Hertz Rent-A-Car

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 363 (N.L.R.B. 1989)

HERTZ RENT-A-CAR 363
The Hertz Corporation d/b/a Hertz Rent-A-Car and
California Teamsters Public, Professional and
Medical Employees Union, Local 911. Case 20-
CA-22259
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On July 26, 1989, Administrative Law Judge Mi-
chael D Stevenson issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief
The National Labor Relations Board has delegat-
ed 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, and
conclusions and to adopt the recommended Order
In so doing, we note that the Board has long
recognized that Section 7 of the Act entitles em-
ployees to identify themselves as union stewards'
and that the pins at issue in this case are acceptable
under our established standards They are unobtru-
sive and convey no message beyond the mere Wen;
tification of the wearers as representatives of the
Union 2 Further, as the judge found, and we agree,
the Respondent did not demonstrate adequate "spe-
cial circumstances" We therefore find it unneces-
sary to reach the issue of whether the Respondent
allowed employees to wear noncompany pins other
than the pins at issue here 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, The Hertz
Corporation d/b/a Hertz Rent-A-Car, Sacramento,
'Armour & Co, 8 NLRB 1100, 1112 (1938) See also Republic Aviation
Corp v NLRB, 324 U S 793 (1945)
2 Nordstrom Inc , 264 NLRB 698, 701 (1982) We find United Parcel
Service, 195 NLRB 441 (1972), cited by the Respondent, not to the con-
trary In that case the Board found no violation of the Act in a rule for-
bidding uniformed drivers from wearing large union election candidate
buttons when on the road in contact with customers The Board specially
noted, however, that drivers were free to engage in Intraumon' cam-
paign activities at all other times and places and were permitted, even
when delivering and having customer contact, to wear small current
union dues buttons
'We note that eyed without reliance on disparate enforcement the
finding of a violation here is consistent with the decisions of the circuit in
which this case arises, because the steward pins relate directly to collec-
tive bargaining and the mere identification of an employee as a union
steward can hardly be regarded as a "blatant," "offensive' message See
NLRB v Rooney's at the Mart, 677 F 2d 44, 47' (9th Cir 1982), PayW
Save Corp v NLRB, 641 F 2d 697, 701 (9th Or 1981)
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order
Paula R Katz, Esg , for the General Counsel
Robert A Dohnko, Esg , of San Francisco, California, for
the Respondent
Joseph R Ovalle, Business Representative, of Sacramento,
California, for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL D STEVENSON, Administrative Law Judge
This case was tried before me at Sacramento, California,
on April 18, 1989, 1 pursuant to a complaint issued by the
Regional Director for the National Labor Relations
Board for Region 20 on November 23, and which is
based on a charge filed by California Teamsters Public,
Professional and Medical Employees Union, Local 911
(the Union) on October 13 The complaint alleges that
The Hertz Corporation d/b/a Hertz Rent-A-Car (the
Respondent) has engaged in certain violations of Section
8(a)(1) of the National Labor Relations Act (the Act)
Issue
Whether Respondent interfered with, restrained, and
coerced employees in the exercise of their rights guaran-
teed by Section 7 of the Act by ordering employees to
remove union pins on the grounds that the pins violated
Respondent's dress code
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs Briefs,
which have been carefully considered, were filed on
behalf of General Counsel and Respondent
On the entire record of the case, and from my obser-
vation- of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I RESPONDENT'S BUSINESS
Respondent admits that it is a Delaware corporation
which operates an office and rental car facility located in
Sacramento, California It further admits that during the
calendar year ending December 31, 1987, in the course
and conduct of its business operations described above,
that its gross revenues exceeded $500,000 and that for
the period of time described above, it purchased and re-
ceived products, goods, and materials valued in excess of
$5000 from points outside the State of California Ac-
cordingly, it admits, and I find, that it is an employer en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
1 All dates refer to 1988 unless otherwise indicated
297 NLRB No 54
