[ v15 p668 ]
15:0668(135)CA
The decision of the Authority follows:
15 FLRA No. 135
FEDERAL AVIATION ADMINISTRATION
SPOKANE TOWER/APPROACH CONTROL
Respondent
and
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MEBA, AFL-CIO
Charging Party
Case No. 9-CA-641
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision with a supporting brief, and the General Counsel filed
an opposition to the Respondent's exceptions. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The complaint alleged that the Respondent violated section 7116(a)(1)
of the Statute by restricting the types of union emblems, insignia or
phrases appearing on T-shirts worn at the work site by employees
exclusively represented by the Charging Party. The Respondent contended
that the issue presented involved an interpretation of the parties'
collective bargaining agreement which should be resolved under the
grievance and arbitration procedures contained therein. /2/ The Judge
found that the issue raised by the complaint involved the alleged denial
of basic employee rights under section 7102 of the Statute, and
therefore concluded that the matter was properly before him for
resolution in an unfair labor practice proceeding. The Authority
agrees. See, e.g., United States Army Support Command, Fort Shafter,
Hawaii, 3 FLRA 796 (1980). The Authority further concludes that the
Judge properly rejected the Respondent's related contention that the
Authority should defer to the parties' negotiated grievance and
arbitration procedures even if the issue involved the alleged denial of
employee rights protected by the Statute since there is also a matter of
contract interpretation. In this regard, as noted by the Judge, section
7116(d) of the Statute specifically provides that "(i)ssues which can be
raised under a grievance procedure may, in the discretion of the
aggrieved party, be raised under the grievance procedure or as an unfair
labor practice under this section, but not under both procedures."
Accordingly, the aggrieved party's exercise of discretion in raising the
issue as an unfair labor practice is specifically permitted by the
Statute, and the Authority will resolve that issue.
With respect to the merits of the complaint, the Judge found that the
right of employees under section 7102 of the Statute /3/ to form, join
and assist a labor organization encompasses the display of union
insignia at the workplace; that the right to wear such insignia must be
balanced against an employer's right to maintain discipline; that an
employer must demonstrate the existence of special circumstances in
order to justify a restriction on the employees' right to display union
insignia; that the Respondent has not shown that special circumstances
existed which would justify a restriction on the employees' right to
wear the T-shirts at issue herein; and that the Respondent therefore
violated section 7116(a)(1) of the Statute /4/ by imposing such a
restriction.
While the Authority reaffirms its holding in Fort Shafter, supra,
that, in the absence of special circumstances, employees have a right
under section 7102 of the Statute to wear union insignia at the work
place, we find that T-shirts which the Respondent prohibited the
employees from wearing at the workplace herein were not protected union
insignia even though the name of the exclusive representative appeared
on them. Rather, particularly when viewed in the context of the ongoing
negotiations for a new collective bargaining agreement, the messages on
the T-shirts may reasonably have been interpreted as promoting concerted
support for an illegal walkout or strike by the Respondent's air traffic
controllers. See Air Transport Association of America, et al. v.
Professional Air Traffic Controllers Organization (PATCO), et al., 667
F.2d 316, 322 (2d Cir. 1981). In these circumstances, the continued
wearing of the T-shirts may reasonably have been judged by management as
potentially disruptive of the Respondent's crucial operations (i.e.,
direct responsibility for the safe and expeditious continuity of air
traffic in the Spokane, Washington area). See, generally, Professional
Air Traffic Controllers Organization, Affiliated with MEBA, AFL-CIO, 7
FLRA 34 (1981), affirmed sub nom., Professional Air Traffic Controllers
Organization v. Federal Labor Relations Authority, 685 F.2d 547 (D.C.
Cir. 1982).
The Authority therefore concludes that, in the circumstances, the
messages on the T-shirts in question did not acquire statutory
protection under section 7102, and the Respondent did not violate the
employees' statutory rights by prohibiting them from wearing garments
displaying such messages. Accordingly, the complaint shall be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 9-CA-641 be, and it
hereby is, dismissed.
Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
J. Donald Payne
For the Respondent
Kenneth Houston
For the Charging Party
Bari Stolmack Ness, Esquire
For the General Counsel
Before: ALAN W. HEIFETZ
Administrative Law Judge
DECISION
Statement of the Case
This proceeding arose pursuant to the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
of an unfair labor practice charge filed August 11, 1980, with the
Federal Labor Relations Authority. Consequently, on November 18, 1980,
the Regional Director, Region IX, of the Authority issued a complaint
alleging that Respondent violated Section 7116(a)(1) of the Statute by
restricting the types of Union emblems, insignia or phrases appearing on
apparel worn at the work site by employees represented by the Union.
