dennis Wade, among others, wearing a

5 The requirement for wearing bump hats is set forth in a document called
“Personal Protective Equipment Head Protection.” The rules set out in this
document are silent as to the placement of stickers or other material on the
bump hats, and drivers received no oral instructions in this regard. The
bump hats supplied by E & L cost $3.65 each.
“Teamsters for a Democratic Union—TDU” button on his shirt or
coveralls.
Dunsmore testified that he has worn or seen other drivers wear
the following buttons, pins, or patches: “E & L 14 Year Safe Driv-
ing” patch;” “We’ll Fight For Our Future-Teamsters Car Haul
Contract ‘92;” “Teamsters for a Democratic Union;” “Hoffa ‘96—
Restore the Power;” “Ron Carey Slate ‘96—Putting Members
First;” “Elect the Larry Brennan Teamsters First Slate for Local
337;” “Vote Cammarata Slate;” “Stop Scabs;” “Stop Scab Pa-
pers;” “Teamsters Union Service;” “Buy American;” “Teamsters
Local 299 Steward;” “E & L A.C.E.;” “National Safety Council 3
Year Safe Driver Award;” “Teamster 5 Year Service;”
“Grandpa;” and two “Safe Driver E & L,” metal pins. The last pin
mentioned by Dunsmore refers to metal pins and fabric patches
that E & L awards drivers for safe driving records. Reese testified
that drivers wore these on their collars and pockets. The most
credible evidence is that Respondent allowed these pins to be
worn at the employees’ discretion.6
Joe Renedo, current union steward at E & L’s Woodhaven
Terminal, testified that he has worn campaign buttons on his uni-
form during local union elections and during the first Ron Carey
campaign. He was not told by management that he could not do so
during these campaigns. During 1995 contract negotiations he
wore a button saying “Gearing Up for Our Future.” He distributed
this button to other drivers, who also wore it on their uniforms.
As noted earlier, E & L in January 1996 implemented a rule re-
quiring the wearing of bump hats when the drivers loaded or
unloaded new cars to or from their trucks. The Union grieved the
rule and the grievance was denied. Immediately following the
institution of the bump hat requirement, drivers began personaliz-
ing their head gear, just as they had long customized their uni-
forms. Many drivers affixed stickers stating, “I protest wearing
this helmet.”7 Driver Brian Orluck testified that he complained
about the unattractiveness of the hat to Assistant Terminal Man-
ager Jim Goltz, who responded that he did not care if Orluck
painted his bump hat pink and put yellow flames on it so long as
he wore it.8 From January 1996 well into autumn of that year,
drivers wore these protest stickers along with other types of de-
cals, such a sports team logos, Teamster insignias, National Rifle
Association logos, union election material, American flags, and
4x4 truck ads, without interference by management.
Respondent offered credible evidence that it waged an ongoing
campaign against the placing of stickers on its trucks and other
physical equipment. However, based on the credited evidence,
there was no effort made by Respondent to keep drivers from
wearing insignia on their uniforms and bump hats until mid-
September 1996. Respondent takes the position that it has always
enforced its rules regarding not allowing pins and other insignia
on uniforms and stickers on bump hats. Its position is that supervi-
6 Respondent Safety Director Danny Danielczyk testified that for the first
year in which the awards were given, he instructed recipients of them not to
wear the awards on their uniforms. On the other hand, Reese, Dunsmore,
and Joe Renedo all received such awards in 1995 and never received such
instruction. Danielczyk admitted that he has not given instructions about the
awards for the past 2 years.
7 E & L driver Gene Frank had such a sticker on his bump hat from April
until he was told to remove it in November. He was told by Supervisor Ted
Marcott that it was against company policy to place stickers on bump hats.
Prior to this occasion, Frank had never been told about such a policy.
8 Orluck testified that he placed a “Carey” sticker on his logbook in 1992.
In December 1996, Terminal Manager Clemens asked him to remove it. He
also wore a “Carey” campaign button on his uniform during the 1992 cam-
paign, without management interference.
E & L TRANSPORT CO. 645
sors regularly enforced the rules when they observed a violation of
them. It explains the apparent contradiction between this testi-
mony and driver witnesses’ voluminous testimony about numer-
ous incidents of such items being worn by drivers by asserting that
such incidences simply escaped the attention of supervisors. I
credit the drivers’ testimony and not that of Respondent’s wit-
nesses. Respondent’s own evidence, the memorandum of Atkins,
notes that enforcement of the rules had become lax.
C. The Hoffa–Carey Election and the Protected Activity of
Donald Dunsmore
In 1996, the Teamsters held a mail-ballot election between can-
didates Jimmy Hoffa Jr. and incumbent Ron Carey. The ballots
were mailed in November and were counted on December 13.
During the course of the campaign and election, specially ap-
pointed election officers received and investigated protests regard-
ing the election process. Local Teamster members had 24 hours in
which to lodge protests with Michigan Regional Officer Bill
Wertheimer, who would investigate the protest and issue a deci-
sion.
Among the E & L drivers in the Detroit area facilities, the
Hoffa-Carey election generated staunch supporters on both sides.
