15:0668(135)CA - FAA, Spokane Tower/Approach Control and Professional Air Traffic Controllers Organization, MEBA -- 1984 FLRAdec CA
[ v15 p668 ]
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).