National Assn. of Letter Carriers

National Labor Relations Board - Board Decisions

Apr 23, 2003

338 N.L.R.B. 989 (N.L.R.B. 2003)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the E x­
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
National Association of Letter Carriers and Office
and Professional Employees International Un­
ion, Local 2, AFL–CIO. Case 5–CA–29667
April 23, 2003
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On December 11, 2001, Administrative Law Judge
Marion C. Ladwig issued the attached decision. The
Union filed exceptions and a supporting brief and the
Employer filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
remand this case to the administrative law judge to pro-
vide further analysis. The administrative law judge rec­
ommended that the complaint be dismissed, but did not
clearly explain his reasoning, beyond observing that the
Board decisions cited by the General Counsel and the
Charging Party Union did not apply to the circumstances
of this case. Accordingly, on remand, the administrative
law judge should set forth a complete legal analysis, in­
cluding relevant case law, on the issue of whether the
Respondent lawfully prohibited employees from (1)
wearing large fluorescent poster-board signs in its na­
tional headquarters office, and (2) displaying the same
signs on the exterior walls of the employees’ workplace
cubicles.
ORDER
The administrative law judge shall prepare a supple-
mental decision setting forth his analysis, conclusions of
law, and a recommended Order, as appropriate, on re­
mand. Copies of the supplemental decision shall be
served on the parties, after which the provisions of Sec­
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
Dated, Washington, D.C. April 23, 2003
Wilma B. Liebman, Member
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN BATTISTA, dissenting.
I do not agree with my colleagues’ decision to remand.
I believe that the record facts, plus the judge’s decision
and the briefs of the parties, provide an adequate basis
for the Board to now perform any supplementary legal
analysis and to now decide this case.
Dated, Washington, D.C. April 23, 2003
Robert J. Battista, Chairman
NATIONAL LABOR RELATIONS BOARD
Elicia L. Marsh-Watts, Esq., for the General Counsel.

Charles W. Gilligan and Daniel J. McNeil, Esqs. (O’Donaghue

& O’Donaghue), of Washington, D.C., for the Respondent
Employer.
David R. Levinson, Esq., of Washington, D.C., for the Charging
Party.
DECISION
STATEMENT OF THE CASE
M ARION C. LADWIG, Administrative Law Judge. This case
was tried in Washington, D.C. on October 18, 2001.1 The
charge was filed April 12, and the complaint was issued July
26.
The National Association of Letter Carriers, AFL–CIO (the
Employer) has a strict dress code for employees in its national
headquarters office, requiring “neatness and professional good
taste” in dress and appearance to provide a “professional office
environment” for “the impression we make on visitors to the
building.” It also has a longstanding policy prohibiting the post­
ing of material on the exterior of cubicles, in which most of the
employees work. Its visitors include not only its members, but
also representatives of other Federal unions, Congressional
staffs, and sometimes members of Congress. (Tr. 21, 23–27,
45–46; GC Exh. 4.)
The Employer permits employees to wear union buttons and
insignia on their clothing while at work and to post union mate-
rial both on the three union bulletin boards and in their individ­
ual cubicles, as well as at the desks of secretaries not working
in cubicles (Tr. 21, 26, 28, 31, 35–36, 49, 58–68, 73, 155, 214,
228; R. Exh. 1.)
In early September 2000—when the Employer was engaged
in bargaining with Local 2 of the Office and Professional Em­
ployees International Union, AFL–CIO (the Union or OPEIU
Local 2) for a successor to their agreement that expired January
31, 2000—employees began posting white, 8½ x 11 inch signs
in their cubicle and at secretaries’ desks. The computer-printed
signs recited the number of days the OPEIU Local 2 members
were working without a contract. The number of elapsed days
was changed daily. (Tr. 103–104, 108; GC Exh. 2.)
Bargaining continued, but by January 31, 2001, still no
agreement had been reached. Early that morning before work,
employees met at Shop Steward Arline Terry’s desk and made
large 11 x 14 handwritten signs, with bold black printing on
fluorescent poster board. They were in orange, pink, and other
bright colors. (Tr. 29–30, 32–33, 38, 111, 113, 153–155; GC
Exhs. 3, 5, 6.) They read, for example:
ONE

