Page Avjet Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1985

275 N.L.R.B. 773 (N.L.R.B. 1985)

PAGE AVJET CORP. 773
Page Avjet Corporation and District Lodge No. 141,
International Association of Machinists and
Aerospace Workers. Case 5-CA-16131
26 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 12 October 1984 Administrative Law Judge
Mary Ellen R. Benard issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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, i and
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the.
recommended Order- of the administrative law
judge as modified below and orders that the Re-
spondent, Page Avjet Corporation, Loudon
County, Virginia, its ' officers, agents, successors,`
and assigns , shall take the action set forth in the
Order as modified.'
1. Substitute the" following for paragraph .1(a).
"(a) Promulgating and enforcing an overly broad
rule that prohibits.. employees from wearing union
insignia and union buttons." . . • . .
2. Substitute the attached notice for • that of the
administrative law judge.
"Chairman Dotson concurs in the result - solely on the basis that the
Respondent's prohibition on wearing union insignia is not limited to times
or places where employees are likely to be in contact with customers.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
4 -
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own- choice -
To act together for other -mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.,
WE WILL NOT promulgate and enforce an overly
broad rule,that prohibits employees from wearing
union insignia and union buttons.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act. '
PAGE AVJET CORPORATION
DECISION
STATEMENT OF THE CASE
MARY ELLEN R. BENARD , Administrative Law Judge.
The original charge in this case was filed on January 30,
1984, and - amended on February 22, 1984, by District
Lodge No. 141, International Association of Machinists
and Aerospace Workers, (the, Union) against Page Avjet
Corporation (Respondent): The - complaint issued on
March 30, 1984, alleging,' in substance, that Respondent
had violated Section 8 (a)(1) of the National Labor Rela-
tions Act by promulgating a rule prohibiting employees
from wearing any noncompany buttons or patches, and
enforcing- that rule so as to prohibit employees from
wearing union insignia 'and : union, steward buttons. Re-
spondent filed an answer in which it denied the commis-
sion ' of any unfair' labor practices, and subsequently
amended its 'answer to allege as ` an affirmative defense
that the'Union had waived any right it had,to protest the
policy.. -
-A hearing was held' before me on ' May 22, 1984, in
Washington, D.C. Following, the hearing, the General
Counsel and Respondent filed briefs, which, have been
"considered.,..,
On'the_entire record in this'case and from my observa-
tion: of the. witnesses and, their demeanor, I make the fol-
lowing .
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an office
and place of business in Loudon County, Virginia, where
it is engaged in a fixed-base operation providing ground
support services at Dulles International Airport. During
the calendar year ending December. 31, 1983, Respond-
ent, in the course and conduct of its business, purchased
and received at its Loudon County, Virginia facility
goods and materials valued in excess of $50,000 directly
from points outside the Commonwealth of Virginia. Re-
spondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act, and I further find that it will ef-
fectuate the purposes - of the, Act to assert jurisdiction
herein.
275 NLRB No. 113
774 DECISIONS OF NATIONAL LABOR--RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is in the business of,-inter alia, providing
ground services to private and corporate' aircraft 'at• fa-
cilities called "fixed-base operations." Fixed-base oper-
ations provide parking, towing, maintenance and clean-
ing of the aircraft, transportation to and from the termi-
nal for passengers and crew, and baggage and cargo han-
dling. Respondent maintains these facilities at eight air-
ports in the United States, including Dulles International,
Airport near Washington, D.C.-The Dulles operation is
one of the four facilities whose employees are represent-
ed by a labor' organization and is the only facility in-
volved herein.
Respondent 'voluntarily recognized the Union as bar-
gaining representative of a uiiit of various employees- at`
the Dulles facility in 1970 and 'the parties have entered
into successive collective-bargaining - agreements since,
that time. The current agreement is effective- from Janti-'
ary 1, 1984, to December 31, 1986.1 There are about 60.
unit employees, including-those who work in the hangar,
the radio shop, the parts department, the cleaningcrew,
the dispatch personnel, and the linemen. Lineman Daily
"Monty" Parsell testified that. the linemen's - duties in-.
clude parking and chocking the aircraft, greeting the
pilot and passengers, providing fuel if needed, providing
transportation to the main terminal, handling baggage,
and loading cargo.