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ii THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that California Team-
sters Public, Professional & Medical Employees Union,
Local 911 is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1 Background
In March 1982, Susan Adams Davis (now Butler)
began working for Respondent as a courtesy busdnver
Her job is to drive Respondent's customers from the air-
line terminal to the Hertz facility, less than a mile away
There, customers check in and receive their rental cars
Customers who have completed their business, also turn
in their vehicles at the facility and are driven back to the
airport
The Union represents two separate bargaining units of
Respondent's employees at the Sacramento airport One
bargaining unit is comprised of rental representatives,
courtesy busdnvers, and clericals, and the applicable bar-
gaining agreement is effective between April 1 and
March 31, 1991 (G C Exh 2) Butler participated in the
negotiations for this agreement and for the prior agree-
ment as well Among other provisions, the bargaining
agreement contains article XVIII (sec 1) at page 15
"Uniforms," which requires Respondent to furnish at its
expense, employee uniforms descnbed below, and (sec
2) which requires "All employees to wear said uni-
foi ms while on duty, and present a neat appearance at all
times" The second bargaining unit is comprised of Re-
spondent's garage attendants and mechanics and the ap-
plicable bargaining agreement is effective 'between Octo-
ber 1, 1988, and October 1, 1991 (R Exh 4) (Tr 113)
In June, Butler was appointed a shop steward by
Joseph Ovalle, union business representative As shop
steward, Butler policies the collective-bargaining agree-
ment and, where disagreement exist between manage-
ment and the Union which cannot be resolved informal-
ly, Butler files grievances on behalf of herself or other
employees
To identify herself to employees as a union steward,
Butler began in June to wear an identifying pin on her
uniform at work Worn just above her nametag, the pin
has a gold trim and lettering on a blue background The
middle circle is a white background connected to the
gold inner circle with gold spikes The original pin was
received into evidence and is reproduced as follows
[G C Exh 4]
Two other employees, Doug Harmon, lead dispatcher,
and Betty Cole were also shop stewards and also wore
the steward button described above Neither of these
persons testified
Between June and October, Butler wore the steward
pin every day that she worked From time to time, she
encountered various supervisors such as City Manager
Philip Kennewell, Station Manager Joan Jeffries, Senior
Station Manager Jan Grey, Senior Station Manager Ken
Reed, and Station Manager Will Higden Of this group,
only Kennewell testified
2 Respondent's dress code
On January 21, 1986, the Respondent issued the fol-
lowing document which reads as follows
To City Managers
From FS C R Koch Address 660-12th Floor
Subject Uniform Policy Enforcement
Date January 21, 1986
As you are aware, the physical appearance of our
personnel makes a substantial and lasting impression
on our customers The way our Rental Representa-
tives look becomes the image of the Hertz Corpora-
tion of the individual renter A large part of that
look is the Hertz uniform and how it is worn Our
HERTZ RENT -A-CAR 365
uniforms are currently some of the best in the
Travel Industry The new uniform program which
will be introduced in 1986 will surpass all others
But only half of the program is the actual uniform
The other and crucial half is how it is worn
Policies to govern the wearing of the uniform
have been in place for sometime, but unfortunately
have not been enforced to the proper degree In
many locations on any given day you can see a
number of infractions in dress code As a result, our
public contact personnel do not present a consistent,
neat and professional image to our customers
It is essential to the success of our uniform pro-
gram that our policies be fully enforced Attached is
a copy of our uniform policy statement Please read
it now and develop a plan for ensuring that your
city conforms to the letter—even to include sending
home people who report to work not in proper uni-
form •
The provision of uniforms to employees is an im-
portant benefit to them In return our employees
must wear and accessorize the uniform correctly
Please see that this happens
/s/ C R Koch
Attachment
cc C Cleland
J Mount
R Metzger
J Rice
D Steele
RVP's
Zone Managers ,
Area Managers
[R Exh 15]
On or about June 10, 1986, Respondent issued its
"Uniform Program and Dress Code Policies" (R Exh
3), and Butler acknowledged receipt of the document on
