United Parcel Service, Inc.

UNITED PARCEL SERVICE 441 United Parcel Service, Inc. and John K. Ryan, Gerald Minogue, David Pallozzi, Daniel Hickey, Jerome Fryling, Bruce Jones, David Ross, Gerald Vinehout, Harold Legnard, William Cain, Thomas Grant, Wil- liam Folderman, Frank Giering, Martin Rolfe, John Hubicki, Richard N. Foland, Richard Thomas, John A. Parks, Shaun Brennan, William J. Butch. Cases 3-CA-4118, 3-CA-4118-2, 3-CA-4118-3, 3-CA- 4118-4, 3-CA-4118-5, 3-CA-4118-6, 3-CA- 4118-7, 3-CA-4118-8, 3-CA-4118-9, 3-CA- 4118-10, 3-CA-4118-11, 3-CA-4118-12, 3-CA-4118-13, 3-CA-4118-14, 3-CA-4118-15, 3-CA-4118-16, 3-CA-4118-17, 3-CA-4118-18, 3-CA-4118-19, and 3-CA-4118-20 February 17, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 21, 1971, Trial Examiner Benjamin A. Theeman issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief; the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief; the Charging Party filed cross-exceptions to the Trial Examiner's Decision and a supporting brief; and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that Respondent violated Section 8(a)(1) of the Act when it posted the notice to its employees regarding the wearing of the uniform and accessories and the prohibition against the wearing of the "Ryan" button.' The Trial Examiner relying on the ' The Trial Examiner concluded that the wearing of the "Ryan " button 195 NLRB No. 77 fact that the notice was addressed to "All Employees" concluded that the prohibition necessarily limited the rights of the inside employees as well as the rights of the drivers when they were working in the plant. Respondent contends that the wearing of "intra- union" election campaign material is not a protected activity and that, in any event, the notice by its terms only applied to drivers and that the drivers knew and understood that it only applied to them when they were out on deliveries and meeting the customers and gen- eral public. We agree with the Respondent's latter con- tention. The record clearly shows that the notice found to be a violation of Section 8(a)(1) of the Act by the Trial Examiner specifically concerned the company uniform and company regulations regarding the wearing of ac- cessories with the uniform. Since the inside workers, the sorters and loaders and shuttle drivers, do not wear uniforms, clearly the notice could not and did not apply to them. As to the uniformed drivers, the testimony shows that they are frequently "out of uniform" while they are working in the terminal, both before going out on their runs and after their return to the terminal at the end of the day, and that it is common knowledge that this is an accepted practice. As there is no showing that Respondent in any way attempted to interfere with the drivers' "intra-union" campaign activities other than when they were exposed to customers and the general public we cannot find that the notice posted by Respondent on April 27, 1970, violated Section 8(a)(1) of the Act.' Accordingly, we shall dismiss this portion of the complaint.' The Trial Examiner has recom- mended that all other allegations of the complaint be dismissed. We shall therefore dismiss the complaint in its entirety. AMENDED CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent by posting the notice to employees on April 27, 1970, did not violate Section 8(a)(1) of the Act. was a protected activity ' We agree with the Trial Examiner's findings and conclusions with re- gard to the Respondent's history of presenting to the customers and the general public its image of a neatly uniformed driver and the fact that this is an important part of Respondent's public image ' In view of our decision herein, we find it unnecessary to pass on the Trial Examiner's conclusion that employees engaged in "intra-union" cam- paign activity are engaged in protected activity 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner: The complaint as amended' alleges that United Parcel Service, Inc. (Re- spondent or UPS), during late April and early May 1970 had engaged and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq. (the Act), by (a) interfering with its employees' rights to wear union buttons; (b) threaten- ing its employees with loss of work, suspension, and discipli- nary action because of their union membership and activities; (c) interrogating its employees about their union member- ship; and (d) suspending, discharging, and failing and refus- ing to reinstate 20 employees because of their union activities. UPS in its answer denies the commission of the unfair labor practices and as an affirmative defense states: (1) this matter has been the subject of an arbitration proceeding duly, fairly, and regularly held; (2) all parties agreed to be