Throughout the long preelection campaign, drivers wore buttons
and stickers advertising their choice for president. There is no
evidence that the varying union political views held by the drivers
caused any disturbances or interruptions of work at E & L. One
particularly strong supporter of the Hoffa slate was driver Donald
Dunsmore. He has worked for E & L for 26 years. During his long
tenure, Dunsmore has served as the union steward three different
times, in 1982, from 1986 to 1989, and from 1994 until his sick
leave in January 1996. In April 1996, while on sick leave,
Dunsmore filed NLRB charge Case 7–CA–38439, alleging that E
& L discriminatorily removed union literature, including cam-
paign material, regarding the Teamster’s internal election. Com-
plaint issued, and a settlement was obtained.9 Pursuant to the
settlement of Case 7–CA–38439, Respondent posted a notice to
employees on a bulletin board in the Woodhaven drivers’ dispatch
area on July 1. The Board required that the notice remain posted
for 60 days.
Starting in January 1996, Dunsmore campaigned for Hoffa at E
& L’s facilities. About August 24, he filed a protest with the elec-
tion officer about E & L’s alleged disparate refusal to allow James
Hoffa Jr. to campaign on E & L premises, while at the same time
allowing Local 299 Business Agent Billy Scott to campaign there
for Ron Carey. Respondent received notice of the protest about
August 30. A decision issued September 18, granting Dunsmore’s
protest in part. On September 30, the election officer issued a
supplemental decision denying Dunsmore’s protest. Dunsmore
filed another election protest about October 16, alleging that E &
L discriminatorily disallowed “Hoffa” stickers while permitting
“Carey” stickers on drivers’ bump hats. The election officer de-
nied Dunsmore’s protest by decision dated November 4.
D. Respondent Begins Enforcing its Rules Regarding Uniforms
As noted above, the credible evidence establishes that for years
the Respondent had allowed the wearing of various insignia on
drivers’ uniforms without interference and had since January 1996

9 One will never know the whole truth about the merits of the complaint.
However, from Respondent’s point of view, the union campaign did cause a
great deal of defacing of company property. Numerous photographs in
evidence show campaign stickers plastered on public phones, bathroom
walls, telephone poles, and fences in and around the Detroit area terminals.
allowed the placing of various stickers on bump hats. That leni-
ency stopped beginning in September 1996, just a month after
Dunsmore filed his first election protest and only about 2 weeks
after the conclusion of the NLRB notice posting period. Signifi-
cantly, Dunsmore was the first target of the newly stringent en-
forcement of company rules. On September 17, Dunsmore was
approached at the Wayne loading yard by Operations/Loading
Supervisor Jim Donlin, who asked Dunsmore if he had campaign
literature showing from or stuck to Dunsmore’s company truck.
Dunsmore responded he had, but informed Donlin that the litera-
ture was not “stuck,” but instead propped up. In fact, Dunsmore
had two “Hoffa ‘96” stickers propped with paperclips in the front
and side cab windows of his truck, and an orange streamer which
read “Hoffa” hanging from the coat rack in the truck’s cab.
Donlin, who carried a camera with him, made the inquiry at the
request of Terminal Manager Clemens and Labor Relations Direc-
tor Lawrence Murray. Donlin did not instruct Dunsmore to re-
move the campaign material. Donlin confirmed in his early testi-
mony that he did not ask Dunsmore to remove the campaign signs
when he first encountered Dunsmore. However, he later remem-
bered that he subsequently talked to Clemens again and was told
to have Dunsmore remove them. He testified that he then found
Dunsmore at the dispatch window and told him Clemens had said
to take down the signs. I do not credit this testimony. Clemens did
not testify that he told Donlin to have Dunsmore remove the signs
and further, specifically stated that Dunsmore’s subsequent disci-
pline was not issued for refusing to obey an order from manage-
ment.
The next day, September 18, Dunsmore stopped for coffee and
breakfast at a restaurant in Taylor, Michigan. In the restaurant
parking lot, Dunsmore encountered E & L’s Labor Relations Di-
rector Lawrence Murray. According to Dunsmore, Murray asked
if Dunsmore had put the union material in the truck. Dunsmore
answered yes. Murray then complained that Dunsmore had done
so even while protesting Billy Scott’s electioneering and the
Company’s alleged unfair labor practice of removing union litera-
ture. Murray ordered Dunsmore to remove the Hoffa material,
stating, according to Dunsmore, “You take this stuff down now or
else. This is your last warning.” Dunsmore complied. According
to Dunsmore, Murray also demanded access to the truck’s cab and
Dunsmore let him in. Dunsmore testified that this was the only
conversation that he had with Murray about the Hoffa signs.
Murray had a different version of this incident. He recalled that
on September 17, he was driving through Taylor, Michigan, and
saw a partially loaded E & L truck in a strip mall. As this was an
unusual place for a company truck to be parked, he pulled in to
investigate. When he approached the truck, he observed the
“Hoffa ‘96” signs in the truck’s windows. He recorded the truck
number and went to his office. He called the Woodhaven terminal
manager and asked for the identity of the truck’s driver. Murray
learned that Dunsmore was the driver of the truck and that it had
been dispatched from the Wayne terminal. Murray instructed the
Wayne terminal personnel to take a photo of the truck if it re-
turned and to advise Dunsmore to remove the signs from the win-
dows. Later that day, Murray was advised that Dunsmore had
returned to the terminal, that a photo had been taken and
Dunsmore had been told to remove the signs.
On September 18, Murray was driving through Taylor, Michi-
gan, and again saw Dunsmore’s truck at the strip mall. He pulled
in and again observe the Hoffa signs in the truck windows.