Over the years, the Union has provided the employees
with various buttons, badges, and pencil clips carrying
the union logo, and union members wore these items
with some regularity. Specifically, it is undisputed that
the Union has issued a disc-shaped pin about 1-1/2'inches
in diameter and.a pencil clip three-fourths inches in , di-
ameter . These insignia contain the IAM'logo and are col-
ored red, white, and blue. Separate badges are also
issued to the stewards: a red, white, and blue - oblong
clip-on badge, 2-3/4 by 2-1/4 inches, and a blue and
white button approximately 1-1/2 inches in diameter; the
badge is imprinted with the words "Shop Steward" and
the union logo, while the button has the words "IAM
Steward" and no logo.
Monty Parsell -testified that he was a shop steward and
that prior to September 1983, he -wore the clip-on stew-
ard badge 75 percent .of the time. Parsell-'also testified.
that-he also wore both the pencil clip and the pin with
just the union logo on it, and that he had seen other em-
ployees wearing such union insignia during the 11 years
he has worked- for Respondent. John Messich, another
i From the testimony of Albert Raistnck, vice president of District
141, it appears that the International Association of Machinists and Aero-
space Workers consists of a number of local lodges which compnse a"disI
tract, and a number of distracts which comprise the International Local
Lodge 1747 represents, among others, the union members at Page. ^Dis-
tnct 141 represents the local lodge and the International in such matters
as contract negotiations , grievances, and arbitrations
steward, indicated that he wore the round steward pin an
average of 2 days per week, and that although there
were some weeks that he did not wear the pin at all,
other weeks he wore it everyday. Both men testified
without contradiction that to their knowledge there have
been no customer complaints about the union items, and
that wearing the buttons and badges has not caused any
friction among the employees.
Parsell 'estimated that ,a lineman might have up to 6
hours of customer contact on an average day while driv-
ing a van to and from the terminal but that when a line-
man is loading cargo he has no customer contact except
occasionally with military personnel. Messick, who is a
lead mechanic in the avionics department, estimated that
he has about 3 hours of customer contact per week, that
the other avionics mechanics spend about 2 hours per
week 'with customers, and that maintenance mechanics
have only about an hour per week of customer'contact.2
B. The New Uniform Policy
John J. Brill, Respondent's director of human re-
sources, testified that Respondent has been attempting to
improve -its customer service image in a variety of ways,
including investing in new equipment, repainting present
equipment,- and buying new uniforms- for the employees.
The new uniforms, for employees at Respondent's fixed-
base operations were introduced' in March 1983a and for
linemen , mechanics, and parts and avionics department
employees consisted of a light blue shirt with darker blue
pants and jacket. Respondent's logo is on the right
pocket-and the employee's name tag is on the-left pocket
of both the shirt and jacket. Both the'shirt and the jacket
have a red, white, and blue stripe-which runs from'the
right shoulder into the right pocket. The parties stipulat-
ed that the steward badge would partly cover Respond-
ent's logo when worn on the - right front pocket of the
shirt .4
The uniform also :includes a baseball -cap type hat
which is dark blue in front and white -on the sides with
Respondent's logo in front. The dispatchers' uniforms
consist of a tie , gray trousers, and a blue blazer with Re-
spondent's logo on the right front pocket. , .
It is undisputed that Respondent sought to achieve a
uniformity of appearance of the bargaining unit person-
nel and that as part of its new policy, Respondent issued
a notice with employees' 'paychecks on September 18.
