Floridan Hotel of Tampa, Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1961

130 N.L.R.B. 1105 (N.L.R.B. 1961)

FLORIDAN HOTEL OF TAMPA, INC. 1 105
CONCLUSIONS OF LAW
1. International Chemical Workers Union , Local 16, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
'2. By discriminatorily discharging employee Till on April 29, 1959 , to discourage
membership in and activity on behalf of the above -named labor organization, and
thereby interfering with , restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Floridan Hotel of Tampa, Inc. and Hotel & Restaurant Em-
ployees and Bartenders Union , Local No. 104, affiliated with
Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO. - Case No. 10-CA-1414. March 2, 1961
DECISION AND ORDER
On August 30, 1960, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Fanning and
Kimball].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, to the extent consistent with our Decision
herein.
We agree with the Trial Examiner, for the reasons set forth here-
inafter, that the Respondent violated Section 8(a) (1) of the Act.
Shortly before April 1, 1960, the incumbent certified union, the
Charging Party herein, distributed stewards' and members' union
buttons to be worn by all stewards and members. On or about April
3, 1960, the Employer issued a bulletin promulgating "a rule that no
badges of any kind will be worn by any employee so that they may be
seen by any customer or guest.", The reason stated in the bulletin for
130 NLRB No. 110.
597254-61-vol. 130-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the issuance of the rule was that the Employer did "not feel that it
lends to the dignity of our Hotel for employees to openly display
badges of any sort, whether it be a union badge, lodge, or what have
you." The bulletin was posted on all bulletin boards and handed to,
many employees in the kitchen, linenroom, engineroom, and service
department, as well as to employees in the public dining room and
lounge and bar. The Respondent enforced this rule against the wear-
ing of these buttons with threats to employees either of discharge or
of having to "suffer the consequences" for any violations thereof.
Such threats were made not only to employees having contact with
the public, but also to categories of employees having no contact with
the public, such as glass washer and cook in the kitchen, engineer in
the engineroom, trashman, and freight elevator operator.
Like the Trial Examiner, we find that the rule was broader than
Respondent's claimed or stated purpose in that it prohibited all em-
ployees from wearing union buttons or insignia while at work in the
Respondent's hotel, regardless of their contact with customers or
guests. The rule was thus applicable in instances which lacked the
special circumstances claimed by the Respondent as making the rule
necessary.' We, therefore, find in agreement with the Trial Examiner
that the promulgation of this broad rule and the implementation
thereof with threats of discharge or of other penalty interfered with,,
restrained, and coerced the employees in the exercise of their rights
under Section 7 of the Act and thus violated Section 8 (a) (1) of the
Act .2 We need not consider, however, whether a different rule which
would cover only those employees who are in continuous and daily
contact with the public would also be violative of Section 8(a) (1) of
the Act. Contrary to our dissenting colleague, our order herein is
designed solely to prohibit the Employer's use of a broad rule pro-
hibiting all employees, whether or not in contact with the public,,
from wearing union buttons.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c);
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Floridan Hotel
of Tampa, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Promulgating and maintaining a rule prohibiting its employ-
ees from wearing union buttons or insignia, threatening to discharge
or otherwise discipline employees for violations thereof, thereby inter
1 Kimble Class Company, 113 NLRB 577.
2Spielman Motor Sales, Inc., 127 NLRB 322. We do not adopt the unsupported iinding-
of the Trial Examiner that the rule was issued in an attempt to dissipate the Union's
majority. It appears that it was intended, rather, to prevent the Union from gaining:
additional members. In any event, its effect was as indicated in our Decision herein.
FLORIDAN HOTEL OF TAMPA, INC. 1107
fering with, restraining, or coercing its employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the .right to self-organiza-
tion, to form labor organizations, to join or assist Hotel & Restaurant
Employees and Bartenders Union, Local No. 104, affiliated with Hotel
& Restaurant Employees and Bartenders International Union, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purposes of collective bargaining or other mu-
tual aid or protection as guaranteed in Section 7 of the Act, and to re-
frain from any any all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its hotel at Tampa, Florida, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being duly signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith 4
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
* Member Kimball disagrees with the breadth of the Order entered herein as he would
find not violative of the Act that portion of the Respondent 's rule which forbids the
wearing of union buttons by employees who are in continuous and daily contact with the
public. As the Board expressly disavowed and did not pass upon the question of whether
a rule applicable to the wearing of union buttons by employees who are in continuous
and daily contact with the public would be violative of the Act, the Order as presently
phrased is too broad. It would encompass a rule applicable to such employees and as it
thus goes beyond the scope of the findings and decision in this case , it exceeds the
Board's statutory authority in the premises.