Dunsmore came up to him and Murray asked why the signs were
there, noting that Dunsmore knew better than to put signs in his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
truck windows. According to Murray, Dunsmore replied that Billy
Scott had been at the terminal campaigning for Carey. Murray
replied that Dunsmore knew of the campaign rules, so why did he
put a Hoffa sign in the truck. Murray instructed him to remove the
signs. Murray denied threatening Dunsmore with termination and
denied getting into the truck’s cab, though admitting that
Dunsmore opened the cab door and he looked in.
This was Dunsmore’s first warning on the subject. Although
Dunsmore never disobeyed an order to remove the Hoffa signs, on
September 22 or 23, he received a disciplinary notice dated Sep-
tember 20 for “flagrant disobeying of orders (violation of com-
pany policy regarding solicitation and distribution).” Assistant
Terminal Manager Chris Trimble, who signed the reprimand,
informed Dunsmore that Clemens had instructed him to writeup
Dunsmore. When Dunsmore pursued the matter with Clemens,
Clemens responded, “[Y]ou were campaigning . . . [j]ust write
your grievance, [d]on’t even argue about it.” Clemens testified
that Dunsmore had not disobeyed any order from management,
rather he had disobeyed the company rule prohibiting the placing
of any material on company equipment.10 Clemens noted that in
the past drivers had been required to removed stickers from com-
pany trucks. These stickers contained the “handle’ the driver used
on the CB radios in the trucks at that time. There is no evidence in
the record that any driver has been previously disciplined for put-
ting a sticker on a company truck.11 No employee of Respondent
was disciplined for putting campaign stickers on other company
equipment such as toilets, bathroom mirrors, pay phones, and
terminal walls though such activity was widespread during the fall
of 1996. To the extent that there is a credibility determination to
be made with respect to this incident, I credit Dunsmore’s version.
There are certain internal contradictions in the testimony of Re-
spondent’s witnesses on the matter which makes their memory of
the events questionable.
According to Dunsmore, during all of these conversations with
supervisors, he wore Hoffa stickers pasted onto his bump hat and
a Hoffa ‘96 button on his uniform. He was not then asked to re-
move them. On October 16, however, when Dunsmore was load-
ing his truck at the Woodhaven facility, Operations/Loading Su-
pervisor Michael Ervin drove up and warned, “I’m here to fuck
with you.” Dunsmore replied, “What are you talking about?”
Ervin then stated: “You’ve got to take that stuff off your hat,”
referring to Dunsmore’s Hoffa stickers. Dunsmore then asked for
something in writing. Dunsmore then left Ervin and proceeded
into the drivers’ room to meet with Assistant Terminal Manager
Chris Trimble. Trimble confirmed that Dunsmore’s stickers on his
bump hat had to come off, and warned that if Dunsmore persisted

10 Clemens version of what caused Dunsmore to be disciplined given on
cross-examination varied from that given by Murray. He testified that on
September 17, he was informed by Donlin of the stickers on Dunsmore’s
truck. He then testified that on September 18, Murray called and told him
that he had seen the stickers on Dunsmore’s truck in Taylor, Michigan.
Clemens version is close to that given by Dunsmore. Subsequently, on
redirect examination, upon being asked a leading question, he “recalled” that
Murray had also called him on September 17. Donlin testified that he took
the photographs of Dunsmore’s truck after being told to do so by Clemens.
According to Donlin, Clemens told him he had seen the truck passing his
window and saw the Hoffa signs.
11 In this regard, E & L’s maintenance supervisor, Robert Braden, testi-
fied that in the past he had seen political stickers on company trucks, includ-
ing ones dealing with scab newspapers, union stickers, American flags, and
other types. He either personally removed these stickers or had them re-
moved. He evidently took no disciplinary action against the drivers who
affixed these stickers to their trucks.
in refusing, he would be discharged. Dunsmore promptly removed
the stickers, leaving a white sticky backing on the hat.12
Later on October 16, Dunsmore was at E & L’s Wixom yard,
then Operations Supervisor Ron Kilmer approached and told him
to take the stickers off his bump hat. Dunsmore stated that they
were already off. Kilmer looked at the hat again and agreed. Other
drivers whom Dunsmore saw that day at Wixom with stickers on
their bump hats were similarly directed to remove them. On Octo-
ber 25, Dunsmore placed a call to Board Agent Joan Wesa from a
pay phone in the drivers room at the Woodhaven terminal. During
this conversation, Trimble approached Dunsmore, pointed to a
Hoffa ‘96 button on Dunsmore’s uniform and stated that it had to
go. Dunsmore took the button off and never wore it again.13 This
was the first time he had been told that he could not wear a button
on his uniform. He had been wearing one all during the campaign,
including the days in which he had run-ins with Director of Labor
Relations Murray, Terminal Manger Clemens, Assistant Terminal
Manager Trimble, and Supervisors Ervin and Donlin.14 Accord-
ing to Dunsmore, at about this time, all drivers who had been
wearing buttons on their uniforms stopped wearing them.
In late October, Dunsmore was using the copy machine when
Terminal Manager Clemens walked by and stated, “There’s the
trouble-maker.” Though Clemens denied the words used by
Dunsmore, he admitted saying, “Oh, Oh, here comes trouble,”
meaning, according to Clemens, that Dunsmore was filing another
greivance.