the same date (R Exh 2) This dress code contains pho-
tographs and descriptions of the correct uniform for
some of Respondent's employees, including courtesy bus-
drivers (R Exh 3, p 13) In her testimony, Butler gave
additional details regarding her required uniform black
slacks or skirt, gray and white pin-striped shirt with long
or short sleeves, and a light or dark grey sweater or vest
All employees are also expected to wear a black nametag
pinned to their left chest area (G C Exh 5) The name-
tag is approximately 2-5/8-inches long and 1 inch high
On February 28, Grey reissued excerpts from Re-
spondent's Uniform Program and Dress Code Policies
(R Exh 3) These excerpts are taken from page 16,
"Dress Code Policies," and run through page 17 Primar-
ily, they cover male and female "Accessories and
Grooming Policies" (R Exh 5) The paragraph explain-
ing which accessories women may wear reads as follows
Female Accessories and Grooming Policies
Accessories
Gold or silver is the only acceptable jewelry
Employees may wear either gold or silver jewelry,
but not both at the same time (with the exception of
an engagement/wedding ring in the differing metal)
A maximum of three (3) modest rings may be worn
Gold or silver earrings may be hoop or button
style, both maximum 1-inch diameter A single dia-
mond, pearl, gold or silver stud earring may be
worn No other style is acceptable No more than
two (2) earrings per ear is acceptable A thin gold
or silver chain or bangle bracelet is the only accept-
able bracelet Any necklace must be worn inside the
collar, out of view Watches are gold tone or silver
tone with black, gold tone or silver tone band
Hertz award pins are worn on the left side of the
outermost garment above the namepin The Hertz
#1 pin may be worn as a tie tack, on the collar or
on the left side of the outermost garment, above the
namepin No jewelry other than listed above is ac-
ceptable
The paragraph explaining which accessories men may
wear reads as follows
Male Accessories and Grooming Policies
Accessories
Gold or silver jewelry is the only acceptable jew-
elry Employees may wear either gold or silver
jewelry, but not both at the same time (with the ex-
ception of an engagement/wedding ring in the dif-
fering metal) A maximum of three (3) modest rings
may be worn A thin gold or silver chain or bangle
bracelet is the only acceptable bracelet Any neck-
lace must be worn inside the collar out of view
Watches are gold tone or silver tone with a black,
gold tone or silver tone band Hertz award pins are
worn on the left side of the outermost garment
above the namepin or on the lapel The Hertz #1
pin may be worn as a tie tack, on the collar or on
the left side of the outermost garment, above the
namepin The only acceptable tie bar or tie tack
(other than the Hertz #1 pin) is a conservatively-
styled gold or silver bar (maximum 1/2" diameter)
or disc (maximum 3/4" diameter) A gold or silver
tone collar pin or collar bar is acceptable Earrings
are not permitted No jewelry other than listed
above is acceptable
[R Exh 5]
On May 1, still another dress code memo was issued
It reads as follows
UNIFORM UPDATE
May 1, 1988
The following is the official Hertz policy, along
with the guide distributed to you in February, page
El 10 Under NO CIRCUMSTANCES will the
policy be violated
NAME PIN
Always worn on the left side of the most outer
garment
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
VEST always worn buttoned up
Blouses and shirts buttoned to the very top button
Skirt hem to mid-knee or slightly below knee
Summer items can only be worn between May 15-
Sept 15
HOSIERY neutral shades—suntan, beige, taupe,
Black only with slacks
HANDBAGS black leather or patent
HAIR STYLES long hair kept away from face
Only conservative-styled tortoise, gold, or silver
barrettes—NO BLACK BANDS or ribbons
JEWELRY gold or silver only—earrings may be
gold or silver loop (1 inch diameter only), a single
diamond or pearl No more than two earrings in
each ear NO BLACK BUTTON OR ANY TYPE
OF BLACK EARRINGS
GREY-BUTTONED SWEATER—must always be
buttoned
SHOES ABSOLUTELY NO TENNIS SHOES
OR REEBOKS
(Per Jason Rice N Y) Only acceptable style are
black pumps (standard cone heel, wedge heel, or
flat shoe with open toe or sling-back, or closed toe
NO SANDAL-LOOKING SHOES, NO LACED-
UP SHOES OF ANY TYPE NO SHOES THAT
LOOK LIKE TENNIS SHOES Boots with stand-
ard heel may be worn with slacks (slacks on outside
of boot) and with Rental Rep skirt as long as top of
boot MEETS skirt hem THE ONLY EXCEP-
TION OF SHOES WILL REQUIRE A DOC-
TOR'S NOTICE FOR ORTHOPEDIC SHOES
If anyone is observed in violation of the Uniform