YEAR

WITHOUT A

CONTRACT

OPEIU LOCAL 2

1 All dates are in 2001 unless otherwise indicated.
338 NLRB No. 151
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At 9 a.m., January 31, in flagrant disregard for the dress code
and the policy against posting material on the exterior of em­
ployees’ cubicles, employees began wearing the large fluores­
cent signs over their clothes and posting them on the exterior of
their cubicles as well as elsewhere in the building (Tr. 43, 90,
111–112, 114.)
Upon discovering the glaring bright signs, the Employer
immediately instructed that they be removed. The employees
complied. (Tr. 37, 43, 87–88, 115–117, 124.)
The counsel for the General Counsel contends in her brief (at
9) that “employees were directed to remove all signs from the
office.” This would include not only the oversized fluorescent
signs being worn over employees’ clothing and posted on the
exterior of their cubicles, but also the white computer-printed
without-a-contract signs that the employees had been display­
ing inside their cubicles and at secretaries’ desks for about 5
months.
In her brief, citing the testimony of Shop Steward Terry (Tr.
115), the counsel asserts: “Specifically, [Secretary-Treasurer]
Jane Broendel approached Arline Terry and told her that em­
ployees had to take down all [emphasis in original] the signs
that were posted [emphasis added].” The counsel omits, and
ignores, Terry’s following answer (Tr. 115–116) to the question
whether Broendel “was referring to these bright colored” signs.
Her answer was
Yes. I expected that’s what she was referring to because I had
been told that somebody put them in the elevators and on the
ladies room.
So here’s my partition and I was sitting right here and
this sign was right here. She was standing right there and I
believe she gestured to the sign. She said, “You guys have
got to take down all of these signs you put up.” [Emphasis
added.]
That same morning, as Terry credibly testified, Secretary-
Treasurer William Yates came to her desk, where she was
wearing two of the fluorescent signs, one in front and one on
her back (Tr. 112), and said (Tr. 124):
You guys have to take those signs off. You can’t be wearing
the signs. You can walk up and down all you want outside
wearing signs but not in the office. We have visitors who
come to the office and it doesn’t look good. It’s a violation of
the dress code.
Terry further testified that she complied and that later that day
(Tr. 126):
[Yates] said, “We have a very specific dress code,” which we
do. We have a dress code that’s posted on the time clock and
it tells you exactly what items of apparel are appropriate.
“These don’t look good. They’re not professional [and] we’re
not going to have you wearing them in the building.”
The General Counsel contends (br. at 24, 31) that the em­
ployees’ previous white signs did not attract significant atten­
tion and that “It was ultimately the size and color of the display
of January 31, 2001, that finally grabbed the attention of man­
agement.”
The primary issue is whether it was unlawful for the Em­
ployer to prohibit employees from wearing and displaying the
large fluorescent poster-board signs in its national headquarters
office—contrary to both the Employer’s dress code standard for
a professional office environment in its national headquarters
office and its policy prohibiting posting material on the exterior
of the employees’ cubicles—violating employee Section 7
rights and Section 8(a)(1) of the Act.
In the absence of any credible evidence disputing Shop
Steward Terry’s admission that the Employer was prohibiting
the display of only the fluorescent signs—not the previously
posted white without-a-contract signs, as discussed below, I
reject the allegation in the complaint that the Employer was
prohibiting employees from “posting union-related signs
around [its] offices in places where they had previously been
permitted.”
On the entire record, including my observation of the de­
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and OPEIU Local 2, I make the follow­
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent Employer, a labor organization, is an unin­
corporated association in Washington, D.C., where it receives
over $50,000 in dues and initiation fees from affiliated locals
outside the District of Columbia. The Employer admits and I
find that it is engaged in commerce within the meaning of Sec­
tion 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
1. Professional office environment
The Employer’s dress code, issued by Secretary-Treasurer
William Yates in 1997 (GC Exh. 4), sets the standard for “a
professional office environment” at its national headquarters
office in Washington, D.C. It requires “neatness and profes­
sional good taste” in dress and appearance for “the impression
we make on visitors to the building.” It specifically prohibits
the wearing of denim jeans, T-shirts with any slogan or imprint,
sweat suits, jogging suits, bicycle pants, and shorts.” It states
that shoes should be businesslike, but the Employer’s practice
is to permit the wearing of sandals and athletic shoes. (Tr. 39–
40, 144; GC Exh. 4.)
The Employer’s policy prohibiting posting of material on the
exterior of cubicles has been in effect since before 1994, when
Yates succeeded the former secretary-treasurer who advised
him that the policy was uniformly enforced. Although the pol-
icy is not in writing, the evidence indicates that the policy is
well understood. (Tr. 31–32, 227–228.)
Shop Steward Terry admitted that, with only one exceptions,
there was no material posted on the exterior of any of the cubi­
cles (Tr. 160). The exception was a cartoon of a cow, which
was still posted at the time of trial. It is posted on the exterior of
the cubicle of employee Dorothy Hereford, alluding to her sur­
name, evidently in a jocular vein—not a union sign (Tr. 129,
132, 160).
The General Counsel’s brief cites a large number of clearly
inapplicable precedents. None of the cases is relevant to a case
such as this, in which the Employer freely permits the wearing
of union buttons and insignia at work and the posting of union
material at their work stations and on the union bulletin boards.
Neither the General Counsel nor the Union cites any case
that even suggests that an employer, under the circumstances of
this case, would be infringing on employee Section 7 rights by
enforcing legitimate rules to maintain a professional office