For at least 3 months before Respondent’s suppression of
Dunsmore’s union displays in September, driver Ed Reese wore
both a Teamster logo sticker and an NRA sticker on his bump hat.
No one in E & L’s Detroit area management spoke to him about
the decorations. However, on September 15, he was in the Chi-
cago terminal and was told by a Chicago terminal supervisor to
remove the stickers. He refused and nothing more was said about
the matter. Reese testified that the supervisor told him that the
Chicago terminal had instituted a blanket policy of not allowing
stickers on bump hats. On September 20, Woodhaven Terminal
Supervisor Mike Ervin told Reese to remove the stickers from his
bump hat. Reese pursued the matter with Assistant Terminal
Manager Trimble. After telephoning Lawrence Murray privately,
Trimble called Reese back into the office and stated that Murray
had advised Trimble to have Reese take the stickers off his bump
hat. Reese asked what would happen if he refused. Trimble re-
sponded he would issue progressively more severe reprimands,
resulting ultimately in discharge for the flagrant disobeying of an
order. In order to test the propriety of the order, Reese resisted
until he was presented with a grieveable suspension for disobey-
ing orders. Reese then agreed to remove the stickers. The follow-
ing week, Ervin told Reese that Terminal Manager Clemens, who
was not present for this session, stated that if he had been present,
12 Driver Michael Hewer began wearing a “Carey” sticker on his bump
hat in August. In mid-October, he was instructed by Supervisor Ted Marcott
to remove it. He complied with this request, however, he put another one on
3 days later. Supervisor Sean McCarty observed this new sticker and or-
dered Hewer to remove it. He did so and quit wearing stickers on his bump
hat. Hewer testified that one of Respondent’s supervisors at its Loraine,
Ohio terminal has for a long time worn a sticker depicting the American flag
on his bump hat.
13 Trimble acknowledged that this incident occurred, adding he told
Dunsmore that he could wear the button on his personal clothes.
14 Dunsmore stated that about a month prior to hearing, he had again be-
gun wearing a button on his uniform. This one reads “No Scab Papers.” He
had not been instructed to remove this button.
E & L TRANSPORT CO. 647
Reese would have been promptly terminated. Reese on this occa-
sion was wearing a button on his uniform that read “Stop Scab
Papers.” He was not told to remove it during this disciplinary
session.
Subsequent to September 20, Reese heard Ervin ask two other
drivers, Scott Johnson and Bryce Mackens, to remove stickers
from their hats.
Driver Mike Hewer wore a Carey sticker affixed to the front of
his bump hat and a Carey button on his uniform beginning in
August. Not until late October was Hewer told to remove the
sticker, first by Yard Supervisor Ted Marcott and shortly thereaf-
ter by Supervisor Sean McCarty. Prior to this, Hewer knew of no
rule against the wearing of such decals and had worn his Carey
sticker with impunity. Similarly, Hewer wore his Carey button
without admonition until October when, after he had completed
loading and had removed his coveralls, Chicago Terminal Super-
visor Bill Erb told him to remove the button from his uniform
shirt.
Beginning in April or May, driver Gene Frank attached a yel-
low sticker reading “I protest wearing this helmet” to his bump
hat. He wore it without incident until November, when Supervisor
Mike Ervin ordered him to remove it. Frank postponed complying
because he was loading his truck and did not want to break his
concentration. Later in the same day, Supervisor Marcott also told
Frank to remove the sticker. Because he did not want to be disci-
plined for defacing company property, Frank did not remove the
sticker, but rather concealed it by placing two pieces of black
electrical tape over it. Management never complained about the
resultant homely appearance of the hat.
E. The Respondent Unlawfully Discriminated Against
Dunsmore and Reese and Unlawfully Prohibited the Wearing
of Union Insignia on Uniforms and Hats
The Board and courts recognize employee’s right under Section
7 of the Act to wear and display union insignia on their persons
while at work. Absent “special circumstances,” the promulgation
or enforcement of a rule prohibiting the wearing of such insignia
is violative of Section 8(a)(1) of the Act. Republic Aviation Corp.
v. NLRB, 324 U.S. 793, 801–803 (1945).15 The Board, in cases
involving interference with that right, has reasoned as follows:

While employees have the right to wear union insignia at
work, employers have the right to take reasonable steps to in-
sure full and safe production of their product or to maintain
discipline. Therefore, the Board holds that a rule which cur-
tails that employee right is presumptively invalid unless spe-
cial circumstances exist which make the rule necessary to
maintain production or discipline, or to ensure safety. [Kend-
all Co., 267 NLRB 963, 965 (1983).]

The right to wear union insignia at work applies equally to the
wearing of stickers on bump hats. Eastern Omni Constructors,
324 NLRB 652 (1997); Northeast Industrial Service Co., 320
NLRB 977 (1996); Feldkamp Enterprises, 323 NLRB 1193
(1997). Therefore any attempt to prohibit the wearing of stickers
on bump hats must also be justified by “special circumstances.”
Northeast Industrial Service Co., supra at 979.
Special circumstances warranting a prohibition may include in-
stances where the wearing of union insignia has caused interrup-
tion in production, disciplinary problems, or disharmony within
the work force. No evidence of any such problems was adduced in

15 See also Meyer Waste Systems, 322 NLRB 244 (1996); Sonoma Mis-
sion Inn & Spa, 322 NLRB 898, 903 (1997).
this proceeding. Retail and service establishments have sometimes
been permitted to regulate employee appearance to foster a par-
ticular public image. See United Parcel Service, 195 NLRB 441
(1972); Burger King Corp. v. NLRB, 725 F.2d 1053 (6th Cir.