The notice stated , in relevant part, "No additional non-
company buttons or patches are authorized on any part
of the uniform including the hat." The policy's. effective
date was October 1. 1 -
- • Robert Reardon, general - manager . of the Dulles facili-
ty, sent a letter dated September 15 to James Jewell,,the
president of Local Lodge 1747, informing him of the uni-
2 Parsell and Messich appeared to testify candidly and exhibited good
recall and I therefore credit both witnesses -
3 All dates hereinafter are in 1983 unless otherwise indicated
4 However, it should be noted that the pockets on the jacket have'flaps
while those on the shirt do not, and that Respondent's logo on the pocket
of the jacket is below the flap 'The record'does not show whether the
steward badge , if clipped to the flap' of the jacket pocket, would cover
any part of the logo
PAGE 'AVJET CORP.
form policy and enclosing a copy of the September 18
notice. On September- 26, Raistrick- replied to Reardon,
requesting a clarification of the "no-button" rule and spe-
cifically asking: -
Is it intended that our shop stewards may not wear
„-buttons or badges (pin-on type) on their uniforms to
identify them as such? Is it intended that our mem-
bers may not- wear pencil clips on their pencils and
pens furnished to them by their local union? If that
is.the intent, we would appreciate hearing from you
on this, matter right away. -
Reardon replied by letter dated, September 29, stating,
inter alia, the following:
As outlined in the [uniform] Policy, no unauthor-
ized badge of any type will be permitted on uni-
forms supplied by the Company. . . .
In response to your second ' question regarding
the weanng of pencil clips on pens or pencils fur-
nished to employees by their local union, I have no
objection or problem with the Union providing
Union-type pencils or pens. However, pencil clips,
if attached and .placed in a manner that is exposed
on the uniform cannot be permitted.
Reardon further suggested in the letter that the Union
post photographs of the 'stewards on the union bulletin
board as a means of identifying them. •
In the meantime , the employees at. the facility also
sought clarification as to whether union buttons and
badges were included in the prohibition 'announced in
the September 18 notice. Thus, Monty Parsell credibly
testified that' when the policy 'was distributed he called
Jewell, who said that the men should stop wearing the
buttons and badges until he got back to Parsell. Accord-
ing to Parsell, within the week Jewell called him and
said he had talked to William Luss, a vice president of
Respondent , who said that the employees -could- wear the
union button, the -steward -badge, and the pencil clips.
Nonetheless, Reardon testified that Luss told him that all
noncompany -buttons, regardless of size or type, 'were
prohibited, that he was never made aware of-any change
in this policy, and that on numerous occasions he asked
linemen and/or mechanics to remove the pencil clip.
Parsell credibly testified that in October-Reardon ap-
proached -him and asked why he was wearing the stew-
ard badge'and pencil clip. -Parsell recounted Jewell'sex-
planation 1of his conversation with Luss: Reardon replied
that Luss had, changed his' mind -and instructed Parsell to
take the steward 'badge off. Parsell did., Reardon then,
according'. to Parnell; said, ',Take that off, ! too, pointing
to the pencil clip, and further said that he did not -want
to ` send - anybody: home.. ParselL.told 'Reardon' that he
would tell the other employees to remove the items from
their uniforms. At tha-t.point, according to Parsell, Rear-
don said in a friendly manner, : "You can do whatever
you want' to 'do: If you have' to, put in a complaint or
grievance, go ahead, it'll probably • be handled' higher up
in the company at a higher level."
On November 2, Parsell filed' a.grievance over Rear-
don's instruction that he remove his steward badge. Re-
775
spondent's assistant to the general manager Claude Tyner
denied -the grievance, and on November 10 Jewell wrote
to Reardon appealing the denial and stating the Union's
view. that the wearing of union buttons was protected ac-
tivity under the National Labor Relations Act. On No-
vember 14, Reardon replied, indicating that Respondent
did not- believe that it had -discriminated against the
Union by virtue of the ,uniform policy. Reardon also re-
quested Jewell to cite those provisions of the Act the
Union believed that Respondent had violated and to pro-
vide recent Board decisions on the point, and stated:
The Company will agree to review its Policy con-
cerning the wearing of Union buttons upon receipt
of the above information" from you. -Until such time
the present Company uniform policy will remain in
full effect.
The record establishes that Respondent has continued
to adhere to its "no union button" policy. Thus, Messich
credibly testified that he talked with his manager,- Gary
Robinson, about wearing union buttons around the be-
ginning of January 1984 and that Robinson told him that
he could not wear any kind of union insignia. It is also
clear that both before and after the uniform policy was
announced 'employees have worn some noncompany in-
signia , for Monty Parsell credibly testified that some em-
ployees -wear small buttons given to them by companies
that use Respondent's facilities.5 However, it is also un-
disputed that these insignia are very small, generally less
than one-fourth inch -in diameter.