APPENDIX
NOTICE To ALL EazrLorEEs
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT promulgate and maintain a rule prohibiting our
employees from wearing union buttons or insignia, threatening
to discharge or otherwise discipline our employees for violations
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, thereby discouraging membership in Hotel & Restaurant
Employees and Bartenders Union, Local No. 104, affiliated with
Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Hotel
& Restaurant Employees and Bartenders Union, Local No. 104,
affiliated with Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection
or to refrain from any and all such activities.
FLORIDAN HOTEL OF TAMPA, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Hotel & Restaurant Employees and Bartenders Union,
Local No. 104, affiliated with Hotel & Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO, herein called the Union , against Floridan Hotel of
Tampa, Inc., herein called the Respondent the General Counsel of the National
Labor Relations Board caused a complaint to issue on May 18, 1960, alleging that
the Respondent had violated Section 8(a)(1) of the National Labor Relations Act,
as amended ( 61 Stat . 136). In its answer , Respondent denied the commission of
any unfair labor practices , moved to dismiss the complaint , and upon being over-
ruled stood on its affirmative defenses.
Pursuant to notice , a hearing was held before the duly designated Trial Examiner
in Tampa, Florida, on July 5 , 1960. The General Counsel and Respondent were
represented by counsel and the Union was represented by an International repre-
sentative . The parties were afforded full opportunity to be heard , to introduce
evidence , to present oral argument , and to file briefs . Counsel for the General
Counsel and for Respondent argued orally at the conclusion of the hearing and
thereafter filed briefs on the stipulated and controverted facts.
Upon a consideration of the entire record and the "Memorandum of Authorities,"
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Florida corporation maintaining its hotel business at 905 Florida
Avenue, Tampa, Florida. Respondent admits, and I find, that Respondent is en-
gaged in commerce within the meaning of the Act.
Respondent is engaged in the operation of a 345-room, 19-story hotel in Tampa,
Florida, which operation includes a tap room, a dining room, cocktail lounge, and
banquet and party facilities. Approximately 50 percent of the guests of Respond-
ent's hotel come from outside of the State of Florida, and remain in the hotel for a
period of less than 1 month. Respondent's gross annual revenues during the year
1958 amounted to more than $930,000, of which $540,000 was received from the
rental of rooms, $187 ,000 was received from food sales , and $209,000 was received
from the sale of beverages.
I
FLORIDAN HOTEL OF TAMPA, INC. 1109
H. THE LABOR ORGANIZATION INVOLVED
Hotel & Restaurant . Employees and Bartenders Union , Local No. 104, affiliated
with Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO,
was certified by the National Labor Relations Board on October 19, 1959, as the
exclusive bargaining representative for Respondent 's employees in an appropriate
unit , and is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Stipulated Facts
It was stipulated and agreed by counsel for General Counsel and counsel for Re-
spondent as follows:
At all times material herein approximately 130 employees were in the employ of
Respondent in the appropriate unit for which the Union had been certified. Of that
130, approximately 110 employees are members of the Union and 20 employees are
not. At sometime shortly prior to April 1, 1960, the Union distributed to its mem-
bers union pins to be worn by them. One union pin was distributed for wearing by
the employees generally, and another pin was distributed to those employees who
were union stewards.
On or about April 1, 1960, Respondent promulgated a rule and issued a bulletin
incorporating such rule, which bulletin has been received in evidence as General
Counsel's Exhibit No. 2, and this bulletin was posted throughout the hotel wherever
there are bulletin boards, and was delivered by hand to many of Respondent's em-
ployees, including employees in the Crystal Room, the Sapphire Room, the kitchen,
the linenroom, the engineroom, and the service department.
