United States Army Support Command, Fort Shafter, Hawaii (Respondent) and Service Employees International Union, Local 556, AFL-CIO (Labor Organization)



[ v03 p796 ]
03:0796(121)CA
The decision of the Authority follows:


 3 FLRA No. 121
 
 UNITED STATES ARMY SUPPORT COMMAND
 FORT SHAFTER, HAWAII
 Respondent
 
 and
 
 SERVICE EMPLOYEES INTERNATIONAL
 UNION, LOCAL 556, AFL-CIO
 Labor Organization
 
                                            Case No. 8-CA-160
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE IN THE ABOVE-ENTITLED PROCEEDING ISSUED
 HIS RECOMMENDED DECISION AND ORDER FINDING THAT THE RESPONDENT HAD NOT
 ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS TO THE ADMINISTRATIVE
 LAW JUDGE'S RECOMMENDED DECISION AND ORDER AND A SUPPORTING BRIEF, AND
 THE RESPONDENT FILED AN OPPOSITION TO THE GENERAL COUNSEL'S EXCEPTIONS.
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THIS
 CASE, INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS AND SUPPORTING BRIEF
 AND THE RESPONDENT'S OPPOSITION THERETO, THE AUTHORITY HEREBY ADOPTS THE
 ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATION.  IN
 ADOPTING THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDATION, THE AUTHORITY
 AGREES WITH HIS CONCLUSION THAT, IN THE ABSENCE OF SPECIAL
 CIRCUMSTANCES, EMPLOYEES HAVE A RIGHT UNDER THE STATUTE TO WEAR UNION
 INSIGNIA AT THE WORK PLACE.  IN THE INSTANT CASE, THE AUTHORITY CONCURS
 WITH THE ADMINISTRATIVE LAW JUDGE'S FINDING THAT UNDER ALL THE
 CIRCUMSTANCES HEREIN, INCLUDING THE SIZE AND CONSPICUOUS NATURE OF THE
 UNION INSIGNIA INVOLVED, THE RESPONDENT'S ACTION IN PROHIBITING THE TWO
 HOTEL SERVICE EMPLOYEES FROM WEARING THE UNION STEWARDS' BADGES IN ISSUE
 WHILE DEALING WITH THE PUBLIC DID NOT VIOLATE SECTION 7116(A) OF THE
 STATUTE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 8-CA-160 BE, AND
 IT HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., JULY 31, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FEDERAL LABOR RELATIONS AUTHORITY IN
 THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    GERALD M. COLE, ESQUIRE
 
    REGIONAL ATTORNEY
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    350 SOUTH FIGUEROA STREET
 
