Hertz Rent-A-Car

National Labor Relations Board - Board Decisions

Oct 21, 1991

305 N.L.R.B. 487 (N.L.R.B. 1991)

487
305 NLRB No. 47
HERTZ RENT-A-CAR
1 297 NLRB 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
October 21, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 21, 1989, the National Labor Rela-
tions Board issued a Decision and Order1 in this pro-
ceeding, finding that the Respondent violated Section
8(a)(1) of the National Labor Relations Act by promul-
gating, maintaining, and enforcing a rule prohibiting its
employees from wearing union steward pins.
The Respondent filed a petition for review with the
United States Court of Appeals for the Sixth Circuit.
On December 14, 1990, the court remanded the case
to the Board for consideration of evidence bearing on
the Respondent’s enforcement of its uniform policy,
and for determination of whether the Respondent’s
uniform policy was valid pursuant to the Sixth Cir-
cuit’s test established in Burger King Corp. v. NLRB,
725 F.2d 1053, 1055 (6th Cir. 1984).
On February 20, 1991, the Board advised the parties
that it had accepted the remand and invited statements
of position. The Respondent and the General Counsel
filed statements of position.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered its original decision and
the record in light of the court’s remand, which the
Board accepts as the law of the case, and the parties’
statements of position, and has decided to dismiss the
complaint.
The facts are not in dispute. In June 1988, the Union
furnished steward identification pins to Susan Butler
and Doug Harmon, employees at the Respondent’s
Sacramento, California airport facility. Butler was a
courtesy bus driver who had significant customer con-
tact; Harmon was the chief garage attendant who also
had some customer contact. The steward pins issued
by the Union measured approximately 1 inch by 1-1/2
inch, with gold trim and lettering against a blue back-
ground and were inscribed: ‘‘Teamster Steward 911.’’
The Respondent provides uniforms for all its em-
ployees. In June 1986, the Respondent had issued a
dress code pamphlet describing the attire to be worn
by its employees. The pamphlet included an acces-
sories provision with anxhaustive list of jewelry that
employees were allowed to wear. The Respondent re-
issued portions of the dress code, including the acces-
sories provision, in February 1988, and on May 1,
1988, it issued a ‘‘Uniform Update’’ which, in part,
warned that ‘‘[u]nder NO CIRCUMSTANCES’’ (em-
phasis in original) could the Respondent’s uniform pol-
icy be violated. On October 7, 1988, the Respondent
circulated a memo stating: ‘‘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 [sic]
to be worn.’’
Subsequently, Philip Kennewell, the Respondent’s
Sacramento city manager, directed Butler and Harmon
to remove their union steward pins because wearing
them was in violation of the Respondent’s dress code.
In its original decision the Board found that Section
7 of the Act entitles employees to identify themselves
as union stewards and that the pins at issue in this case
were acceptable under Board standards. Further, the
Board noted that the Respondent failed to show that
the presence of the pins on the employees’ uniforms
interfered with the conduct of either individual em-
ployees’ jobs or the Respondent’s business. The Board
considered it unnecessary to reach the issue of whether
the Respondent discriminated by allowing employees
to wear noncompany pins other then the union steward
pins. Accordingly, the Board adopted the judge’s find-
ing of an 8(a)(1) violation.
The Sixth Circuit remanded the case because the ab-
sence of a conclusion on whether the Respondent en-
gaged in disparate enforcement of its policy precluded
the court from determining whether the policy was
valid under the Sixth Circuit’s Burger King test, supra.
Under that test, special circumstances warranting pro-
hibition of union pins are present when: (1) an em-
ployer maintains a policy that employees wear only au-
thorized uniforms; (2) the employer enforces the policy
in a consistent and nondiscriminatory fashion; and (3)
the employees restricted by the policy have contact
with the public. Having accepted the Sixth Circuit’s re-
mand as the law of this case, we are bound by the
court’s test as it applies to this proceeding. Only the
disparate enforcement aspect of the Sixth Circuit’s test
is now at issue, however.
The administrative law judge found disparate en-
forcement of the Respondent’s dress code policy re-
garding the wearing of jewelry, citing incidents where
employees had worn a Christmas pin, a St. Patrick pin,
and green shamrock stickers on their name tags. We
disagree with the judge’s finding that these incidents
were sufficient to constitute disparate enforcement. The
record shows that the Respondent took concrete steps
to enforce its dress code. For example, Philip
Kennewell, the Respondent’s Sacramento city man-
ager, told Inge Gallagher to remove a ‘‘Just Say No’’
drug button, Wilbur Sellers to remove a ‘‘I might look
stupid’’ button, and Doug Harmon to remove Air
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 There is additional record evidence of enforcement lapses that the
judge did not make findings nor rely on. This included evidence that
a rental representative, a bus driver, and a back-office clerical wore
lace-up shoes rather than pumps on various occasions; Melissa Hum-
ble had worn a Christmas pin and a St. Patrick’s Day pin in the past,
and wears four rings currently. Even assuming that this conduct oc-