Respondent requests that the matter be deferred to the
grievance/arbitration procedure provided in the parties' collective
bargaining agreement and denies that it has committed a violation of the
Statute.
A hearing was held on April 1, 1981, in Spokane, Washington. All
parties were afforded full opportunity to examine witnesses and to
introduce evidence. Post hearing briefs have been filed and considered.
Upon the entire record, including my observation of the witnesses and
their demeanor, I make the following findings, conclusions, and
recommendations:
Findings of Fact
The Professional Air Traffic Controllers Organization, MEBA, AFL-CIO
(PATCO or Union), has been and is certified as the exclusive
representative of an appropriate unit of employees, including those air
traffic controllers whose post of duty is at the facilities of the
Federal Aviation Administration, Spokane Tower/Approach Control
(Respondent). These employees work primarily in the tower cab and the
radar room located below the tower cab. They have infrequent contact
with the general public. There are occasional tours of the facilities
during which it is possible for members of the public to come in contact
with the employees in a hallway or in the tower cab. /5/
Article 61 of the parties' collective bargaining agreement is
entitled "Dress Code" and provides:
Members of the bargaining unit shall groom and attire
themselves in a neat, clean manner appropriate to the conduct of
government business. Neckties are not mandatory.
Respondent has found T-shirts, suits, blue jeans, and cowboy boots to
be within the parameters of this code. In addition it does not find the
PATCO logo to be inappropriate when displayed on an item of clothing.
Respondent does not object to certain statements or slogans appearing on
T-shirts. As a result of his participation in running events, one
member of the bargaining unit collects T-shirts with slogans. He has
amassed approximately one hundred T-shirts from which he selects his
daily attire. Other employees have worn T-shirts with slogans, pictures
and emblems relating to a number of various events or causes, both union
and nonunion, without any exception taken by Respondent, over the 2-year
period preceding July 1980. Finally, Respondent does allow controllers
to wear "'81" pins because they are small and inconspicuous, even though
it takes the position that the pins signify an illegal job action in
1981.
In mid-June or early July 1980, the Deputy Chief of the Spokane
Tower, Burleigh J. Stokes, noticed an increase in the number of
T-shirts, and "the implication of an illegal job action was becoming
more and more apparent" to him. He found some of the T-shirts to be
"provocative" and others to suggest an "illegal job action". On July
11, 1980, Mr. Stokes, and the Chief of the Tower, instructed team
supervisors to counsel employees not to wear T-shirts which displayed
profanity, implied an illegal job action, or favored one labor
organization over another. According to Mr. Stokes, "We didn't have any
problem with the PATCO logo and some of their sayings and phrases."
However, one supervisor told a bargaining unit member that T-shirts with
the PATCO logo and the "'81" symbol were not to be worn at the facility.
As a result of the July 11 instruction to supervisors, six T-shirts
were deemed to be unacceptable and employees were told not to wear them
any longer. Respondent did not inquire of the bargaining unit employees
as to the intended meaning of any of the slogans appearing on the
proscribed garments. The employees have stopped wearing the six
T-shirts for fear of discipline.
The first of the banned T-shirts to be introduced into evidence
contained the following three words arranged vertically: patco, 1981,
WALK A THON. The lettering of the first and last words was
approximately the same size despite the difference in case. The
numerals were slightly smaller. Three unit members had been wearing
this shirt over a 3-month period prior to July of 1980.
The second T-shirt depicts four mushrooms in a verdant setting. One
mushroom has animated facial features and appears to be talking. Below
the words "Air Traffic Controllers" and "patco" appear the following:
"The FAA must think I'm a mushroom, They keep me in the dark and feed me
. . . BULLSHIT." Two unit employees had worn T-shirts of this style for
two years and one employee had worn his for at least one year prior to
July of 1980.
The third T-shirt pictures two rearing horses facing each other with
the word "patco" between them. On the hind quarter of one horse appears
the numeral "'70" and on the hind quarter of the other, the numeral
"'81". The text on the shirt reads, "And the day will come . . . When
the horses will know their number/And take to the skies/And the skies
will grow quiet." This shirt was worn by at least one unit member
beginning in May 1980.