    10TH FLOOR
 
    LOS ANGELES, CALIFORNIA 90071
 
    TERRY E. THOMASON, ESQUIRE
 
    CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
 
    UNITED STATES ARMY SUPPORT COMMAND
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    FORT SHAFTER, HAWAII 96858
 
    MR. GEORGE HARDY, PRESIDENT
 
    SERVICE EMPLOYEES INTERNATIONAL
 
    UNION, AFL-CIO
 
    2020 K STREET, N.W.
 
    WASHINGTON, D.C.  20006
 
    GERALD M. COLE, ESQUIRE
 
    REGIONAL ATTORNEY
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION 8, 350 SOUTH FIGUEROA STREET
 
    10TH FLOOR
 
    LOS ANGELES, CALIFORNIA 90071
 
                          FOR THE GENERAL COUNSEL
 
    TERRY E. THOMASON, ESQUIRE
 
    CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
 
    UNITED STATES ARMY SUPPORT COMMAND
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    FORT SHAFTER, HAWAII 96858
 
                            FOR THE RESPONDENT
 
    BEFORE:  GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. SECTION 7101 ST SEQ., AS A RESULT OF AN
 UNFAIR LABOR PRACTICE COMPLAINT, DATED NOVEMBER 16, 1979, FILED BY THE
 REGIONAL DIRECTOR, REGION 8, FEDERAL LABOR RELATIONS AUTHORITY, LOS
 ANGELES, CALIFORNIA AGAINST THE UNITED STATES ARMY SUPPORT COMMAND, FORT
 SHAFTER, HAWAII (RESPONDENT).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED 5
 U.S.C. 7116(A)(1) IN THAT ON OR ABOUT JUNE 9, 1979, AND CONTINUING TO
 DATE, RESPONDENT HAS PROMULGATED, MAINTAINED, AND ENFORCED A RULE
 PROHIBITING ITS NON-APPROPRIATED FUND EMPLOYEES AT THE HALE KOA HOTEL
 FROM WEARING UNION INSIGNIA AT TIMES WHEN RESPONDENT REQUIRES THAT
 EMPLOYEES WEAR A SPECIFICALLY DISTINCTIVE MODE OF DRESS INCIDENT TO THE
 EMPLOYEES' DUTIES.
 
    RESPONDENT'S AMENDED ANSWER DENIED THE ALLEGATIONS.  RESPONDENT
 ASSERTED THAT EMPLOYEES DO NOT HOLD AN UNRESTRICTED RIGHT TO WEAR UNION
 INSIGNIA, AND ANY RIGHT TO WEAR UNION INSIGNIA WHICH MAY BE HELD BY
 EMPLOYEES REQUIRED TO WEAR A SPECIFICALLY DISTINCTIVE MODE OF DRESS
 INCIDENT TO THE EMPLOYEES' DUTIES WAS WAIVED IN THE COLLECTIVE
 BARGAINING AGREEMENT BETWEEN THE RESPONDENT AND THE SERVICE EMPLOYEES'
 INTERNATIONAL UNION, LOCAL 556, AFL-CIO (CHARGING PARTY OR UNION).
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED IN FORT
 SHAFTER, HAWAII.  /1/ THE GENERAL COUNSEL, FLRA AND THE RESPONDENT WERE
 REPRESENTED BY COUNSEL AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE
 RELEVANT EVIDENCE, EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE
 POST-HEARING BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  AT ALL TIMES MATERIAL TO THE COMPLAINT, UNTIL ON OR ABOUT OCTOBER
 1, 1979, RESPONDENT EMPLOYED VARIOUS EMPLOYEES PAID FROM NONAPPROPRIATED
 FUNDS, INCLUDING EMPLOYEES WHO WERE EMPLOYED AT THE HALE KOA HOTEL,
 HAWAII.
 
    2.  AT ALL TIMES MATERIAL TO THE COMPLAINT, THE UNION WAS THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT OF SUCH EMPLOYEES, INCLUDING
 APPROXIMATELY 500 EMPLOYEES AT THE HALE KOA HOTEL.
 
    3.  RESPONDENT AND THE UNION ENTERED INTO A COLLECTIVE BARGAINING
 AGREEMENT, APPROVED APRIL 11, 1979, WHICH WAS IN EFFECT AT ALL TIMES
 MATERIAL AND UNTIL OCTOBER 1979.  (GENERAL COUNSEL'S EX. 2).  ARTICLE 16
 OF THE AGREEMENT PROVIDED, IN PART, AS FOLLOWS:
 
                                ARTICLE 16
 
                                  UNIFORM
 
    SECTION 1.  WHERE THE EMPLOYER REQUIRES THAT EMPLOYEE(S) WEAR A
 SPECIFICALLY DISTINCTIVE OR
 
    UNUSUAL MODE OF DRESS INCIDENT TO THE EMPLOYEE'S ASSIGNED DUTIES,
 SUCH PRESCRIBED UNIFORMS
 
    SHALL BE PROVIDED BY THE EMPLOYER IN SUCH QUANTITY AS TO ALLOW THE
 EMPLOYEE(S) TO MAINTAIN A
 
    NEAT AND CLEAN APPEARANCE WITHOUT REQUIRING THE CLEANING OF THE
 UNIFORM ON A DAILY
 
    BASIS.  EMPLOYEES WILL WEAR SUCH UNIFORMS AS PRESCRIBED BY THE
 EMPLOYER . . . AND WILL NOT
 
    ALTER, CHANGE OR OTHERWISE TAILOR THE PRESCRIBED AND ISSUED UNIFORMS
 WITHOUT THE EXPRESS
 
    CONSENT OF THE EMPLOYER . . .
 