Following the posting of the bulletin, General Counsel's Exhibit No. 2, Respond-
ent orally -advised employees of the promulgation of the rule and of its enforcement,
as follows:
(a) On or about April 2 and 6, 1960, Peter Anderson, headwaiter, told Renee
Smith, cocktail waitress, to remove her union pin or suffer the consequences.
(b) On or about April 2, 1960, Peter Anderson told Manuel Alvarez, glass wash-
er, to stop wearing his union pin or suffer the consequences.
(c) On or about April 5, 1960, Stanley Wade, assistant manager of the hotel,
told Renee Smith, Bartender Albert Tracy, and Alva Kennedy, cashier, Sapphire
Room, to take off their union pins or suffer the consequences.
(d) On or about April 2, 1960, Virgil D. Smith, president of Respondent, told
Ruth Gunn, hostess in the Crystal Dining Room, to tell the employees to take off
their union pins, and if they reported to work with them on they would be fired.
(e) On or about April 2, 1960, Hostess Ruth Gunn told Fern White, waitress, to
take off the union pin, as management did not like the employees wearing it.
(f) On or about April 4, 1960, Ruth Gunn told Fern White and other waitresses
not to wear their union pins, because Virgil D. Smith had said they would be fired if
they continued wearing their pins. During the above conversation it was pointed
out to Hostess Ruth Gunn that the waitresses were wearing their pins underneath
the lapels of their uniforms, and that the pins could not be seen by guests. Hostess
Gunn told the employees to remove the pins despite -their inconspicuousness.
Prior to this incident and subsequent thereto, several of the waitresses in. the
Crystal Dining Room openly displayed their union pins upon their uniforms.
(g) On or about April 9, 1960, several of the waitresses reported to work wear-
ing their union pins, and Hostess Gunn took down their names and told them not
to wear their union pins or suffer the consequences . Several waitresses attempted
to explain the wearing of the pins, and called over Jean Valdez, a fellow waitress,
to explain the situation to Hostess Gunn. At this time J. B. Pickard, manager of
the Hotel, joined the discussion, and told the waitresses the management would not
allow them to wear union pins, and if they continued to do so they would have to
suffer the consequences.
(h) On or about April 5, 1960, Chef Ed Mortem explained to the kitchen per-
sonnel the rule against the wearing of union pins.
(i) On or about April 8, 1960, Stanley Wade, assistant manager of Respondent,
went into the kitchen and told Cook Sam Smith that he would hold Smith person-
ally responsible for anyone wearing union ,pins the following day, and that if any-
one wore union pins in the future in the kitchen they would have to suffer the
consequences.
(j) On or about April 7, 1960, Housekeeper Howard Brown called a meeting of
all employees under his supervision , including maids and a trashman, and told them
not to continue wearing union pins , and if they did they would be fired.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(k) On or about April 2, 1960, Raymond Murgado, superintendent of services,
called a meeting of the employees under his supervision and told them to take off
their union pins, and if they continued wearing their pins they would suffer the
consequences.
(1) On or about April 5, 1960, Stanley Wade, assistant manager of Respondent,
told Elpidio Hajaistrom, bell captain, not to wear his union pin any longer, and if he
continued to wear it he would suffer the consequences.
(m) On or about April 5, 1960, Stanley Wade went into the engineroorn and told
Engineer Ervin Kuhn that yesterday was the last day any of the employees could
wear union pins, and further that if he did not take his off he would have to suffer
the consequences.
Respondent, as one of the operations in its hotel, has a public dining room called
the Crystal Dining Room, and a lounge and bar called the Sapphire Room. Among
the employees employed in the Crystal Dining Room and the Sapphire Room are
waitresses, cashiers, and bartenders, who have frequent and daily contact with the
guests and customers of Respondent. Among these are waitresses Renee Smith,
Fern White, and Jean Valdez and Bartender Albert Tracy.
The Respondent does not furnish the waitresses with their uniforms, but prescribes
its form as per its agreement with the Union, namely, a'standard hotel uniform of
white nylon. As to the bartenders, the Respondent furnishes their jackets.