The fourth T-shirt displays a raised fist grasping a communications
headset. The word "patco" appears above the artwork and the numeral
"'81" appears below. This shirt was worn by at least one member of the
bargaining unit for an unspecified period prior to July 1980 without
complaint.
Below the word "patco", the fifth T-shirt features a fierce looking
American eagle with outstretched talons hovering above a mouse which is
facing the eagle, its right "hand" raised to display an extended middle
finger signifying the universally recognized fico. Flanking the mouse
are the words "the last great act of defiance". Prior to July 1980,
this shirt had been worn over the period of a year and a half by a unit
employee who for four years had, without comment, worn to work a belt
buckle bearing the same slogan.
The last shirt introduced as proscribed by Respondent is a light blue
knit golf shirt which displays on the breast pocket a circular emblem
with the words "I'm one in 81" and "patco". One of the unit employees
had been wearing this shirt since May of 1978.
The collective bargaining agreement between Respondent and the Union
expired on March 15, 1981. At the time of the hearing, PATCO and
Respondent were in the course of contract negotiations. No evidence was
introduced which would indicate a lack of good faith bargaining on the
part of either Respondent or the Union and, other than rumor, no
evidence was introduced to indicate whether the Union actually had been
or was considering an unlawful job action.
Discussion and Conclusions
Respondent renews its motion, previously denied by the Regional
Director by order dated February 13, 1981, that the issue giving rise to
this case should be resolved under the parties' grievance/arbitration
procedures, utilizing a policy of deferral as set forth by the National
Labor Relations Board in Collyer Insulated Wire, 192 NLRB 837 (1971).
That motion must be denied for a number of reasons. First of all, the
Authority has never adopted a deferral policy analogous to that in
Collyer. Respondent's reliance on Oklahoma City Air Logistics Center,
Tinker Air Force Base, Oklahoma, 3 FLRA No. 82 (1980) is misplaced.
That case merely recognized that both parties there relied on their
negotiated agreement and other writings in asserting their respective
positions concerning an obligation to bargain. Administrative Law Judge
Oliver concluded that under those circumstances, the issue was one of
contract interpretation and not properly the subject of an unfair labor
practice. That he did not intend to take a Collyer-like approach in
Tinker was made clear by his decision, rendered just four months after
Tinker was decided on an appeal by the Authority, in Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, Case Nos.
1-CA-127, 128, and 129, OALJ-81-009 (October 31, 1980). In that case
Judge Oliver was considering a situation apposite to this when he
presciently held:
The alleged violations of Section 7116(a)(1) and (2) of the
Statute affect basic employee rights guaranteed by Section 7102 of
the Statute. In cases involving alleged unfair labor practices of
such basic employee rights it would not be appropriate to defer to
contractual grievance-arbitration machinery even though the
alleged conduct arguably also involves a contract violation. A
similar rule governs the private sector. /6/
Here, the issue also goes to a basic right under the Statute. This
is not a case alleging a breach of a negotiated agreement. Finally, the
Statute itself is unlike the National Labor Relations Act in that it
provides for an election by an aggrieved party to proceed under the
negotiated agreement or via the unfair labor practice route. /7/
Because that option is available, a policy of deferral is neither
necessary nor warranted in the public sector.
The right of employees to form, join, and assist a labor organization
encompasses the display of union insignia at the workplace. Republic
Aviation Corporation v. NLRB, 324 U.S. 793 (1945). The right to wear
such insignia must be balanced against an employer's right to maintain
discipline and, in order to overcome the presumption of statutory
protection afforded the display of such insignia, an employer must
demonstrate that special circumstances exist to justify a restriction on
the right. Republic, Supra. These same rights and competing interests
have been recognized in the public sector. Charleston Naval Shipyard
and FEMTC, A/SLMR No. 1, 1 A/SLMR 28 (1970); Department of
Transportation, Federal Aviation Administration, Aeronautical Center,
A/SLMR No. 117, 1 A/SLMR 556 (1971); United States Army Support
Command, Fort Shafter, Hawaii, 3 FLRA No. 121 (1980).
Employers have demonstrated "special circumstances" where insignia
have been shown to tend to destroy discipline, /8/ to be provocative,
/9/ to detract from the dignity of a business, /10/ or to tend to
diminish the business of an employer. /11/ In each case, however, the
respective rights of labor and management must be balanced.
Turning to the facts of this case, it is at once apparent that
sartorial splendor is not a high priority at Respondent's facilities.