   *          *          *          *
 
 
    SECTION 5.  AS USED IN THIS ARTICLE, THE TERM 'UNIFORM' SHALL MEAN A
 SPECIFIC AND
 
    DISTINCTIVE ARTICLE OF APPAREL SPECIFICALLY PRESCRIBED FOR WEAR BY
 EMPLOYEES BY THE EMPLOYER
 
    . . .
 
    4.  ARTICLE 16, SECTION 1 WAS TAKEN FROM A PREVIOUS AGREEMENT BETWEEN
 THE PARTIES AND
 
    PLACED IN THE APRIL 1979 AGREEMENT WITHOUT CHANGE.  ARTICLE 16,
 SECTION 5, DEALING WITH WHAT
 
    CONSTITUTES A UNIFORM, WAS CHANGED FROM THE PRIOR AGREEMENT TO
 INCLUDE PRESCRIBED COLOR
 
    SCHEMES.
 
    5.  NEGOTIATION CONCERNING ARTICLE 16, SECTION 1, OF THE PREVIOUS
 AGREEMENT, TOOK PLACE IN
 
    1974 AND EARLY 1975.  THERE WAS NO DISCUSSION CONCERNING THE WEARING
 OF UNION
 
    INSIGNIA.  HOWEVER, IT WAS DISCUSSED AND AGREED THAT IF AN EMPLOYEE
 SHOULD COME TO WORK WITH A
 
    LEI, SWEATER, SCARF, OR GAUDY JEWELRY, THE RESPONDENT, UNDER ARTICLE
 16, SECTION 1, COULD ASK
 
    THE EMPLOYEE NOT TO WEAR SUCH AN ITEM.  (TR. 26-27).
 
    6.  THE PARTIES STIPULATED AS FOLLOWS CONCERNING THE INCIDENTS IN
 ISSUE, AND I SO FIND:
 
    (1.) AT ALL TIMES MATERIAL HEREIN, EMPLOYEE MICHAEL DALLAS WAS A CART
 WAITER FOR
 
    RESPONDENT.  AS A CART WAITER, HE WAS REQUIRED BY RESPONDENT TO WEAR
 A UNIFORM.  IN MAY 1979,
 
    HE BECAME A SHOP STEWARD FOR THE UNION.  IN JUNE 1979, MR.  DALLAS
 BEGAN WEARING A STEWARD'S
 
    BADGE ON HIS UNIFORM, INCLUDING TIMES WHEN HE DEALT WITH CUSTOMERS OF
 THE HALE KOA
 
    HOTEL.  RESPONDENT REQUIRED WAITERS TO WEAR A UNIFORM CONSISTING OF
 BROWN SLACKS, A WHITE
 
    SHIRT, VEST OR JACKET, A BOW TIE AND A HALE KOA HOTEL NAME TAG.  ON
 JUNE 9, 1979, DALLAS WAS
 
    TOLD NOT TO WEAR THE STEWARD'S BADGE BY ERNEST BODNER, MAITRE D' AND
 A SUPERVISOR OF
 
    RESPONDENT WITHIN THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE.
 MR. BODNER THEN GAVE
 
    MR. DALLAS A WRITTEN LETTER OF COUNSELING CONCERNING THE WEARING OF
 THE STEWARD'S BADGE AS A
 
    VIOLATION OF RESPONDENT'S UNIFORM REQUIREMENT.  THEREAFTER, MR.
 DALLAS CEASED WEARING THE
 
    STEWARD'S BADGE.
 
    (2.) HENRY HOLTHAUS IS A FRY COOK EMPLOYED BY RESPONDENT AT THE HALE
 KOA HOTEL WHO WAS ALSO
 
    APPOINTED A STEWARD FOR THE UNION IN MAY 1979.  FRY COOKS WERE
 REQUIRED BY RESPONDENT TO WEAR
 
    A WHITE UNIFORM.  HOLTHAUS WORE A STEWARD'S BADGE FOR APPROXIMATELY 2
 WEEKS WITHOUT
 
    INCIDENT.  ON JUNE 22, 1979, HE WAS TOLD BY EXECUTIVE CHEF ROLF
 WALTERS, A SUPERVISOR WITHIN
 
    THE MEANING OF SECTION 7103(A)(10) OF THE STATUTE, THAT HE COULD NOT
 WEAR HIS STEWARD'S BADGE
 
    WHEN DEALING WITH THE PUBLIC.  ON THE AVERAGE, MR. HOLTHAUS' WEEKLY
 DUTIES INCLUDING SERVING
 
    THE PUBLIC ON THE BUFFET LINE THREE TIMES A WEEK AND AT LUAUS TWICE A
 WEEK, WHERE HE WAS ALSO
 
    REQUIRED TO WEAR WHITES.
 