policy, they will be required to clock out until the
violation is corrected This will also mean a tardy
while the employee if [sic] off the clock A written
letter will also be given to that employee
Hertz wants our employees to always be observed
as professionals by our customers and those we
work around Since Hertz provides most of our uni-
forms, a professional image is not too much to ask
[R Exh 6]
Finally on October 7, Respondent issued its last rele-
vant written policy It reads as follows
To All Employees—Address 1250
From Joan Jeffries—Address 1250
Subject DRESS CODE POLICY—Date 10-7-88
Effective immediately, the only acceptable pins
to be worn on your outermost garment is your
name pin, any current promotional pins that the
Hertz Corporation provides and any Hertz award
pins
No other pins other than the above is to be worn
Sincerely,
/s/Joan Jeffries
Station Manager
JJ/jj
cc Phil Kennewell
1250 Managers
[GC Exh 3]
3 Enforcement of dress code
Notw. ithstanding the October 7 memo recited above,
Butler continued to wear her steward pin Then on Oc-
tober 11, Butler clocked out for her lunchbreak, outside
of the dispatch office, 2 when Kennewell approached her
He asked Butler if she had received Jeffnes' dress code
memo and Butler said she had Kennewell then stated
that the steward pin was a violation of the dress code
policy and he requested Butler to remove it Butler re-
fused claiming that an NLRB ruling afforded her the
right to wear the pin Kennewell insisted that she
remove the pin saying the "union doesn't advertise for
Hertz and Hertz isn't going to advertise for the union"
Butler removed the pin and has not worn it since As
Kennewell left, he promised to call the Union's business
representative, Joe Ovalle, to request information on the
NLRB ruling referred to by Butler Kennewell did call
Ovalle who assured Kennewell that such a Board ruling
existed Ovalle promised to send Kennewell a copy of
the ruling but failed to do so About this same time,
Kennewell also directed Harmon to remove his steward
pin and he complied
Both Butler and coworker Melissa Humble, a witness
for the General Counsel, described their experience with
other types of pins and stickers Humble, a Respondent
employee since November 1981 and currently a customer
service representative, who waits on customers both
checking cars out and in, wore a green shamrock sticker
(3/8-inch tall and 1/4-inch wide) on her nametag on
March 17, 1989 Butler wore an identical sticker on the
same day and, because she forgot to remove it, Butler
wore it on the following Monday as well Both employ-
ees saw and talked to supervisors including Kennewell
and Jeffries In fact, Humble had a 5-minute conversation
with Jeffries just before punching out on March 17 No
supervisor asked either employee to remove the sticker
On March 17, of the prior year, Humble wore a larger
St Patrick pin, again without objection from any super-
visor encountered dunng the day Between December 11
and 24, Humble wore above her nametag, a pin, approxi-
mately 1-inch high by 1-inch wide, with a red and white
Santa Claus hat on top and a legend on the bottom read-
ing, "I believe in Santa" on a green field According to
Humble, on December 22 or 23, she went to Kennewell's
office on a business matter and he commented that she
had a cute pin on To this, Humble allegedly responded,
that it fit the occasion
Kennewell denied any such conversation I do not be-
lieve Humble on this point Even though as a current
employee of Respondent, Humble has enhanced credibil-
ity, 3 I find Kennewell more credible The basis for this
2 A diagram of the Hertz facility at the Sacramento Airport (R Exh
1) is reproduced at Appendix B to this decision
3 Mawr (U S A) Inc, 281 NLRB 327, 331 (1986)
HERTZ RENT -A-CAR

367
finding is as follows I count five exhibits in the record
relating to Respondent's dress code As city manager,
Kennewell was the senior management official responsi-
ble for all Respondent employees, not merely in the Sac-
ramento area, but including the surrounding area from
Modesto to Chico, a radius well in excess of 100 miles It
is unlikely to say the least, that this senior official would
not only overlook, but comment approvingly on Hum-
ble's violation of the dress code To make this even more
improbable, I note that Kennewell was subject two times
per year to unannounced audits by central office supervi-
sors Among other matters reviewed was Respondent's
compliance with the dress code rules Kennewell's tenure
as city manager is in jeopardy if audit scores fall below a
certain point For these reasons, I credit his denial of the
conversation with Humble and his additional testimony