1984). Even in health care settings, where employers arguably
have an interest in maintaining standards of dress and professional
decorum, special circumstances are carefully weighed. See Casa
San Miguel, 320 NLRB 534, 540 (1995). There, rules banning the
wearing of union insignia must be justified by a demonstration of
an adverse impact on patient care in those areas where the ban
applies. Vista Hill Foundation, 280 NLRB 298 (1986).
This discussion must be prefaced by a finding of the circum-
stances under which Respondent began enforcing its rules against
the wearing of union insignia on drivers’ uniforms and bump hats.
First, I find that Respondent, notwithstanding its prohibition
against the wearing of buttons and other paraphernalia on com-
pany supplied uniforms, and notwithstanding its rule against plac-
ing material on company property (bump hats), allowed the driv-
ers to wear such paraphernalia on their uniforms and to place
various stickers on their hats until the fall of 1996. The practice of
drivers wearing campaign buttons in union elections had been
ongoing since the 1980s, so there was nothing inherently objec-
tionable to Respondent about the wearing of union campaign
buttons. Respondent’s evidence that it did not allow this practice
does not ring true and I do not believe it. It offered the excuse that
its supervisors had simply not seen any drivers wearing buttons on
their uniforms or stickers on their bump hats until the fall of 1996
is likewise incredible. Supervisors are in regular contact with
drivers and it would be nearly impossible for them not to notice
the buttons and stickers. Several of the driver witnesses credibly
testified that they wore buttons and stickers while in meetings and
conversations with supervisors, including those testifying in this
proceeding. I do not credit the testimony of the witnesses pre-
sented by Respondent in this regard. On the other hand, the credi-
ble evidence establishes that Respondent has long enforced its
prohibition against placing material on its trucks.
In the present case, only three avenues of approach to special
circumstances could be advanced. First is the matter of interaction
with the general public, second is safety, and third is damage con-
trol. With regard to the first of these avenues, it must be noted that
drivers do not interact with the general public. Other than dealings
with fellow employees of E & L or its sister company, drivers
come into contact with employees of its shippers at certain railsite
and manufacturing locations while loading automobiles, and with
certain dealership employees while delivering. Their only contact
with the general public would occur if a customer of a dealer
chose to watch the unloading process at a dealership. Such specu-
lative impromptu voyeurism does not justify infringement of im-
portant Section 7 rights. Moreover, there is no prohibition against
putting insignia on the drivers private hats and personal clothing,
such as personal jackets. Thus, putting on insignia on a bump hat
and uniform would be no more potentially offensive to a dealer’s
customers than would be the allowed practice of wearing of such
insignia on private clothing which may be worn while the driver is
at the dealership.
The record abounds in examples showing that Respondent
sanctions a high degree of individual variation in dress. As noted
above, until the fall of 1996, Respondent allowed drivers to wear
buttons on their uniforms and arguably still does. It certainly has
allowed and still allows drivers to adorn their own hats with para-
phernalia, and to sport their own clothing underneath and over
their uniforms. Thus, the drivers idiosyncratic appearance has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
been sanctioned by Respondent for many years. As far as the
record discloses, Respondent’s toleration of individual differences
in dress has drawn no criticism from customers. In Burger King
Corp. v. NLRB, supra, the Sixth Circuit found that the employer
could prohibit the wearing of union insignia in furtherance of the
image it wished to present to the public. Unlike here, however, the
Burger King employer had consistently enforced its “no button”
rule in a nondiscriminatory manner, and the employees had con-
stant contact with the public. In contrast, E & L has inconsistently
and discriminatorily enforced an ad hoc rule. Moreover, as noted
above, drivers do not communicate directly with the ultimate
consumer or even the general public. The Board has narrowly
interpreted the Sixth Circuit’s Burger King analysis. See Maijer,
Inc., 318 NLRB 50 (1995). In Meijer, the Board stated that “cus-
tomer exposure to union insignia alone is not a special circum-
stance allowing an employer to prohibit display of union insignia
by employees.” Id. (citation omitted). Accordingly the record does
not support Respondent’s assertion that its sudden suppression of
union paraphernalia advances a legitimate need to create a particu-
lar public image.
Respondent submitted some evidence on the issues of safety
concerns and product damage control in support of its contention
that these issues constitute special circumstances justifying the
prohibition against drivers affixing buttons and other parapherna-
lia to their uniforms.16 I found this evidence to be convincing with
respect to the loading and unloading process. Car hauling is a very
difficult job as loading a company truck efficiently and without
causing damage to the vehicles is 90 percent of the job. Only 10
percent of the job concerns driving. E & L must pay claims when
damages are shown to have occurred when E & L delivered the
vehicles. Company drivers work in a confined space in loading
and unloading the vehicles, necessitating the additional precau-
tions provided by the uniform coveralls. No one in the hearing
questioned that E & L has a legitimate goal of eliminating damage
to the vehicles it transports. Driver Ed Reese testified that he had
not heard that the coveralls were designed to augment the Com-
pany’s efforts to reduce damage to automobiles, though it seems
to me that they clearly were so designed.