    (3.) AT ALL TIMES RELEVANT TO THE MATTERS IN ISSUE THE RESPONDENT HAS
 ENFORCED ITS POLICY
 
    THAT WHEREVER THERE IS A UNIFORM REQUIREMENT NO ALTERATION OF THAT
 UNIFORM IS PERMITTED
 
    WITHOUT PRIOR APPROVAL BY THE RESPONDENT.  SINCE JUNE 1979, AS NOTED
 ABOVE, STEWARDS OF THE
 
    UNION WITH A UNIFORM REQUIREMENT HAVE NOT WORN ANY STEWARD'S BADGES
 WHEN DEALING WITH THE
 
    PUBLIC.
 
    (4.) AN EXAMPLE OF THE STEWARD'S BADGE WORN BY BOTH DALLAS AND
 HOLTHAUS MAY BE ADMITTED
 
    INTO EVIDENCE AS GENERAL COUNSEL'S EXHIBIT NO. 4.  /2/
 
    (5.) IN JANUARY OR FEBRUARY 1979, THERE WAS ONGOING CONSTRUCTION
 BEING PERFORMED AT THE
 
    HALE KOA HOTEL.  ONE WEEK WITH THEIR PAYCHECKS, RESPONDENT
 DISTRIBUTED A PATCH WHICH IT
 
    REQUESTED THAT EMPLOYEES PLACE ON THEIR UNIFORMS (FOR THE PURPOSE OF
 AIDING CUSTOMER RELATIONS
 
    DURING THE CONSTRUCTION PROJECT).  SOME EMPLOYEES DID PLACE THIS
 PATCH ON THEIR SHIRT SLEEVES
 
    WHEN DEALING WITH THE PUBLIC FOR THE PERIOD OF ABOUT A WEEK.  A COPY
 OF THIS PATCH MAY BE
 
    ADMITTED INTO EVIDENCE AS GENERAL COUNSEL'S EXHIBIT NO. 5.  /3/
 
    (6.) THE LETTER OF COUNSELLING RECEIVED BY MICHAEL DALLAS MAY BE
 ADMITTED INTO EVIDENCE AS
 
    GENERAL COUNSEL'S EXHIBIT NO. 6.
 
    (7.) THIS STIPULATION MAY BE ENTERED INTO EVIDENCE AS GENERAL
 COUNSEL'S EXHIBIT
 
    NO. 3.  (FOOTNOTES ADDED).
 
    MR. DALLAS SOMETIMES WORE HIS STEWARD'S BADGE IN ADDITION TO THE HALE
 KOA HOTEL NAME TAG
 
    AND SOMETIMES IN PLACE OF THE HALE KOA HOTEL NAME TAG.  HE WORE THE
 STEWARD'S BADGE OVER THE
 
    POCKET AREA OF HIS UNIFORM.  THE HOTEL NAME TAG IS APPROXIMATELY THE
 SAME SIZE AND WORN IN THE
 
    SAME LOCATION.
 
    8.  IT IS A TRADITION FOR HOTELS TO HAVE THEIR OWN IDENTIFICATION
 BADGES SO THAT CUSTOMERS
 
    CAN READILY IDENTIFY EMPLOYEES.
 
    9.  RESPONDENT RECEIVED SOME COMPLAINTS FROM CUSTOMERS CONCERNING THE
 WEARING OF THE
 
    STEWARD'S BADGES AS DESCRIBED ABOVE.  THESE CUSTOMERS OBJECTED TO THE
 BADGES, OTHER THAN THE
 
    HOTEL IDENTIFICATION NAME TAG, BEING WORN, AND QUESTIONED WHETHER THE
 EMPLOYEES WERE WORKING
 
    FOR THE HOTEL OR THE UNION.  ONE CUSTOMER WAS PARTICULARLY DISTURBED
 AND REMARKED THAT HE
 
    COULD NOT UNDERSTAND WHY EMPLOYEES WERE WEARING THE UNION NAME TAG IN
 A MILITARY DINING ROOM.
 