T-shirts very often are the uniform of the day and they have appeared
with a variety or emblems and slogans, both union related and otherwise.
Apparently, many controllers have found this mode of dress to be
preferable to more formal attire and, with Respondent's acquiescence
over a long period of time, they have enjoyed great latitude in taste.
Under these circumstances, Respondent's contentions, that the size of
the lettering is too large and that the shirts are not inconspicuous,
cannot be taken seriously. Equal deference should be given to its
concerns about exposure to the general public. The controllers work
primarily in a dark area not accessible to the public except by
permission of Respondent. The evidence does not reveal a single
complaint by any member of the general public and Respondent has not
sought to restrict the wearing of any T-shirt to areas exclusively out
of public view.
Of other general significance to the facts in this case is that
Respondent did not become concerned about the slogans on the T-shirts
until management recognized an increase in the number of shirts being
worn during the end of June and the first part of July. Although some
testimony on behalf of management can be construed as intending to
complaint about the numeral "'81", it is clear from the testimony of the
Deputy Chief of the facility that his only problem is not with the
content of that symbol, but rather, only with its size on any T-shirt.
Thus, he testified that employees could wear "'81 pins" because they are
"small and inconspicuous". Curiously, he also stated that, to him,
those pins "signify a job action in 1981, an illegal job action."
Apparently, his standard would allow wearing a symbol of an illegal job
action as long as the symbol is small and inconspicuous; but, as noted
above, there has been no special circumstances shown which would justify
a restriction on the size of the symbol as it appears on a T-shirt. In
summary, the facts of this particular case point to the conclusion that
Respondent was bothered not so much by any particular message imparted
by any T-shirt, but rather by the prospect that the rhetoric was
becoming an effective means by which the Union could make its point.
/12/
Respondent argues that the "Walkathon" T-shirt promotes support for
an illegal walkout sometime during the year 1981 and, therefore, has an
injurious effect on the employer's ability to maintain discipline and
harmony in the workplace. Even if I were not to accept the stated view
of the Union President that the T-shirt merely referred to informational
picketing during 1981, on this record, I cannot find that this T-shirt
is provocative. The T-shirt, itself, is passive; any activity on the
part of the Union which could be connected to it would have to depend on
the outcome of the parties' contract negotiations. If those
negotiations were satisfactory to both parties, there is no question on
this record that any job action on the part of the Union would not be
contemplated. Moreover, Respondent's Deputy Chief testified that once
the contract was negotiated, he wouldn't have any problem with the
T-shirt. Although Respondent is not required to show action disruption
to its operation, /13/ here Respondent has not come forth with any
evidence upon which I can conclude that this T-shirt has any reasonable
likelihood of causing such disruption.
Although the Deputy Chief of the Tower would approve of the
"mushroom" T-shirt without the profanity, Respondent argues on brief
that the slogan is defamatory and insulting within the meaning of
Maryland Drydock Co., Supra. In view of the fact that this T-shirt has
been worn at the facility without incident for some two years, that
argument is short of convincing. Moreover, the "mushroom" T-shirt does
not contain any personal attack on any member of management. Since it
refers to the employees' working conditions, albeit in a sarcastic and
sardonic light, the decision in Maryland Drydock Co. is distinguishable.
The profanity on the T-shirt must be viewed in the context of the facts
peculiar to this case. First of all, the evidence demonstrates that
profanity in the workplace is not uncommon. Second, there is no
evidence that any employee or visitor ever complained of profanity in
general or in regard to this T-shirt. And third, the particular
expletive in this case is not totally unacceptable in common
contemporary parlance, is generally defined to mean nothing more than
the equivalent of the word "nonsense", /14/ and, according to at least
one member of the literati, might be more beneficial to labor-management
relations than disruptive. /15/
Respondent argues that the T-shirt with the rearing horses refers to
a Union called strike in 1970, a call for a comparably significant event
in 1981, and that the words "the skies will grow quiet" can refer only
to an illegal walkout. The president of the Local stated that he picked
up the T-shirt at a convention but that he never tried to interpret it.
He thought that the numeral "'70" referred to the large gains made by
the Union that year in collective bargaining negotiations. I find the
language abstruse. If it is provocative, it is only so in a mystical
sense. Were it the only T-shirt, worn only where no other similar
garments were worn, perhaps some greater odiousness might be attached to
it. However, here it is only one of a sea of T-shirts where the wearing
of a T-shirt is de rigueur. Under these particular circumstances, I
cannot conclude that it has been shown to be so provocative as to
demonstrate special circumstances. I am more prone to think that it is
merely a collector's item.