The coveralls lessen the possibility of damaging vehicles as the
coveralls prevent damage from occurring if drivers rub against
vehicles while loading or unloading. Company-provided coveralls
have cloth covering the main zipper and the pocket zippers. Belts
and pens worn by drivers are underneath and covered by the cov-
eralls, removing any significant concern of possible damage.
While the insulated coveralls have leg zippers, they are located on
the side of the lowest pant leg where the risk of contacting the
vehicles during loading is minimized by the side-walking motion
of the drivers. Cloth coverings are not feasible for the leg zippers
due to the potential safety hazard caused by the flaps potentially
getting caught on the equipment as drivers climb on their trucks.
By requiring coveralls, the possibility of drivers scratching the
vehicles when coming into contact with them during loading is
lessened.
Respondent’s witnesses testified that drivers are not permitted
to wear jewelry, buttons, pins, or noncompany patches on their
coveralls. While in training, drivers are told that nothing is to be
worn on the coveralls.17 Buttons represent a damage risk to the

16 Clearly there are no safety or product damage control issues involved
in the wearing of stickers on bump hats.
17 Reese, however, testified that he had observed drivers with buttons
similar to those worn on shirts affixed to the breast pocket of their coveralls.
vehicles being transported because drivers come into close contact
with the vehicles during loading and unloading. General Counsel
witness Reese admitted the risk that pins worn on uniforms may
contact the vehicles when he conceded that drivers do not wear
the “Safe Driver” award pin on uniforms or coveralls because they
recognize that if they lean up against something, the tie tack would
bend the pin, and drivers usually try to keep their award pin from
being damaged.
As was readily apparent from Respondent’s Exhibit 11, a train-
ing videotape of the loading and unloading process, the process is
a difficult one. Because of the necessary care and precautions,
loading vehicles on the trucks can take more than 2 hours, depend-
ing on the number of vehicles to be loaded. Drivers must maneu-
ver within very confined spaces on the truck platform. After load-
ing a vehicle on the top platform, drivers must slide or shimmy
alongside the vehicles using a narrow 6-inch-wide space to reach
one of the ladders leading down the side of the truck. In addition,
in using chains or hydraulic wheel chocks to secure the vehicles,
drivers are leaning in and reaching all around the vehicles, poten-
tially endangering themselves if something, even a pin, should
snag, causing them to lose concentration, and risking damage if
they are wearing anything on their coveralls that may scratch the
vehicles.
Driver Ed Reese acknowledged that E & L has done as much as
could be done to eliminate vehicle damage from drivers exiting
vehicles and climbing on the truck platform during unloading and
loading. E & L’s damage control program has reduced its damage
experience from 7 percent of vehicles in 1984 to less than 0.5
percent currently.
The uniform program also may promote the safety of the driv-
ers. As shown on the training videotape, driver safety is promoted
by the prohibition against pins and buttons while drivers are en-
gaged in the loading and unloading process, as they pose a safety
hazard for drivers during the process due to possible snagging
when sliding and climbing on the trucks.
The General Counsel offered evidence that in some respects
undermines Respondent’s argument that safety and damage con-
trol concerns justify special circumstances justifying its involved
prohibitions against the wearing of union paraphernalia on its
uniforms. On the matter of safety, the drivers who testified in this
proceeding are veteran drivers who share Respondent’s interest in
promoting safety and reducing product damage. They evidently
see no danger to themselves or the Company by wearing buttons
or decals. Joe Renedo, the current steward, testified that he has
never heard of damage caused by a button. Dunsmore, who also
served as steward for a considerable time, stated that he was un-
aware of any discipline for product damage resulting from buttons
or pins on uniforms. There is no evidence of anyone receiving an
injury caused even in part by the wearing of buttons or pins on
uniforms. Likewise, there is no evidence of any product damage
resulting from drivers wearing such paraphernalia.
During the hearing, Respondent tried repeatedly to have drivers
testify that the uniform, and especially the coveralls, were intro-
duced to foster safety and enhance damage control. However,
each time a driver was asked to speculate, he answered that the
coveralls are required to prevent the shirts and trousers from get-
ting dirty. Plainly, Respondent never informed its drivers of its
“safety” or “damage control” rationales.
Respondent’s safety argument is further undercut by various of
its practices. The drivers use metal chains and metal tiedown bars
to fasten the cars onto the truck. Further they use the height stick,
made of aluminum vertically and PVC plastic horizontally, by
E & L TRANSPORT CO. 649
which drivers measure the height of the truck so that it is able to
clear overpasses on the highway. The driver moves the height
stick along the truck from front to rear, in some instances touching
the cars which are loaded on the top of the truck. In measuring the
height of the truck, the drivers are careful not to drag it across the
tops of the cars as it might scratch them. Although Respondent
could coat the height stick and metal tie down bars with a material
that would eliminate the potential to scratch the new cars, it has
not done so.
Additionally, Respondent allows drivers to wear their own belt
buckles, eyeglasses, jewelry, boots with metal buckles, and other
garments with exposed metal elements. For example, during the
cold months, Dunsmore continually wore a leather jacket while
loading, driving, and unloading, as a result of Respondent’s failure
to supply him with new winter weight coveralls. This jacket has
metal exposed buttons and metal rivets. I would find this evidence
more compelling except that Dunsmore seems to be the exception
rather than the rule. No other witness presented by the General
Counsel was without the coverall element of their uniforms.
