Floridan Hotel of Tampa, Inc.

National Labor Relations Board - Board Decisions

Jul 19, 1962

137 N.L.R.B. 1484 (N.L.R.B. 1962)

1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we would assign the work of driving the two trucks in.
question from the plant of Snowhite Baking Company to the distant
stores of Plumb Super Markets to the driver -salesmen group, rep-.
resented under contract by the Respondent Teamsters.
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. 12-CA-1414. July 19, 1962
SUPPLEMENTAL DECISION AND ORDER
On March 2, 1961, the National Labor Relations Board issued its
Decision and Order in this case,' finding that the Respondent had
violated Section 8 (a) (1) of the National Labor Relations Act. On
March 9, 1962, the United States Court of Appeals for the Fifth Cir-
cuit entered its decision 2 denying the Board's petition for enforcement
pending further consideration of certain issues by the Board.
In its original decision, the Board found that the Respondent, which
operates a hotel, posted and distributed to its employees the following
notice :
BULLETIN
A number of guests have called to the attention of the Manage-
ment that many of the 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 em-
ployees 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.
The Board found that this rule was actually enforced by the Respond
ent, with threats of discharge and other disciplinary action, against
employees who did not meet the public as well as against those who
did. The Board therefore concluded that the rule was broader than
the Respondent's claimed or stated purpose in that it prohibited all
employees from wearing union buttons or insignia, whether or not
they met customers or guests of the hotel. Accordingly, the Board,
after asserting that it was unnecessary to consider whether a different
rule, covering only employees in continuous and daily contact with
the public, would also be violative of Section 8(a) (1), ordered the
1130 NLRB 1105.
a 300 F. 2d 204.
137 NLRB No. 161.
FLORIDAN HOTEL OF TAMPA, INC. 1485
Respondent to cease and desist from promulgating and maintaining
a rule prohibiting its employees from wearing union buttons or in-
signia, and from threatening to discharge or otherwise discipline
employees for violations thereof.3
The court held that the Board's Order, based on the Board's find-
ings, was too broad. It was the court's view that the rule did not, by
its terms prohibit the wearing of buttons where they might not be
seen by customers or guests. Accordingly, the court pointed out, the
Board's determination that the Respondent's rule prohibited the wear-
ing of union insignia by all employees was unsupported, and that a
proper order would direct the Respondent only to cease and desist from
prohibiting the wearing of union insignia by employees whose duties
did not bring them into regular and frequent contact with guests
and customers of the hotel. The court went on to state, with regard
to the circumstances and conditions under which employees have the
right to wear a union badge while at work-
If this is not a case where the employer has a right to prohibit
the wearing of a badge by employees who are in contact with
the public, then any rule prohibiting the wearing of a small neat
button, such as is the union insignia here, might be regarded as
violative of the Act. The Board expressly refrained from de-
ciding this question. Since it has not passed upon the question,
we do not consider it. We think the Board should have the op-
portunity of deciding the question if it sees fit to do so.
The court remanded the case to the Board for its further considera-
tion and for the entry of such order as the Board might after recon-
sideration deem appropriate.
The Board, in accord with the court's opinion, has reconsidered this
case on the basis that the Respondent's "Bulletin" prohibited the wear-
ing of union buttons only by those employees who come in contact
with the Respondent's hotel customers.
The record shows that Local 104, Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, herein called the
Union, is the certified representative of the Respondent's 130 em-
ployees, and that on February 2, 1960, the Union and the Respond-
ent entered into a collective-bargaining agreement. Shortly before
April 1, 1960, the Union distributed stewards' and members' buttons to
be worn as part of a campaign to increase its membership which con-
sisted of about 110 of the Respondent's 130 employees. There was no
rival union nor any antiunion faction. The buttons, which many em-
ployees began to wear in support of the Union's membership cam-
3 Member Kimball, dissenting , asserted that he would have found such a rule valid if it
applied only to employees who were in continuous and daily contact with the public and,
therefore, that he found the Board' s order too broad because it failed to contain such a
limitation.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paign, were smaller than a dime and bore only the name or initials of
the Union. On April 1, 1960, after one of the hotel guests had re-
marked about the buttons to management, the Respondent posted the
bulletin set forth above.
The right of employees to wear union insignia at work has long
been recognized as a protected activity.4 The promulgation of a rule
prohibiting the wearing of such buttons constitutes a violation of Sec-
tion 8(a)(1) in the absence of evidence of "special circumstances"
showing that such a rule is necessary to maintain production and
discipline.5 No "special circumstances" appear to have existed at the
Respondent's hotel. As the facts show, there was no strike, and there
was no union animosity or friction between groups of employees. The
buttons were being worn only as part of the recognized and certi-
fied Union's calf ign to increase its membership. Nor were the
legends on the buttons provocative in any way. Indeed, there is no
contention that a prohibition against wearing the buttons was in any
way necessary to maintain employee discipline. Moreover, the evi-
dence does not support the Respondent's assertion that the buttons,
which were small, neat, and inconspicuous, detracted from the dignity
of the hotel, and there is no evidence that they caused any diminution
of the Respondent's business. Under these circumstances, we find
that the fact that the employees involved come in contact with hotel
customers does not constitute such "special circumstances" as to de-
prive them of their right, under the Act, to wear union buttons at
work. The rule posted by the Respondent was therefore not neces-
sary to maintain employee discipline or the services provided by the
hotel .6
Accordingly, we find that the rule was, on its face, violative of
Section 8(a) (1) of the Act 7 As the Board originally found, and the
court agreed, the rule was enforced against all the Respondent's em-
ployees. The Board, therefore, reaffirms its original Order issued
herein.
MEMBER RoDGERS took no part in the consideration of the above
Supplemental Decision and Order.
Republic Aviation Corporation v. N.L R.B., 324 U.S. 793.
Standard Fittings Co., Alsteele Production Works, Inc ., et at, 133 NLRB 928; May-
rath Company, 132 NLRB 1628; Belton Insulation , Inc., 129 NLRB 1296; Stewart Hog
Ring Company, Inc., 131 NLRB 310; Spielman Motor Sales, Inc., 127 NLRB 322; The
DeVilbiss Company, 102 NLRB 1317.
9 Cf. United Aircraft Corporation, Pratt & Whitney Aircraft Division, 134 NLRB 1632,
where the Board did find "special circumstances " on the ground that there had been a
strike, and animosity existed between the strikers and the nonstrikers which was in-
flamed and perpetuated by the wearing of buttons bearing provocative legends. See also
Caterpillar Tractor Company , a Corporation v. N.L R B., 230 F. 2d 357 (C.A. 7) ; Boeing
Airplane Company v . NL.R.B, 217 F. 2d 369 (C.A. 9).
4W. T. Grant Company, 94 NLRB 1133, enfd ., 199 F. 2d 711 (C.A. 9) ; Safeway Stores,
Incorporated, 110 NLRB 1718.