Respondent also maintains a kitchen, in which are employed cooks, dishwashers,
and glass washers. Among those employed in the kitchen are Manuel Alvarez, a
glass washer, and Cook Sam Smith. Neither Sam Smith nor Manuel Alvarez, nor any
employees in the kitchen, have any contact with the public in the performance of
their duties. Respondent furnishes the cooks with an apron and the glass washers
with a jacket.
The Respondent also has a department which is known as its services department,
which includes its maids, a trashman, an engineer, and a freight elevator operator.
Respondent furnishes the maids with standard maid uniforms. The maids perform
the duties usually performed by maids in hotels, and have limited contact with the
public. The trashman has no contact with the public. Engineer Ervin Kuhn and
Freight Elevator Operator Anthony Courzis, for whom Respondent does not furnish
the uniforms, have no contact with the public.
In the operation of its hotel, Respondent also employs bellboys, doormen, and
front elevator operators. These individuals perform the duties usually performed
by employees with such classifications. Respondent furnishes employees in these
classifications with standard uniforms , and these employees have frequent and daily
contact with the public.
In concluding his opening statement and instructions at the trial, the Trial Exam-
iner stated that any party would be entitled upon request made before the close of
the case to file a brief or proposed findings and conclusions, or both, to the Trial
Examiner. Counsel for each party availed himself of this opportunity to submit
legal conclusions and argument on the novel situation presented by the stipulated
facts . Because of the importance and interest of the legal propositions involved
therein, the Trial Examiner is setting forth, verbatim, portions of such arguments
and conclusions of counsel.
The entire issue of this case centers on a work rule issued by Respondent on
April 1, 1960, which is quoted as follows:
BULLETIN
A number of guests have called to the attention of the Management that many
employees are wearing union badges during working hours and on uniforms.
We do not feel that it lends to the dignity of our Hotel for employees to
openly display badges of any sort, whether it be a union badge, lodge, or
what have you.
Therefore, there is hereby established a rule that no badges of any kind will
be worn by any employee so that they may be seen by any customer or guest.
Management
HOTEL FLORIDAN
The General Counsel and union counsel state the issue as being whether establish-
ment by a hotel of a rule prohibiting employees from wearing union insignia, and
enforcement of said rule by supervisors and agents of said hotel through threads of
discharge for the continued wearing of such insignia, violates Section 8(a)(1) and.
(7) of the Act. Respondent counsel presents the question for determination as
being whether it is lawful for a hotel to promulgate in the interest of its business
FLORIDAN HOTEL OF TAMPA, INC. 1111
relations with its customers and guests a rule prohibiting its employees from wearing
badges of any kind (union buttons in the present case (where such badges are dis-
played so that they may be seen by any customer or guest at the hotel.
The General Counsel argued, and the Trial Examiner agrees:
The right of employees to wear union insignia at work has long been established
and recognized as a reasonable and legitimate form of union activity,' and the rule
has been followed through the years until the present? Interference with such ac-
tivity is "presumptively invalid, in the absence of special circumstances" which makes
such interference "necessary in order to maintain production and discipline." 3 An
employer cannot restrict the wearing of passive inoffensive advertising insignia which
do not interfere with discipline or efficient production .4
In dealing with this right, the Board has considered the problem, where, in the
main, the employees were employed in factories, shops, or other similar places where
little or no contact with the public was involved .5 It is noted, however, that in W.
T. Grant Company,6 the Board held that wearing of union buttons by two girls
employed in the store constituted a protected activity and that the company violated
Section 8 (a)( I) simply because of interrogation of the two employees about their
wearing of the union pins. While it is true that the question of the rights of em-
ployees who deal with the public to wear union insignia was not raised by the Board,
inasmuch as the employees there dealt with the public, there can be no distinction
between this case and the situation at hand.