curred and that it was observed by the Respondent, without rep-
rimand, which is not clear from the record, we draw the same con-
clusion with respect to these incidents as we do with respect to those
discussed above.
1 725 F.2d 1053 (6th Cir. 1984), denying enf. to 265 NLRB 1507
(1982). As noted by my colleagues, under the Sixth Circuit’s test,
‘‘special circumstances’’ exist when three factors are present: (1) the
employer maintains a policy that employees wear only authorized
uniforms; (2) the employer enforces the policy in a consistent and
nondiscriminatory fashion; and (3) the employees who are restricted
by the policy have contact with the public. Implicitly finding that
factors (1) and (3) were present here, the Sixth Circuit remanded the
instant case to the Board for a finding regarding factor (2).
Force patches and flight wings. Although the judge is
correct that there were occasional lapses in enforce-
ment, the code was enforced in other instances against
the same individuals. Thus, while Susan Butler wore a
green shamrock sticker on her name tag for 2 days
without incident, the Respondent earlier had told her to
remove black earrings. Similarly, while Melissa Hum-
ble wore the same small shamrock sticker for 1 day
and a Christmas pin for almost 2 weeks without inci-
dent, the Respondent previously had told her at least
twice to remove her black tennis shoes and to wear the
uniform black pumps.
We are persuaded that the occasional lapses in en-
forcement cited by the judge show only that the Re-
spondent had problems in attempting to carry out its
uniform policy effectively. No doubt employee co-
operation with the Respondent’s comprehensive uni-
form policy and the Respondent’s diligence in enforc-
ing it were less than perfect. Thus, the judge credited
Kennewell’s testimony that he ignored Butler’s and
Humble’s steward pins on some occasions because he
was too busy to reprimand them. Yet these occasional
lapses in an otherwise consistent application of a de-
tailed uniform policy do not persuade us that there was
inconsistent and discriminatory enforcement.2 See
United Parcel Service, 195 NLRB 441, 450 (1972);
Kendall Co., 267 NLRB 963, 965 (1983).
Accordingly, pursuant to the terms of the Sixth Cir-
cuit remand, we find that, under the Sixth Circuit’s
Burger King test, the Respondent has demonstrated
‘‘special circumstances’’ warranting its prohibition of
the union steward pins. We therefore dismiss the com-
plaint.
ORDER
The complaint is dismissed.
MEMBER DEVANEY, dissenting.
I believe that the Respondent failed to demonstrate
that it enforces its dress code policy in a consistent and
nondiscriminatory fashion regarding the wearing of
pins on employee uniforms. Thus, a finding of ‘‘spe-
cial circumstances’’ under the Sixth Circuit’s test in
Burger King Corp. v. NLRB,1 which I accept as the
law of the case, is not warranted, and the Board’s ear-
lier finding of an 8(a)(1) violation based on the Re-
spondent’s prohibition of union steward pins should be
reaffirmed.
The Respondent had a detailed dress code policy
covering clothing and accessories, which was clarified
in a series of memoranda issued January 1986 through
October 1988. On October 7, 1988, the Respondent
issued the following memorandum:
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 [sic] to be
worn.
On October 11, 1988, the Respondent’s city man-
ager, Philip Kennewell, approached employee Susan
Butler and asked her to remove her union steward pin.
Butler had been wearing this pin every day since June
1988. Kennewell also directed another employee, Doug
Harmon, to remove his union steward pin. Both em-
ployees complied with Kennewell’s directive.
The judge concluded that the Respondent violated
Section 8(a)(1) by not permitting Butler and Harmon
to wear their union steward pins and found the fol-
lowing evidence of disparate enforcement of the Re-
spondent’s dress code policy following the October 7
memorandum regarding the wearing of pins. Employee
Melissa Humble wore a green shamrock sticker on her
name tag on Friday, March 17, 1989. Employee Susan
Butler wore an identical sticker the same day and on
the following Monday. Both employees saw and talked
to various supervisor during the day, and no supervisor
advised either employee to remove her shamrock stick-
er. Additionally, between December 11 and 24, 1988,
employee Humble wore a pin with a red and white
Santa hat on top and the words ‘‘I believe in Santa.’’
The right to wear union insignia is a right protected
under Section 7 of the Act. An employer violates Sec-
tion 8(a)(1) by restricting employees’ right to wear
union insignia unless the employer can demonstrate
‘‘special circumstances’’ showing that such a rule is
necessary to maintain production and discipline. The
Board and the courts may disagree as to what con-
stitutes adequate ‘‘special circumstances,’’ but there is
no disagreement that it is the employer’s burden to es-
tablish the existence of such circumstances.
Unlike my colleagues, who find that the Respond-
ent’s lapses in application of its detailed uniform pol-
icy were not sufficient to establish inconsistent and
discriminatory enforcement, I consider the evidence to
489HERTZ RENT-A-CAR
be revealing with respect to the Respondent’s conduct.
The Respondent was deligent in enforcing its no-pin
rule strictly as to union pins and was inconsistent—and
perhaps even arbitrary—in enforcing its rule as to non-
union pins. I therefore dissent from my colleagues’
dismissal of the complaint.