C. Contemporaneous Union Negotiations
The negotiations for the current collective=bargaining
agreement between Respondent and the Union began
December 12 with Raistrick- and Luss as, the chief nego-
tiators for the Union and Respondent, respectively. Ac=
cording 'to- Raistrick,6 in the 'course of the negotiations,
but away from the; bargaining table, he-discussed with
Luss three or-four times the Union's position that'Re=
spondent's 'prohibition on wearing union buttons was un-
lawful. On December 12 Raistrick gave Luss a copy of a.
letter he had received from the International Union,' ad-
vising the-Union to file an unfair labor practice charge
and enclosing a report of a Federal court of appeals deci-
sion affirming a,Board finding that a no-button rule vio-
lated the Act. Luss responded by giving Raistrick a'copy
of an arbitration award dealing with the issue.
On January' ,10, 1984, the Union and Respondent
reached agreement on the new contract. That day, Rais-
trick asked Luss if the Company intended to maintain the
button. rule; Luss `answered' in the affirmative. Raistrick
then' told Luss that the Union would' file charges with
the Board.
The-clause iii'the`current agreement which covers un
forms is unchanged from that in the previous -contract,
and reads as follows (art. XVII(g)): ` " -
5 For example, M Parsell's brother , Cass Parsell, who is also a bar-
gaining unit employee and a steward , wears a pin depicting the space
shuttle given to him when the shuttle came through Dulles
6 Luss was hospitalized at the time of the hearing and did not testify
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All standard uniforms, caps and coveralls which
employees covered by this Agreement are-required
by the Company to wear in the performance of
their work shall be furnished by the Company with-
out cost to the employee, and all expenses of laun-
dering and cleaning of the same shall be borne by
the Company, it being understood that the 'Compa-
ny may establish the conditions under which such
uniforms are to be worn. - -
Raistrick credibly testified that he did-not try to nego-
tiate a change in the uniform provision because he did
not feel that the clause addressed the button issue.
Brill testified that after the new contract was negotiat-
ed Luss told him that Luss had informed either Raistrick
or Jewell that Respondent had decided to make the pen
clip an exception to the no-button rule. Brill further testi-
fied that Respondent did not notify the employees that
wearing the clip was acceptable.
D. Analysis and Conclusions -
1. The parties' contentions
The General Counsel contends that the right of em-
ployees to wear union insignia is protected under the
Act, and that an employer may limit that right only by a
showing that special circumstances exist- which warrant
the limitation. The General Counsel further asserts that
Respondent has not established such special circum-
stances in this case. Respondent, however, urges that the
buttons at issue are conspicuous and thus a prohibition
on wearing them is not unlawful. Respondent further
contends that in any event, it issued its uniform policy in
order to protect its public image , the wearing of any
noncompany insignia would interfere with that image,
and that, therefore, an absolute ban such as the one it im-
posed is permissible. Finally, Respondent argues that the
Union has waived any right its members may have had
to wear union buttons or like items. I find no merit to
Respondent's contentions;
2. The "special circumstances" issue
As -the Supreme Court stated nearly 40 years ago,
"The right of employees to wear union insignia at work
has long been recognized as a reasonable and legitimate
form of union activity and . . . curtailment of that right
is clearly violative of the Act."7 However, it is also well
settled that an employer may demonstrate that in a given
case there are special circumstances which justify a ban
or limitation on,the wearing of union buttons. A determi-
nation as to whether the employer's action is lawful re-
quires a balancing in each case of the employer 's interest
in protecting his or her business against the employees'
right to wear the union insignia.8
7 Republic Aviation Corp Y. NLRB, 324 U S 793 (1945)
'e For example , the Board has found that special circumstances exist
when badges or buttons interfere with work production , Hanes Hosiery,
219 NLRB 338, 345-347 (1975), Fluid Packaging Co, 247 NLRB 1469,
1474 (1980); or where they create a safety hazard , Brown Mfg Corp, 235
NLRB 1329, 1331 -32 (1978)
In support of its contention that its concern for its
public image justifies its prohibition on the wearing of
the buttons at issue,9 the Respondent cites, inter alias
cases where the Board has found that conspicuous but-
tons may be banned in such service enterprises as nursing
homes 10 and package delivery services. 11 In United
Parcel Service, supra, the button at issue,. which was worn
by supporters of a candidate in an internal • union elec-
tion, was 2-1/2 inches in diameter and bore the slogan
"Vote Jack Ryan" in red against a white background.