This right of employees to wear union insignia at work is not an unqualified right,
however. In discussing this right the Board has spoken of special circumstances
which permit an employer to request removal of union badges? In defining these
circumstances , the Board has spoken in terms of "incendiary atmosphere" and "pre-
venting violence." 8 Although stating there would be circumstances wherein an
order prohibiting the display of union insignia would be justified, the Board has
further qualified that statement saying such a prohibition must still be only on a
temporary basis .9
In the instant case, there existed no such special circumstances as defined by the
Board . Although the Union was engaged in an organizational campaign to increase
its membership in the bargaining unit to 100 percent, as testified to by the business
agent of said Union, no heated campaign tactics were being utilized, no union rivalry
existed, the atmosphere was placid, and violence was unthought of. No special cir-
cumstances existed to permit prohibition of the display of union badges.
Respondent contends the wearing of union pins by union members at its hotel
detracts from the dignity of the hotel and is offensive to many of its guests;
it contends the rule was applicable to only that segment of the union employees
who have contact with the public; and it contends that it should be allowed an
exception to the stated law governing the rights of employees to wear union pins
as a legitimate form of union activity. This is not the case. The rule was issued
in an attempt to dissipate the Union's majority within the bargaining unit. The
rule was circulated throughout the entire hotel and made applicable to all em-
ployees. Respondent has even stipulated to threatening statements made by its
supervisors and-agents to not only those employees who have contact with guests,
but also to those employees who have little or no contact with the public. Not
only were the waitresses and bellboys threatened with discharge or intimated dire
circumstances, but the glass washer, cooks, and other kitchen personnel, engineers,
trashman, and freight elevator operator were also threatened and they have no
contact with the patrons. The maids also were not excluded from the applica-
bility of this rule, for the rule was posted on their bulletin board and they, too,
were threatened with discharge. Respondent, since issuance of its rule, has not
I Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 802.
2 Spielman Motor Sales, Inc., 127 NLRB 322.
3 Boeing Airplane Company, 103 NLRB 1025, 1026.
Caterpillar Tractor Company, a Corporation v. N.L.R.B., 230 F. 2d 357 (C.A. 7).
5 Spielman Motor Sales, Inc., supra; G & S Manufacturing, Inc., 123 NLRB 1602;
United Butchers Abattoir, Inc., 123 NLRB 946; Murphy Diesel Company, 120 NLRB 917.
694 NLRB 1133, enfd. 199 F. 2d 711 (C.A. 9).
4 Nebraska Bag Company, 122 NLRB 654 ; Commercial Controls Corporation v. N.L.R.B.,
258 F. 2d 102 (C.A. 2) ; Kimble Glass Company, 113 NLRB 577; Boeing Airplane Com-
pany v. N.L.R.B., 217 F. 2d 369 (C.A. 9).
s Boeing Airplane Co. v. N.L.R.B., supra.
9 Ibid.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revoked the rule's applicability, but instead, has left its impact to remain as issued.
The design of the pins is far from being offensive and appears to be in good
taste. The pins carry no message other than identifying data on their faces and
are so small that only the more astute observer would take note of them. In re-
gard to the possibility that the pins are offensive to the guests of the hotel, ap-
parently one of the greater concerns of the hotel, Respondent appears to have
acted too hastily in attempting to assure that no insult to its patrons resulted in
the display of such an innocuous pin. It apparently issued its rule upon the repre-
sentation of one patron. Certainly this one man, who allegedly was rebuffed by
the appearance of the pins, does not represent a true crosssection of the opinion
of the hotel guests.
Respondent goes further, however, and says that because of the decisions handed
down in the nonsolicitation rule cases, it, too, should be allowed to bridge the
rights of its employees with regard to the wearing of union pins. The General
Counsel submits first that the nonsolicitation rules are not applicable to the situa-
tion existing in this case, and that a broadening of the scope of those cases would
subvert the intent and purpose of the Act. Secondly, General Counsel submits
that the law is well settled as to the rights of employees to wear union insignia
at their place of work and to deny these employees the right to wear union insignia
at work would be a denial of rights contrary to the Acts and decisions of the
Board and courts interpreting said Act. The rights of the employees of this hotel
are no less than the rights of other employees who have had their rights not only
defined by the Board, but also protected through the years by both the Board
and courts.
. Beyond the real purpose of the issuance of the rule by the hotel, which was to
interfere with the rights of its employees and eradicate union representation at the
hotel, the mere issuance and enforcement thereof had the unavoidable result of
deterring employees from the exercise of their rights as guaranteed them by the
Act.