The "headset" T-shirt, to Respondent, conveys the impression that
"controllers will crush their headsets" in 1981. The Union posits that
it means only Union "unity and solidarity". The Deputy Chief concluded
that it would probably not be intimidating if one person wore it, but
that it would be if many did. I conclude that a reasonable
interpretation of the symbolism is that it represents unity and
solidarity and that it does not purport to call members to any action.
It is a passive, inoffensive advertisement of organizational aims and
interests. /16/
The "mouse" T-shirt has been worn to the workplace by one employee
for a year and a half and he has worn a similar belt buckle for four
years. Respondent argues that the T-shirt tends to undermine
discipline. There was, however, no evidence of any disruption of
discipline during the period it was worn prior to July of 1980. The
only theory on which Respondent relies to make its argument stems from
its belief that the eagle is symbolic of the employer and the mouse is
symbolic of the employee. I can accept that explanation of the
symbolism up to that point. However, Respondent's Deputy Chief, upon
whose testimony Respondent must rely for record evidence, stated that
although he found this T-shirt to be intimidating and provocative, it
might not be so to other supervisors. This testimony undermines any
claim that, on an objective basis, the T-shirt has any potential for
disruption. It merely suggests that it is offensive to a particular
supervisor. Under the circumstances found to exist in this case, a
single supervisor's notion of "taste" is an inappropriate standard by
which an employee's attire may be restricted. By any objective
standard, it is difficult to envision how this T-shirt can "intimidate"
Respondent or one of its supervisors. It is a mighty mouse which can
frighten a fierce eagle merely by a digital salute.
The evidence clearly shows that no representative of Respondent's
management takes exception to the wearing of the blue golf shirt. That
is because the emblem is "small and inconspicuous". The record also
shows that it has been worn for two years at the workplace without
comment. However, on brief Respondent argues that the emblem "lends
itself to different interpretations, one of which is highly
objectionable and provocative to the employer." Since that
interpretation was not proffered, I need not address it.
As a result of balancing the employees' right to wear the T-shirts at
issue with the employer's right to maintain discipline, I conclude that
Respondent has not shown that special circumstances obtain which would
justify a restriction against these particular forms of expression.
Here we are not concerned with uniformed employees who have routine
contact with members of the general public. Here there is no question
that pictures, slogans, and insignia have been found to be appropriate
dress /17/ and that wearing T-shirts at the workplace has become a
condition of employment. By condoning a wide latitude of dress at its
facilities, Respondent has encouraged the display of a variety of
designs and inscriptions of which these particular T-shirts are
representative. The real reason for the restriction imposed in July
1980, was not because of any particular insignia or slogan; it was the
number of shirts observed by the supervisors and the realization that
the right to wear those shirts was becoming more meaningful because of
ongoing collective bargaining negotiations. Under these circumstances,
where no special circumstances have been shown to warrant a different
result, Federal labor law is not inimical to the freewheeling use of the
written word. /18/ Respondent may not lawfully restrict employees from
wearing the T-shirts at issue.
Having found and concluded that Respondent has violated Section
7116(a)(1) of the Statute, I recommend that the Federal Labor Relations
Authority issue the following order pursuant to 5 C.F.R. 2423.29(c):
ORDER
ORDERED, that the Federal Aviation Administration, Spokane
Tower/Approach Control shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees by
prohibiting them from wearing T-shirts bearing lawful Union
insignia, emblems, and slogans.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facilities copies of the attached notice marked
"Appendix" on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms they shall be signed by an
authorized representative and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including
all bulletin boards, and other places where notices are
customarily posted. Reasonable steps shall be taken to ensure
that the notices are not altered, defaced, or covered by any other
material.
(b) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have
been taken to comply with the Order.