The Board found that the buttons were conspicuous and
interfered with the image the company 'was trying to
create. In that case, however, the union members had al-
ready been permitted to wear union buttons about 1 inch
in diameter on their jackets, and the rule against buttons
applied only-to drivers and only while driving. In the in-
stant case, in contrast, Respondent's rule- applies to all
bargaining unit employees, even though; as noted above,
a lineman might spend up to 6 hours_per day in contact
with customers while a mechanic may spend only 1 hour
per week in such contact. Indeed, Respondent's prohibi-
tion is in effect regardless of the work being performed,
and thus applies even when employees are loading cargo,
a job involving little or no customer contact. In light of
the factual differences between this case and United
Parcel Service, supra, I conclude that the latter case is in-
apposite here.
In Evergreen Nursing Home, nurses aides were prohib-
ited from wearing bright yellow 1-3/4-inch buttons with
the name of the union in bold black letters. In addition,
the employees who were prohibited from wearing the
buttons were in constant, direct contact with elderly ill
patients, and the trial examiner found that reactions - of
such patients "to outside stimuli of any sort are unpre-
dictable and could cause severe agitation, upsetting Re-
spondent's operations and control." 12 In the instant case,
of course, the factor of concern, for patients is not
present, and I therefore find that Evergreen also has no
application here.
Certain other cases on which Respondent relies should
also be discussed. In Burger King Corp. v. NLRB, 725
F.2d 1053 (6th Cir. 1984), the respondent had a regula-
tion that "only company approved name tags, -buttons
and alterations in uniforms are. allowed," and enforced
that rule "by requiring employees to remove a union
button 1-1/2 inch in diameter. The Board had found 13
a Respondent argues that it only prohibits those buttons that are con-
spicuous, and concedes that the pencil clip is not conspicuous Respond-
ent also contends that "unrebutted testimony established that Page is and
has been willing to allow its Dulles employees to wear the 3/4 inch pen
clip insignia button ," citing Bnll's testimony that Luss told hurl that Luss
had advised either Raistnck or Jewell that the pen clip was an exception
to the no-button rule However, as Brill further -testified that Respondent
has never advised the employees that wearing the -clip was acceptable,
and in light of Reardon 's testimony that on numerous occasions he told
employees to remove buttons including the clip and that if there was at
any time a change in Respondent 's policy he was not informed of it, it-is
clear that as far as the employees knew, wearing the pencil clips was pro-
hibited I thus find that Respondent banned not only those buttons it
deemed conspicuous , but the small pencil clip as well.
10 Citing Evergreen Nursing Home, 198 NLRB'775 (1972).
11 Citing United Parcel Service, 195 NLRB *441 (1972)
12 198 NLRB at 779
13 Burger King Corp., 265 NLRB 1507 (1982)
PAGE AVJET CORP.
that the only support proffered by respondent for its as-
sertion that it lawfully asked an employee to remove the
button was that she was working at the drive-up window
of the restaurant, where she had contact with customers
all day. The Board further found that "mere contact
with customers is not a basis for barring the wearing of
union buttons," and that respondent's enforcement of its
rule was therefore unlawful.14 The court, however,
denied enforcement of the Board's Order, on grounds
that:15
Burger King has attempted to project a clean, pro-
' fessional- image to the public. It has consistently en-
forced its policy against wearing unauthorized but-
tons in it nondiscriminatory manner. It is a national
fast food chain deriving much of its recognition
from its uniform public image. It is not asserted that
this policy had its inception because of labor unions
or union activities. There are special circumstances
which justify this prohibition.