that he was not aware of either the Santa Claus pin or
the St Patnck Day's pins 4 I find his testimony that he is
always on the run, spending little time in any particular
place persuasive The small size of the stickers and pins
would be difficult to perceive by someone with the
range of Kennewell's responsibilities
On the other hand, I note Kennewell's testimony that
about seven or eight times before requesting Butler to
remove her steward pin, he observed Butler and Harmon
wearing their steward pins, but due to the distractions of
other responsibilities, Kennewell did not request either
employee to remove their steward pin (Tr pp 133-
1134) The significance if any, of other supervisors failing
to testify with respect to whether they observed Butler,
Humble, or Harmon wearing holiday pins, stickers or
union steward pins, and if so, whether they failed to en-
force Respondent's dress code, will be addressed below
in the Analysis and Conclusions section of this decision
B Analysis and Conclusions
In Asociacion Hospital Del Maestro, 283 NLRB 419, 425.
(1987), the Board approved the administrative law
judge's statement of the general rule applicable to the
wearing of union insignia to work
The Supreme Court has held that the display of
union insignia on wearing apparel proclaiming
union support or support for union activities is a
right protected under Section 7 of the National
Labor Relations Act Republic Aviation Corp v
NLRB, 324 U S 793, 801-803 (1945) This right to
display union insignia and union slogans is part of
the employees' right to organize, to engage in ac-
tivities for mutual aid and protection and to solicit
support among themselves toward that end Repub-
lic Aviation Corp v NLRB, supra, Midstate Tele-
phone Corp v NLRB, 706 F 2d 401, 403 (2d Cir
1983) As the Court noted in Midstate Telephone
Corp v NLRB (at 403)
4 I also credit Kennewell's testimony regarding his practice once he
became aware of an unauthorized pin For example, in November, he
told an employee named Gallagher to remove a "Just say No to Drugs
pm, Kennewell also told an employee named Sellar to remove a button
with a cute phase on it, and he told Shop Steward Harmon to remove
flight wings and U S Air Force patches from his Hertz jacket
As a general rule, the balance must tip against
rules restricting employees' right to wear union-
related insignia or attire, unless the employee
demonstrates "special circumstances" showing
that such rule is necessary to maintain production
and discipline
See also Mack's Supermarkets, 288 NLRB 1082, 1098
(1988) The protection of the Act is afforded to union
buttons which identify the wearer as a "steward" Nord-
strom, Inc , 264 NLRB 698, 700 (1982) 5
Since the General Counsel has established a prima
facie case that Respondent has violated the Act, I turn to
consider whether Respondent has established the requi-
site "special circumstances" which would constitute a
defense under the Act to a violation of Section 8(a)(1)
Mere contact with customers is not a basis for barring
the wearing of union insignia Mack's Supermarkets,
supra, 288 NLRB at 1095 citing the case of Burger King
Corp, 265 NLRB 1507 (1982), enf denied 725 F 2d 1053
(6th Cir 1984) See also Virginia Electric & Power Co,
260 NLRB 408, 409 (1982), enf denied 703 F 2d 79 (4th
Cir 1983)
In any event, some of the affected employees in the in-
stant case had very limited customer contact For exam-
ple, some clericals normally work in the "back office,"
but help out with customers during rush periods This
raises the question of Respondent's policy being over-
broad In this respect, I also note that Respondent at-
tempted to enforce its dress code policy when employees
were on lunchbreaks, as Butler was when Kennewell
asked her to remove the steward pin on October 11 Evi-
dence shows that bargaining unit employees were enti-
tled to use the employee breakroom during lunch, other
workbreaks and before and after their workshift En-
forcement of the dress code during offduty periods in
breakroom areas not open to the public would ,clearly
violate the Act Mack's Supermarkets, supra at 1098 In
sum, I find General Counsel's overbroad theory com-
pletely supported by the record
Returning to the question of whether Respondent has
established "special circumstances," I note that the pleas-
ure or displeasure of Respondent's customers does not
determine the lawfulness of employee right under the
Act to wear the union insignia Howard Johnson Motor
Lodge, 261 NLRB 866, 868 fn 6 (1982) In the instant
case the only evidence of customer reaction during the
several months that Butler wore her pin concerned a