ALAN W. HEIFETZ
Administrative Law Judge
Dated: July 6, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT interfere with, r1strain, or coerce our employees by
prohibiting them from wearing T-shirts bearing lawful Union insignia,
emblems, and slogans.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
(Agency or Activity)
By: (Signature)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or Compliance
with any of its provisions, they may communicate directly with the
Regional Director, Region IX, Federal Labor Relations Authority, whose
address is: 450 Golden Gate Avenue, Room 11408, P.O. Box 36016, San
Francisco, CA 94102, and whose telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ The Authority, after the Judge issued his Decision in this case,
revoked the exclusive recognition status of the Charging Party (PATCO)
and thereafter dismissed as moot complaints involving the statutory
rights and responsibilities of PATCO as a labor organization on the
basis that any decision rendered in such cases could not have any
practical legal effect (see, e.g., Professional Air Traffic Controllers
Organization, AFL-CIO, Local 216, 11 FLRA No. 16 (1983); United States
Department of Transportation, Federal Aviation Administration, Southwest
Region, 11 FLRA No. 18 (1983)). The Authority concludes that the
instant case is not moot, however, as it involves alleged violations by
the Respondent of certain statutory rights of individual employees, and
it shall therefore be considered by the Authority on its merits. See
Department of Transportation, Federal Aviation Administration, Boston
Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA No. 67
(1983).
/2/ Article 61 of the parties' then existing collective bargaining
agreement, entitled "Dress Code," provided that "Members of the
bargaining unit shall groom and attire themselves in a neat, clean
manner appropriate to the conduct of government business."
/3/ Section 7102 provides in pertinent part:
Sec. 7102. Employees' rights
Each employee shall have the right to form, join, or assist any
labor organization, or to refrain from any such activity, freely
and without fear of penalty or reprisal, and each employee shall
be protected in the exercise of such right. . . .
/4/ Section 7116(a)(1) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter(.)
/5/ Although evidence was introduced to indicate that some contact
with the public was possible, no evidence was introduced to show whether
the apparel in question was ever seen by members of the public or, if
so, whether it prompted any comment by anyone other than members of
Respondent's management.
/6/ Here Judge Oliver cited General American Trans. Corp., 228 NLRB
808, 94 LRRM 1483 (1977), a case which places much doubt about the
vitality of Collyer and its progeny.
/7/ Section 7116(d) of the Statute provides, inter alia,
. . . issues which can be raised under a grievance procedure
may, in the discretion of the aggrieved party, be raised under the
grievance procedure or as an unfair labor practice under this
section, but not under both procedures.
/8/ See e.g., Maryland Drydock Co. v. NLRB, 183 F.2d 538 (4th Cir.
1950) (defamatory and insulting language which "scurrilously lampoons
the officers of the company and its supervisory employees");
Caterpillar Tractor Co. v. NLRB, 230 F.2d 357 (7th Cir. 1956) (buttons
with "Don't be a Scab" found to be disruptive of discipline and
efficient production); but Cf., Linn v. Plant Guard Workers, 383 U.S.
53 (1966) (a libel action wherein the Court held that absent malice, a
union may use intemperate, abusive, or insulting language, including
such epithets as "scab", "liar", and "unfair", if it believes such
rhetoric to be an effective means to make its point).
/9/ Southwestern Bell Telephone Company, 200 NLRB 667 (1972) (shirt
with slogan "Ma Bell is a Cheap Mother", admitted to be susceptible to
derisive and profane construction, allowed to be banned as a reasonable
precaution against discord and bitterness between employees and
management as well as to assure decorum and discipline).
/10/ Floridan Hotel of Tampa, Inc., 137 NLRB No. 161, 50 LRRM 1433
(1962).
/11/ Davison-Paxon Co., Div. of R. H. Macy & Co. v. NLRB, 462 F.2d
364 (5th Cir. 1972) (fashionable department store may reasonably
distinguish small, blue membership button from large, yellow and black
campaign button).
/12/ Cf., Linn v. Plant Guard Workers, Supra.
/13/ Maryland Drydock Co. v. NLRB, Supra at p. 541.
/14/ Webster's Third New International Dictionary (ed. 1971).
/15/ "Th' best thing about a little judicyous swearin' is that it
keeps th' temper. Twas intinded as a compromise between runnin' away
an' fightin'." Finley Peter Dunne, "Swearing", Observations by Mr.
Dooley (1902).
/16/ See, Caterpillar Tractor Co., Supra.
/17/ Since Respondent has not argued, on brief, that by entering into
a collective bargaining agreement containing a "dress code" article, the
Union has waived its statutory right to display Union insignia and
slogans, I need not reach that question even though I find that Counsel
for the General Counsel's argument anticipating that issue to be
persuasive.
/18/ Cf., Old Dominion Br. No. 496, Nat. Ass'n. Letter Car. v.
Austin, 418 U.S. 264 (1974).