It is noteworthy that the court majority also stated
that:16 -
The NLRB order regarding union buttons will not
be enforced insofar as it applies to employees who
have contact with the public. We think the rule in
this circuit should be that where an employer en-
forces a policy that its employees may only wear
authorized uniforms in a consistent and nondiscrim-
inatory fashion and where those employees have
contact with the public, a "special circumstance"
exists as a matter of law which justifies the banning
of union buttons.
However, as the dissent pointed out, employees who did
not meet the public were included in the company
policy: 17
I conclude that, although the rule in Burger King and
respondent's justification for that rule are similar to those
in the instant case, the court's holding in Burger King is
not dispositive here. First, it is well settled that an ad-
ministrative law judge is bound to apply established
Board precedent that has not been reversed by the Board
or the Supreme Court.18 Accordingly, I am bound to
follow the Board's decision in Burger King. Second, the
court majority in Burger King expressly confined its
holding to those situations in which the employees sub-
ject to the ban have contact with the public. As dis-
cussed. above, the prohibition on wearing union insignia
14 See also Howard Johnson Motor Lodge, 261 NLRB 866, 868 fn 6
(1982), in which the Board held that "the lawfulness of the exercise by
employees of their rights under the Act, including union button wearing,
does not turn upon the pleasure or 'displeasure of an employer 's custom-
ers "
is 725 F 2d at 1055
18 Ibid
" Indeed , the administrative law judge had found that respondent's
application of the rule to an employee who worked in the kitchen and
had no contact with the public violated Sec 8(a)(1) of the Act, and no
exceptions were taken to this finding
18 Regency at the Rodeway Inn, 255 NLRB 961 fn 2 (1981)
777
in the instant case is not limited to times or places where
employees are likely to be in contact with customers.19
Respondent also cites Houston Coca-Cola Bottling Co.,
256 NLRB 520 (1981). In that case, the Board found that
respondent's prohibition against the wearing of union in-
signia when employees were away from the plant dealing
with the public or in plant areas open to the public for
tours was not unlawful, relying on United Parcel Service
and Evergreen Nursing Home, both supra. Although the
decision in Houston Coca-Cola did not refer to the size or
coloring of the insignia at issue, in Burger King, supra,
the Board distinguished Houston Coca-Cola on grounds
that in the latter case respondent prohibited employees
from wearing patches and daisies which were brightly
colored and 4 to 5 inches in diameter, and that employ-
ees were not told to remove buttons which were 1-1/2
inches in diameter with a "VOTE TEAMSTERS"
slogan.2 0
It appears from a review of the cited cases that an em-
ployer's concern for the image it presents to the public
may justify some limitation on employees' wearing of
union insignia if the employees to whom the prohibition
is directed have significant contact with the public and if
(at least in the Board's view) the insignia are conspicu-
ous. As discussed above, the instant ban applies to all
bargaining unit employees, regardless of the amount of
contact they have with customers or the public. I there-
fore find that Respondent 's rule is not sufficiently nar-
rowly drawn to provide an appropriate balance between
Respondent's concern for its public image and the em-
ployees' right to engage in protected activity.
Inasmuch as I have found that Respondent's uniform
policy is overly broad, it is not necessary to pass on
whether the buttons and badges distributed by the Union
to employees are so conspicuous as to justify Respond-
ent's rule prohibiting the employees from wearing the in-
signia when they are likely to have contact with mem-
bers of the public.
3. Respondent's proposal to post photographs of
union stewards on the bulletin boards
Having found that there are no special circumstances
in this case which warrant Respondent's blanket prohibi-
tion against employees wearing union insignia, I further
find that Respondent's proposal to post photographs of
the stewards on the union bulletin board is not an ac-
ceptable alternative to wearing steward badges. For, in
the absence of a justification for the prohibition, there is
no need for the Union to accept any alternative. Further,
Respondent's proferred solution is specious at best, since
it fails to address the issue of union members who are
not stewards, yet want to wear union buttons. The right
of employees to make known their union sympathies is a
right protected by the Act. Consequently, if Respondent
19 Respondent further relies on NLRB v. Harrah's Club, 337 F.2d 177
(9th Cir 1964), in which the court denied enforcement of the Board's
Order and found that an employer's rule against the wearing of any non-
uniform items by employees who came in contact with the public was
not unlawful For the reasons stated with respect to Burger King, I also
find Harrah's inapposite.