Union Counsel Garrett wrote an exhaustive brief for the Trial Examiner in which
he cited numerous Board and court cases supporting the General Counsel's and
complaint Union's concept of the law applicable to the stipulated facts of this case.
Because it covers the same area although more intensively , and because of lack
of space in this report, the Trial Examiner will not set it forth, but will make it a
part of this report by reference.
In his comprehensive brief to the Trial Examiner, Respondent Counsel Frank
argued:
Respondent is a rather large hotel located in the heart of downtown Tampa,
Florida, and among other things, maintains therein a public dining room,
known as the Crystal Dining Room , and a lounge and bar known as the
Sapphire Room. In these operations Respondent employs waitresses, cashiers
and bartenders who have frequent and daily contact with Respondent's guests
and customers . In addition , in its operations as a hotel Respondent employs
bellboys, doormen and elevator operators who perform the duties usually
performed and known to be performed by such employees in such classifica-
tions. All of these employees have frequent and daily contact with the public:
In addition Respondent employs maids who perform duties usually performed
by maids in hotels, that is, in cleaning of the rooms and halls, making up
of the beds and the like. The maids have a limited contact with the public.
Respondent also employs in its operations other employees classified as engi-
neers, cooks , dishwashers, etc.
Respondent furnishes uniforms to the bellboys, doormen , elevator operators
and maids. The bartenders are furnished with jackets. Although waitresses
are not furnished with uniforms the hotel prescribes their uniforms which
are "standard hotel uniforms of white nylon." The cooks are furnished with
their aprons and other kitchen help furnished jackets. On February 2, 1960,
Respondent entered into a collective-bargaining agreement with the Union
in question , which had been certified as the bargaining representative of
Respondent's employees. In the bargaining unit there are approximately 130
employees of which approximately 110 are members of the union. Prior to
the signing of the union contract the union issued approximately 10 to 20
pins to the employees ; however, a major portion of the union pins were issued
to the employees after the contract was signed and it was on or about April 1,
1960 , that Respondent promulgated the rule in question, prohibiting the wear-
ing of badges or pins of any kind so they may be seen by Respondent's
FLORIDAN HOTEL OF TAMPA, INC. 1113
guests or customers. Although the intent of the rule we feel is made clear by
the rule itself, Respondent submitted the testimony of its President to show
clearly the purpose of the issuance of the rule.
The President testified that the hotel management did not feel that the wear-
ing of badges added to the dignity of the hotel and that it was not fitting to
have such a thing, where the employees are in contact with the public, that
might antagonize any portion of the hotel's customers. Respondent does a
substantial amount of business, with officials from large firms and manufacturing
companies and prior to the issuance of the rule one business man called the
wearing of the union pins to the attention of the President. The intent of
the rule was to limit the wearing of the pins in public areas or in any manner
so as to possibly annoy the guests of the hotel and the rule was not issued
with any intent to discourage union activity in the hotel. After the rule
was issued Respondent, through its supervisory personnel, on several occasions
warned employees displaying union pins that if they continued to do so they
would be subject to disciplinary action for violating the rule.
The above are the simple and undisputed facts of the case. The question
presented is novel and to the writer's knowledge, has never been decided by
the Board or the Courts. We recognize that there is a line of authorities,
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, being the main
decision, which holds that the employees' rights guaranteed by the Act have
been violated where the Company prohibits the wearing of union insignia;
however, it is our position that these authorities are not controlling in this
case . Furthermore, the Supreme Court in the Republic Aviation case, supra,
did not hold that in every instance a rule prohibiting the wearing of union
insignia would be unlawful. The Court made the statement that they did
not find any exceptional circumstances there which would give the employer
the right to issue such a rule.