On the question of special circumstances, I believe that Re-
spondent came up with this defense as part of its effort to disguise
its obvious discrimination against Dunsmore. Though it has failed
to demonstrate such special circumstances in a general sense, it
has convinced me that such circumstances exist during the loading
and unloading process. The videotape in evidence strongly sup-
ports this view. Even if Respondent was forced to look at the mat-
ter of buttons and pins being worn on uniforms during the loading
and unloading process for the first time as a result of this case, it
still has offered logical and rational concerns about the wearing
such items when the drivers are in very close contact with new
cars during the loading and unloading process. Given the fact that
the drivers will still be able to affix stickers to their bump hats,
their union message will still be visible at all times. Given this
fact, I believe that balancing Respondent’s legitimate concern
about damage to the cars it transports against its employees Sec-
tion 7 rights, Respondent should have the right to ban the wearing
of pins, buttons or other paraphernalia which could scratch cars
during the loading and unloading process. I find that Respondent
has not shown any special circumstances which justify its sudden
enforcement of a general prohibition against wearing union insig-
nia on uniforms and hats.
I find that the most telling proof of Respondent’s lack of bona
fide special circumstances for such a general prohibition is the
timing of Respondent’s interference with employee’s protected
expressions. As noted Respondent tolerated wearing of insignia on
uniforms for years and on bump hats for about 10 months follow-
ing the issuance of the requirement that they be worn. It initiated
action first against Dunsmore, and then broadened the scrutiny to
Reese and others, soon after the posting period in Dunsmore’s
NLRB complaint case elapsed and Dunsmore filed his first elec-
tion protest. The pretext for focusing upon Dunsmore was his
display of Hoffa signs in two windows of the cab of his truck. The
evidence reveals that for years drivers have affixed stickers and
other noncompany material to their trucks. When noticed by man-
agement, these items were removed without any discipline being
administered and as far as the record reveals, without further
comment by management to the involved driver. Based on the
evidence of record, Dunsmore was the first driver ever to be disci-
plined for placing noncompany material on a company truck.
Moreover, campaign stickers littered Respondent’s facility and no
disciplinary action was taken for this activity. Whether
Dunsmore’s action in placing the “Hoffa 96” signs in the windows
of his company truck was protected by Section 7 of the Act is
problematic, yet I do not believe it important whether this act was
protected or not for the purpose of deciding whether Respondent’s
response was unlawful.18 Certainly the filing of the charge with
the Board, which led to a complaint against Respondent, and his
filing of an election protest were protected activities. Because of
the timing of the action against him, immediately after the posting
period of the NLRB case and the filing of his first election protest,
and because of vastly disparate way Respondent responded to the
placing of noncompany material on his truck, I find that its prof-
fered reason for its increased scrutiny of Dunsmore, its threat of
discipline and its actual issuance of discipline is merely pretextual
and its true motivation was retaliation for the filing of the board
charge and the election protest. Respondent has offered no reason
why Dunsmore’s action was any more egregious and deserving of
discipline than the numerous examples of similar activity by driv-
ers noted by Respondent’s own witness, Maintenance Supervisor
Robert Braden.
Further proof of Respondent’s unlawful motivation is found in
the contemporaneous characterization of Dunsmore as the “trou-
blemaker,” by the very person who disciplined him, Terminal
Manager Clemens. I find that Respondent disciplined Dunsmore
in retaliation for filing the Board charge and the election protest
and thus its actions in this regard are in violation of Section
8(a)(1), (3), and (4) of the Act. I further find, that absent any
showing whatsoever for a rationale business justification for sud-
denly enforcing a prohibition against the wearing of union para-
phernalia on uniforms and hats, that it was likewise motivated by
Respondent’s desire to retaliate against Dunsmore and represents
an attempt to lend an air of legitimacy and impartiality to its re-
taliation against Dunsmore. No safety problem, no customer com-
plaints nor damages to vehicles caused by the wearing of union
insignia on uniforms and hats was shown to have occurred in the

18 Though such a finding is not necessary for purposes ruling on the law-
fulness of Respondent’s actions with respect to Dunsmore, it may be neces-
sary to rule on complaint allegation, par. 11,b,l, wherein it alleged that Re-
spondent violated the Act by advising Dunsmore that internal union cam-
paign signs were prohibited in or on Respondent’s trucks. The credible
evidence reveals that Respondent has consistently prohibited the display on
any noncompany provided material on its trucks. It has caused the removal
of such material as soon as it has been discovered. Thus there was no dispa-
rate treatment involved in requiring the “Hoffa ‘96” signs to be removed. I
do not believe that the Sec. 7 right of an employee to wear on his person
union insignia extends to allowing employees to festoon a trucking com-
pany’s over the road trucks with internal campaign material clearly visible
to the general public. I believe Respondent has a legitimate interest in not
appearing to take sides in the union election nor allow its trucks to be rolling
billboards for one camp or the other. Accordingly, I do not find that the act
of placing the “Hoffa ‘96” signs in the windows of his truck by Dunsmore
was protected by the Act. I find the case cited by General Counsel in support
of its contention that Dunsmore’s action in this regard was protected to be
distinguishable. In that case, Yenkin-Majestic Paint Co., 321 NLRB 387
(1996), the Board found unlawful discipline issued to an active union sup-
porter and employee for displaying a prounion placard on his forklift. The
Board did not make a hard finding of whether this activity by itself was
protected, noting that the discipline for this alleged infraction was just one
event in a long line of discrimination against the employee by Respondent
for his union support. Board Member Cohen did not “pass” on this conten-
tion, noting that he does not necessarily subscribe to the notion that the
placing of a placard on a forklift is the same as the wearing of a small insig-
nia. Moreover, placing a prounion placard on a warehouse forklift during an
organizing campaign is a long way from placing internal union campaign
material in an over-the-road truck.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
fall of 1996.19 No problems of discord among employees by their
support for Carey or Hoffa was shown to have surfaced in this
timeframe. In short, nothing out of the ordinary happened to trig-
ger the change in the status quo, other than Dunsmore’s protected
activity. I therefore find the instances of enforcement of the prohi-
bition as set out in the compliant to be unlawfully motivated and
violative of Section 8(a)(1) of the Act. I accordingly find that the
discipline issued to employee Ed Reese on September to be
unlawfully motivated and in violation of Section 8(a)(1) and (3) of
the Act.