20 265 NLRB at 1508 fn 4
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot meet the special circumstances exception, it
cannot dictate how stewards can be identified without
buttons, nor which buttons may be worn.-.
4. The waiver issue - -
Respondent's final argument- is that the Union has
waived its right to protest the no-button policy because
it has _agreed to the, language in article XVII(g) of the
collective-bargaining agreement that "the Company may
establish--the ,conditions under' which- such uniforms are
to be worn." I disagree. -
'Since the right to wear union`-`insig-nia is a Section 7
right, a waiver of that right must be clear and'uninistak.
able.21 As-disdussed'above, Raistrick testified that he did
not .request a- change in the wording of article XVII(g) in
the contract negotiations held iii late December 1983 and
early January 1984 because he felt that that section did
not address the no-button policy. • I agree , for on its face
the contract provision applies to when uniforms will be
worn,,not what else maybe worn at the same time.
Further, Raistrick and Luss discussed the policy infor-
mally three or four times during the, negotiations and -ex-
changed cases dealing with the issue, and Reardon con-
ceded at''the"hearing that he was aware throughout the
contract negotiations that the Union objected 'to, Re-
spondent's 'button rule. In addition,, as noted earlier,
when the parties reached'a tentative agreement, Raistrick
informed Luss' that the Union would' file a charge with
the Board'over'Respondent's:refusal to permit employees
to wear union insignia . In: these -circumstances, it is clear
that. the .Union never gave, any indication that 'it' acqui-
es'c,ed • in,the , Company's' policy, and, indeed, that the
Union has consistently :maintained its., position that the
policy. violated. both the nondiscrimination provisions. of
the contract -and the Act. f 'therefore find that Respond-
ent has not-de monstrated that the Union has waivedi'its
right to protest the policy." - `
In 'summary, I' find that -the- Union has not waived its
right to' protest' Respondent's " policy announced in, Sep-
tember- 1983 concerning union' buttons and badges, and,
balancing the Employer's concerns against 'the employ-
ees' Section 7 rights, I • further ,, find that Respondent 'has
not shown that special circumstances, exist which- justify
its prohibition against employees wearing any union in-
signia on . their uniforms. I, therefore conclude that by im-
plementing' this prohibition, Respondent ' has- violated
Section 8(a)(1),of the Act.
On' the basis of the' above findings of fact and the
entire record in the case, I make the following
" CONCLUSIONS' OF L'Aw
1-. Page 'Avjet' Corporation 'is an employer 'engaged in,
commerce within, the
,
meaning , of, Section 2(2),,, (6); and
(7) of the Act.
rn; r
Tide Water Associated Oil Co, 85 NLRB 1096, 1.098. (1949),, Gem
City Ready Mu Co : 270 NLRBW1260 ( 1984) ,
2. District Lodge No. 141, International Association of
Machinists and Aerospace Workers is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By promulgating a rule prohibiting employees from
wearing any noncompany buttons or patches, and en-
forcing that rule so as to prohibit employees from wear-
ing union insignia and union steward buttons, Respond-
ent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend . that it be or-
dered to cease and desist therefrom and to take -certain
affirmative action designed to effectuate the purposes of
the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed22 "
ORDER
The Respondent, Page Avjet Corporation, Loudon
County, Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease'and desist from
(a) Promulgating a rule prohibiting employees from
wearing any noncompany buttons or patches, and en-
forcing that rule so as to prohibit employees from -wear-
ing union insignia and union steward buttons.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to'engage in or to refrain from engaging in any or
all of the activities specified in Section 7 of the Act.
. 2.. Take the following affirmative action which is nec-
essary•to effectuate the policies of the Act.
(a) . Post at its Dulles International Airport facility
copies of the attached notice marked "Appendix."23
Copies, of the notice, on forms provided by the Regional
Director for Region 5, .after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 corisec6ti've days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to; ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the .Regional Director in writing within 20
'days from the date of this Order what steps, the Re-
spondent has taken to comply. ' ' ` .
zz 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 ' a
23 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al,Labor Relations Board "