We submit the facts and circumstances of the present case are exceptional
and such that would make a rule of the kind in question reasonable. It is
quite obvious that by the very nature of hotel operations the hotel employees
are daily coming in contact with the public, consisting of businessmen and
others in all walks of life, many of whom share mixed feelings concerning
unionism. It is therefore only reasonable for the hotel to adopt a rule pro-
hibiting the displaying of union badges in order that these guests might not be
offended. This case might be viewed in a different light had the rule been issued
at a time when union organizational activities were at their peak. Even under
such circumstances we would submit that the rule would be reasonable; how-
ever, be that as it may, at the time the rule in the present case was placed into
effect almost all of the employees were members of the union and union organi-
zational activity had ceased since an election had already been conducted and
the Union and the Respondent had entered into a collective-bargaining agree-
ment. Also, the case might have a different result had the Respondent issued a
rule with the intent of discouraging union activity but the record discloses no
such evidence. To the contrary the undisputed evidence is the rule was issued
without any, intent to discourage union activity.
We feel that this case is deserving of a principle of law analogous to that
set forth in the case of Marshall Field & Co. v. N.L.R.B. 200 F. 2d 375 (C.A. 7),
wherein a special exception was made in the case of retail stores. It was
held that retail selling employees may be forbidden to engage in union activity
in a store's public areas during both their working and nonworking time. This
ban was extended not only to the selling floors but to areas to include elevators,
escalators, stairs, corridors, and public restaurants. Tn the Marshal Field case,
supra, the Board, as we assume General Counsel will here, relied heavily upon
the Republic Aviation case, supra. The Court states:
Granted that inconvenience to employer for some dislocation of property
rights may, under some circumstances, be necessary to safeguard the right
to collective bargaining, we do not think such circumstances exist in the
case at bar.
The only difference we can see between the Marshall Field case, supra, and
the present one is that in the former case the rule which was held lawful was
enforced during organizational activity and in the present case such activity
had virtually ceased. This to us is even stronger reasoning for upholding the
rule. As we view the matter it is a question of balancing all the equities and
reasons of the parties involved. Here, on the one hand we have the hotel's
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business to think of and the probability that the wearing of union insignia would
offend the hotel 's guests . On the other hand the Union had been certified, the
collective bargaining contract had been consummated with almost all of the
employees being members of the union , and therefore no such need to engage
in campaign activities.
If this involved a mining camp , steel mill ,. factory , or other work shop,
the wearing of union badges , of course , would have no effect on the business
operations of the Company . This is not the case . We have here a business
which deals in selling a service to its customers and its employees come in
constant and personal contact with the guests . We say , therefore, that the
prohibiting of anything these employees do, whether it be wearing'earing of pins or
engaging in other conduct , which may be displeasing to any person doing busi-
ness with Respondent should be lawful.
One other point , although we feel the Trial Examiner has already indicated
and that is a ruling on Respondent's motion to strike the testimony of Jean
Valdez. This witness testified to a meeting occurring at the end of February or
the first part of March 1960 in which a supervisor is alleged to have made cer-
tain statements . Respondent moved to strike on the ground that such testimony
was immaterial to the issue before the Trial Examiner and further that it was
remote to the alleged incident charged in the complaint . Apparently General
Counsel had hoped to show animus toward the union imputed to Respondent
by the things said at this meeting; however , this meeting occurred a month or
more prior to the issuance of the rule in question and on the record constitutes
an isolated incident , remote and unconnected with the promulgation of the rule.
Conclusion-It is respectfully submitted that the rule adopted by Respondent
prohibiting the wearing of badges is reasonable and Respondent 's conduct in
connection therewith does not violate the Act. Therefore , the complaint should
be dismissed.
Trial Examiner 's Conclusion
The promulgation of a rule by hotel management prohibiting all its employees,
regardless of their contact with the public, from wearing union insignia while at
work on its premises and enforcing this rule with pain of discharge is violative of
Section 8(a)(1) of the Act for the reason that the right of employees to wear such
union insignia at work has been long recognized by the Board and courts as a reason-
able and legitimate form of union activity . Such rule interferes with, .restrains, and
coerces employees in their exercise of rights guaranteed by Section 7 of the Act.
It is so found and held , and if will be recommended that a proper cease -and-desist
order issue.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON . COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close , intimated, and substantial relation to trade , traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of the Act by acts of interference , restraint , and coercion , it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Hotel & Restaurant Employees and Bartenders Union , Local No. 104, affiliated
with Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act , the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7 ) of the Act.
[Recommendations omitted from publication.)