    10.  RESPONDENT TOOK THE ACTION DESCRIBED ABOVE BECAUSE IT CONCLUDED
 THAT THE WEARING OF
 
    THE UNION BADGES BY EMPLOYEES WHILE SERVING THE PUBLIC WAS NOT PART
 OF THE PRESCRIBED UNIFORM,
 
    WOULD CAUSE FURTHER CUSTOMER COMPLAINTS, ANTAGONIZE CUSTOMERS, AND
 IMPACT ADVERSELY ON
 
    BUSINESS.  THE HALE KOA HOTEL ONLY SERVES MILITARY PERSONNEL, THEIR
 DEPENDENTS AND THEIR
 
    GUESTS.  IT HAS A NARROW PROFIT MARGIN AND MUST BE SELF-SUPPORTING TO
 STAY IN BUSINESS.
 
    11.  THE EMPLOYEES WERE NOT RESTRICTED FROM WEARING THE BADGES AT
 TIMES WHEN THEY WERE NOT
 
    SERVING THE PUBLIC OR WERE OUT OF THE VIEW OF THE GUESTS.
 
    12.  AS A WAITER, A SUBSTANTIAL PORTION OF SHOP STEWARD MICHAEL
 DALLAS' WORK DAY WAS SPENT
 
    SERVING THE PUBLIC.  HE CAME IN CONTACT WITH OTHER EMPLOYEES AS WELL
 IN THE DINING ROOM.
 
    13.  PURSUANT TO THE NEGOTIATED AGREEMENT, THE RESPONDENT PROVIDED
 SPACE ON OFFICIAL
 
    EMPLOYEE BULLETIN BOARDS FOR THE POSTING OF UNION NOTICES AND SIMILAR
 INFORMATIONAL MATERIAL
 
    AND, UPON REQUEST, MADE MEETING SPACE AVAILABLE FOR UNION MEETINGS
 WITH EMPLOYEES OF THE UNIT.
 
    14.  IN OCTOBER 1979 THE HALE KOA HOTEL WAS TRANSFERRED FROM THE
 COMMAND OF THE RESPONDENT
 
    AND TRANSFERRED TO THE UNITED STATES ARMY ADJUTANT GENERAL CENTER.
 (TR. 5).  HOWEVER, FOR
 
    PURPOSES OF THIS CASE, THE PARTIES AGREE, IN COMPLIANCE WITH
 BARGAINING AGREEMENTS, THAT ANY
 
    RULING INVOLVING THE RESPONDENT WILL ALSO BE APPLICABLE TO THE HALE
 KOA HOTEL.  (TR. 51).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE ISSUE PRESENTED FOR DETERMINATION IS WHETHER RESPONDENT'S ACTION
 IN PROHIBITING THE TWO HOTEL SERVICE EMPLOYEES FROM WEARING THEIR UNION
 STEWARD'S BADGES WHEN DEALING WITH THE PUBLIC VIOLATED SECTION
 7116(A)(1) OF THE STATUTE.  /4/
 
    THE RIGHT OF EMPLOYEES TO WEAR SMALL, NEAT, INCONSPICUOUS,
 NON-PROVOCATIVE UNION INSIGNIA AT WORK HAS BEEN RECOGNIZED IN BOTH THE
 PRIVATE /5/ AND PUBLIC /6/ SECTORS.  IN DETERMINING WHETHER THERE HAS
 BEEN A VIOLATION OF SUCH A RIGHT UNDER THE STATUTE, OR WHETHER THERE MAY
 BE PRESENT THE KIND OF "SPECIAL CIRCUMSTANCES" WHERE THE AGENCY MAY
 RESTRICT SUCH A RIGHT, IT IS APPROPRIATE TO EXAMINE THE FACTS AND
 BALANCE THE COMPETING RIGHTS AND OBLIGATIONS TO ALL CONCERNED.  /7/
 
    ARTICLE 16, SECTION 1 OF THE PARTIES' NEGOTIATED AGREEMENT PROVIDES
 THAT, "EMPLOYEES WILL WEAR SUCH UNIFORMS AS PRESCRIBED BY THE EMPLOYER
 (OR A PERSONALLY OWNED SUBSTITUTE NOT PRESCRIBED, BUT AUTHORIZED BY THE
 EMPLOYER) AND WILL NOT ALTER, CHANGE OR OTHERWISE TAILOR THE PRESCRIBED
 AND ISSUED UNIFORMS WITHOUT THE EXPRESS CONSENT OF THE EMPLOYER."
 