positive reaction from a person who was a member of a
teacher's union in Southern California
a In its brief, p 10, Respondent contends that because negotiations had
ended and because there were no gnevances outstanding, Butler had no
protected purpose for wearing her steward button I reject this argument
since the duties of a union steward are continuing Furthermore, Re-
spondent operates three shifts at the Sacramento Airport and Butler does
not know all employees (Butler works the 5 a m -130 p m shift ) In ad-
dition, while approximately 48 bargaining unit employees work for Re-
spondent at the Sacramento Airport and while Butler knows most of
them, other employees are occasionally transferred between Hertz facili-
ties on a temporary basis Accordingly, It is essential to have a union
steward properly identified even though some employees may be aware
of Butler's union position This entire discussion leaves open the question
of whether the two other union stewards are well known
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent also argues (Br p 11) that its public
image, by which it competes with other car rental firms
constitutes adequate "special circumstances" This con-
tention is rendered somewhat less compelling by the
General Counsel's evidence regarding the wearing of
holiday pins as recited in the Facts section, and which
will be addressed again below Nevertheless, I note a
similar argument raised in Nordstorm, Inc , supra, 264
NLRB 698, 701-702 The Respondent there argued that
it operated an up-scale department store and desired to
be free of any controversy which might offend custom-
ers After discussion of the competing interests, the Ad-
ministrative Law Judge found and the Board affirmed
that Respondent's public image argument did not consti-
tute a defense under the Act Accordingly, Respondent
could not bar its employees from wearing union buttons
while dealing with the public Compare Davison-Paxon
Co v NLRB, 462 F 2d 364 (5th Cir 1972)
In presenting its public image argument, Respondent
has relied on certain decisions of various courts of appeal
which have differed with the Board on this point, e g,
NLRB v Harrah's Club, 337 F 2d 177 (9th Cir 1964),
and Burger King Corp v NLRB, supra
The short answer to these and other court decisions6
is that where a conflict exists between the Board and the
courts, other than the U S Supreme Court, I am in-
structed to apply Board precedent 7
Beyond my duty to apply controlling Board prece-
dent, I also find that certain of these conflicting court
decisions can be distinguished In Harrah 's Club, for ex-
ample, "the wearing of the union buttons was not part of
any concerted campaign to organize the employees or
otherwise to exercise rights protected by the Act" This
is to be compared with the continuing function of the
union steward and the identifying pin which I have
noted in footnote 5 above
In addition, in the instant case, I find evidence of dis-
parate enforcement of Respondent's dress code policy re-
garding the wearing of jewelry See Pay'N Save Corp v
NLRB, 641 F 2d 697, 701-702 (9th Cir 1981) In this
regard, I have resolved above a credibility issue regard-
ing a conversation between Kennewell and Humble and
have credited the former I also found no evidence that
Kennewell was aware of either the St Patrick sticker or
pin or the Santa Claus pin However, no such finding
can be made for the other supervisors—Jeffries, Grey,
Reed, and Higden, none of whom testified, and at least
two of whom, Jeffries and Grey, had substantial contact
with Butler and Humble Based on the evidence present-
ed by General Counsel, I find a preponderance of evi-
dence to show that at least Jeffries or Grey were aware
of the holiday pins and took no action to enforce the Re-
spondent's dress code 8
As its final argument, Respondent contends that the
Union has waived its right to protest the Respondent's
dress policy I have recited in the Facts section, above,
relevant provisions of the collective-bargaining agree-
ment (G C Exh 2), art XVIII, "Uniforms," upon which
Respondent bases its argument In her brief, the General
Counsel contends, in part, that the wearing of a union
button is such a fundamental right that it may not be
waived by a union It is unnecessary to decide that issue
Assuming for the sake of argument that the union may
waive unit members' rights to wear union pins or insig-
nia, there is no evidence that it did so in this case
Before a union waives any rights in the collective-bar-
gaining agreement, there must be clear and unmistakable
evidence to support the waiver American Telephone &
Telegraph Co, 250 NLRB 47 fn 1 (1980) Such evidence