CONCLUSIONS OF LAW
1. Respondent E & L Transport Company, L.L.C., is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Respondent has engaged in conduct in violation of Sec-
tion 8(a)(1) of the Act by:
(a) About September 17, at its Wixom facility, by its agent Jim
Donlin, subjecting its driver employee Donald Dunsmore to ex-
cessive scrutiny by conducting a search of his company truck for
internal union campaign literature, including using a camera to
take pictures.
(b) About September 18, by its agent Lawrence F. Murray sub-
jecting Dunsmore to excessive scrutiny by conducting a search of
his truck for internal union campaign literature and/or campaign
signs and impliedly threatening Dunsmore with termination be-
cause of internal union campaign literature found in his company
truck.
(c) About September 20, by its agent Lawrence Murray in a
phone call to its agent Chris Trimble, orally announcing to em-
ployees that its rule prohibited employees from placing stickers
and/or signs on bump hats.
(d) About September 20, by its agents Lawrence Murray, Chris
Trimble, and Gerald Clemens, threatening employees with termi-
nation because of their failure to remove employee stickers and/or
signs from bump hats.
(e) About October 16, by its agent, Mike Ervin, stating he was
present to harass Dunsmore and ordering him to remove internal
union campaign stickers from his safety hat.
(f) About October 16, by its agent, Chris Trimble, ordering
Dunsmore, under threat of reprimand and discharge, to remove
internal union campaign stickers from his bump hat.
(g) About October 16, by its agent, Ron Kilmer, ordering
Dunsmore to remove stickers from his bump hat.
(h) About the end of October, by its agents, Ted Marcott and
Sean McCarty, on separate occasions, ordering its employees to
remove stickers and/or signs from bump hats.

19 Respondent has asserted some concern that if the wearing of union in-
signia on uniforms and hats is found lawful, then its drivers will become
walking billboards. Though the problem has never occurred in the years
when it tolerated such activity, if it does, then Respondent has a ready rem-
edy in its collective-bargaining agreement which requires that the drivers
maintain a “reasonably neat appearance.”
(i) About the first week of November, by its agents, Mike Ervin
and Ted Marcott, ordering employees to remove stickers from
their bump hats.
(j) About October 25, by its agent Chris Trimble, orally and
disparately promulgating an overly broad rule prohibiting em-
ployees from wearing internal union campaign buttons on their
uniforms and ordering Dunsmore to remove a button from his
uniform.
(k) About late October, by its agent, William Erb, orally and
disparately promulgating an overly broad rule prohibiting em-
ployees from wearing internal union campaign buttons on their
uniforms.
(l) About October 29, by its agent, Gerald Clemens, referring to
Dunsmore as “the troublemaker.”
4. Respondent has engaged in conduct in violation of Section
8(a)(1) and (3) of the Act, by, about September 23, issuing a writ-
ten reprimand to employee/alternate Union Steward Ed Reese for
failing to remove stickers from his bump hat.
5. Respondent has engaged in conduct in violation of Section
8(a)(1), (3), and (4) of the Act by, about September 23, by its
agents, Chris Trimble and Gerald Clemens, issuing Dunsmore a
written reprimand for having internal union signs in his truck.
6. The unfair labor practices committed by Respondent are un-
fair labor practices within the meaning of Section 2(6) and (7) of
the Act.
7. The Respondent did not violate the Act by advising Donald
Dunsmore that internal union campaign signs were prohibited in
or on Respondent’s trucks.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having unlawfully issued written warnings to Ed Reese and
Donald Dunsmore, Respondent should be ordered to, within 14
days from the date of the Order, rescind such warnings and re-
move from its files any reference to the unlawful warnings, and
within 3 days thereafter notify the employees in writing that this
has been done and the warnings will not be used against them in
any way.20
Having, on or about September 15, 1996, and continuing there-
after, discriminatorily departed from the status quo by enforcing
its rules prohibiting the wearing of buttons and pins on uniforms
and stickers on bump hats, Respondent should be ordered to return
to the status quo existing before September 15, 1996. It should
further be ordered to rescind the rule prohibiting the wearing of
stickers on bump hats and the wearing of buttons and pins on
uniforms, except when a driver is engaged in loading and unload-
ing a company truck.
[Recommended Order omitted from publication.]
20 The warnings do not indicate that either employee suffered any mone-
tary loss so there will be no award of backpay.