    AS NOTED ABOVE, THE PRESCRIBED UNIFORM FOR WAITERS CONSISTS OF BROWN
 SLACKS, A WHITE SHIRT, VEST OR JACKET, A BOW TIE, AND A HALE KOA HOTEL
 NAME TAG.  THUS, A PARTICULAR NAME TAG, THE HALE KOA HOTEL NAME TAG, IS
 A PRESCRIBED PART OF THE UNIFORM IN THE CASE OF WAITERS.  THE PRESCRIBED
 UNIFORM FOR FRY COOKS IS A WHITE UNIFORM.  A HOTEL NAME TAG IS NOT
 PRESCRIBED FOR FRY COOKS.
 
    THE CONTRACTUAL PROVISION AND ITS BARGAINING HISTORY DO NOT
 DEMONSTRATE A CLEAR AND UNMISTAKABLE WAIVER OF THE RIGHT TO WEAR SMALL,
 NEAT, INCONSPICUOUS NON-PROVOCATIVE UNION INSIGNIA.  HOWEVER WHILE THE
 BADGES IN ISSUE ARE NEAT AND NON-PROVOCATIVE, /8/ THEY ARE NOT SMALL OR
 INCONSPICUOUS.  /9/ THEY ARE APPROXIMATELY 3 INCHES LONG AND 1 1/2
 INCHES WIDE, THE CUSTOMARY SIZE OF A NAME TAG AND THE APPROXIMATE SAME
 SIZE AS THE HALE KOA HOTEL NAME TAG.
 
    THE BARGAINING HISTORY INDICATES AGREEMENT BY THE PARTIES ON THE VIEW
 THAT THE WEARING OF A LEI, SWEATER, SCARF, OR GAUDY JEWELRY WOULD
 CONSTITUTE AN ALTERATION OR CHANGE OF THE PRESCRIBED UNIFORM, AND THAT
 SUCH AN ITEM COULD NOT BE WORN WITHOUT THE EMPLOYER'S APPROVAL.  IN MY
 VIEW, SINCE THE STEWARDS' BADGE IS APPROXIMATELY THE SAME SIZE AS THE
 HOTEL NAME TAG, THE RESPONDENT COULD REASONABLY REGARD ITS SIZE AND
 CONSPICUOUS NATURE AS CONSTITUTING AN ALTERATION OR CHANGE OF THE
 PRESCRIBED UNIFORM AND, THUS, BEING WAIVED UNDER THE AGREEMENT FROM
 BEING WORN BY EMPLOYEES WITHOUT THE PRIOR CONSENT OF THE RESPONDENT.
 
    THE RECORD REFLECTS THAT THE IMAGE OF THE HOTEL IS ESSENTIAL FOR
 BUSINESS AND PUBLIC RELATIONS.  IT IS TRADITIONAL FOR HOTELS TO HAVE
 THEIR OWN IDENTIFICATION BADGES SO THAT CUSTOMERS CAN READILY IDENTIFY
 EMPLOYEES.  (TR. 32-33).  /10/ IN THIS CASE, SOME CUSTOMERS WERE
 CONFUSED AS TO WHETHER THE WAITER WAS EMPLOYED BY THE HOTEL OR THE
 UNION.  SOME EMPLOYEES WERE ALSO CONFUSED ABOUT THE WEARING OF THE TWO
 NAME TAGS.  (TR. 40-41).  THE PROHIBITION AGAINST THE WEARING OF THE
 STEWARDS' NAME TAG WAS, THUS, A VALID EXERCISE OF THE RESPONDENT'S
 RIGHT, ON THE BASIS OF BUSINESS JUDGMENT, TO AVOID CONFUSING CUSTOMERS
 AND PROTECTING ITS IMAGE BY NOT AUTHORIZING THE WEARING OF A FOREIGN
 NAME TAG AS PART OF THE PRESCRIBED UNIFORM.  CF. NLRB V.  HARRAHS CLUB,
 337 F.2D 177 (9TH CIR. 1964);  DAVISON-PAXON CO. V. NLRB, 462 F.2D 364,
 371 (5TH CIR.  1972);  AFGE, NATIONAL IMMIGRATION AND NATURALIZATION
 SERVICE COUNCIL AND DEPARTMENT OF JUSTICE, INS, FLRC NO. 76A-26, 5 FLRC
 104(1977).
 
