15:0668(135)CA - FAA, Spokane Tower/Approach Control and Professional Air Traffic Controllers Organization, MEBA -- 1984 FLRAdec CA



[ 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