is lacking here Not only is the collective-bargaimng
agreement silent on the subject, but the provisions in it
regarding uniforms as recited above, and the wearing of
union pins or insignia are not mutually exclusive For ex-
ample, the agreement might have prohibited all pins or
jewelry not specifically authorized by the Respondent's
dress code This the bargaining agreement did not do
Moreover, there is no evidence the parties even dis-
cussed the subject of union pins or insignia
Accordingly, for the reasons cited above, I find that
Respondent has violated Section 8(a)(1) of the Act, by
not permitting Butler and Harmon to wear their union
steward pins I further find that by promulgating and
maintaining a dress code policy since October 7 which
was applied to prohibit the wearing of union pins, Re-
spondent has also violated Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
I The Hertz Corporation d/b/a Hertz Rent-A-Car,
Respondent, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 California Teamsters Public, Professional and Medi-
cal Employees Union, Local 911 (the Union), is and has
been at all material times, a labor organization within the
meaning of Section 2(5) of the Act
3 By promulgating, maintaining and enforcing a rule,
prohibiting its employees' wearing of union steward pins
at its facility at the Sacramento Airport and including
employees who were on duty and off duty and including
employees with public contact as well as without public
contact, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act
4 The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(5) and (7) of the Act
THE REMEDY
6 Midstate Telephone Corp v NLRB, 706 F 2d 401, 403 (2d Cir 1983),
Virginia Electric & Power Co v NLRB, 703 F 2d 79 (4th Cir 1983), Fabri-
Tek Inc v NLRB, 352 F 2d 577 (8th Cu- 1965)
I Iowa Beef Packers, 144 NLRB 615 (1963)
8 Jeffries is admitted to be a statutory supervisor as alleged in par 5 of
the complaint (G C Exh IC) The others have similar titles to hers In
making my finding here, I do not draw an adverse Inference from Re-
spondent s failure to call its supervisors as witnesses
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act, I shall recommend to the Board that Respond-
ent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act
HERTZ RENT-A-CAR 369
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 9
ORDER--
The Respondent, The Hertz Corporation d/b/a Hertz
Rent-A-Car, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Promulgating, maintaining, or enforcing any dress
code or rule, or other prohibition which forbids the
wearing of union steward pins or other union insignia, at
Respondent's facility at the Sacramento Airport
(b) Threatening employees with discipline, pursuant to
an overly broad dress code or rule which prohibits the
wearing of union steward pins, or the wearing of union
insignia otherwise protected by the provisions of Section
7 of the National Labor Relations Act
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Modify in writing its June 1986 Uniform Program
and Dress Code and its October 7, 1988 Dress Code
Policy memorandum to state that nothing here is intend-
ed to prohibit employees from wearing union steward
pins or other union insignia, which is protected by the
Act
(b) Post at its Sacramento, California facility copies of
the attached notice marked "Appendix A " 10 Copies of
the notice, on forms provided by the Regional Director
for Region 20 after being signed by the Respondent's au-
thorized representative, shall be posted by Respondent
immediately on receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading 'Posted by Order of the Nation-
al 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"
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, 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
WE WILL NOT prohibit our employees from weanng
during work union steward pins or other union insignia
which is protected by the Act
WE WILL NOT promulgate, maintain, or enforce any
dress code or rule which prohibits the wearing of union
steward pins or other protected union insignia at our fa-
cility at the Sacramento Airport
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act
WE WILL rescind our prohibition against our employ-
ees wearing union steward pins or other union insignia at
work and modify our dress code accordingly
THE HERTZ CORPORATION D/B/A HERTZ
RENT-A-CAR
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
5
IN SACRAMENTO METRO AIRPORT
READY LOT LAYOUT — OVERVIEW PG 17
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APPENDIX B
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