    IT SHOULD BE EMPHASIZED, HOWEVER, THAT THE RECORD REFLECTS THAT
 RESPONDENT ALSO TOOK INTO CONSIDERATION SOME COMPLAINTS APPARENTLY
 HAVING NOTHING TO DO WITH THE SIZE, CONSPICUOUS NATURE, OR CONFUSION
 CAUSED BY THE STEWARD'S BADGES.  THESE WERE SIMPLY CUSTOMER OBJECTIONS
 TO UNION BADGES BEING WORN IN A MILITARY DINING ROOM.  IN MY VIEW, THESE
 COMPLAINTS ARE ENTITLED TO NO WEIGHT, EVEN THOUGH RESPONDENT MIGHT FEAR
 A DIMINUTION OF BUSINESS IF CUSTOMERS ARE ANTAGONIZED BY UNION BUTTONS.
 SUCH CUSTOMERS MAY NOT BE AWARE OF EMPLOYEE RIGHTS UNDER THE STATUTE.
 THE MERE FACT THAT EMPLOYEES COME INTO CONTACT WITH CUSTOMERS WHO MIGHT
 BE OFFENDED BY UNION BUTTONS DOES NOT CONSTITUTE SUCH SPECIAL
 CIRCUMSTANCES AS TO DEPRIVE EMPLOYEES OF THE RIGHT OF WEARING OTHERWISE
 PROPER UNION INSIGNIA.  /11/
 
    THE GENERAL COUNSEL CONTENDS THAT IN ADDITION TO BEING A PROTECTED
 EMPLOYEE RIGHT UNDER THE STATUTE, THE BADGES IN ISSUE ARE NEEDED BY THE
 UNION TO PROVIDE NOTICE TO EMPLOYEES OF THE IDENTITIES OF THE TWO
 STEWARDS.  ONE OF THE STEWARDS SPENDS MOST OF HIS TIME SERVING THE
 PUBLIC AS A WAITER.  THUS, THE GENERAL COUNSEL ASSERTS THAT IN
 PREVENTING HIM FROM WEARING THE STEWARD BADGE WHILE SERVING THE PUBLIC,
 THE RESPONDENT EFFECTIVELY PREVENTS HIM FROM DISPLAYING HIS BADGE TO
 OTHER EMPLOYEES AND ALERTING THEM TO THE FACT THAT HE IS THEIR UNION
 REPRESENTATIVE.
 
    ALTHOUGH THE RECORD SHOWS THAT THERE ARE APPROXIMATELY 500 EMPLOYEES
 IN THE UNIT AT THE HALE KOA HOTEL, THERE WAS NO SHOWING OF HOW MANY
 STEWARDS THERE ARE AMONG THE WAITERS AND COOKS, OR THAT THE UNION'S
 OTHER MEANS OF COMMUNICATION WITH UNIT EMPLOYEES ARE INADEQUATE TO
 INFORM EMPLOYEES OF THE IDENTITIES OF THEIR UNION STEWARDS, SUCH AS
 NOTICES ON BULLETIN BOARDS, THE WEARING OF LESS CONSPICUOUS STEWARDS'
 BADGES, THE WEARING OF THE BADGES IN ISSUE OUTSIDE THE PUBLIC VIEW, OR A
 COMBINATION OF THESE ALTERNATIVES.
 
    AFTER CONSIDERING ALL THE CIRCUMSTANCES, AND PARTICULARLY THE SIZE
 AND NATURE OF THE STEWARDS' BADGES, IT IS CONCLUDED THAT A PREPONDERANCE
 OF THE EVIDENCE DOES NOT ESTABLISH THAT RESPONDENT'S ACTION IN
 PROHIBITING THE TWO HOTEL SERVICE EMPLOYEES FROM WEARING THE UNION
 STEWARDS' BADGES IN ISSUE WHILE DEALING WITH THE PUBLIC VIOLATED SECTION
 7116(A) OF THE STATUTE, AS ALLEGED.
 