environment.
NATIONAL ASSOCIATION OF LETTERS CARRIERS 3
2. Conflicting testimony discredited
As indicated, I find no credible evidence disputing Shop
Steward Terry’s admission that the Employer on January 31,
was prohibiting the display of only the large fluorescent
signs—not the previously posted white without-a-contract
signs.
Only one witness, General Counsel’s employee witnesses
Wayne Nicely, testified otherwise. Nicely also gave other con­
flicting testimony.
One example concerns Terry’s credited testimony that em­
ployee Hereford’s cow carton was the only material posted on
the exterior of any of the cubicles. Nicely claimed that in the
membership department, there was also a white without-a-
contract sign posted on the exterior of employee Jerry
Reardon’s cubicle (at star 5 on GC Exh. 9, near star 6, where
the cow cartoon was displayed) (Tr. 180–181). I discredit the
claim.
Concerning his conflicting testimony about what signs were
prohibited on January 31, Nicely claimed that “after [Secretary-
Treasurer] Yates spoke to [Membership Supervisor Marylee]
Greenlee and said that all bargaining unit signs had to come
down,” he and Reardon “removed all of the signs we had up” in
the membership department (Tr. 184).
I discredit, as false, both his claim that Greenlee said all the
white signs had to come down and also his claim that he and
Reardon removed all of them.
After so testifying, Nicely conceded that they had not re-
moved all the signs, admitting that the white signs in two of the
employees’ cubicles had not been taken down (Tr. 200). This
indicates that Greenlee, his supervisor, did not required that the
white signs be removed.
Nicely’s unsupported testimony also conflicts with Yates’
credited testimony that when he spoke to Greenlee, “The only
thing I told her was to please . . . have them take off the [fluo­
rescent] signs if they were wearing them” and that he did not
instruct Greenlee to have the white signs taken down because
he was not aware that white signs were posted on the exterior
of cubicles (Tr. 213–215). As Shop Steward Terry admitted,
none of the white signs were posted on the exterior of any of
the cubicles—only the cartoon of a cow on Hereford’s cubicle.
Yates credibly recalled that Assistant Secretary-Treasurer
Jane Broendel told Greenlee to have fluorescent signs hanging
on the outside of cubicles removed (Tr. 215). Broendel credibly
testified that she told employees on January 31, to remove the
fluorescent signs—not the white signs—from the exterior of
cubicles, because they looked unprofessional and because there
had never been any signs permitted on the exterior of the cubi­
cles (Tr. 88).
Thus, neither Yates nor Broendel said anything about remov­
ing the white signs. By their demeanor, both Yates and Bro­
endel appeared to be truthful witnesses, whereas Nicely im­
pressed me as being less than candid.
There remains the question why Nicely and Reardon re-
moved most of the white signs in the membership department
without being instructed to do so. From all the circumstances—
including the failure of the supervisor to enforce her purported
ban on the white signs, the absence of evidence that any white
signs were removed from cubicles in any of the other depart­
ments or from secretaries’ desks, and the credited testimony
that the Employer was prohibiting the wearing and display of
only the fluorescent signs—I infer that his motivation was to
build a false case again the Employer.
3. Contentions and concluding findings
Besides citing many inapplicable precedents and arguing that
the large fluorescent poster-board signs were necessary for
“grabb[ing] the attention of management,” the General Counsel
contends (br. at 24, 30–31) that the Employer’s prohibiting the
wearing of the 11 x 14 signs was “directly tied to the employ­
ees’ obvious expression of their discontent of working without
a contract for a full year” and to an “outward expression that
the employees, as a group, decisively engaged in to show soli­
darity within the unit,” interfering with and restraining the ex­
ercise of Section 7 activity in violation of Section 8(a)(1) of the
Act.
OPEIU Local 2 contends (br. at 1, 6, 11) that the employees’
efforts were to support and assist the Union in obtaining a suc­
cessor collective-bargaining agreement and that “there is no
showing or even specification of any employer business interest
here that would outweigh the employees’ substantial protected
interest in demonstrating their support for Local 2’s demand for
a satisfactory labor agreement. . . . Nor was the employees’ use
of some brightly colored poster board so far outside the bounds
as to forfeit its protection.”
The Employer contended at the trial (Tr. 245–246) that “this
case represents one of the most extraordinary failures of prose­
cutorial discretion,” citing evidence that the Employer has
“permitted people to wear all kinds of union buttons, to post all
kinds of union signs in their cubicles, and to have three bulletin
boards on which they . . . vigorously express their feelings with
respect to the Employer’s conduct in bargaining.” It also con-
tends that “[c]learly people have got to conform to professional
norms in an office space,” that “[c]learly the Employer has a
right to maintain a certain degree of decorum in its building,”
and that “there has been absolutely no coercion with respect to
people asserting their rights under the Act.”
After weighing all the evidence and considering the conten­
tions of the parties, I find that the Employer lawfully prohibited
employees from wearing and displaying the fluorescent signs.
CONCLUSIONS OF LAW
The Respondent Employer did not violate Section 8(a)(1) of
the Act on January 31, 2001, as alleged, when it prohibited
bargaining unit employees from wearing and displaying on the
exterior of their cubicles the union-related placards, which were
large 11 x 14 handwritten signs, with bold black printing on
fluorescent poster board in orange, pink, and other bright colors
and which offended both its dress code standard for a profes­
sional office environment in its national headquarters office and
its policy prohibiting posting material on the exterior of the
employees’ cubicles.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The complaint is dismissed.

Dated, Washington, D.C. December 11, 2001

2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom­
mended 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 purposes.