    IT IS NOTED PARTICULARLY THAT THE RESTRICTION IS PURSUANT TO AND
 CONSISTENT WITH THE RESPONDENT'S LONG-STANDING POLICY OF ENFORCING ITS
 PRESCRIBED UNIFORM REQUIREMENT, THERE IS NO EVIDENCE OF A DISCRIMINATORY
 PURPOSE, AND UNIFORMED EMPLOYEES ARE ALLOWED TO WEAR THE UNION STEWARDS'
 BADGES IN ISSUE WHEN THEY ARE NOT SERVING THE PUBLIC.
 
                              RECOMMENDATION
 
    UPON THE BASIS OF THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS
 RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
 C.F.R. 2423.29(C):
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-62 BE, AND
 IT HEREBY IS, DISMISSED.
 
                             GARVIN LEE OLIVER
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  MARCH 10, 1980
 
    WASHINGTON, D.C.
 
                               SERVICE SHEET
 
    CASE NO. 8-CA-160
 
    COPY OF DECISION AND ORDER
 
    DATED MARCH 10, 1930
 
    "DECISION AND ORDER" ISSUED BY ADMINISTRATIVE LAW JUDGE GARVIN LEE
 OLIVER WAS SENT TO THE FOLLOWING PERSONS BY CERTIFIED MAIL:
 
                             BY:  (SIGNATURE)
 
    GERALD M. COLE, ESQUIRE
 
    REGIONAL ATTORNEY
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    REGION 8, 350 SOUTH FIGUEROA STREET
 
    10TH FLOOR
 
    LOS ANGELES, CA.  90071
 
    TERRY E. THOMASON, ESQUIRE
 
    CAPTAIN, JUDGE ADVOCATE GENERAL CORPS
 
    UNITED STATES ARMY SUPPORT COMMAND
 
    OFFICE OF THE STAFF JUDGE ADVOCATE
 
    FORT SHAFTER, HAWAII 96858
 
    REGULAR MAIL:
 
    MR. GEORGE HARDY, PRESIDENT
 
    SERVICE EMPLOYEES INTERNATIONAL
 
    UNION, AFL-CIO
 
    2020 K STREET N.W.
 
    WASHINGTON, DC 20006
 
    ASSISTANT DIRECTOR
 
    LABOR-MANAGEMENT RELATIONS
 
    U.S. OFFICE OF PERSONNEL MANAGEMENT
 
    1900 E STREET N.W.
 
    WASHINGTON, DC 20415
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 E STREET N.W., ROOM 7469
 
    WASHINGTON, DC 20424
 
    ONE COPY TO EACH REGIONAL DIRECTOR
 
    OFFICE OF THE GENERAL COUNSEL
 
    FEDERAL LABOR RELATIONS AUTHORITY
 
    1900 E STREET, N.W., ROOM 7469
 
    WASHINGTON, DC 20424
 
    /1/ THE TRANSCRIPT AT PAGE 14, LINE 16 IS HEREBY CORRECTED TO DELETE
 THE WORDS, "WITHIN 24 HOURS."
 
    /2/ THE STEWARD'S BADGE WORN BY BOTH DALLAS AND HOLTHAUS MEASURES
 APPROXIMATELY 3 INCHES LONG AND 1 1/2 INCHES WIDE AND, EXCEPT FOR COLOR,
 IS THE APPROXIMATE DESIGN AND DIMENSIONS AS FOLLOWS:  (PICTURE OMITTED)
 
    /3/ THE PATCH WORN BY SOME EMPLOYEES AT RESPONDENT'S REQUEST IN
 JANUARY OR FEBRUARY 1979 WAS THE APPROXIMATE DESIGN AND DIMENSIONS AS
 FOLLOWS:  (PICTURE OMITTED)
 
    /4/ SECTION 7116(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    "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;
 
    SECTION 7102 PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    "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.  EXCEPT AS
 OTHERWISE PROVIDED UNDER
 
    THIS CHAPTER