bound thereby; (3) an award issued not repugnant to the purposes of the Act; and (4) all the individuals have been reinstated pursuant to the award and have been paid substantial amounts of money in backpay. Pursuant to notice, a hearing on the consolidated cases was held before me on September 15, 16, and 17, 1970, in Albany, New York. All parties appeared and were represented by counsel. Each was given full opportunity to participate, ad- duce evidence, examine and cross-examine witnesses, and argue orally. Each party submitted a brief that has been read and considered. Upon the entire record in the case and from my observa- tion of the witnesses,' I make the following: FINDINGS OF FACT 1. THE ISSUES The issues are adequately set forth in the statement of the case above. ' The original complaint issued on July 8, 1970, together with an order consolidating the cases herein Charges were filed on May 8, 1970' by 18 individuals Ryan, Minogue, Pallozzi, Hickey, Fryling, Jones, Ross, Vine- hout, Legnard, Cain, Grant, Folderman, Giering, Rolfe, Hubicki, Foland, Thomas, and Parks; and by Brennan on May 14 At the hearing the com- plaint was amended to include Butch who filed a charge on July 23, 1970 ' The testimony of all witnesses has been considered In evaluating the testimony of each witness, demeanor was relied upon. In addition, inconsis- tencies and conflicting evidence were considered The absence of a state- ment of resolution of a conflict in specific testimony, or of an analysis of such testimony, does not mean that such did not occur. See Bishop and Malco, Inc.. d/b/a Walker's, 159 NLRB 1159, 1161 Further, to the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all of a witness' testimony " N.L.R.B. v Universal Camera Corporation, 179 F 2d 749, 754 (C.A. 2) II. BUSINESS OF RESPONDENT (UPS) Respondent, a New York corporation, operates a place of business at Brown's Road, Albany, New York, and various other plants, places of business, warehouses, and other facili- ties in 46 States of the United States, including New Jersey, Connecticut, and Massachusetts. At all times material herein, Respondent has been continuously engaged in the business of providing and performing delivery and related services. Dur- ing the past fiscal or calendar year, Respondent, in the course and conduct of its business, performed services valued in excess of $50,000, of which services in excess of $50,000 were performed in States other than the State of New York. It is found, as admitted by Respondent, that Respondent is and has been an employer affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. III THE LABOR ORGANIZATION Local 294, International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America (herein Local 294), is and has been a labor organization within the meaning of Section 2(5) of the Act. IV THE COLLECTIVE-BARGAINING AGREEMENT For at least the past 6 years, Local 294 has been the exclu- sive representative of Respondent's employees, including drivers, loaders, unloaders, and sorters, and has engaged in collective bargaining with UPS with respect to wages, hours, and other conditions of employment. The arbitration dis- cussed herein took place under a collective-bargaining agree- ment between UPS and Local 294 then in effect. Article 7, section 2, of the agreement provided steps for the processing of employee grievances, which, if not disposed of in discussions between UPS and Local 294, "(b) ... the mat- ter shall be immediately subnytted to the New York State Board of Mediation for arbitration ... The decision of said Board shall be final and binding on both parties ...." V THE ALLEGED UNFAIR LABOR PRACTICES A. Background UPS is in the business of supplying a national service: the pickup and delivery of small packages for retail stores to their customers, and from wholesalers , manufacturers, and dis- tributors to their customers.' As of the time of the hearing, UPS' national service was divided into four main areas, the Northeast, the Southeast, the Midwest, and the Far West. As part of this business, it operates a center at Brown's Road, Albany. It also serves department stores in large metropolitan cities such as New York City, Detroit, and Cleveland. Via an over-the-road service, parcels are transferred from one deliv- ery terminal to another. Delivery service is supplied on a regular basis . A driver calls daily at the shipper's plant for pickup. Delivery is made the next day where possible except where distance does not permit. From pickup to delivery , the parcel is handled by UPS personnel. The UPS started originally in Seattle , Washington, in 1907. In 1919 it spread to Oakland, California, and adopted the name of United Parcel Service . In 1930 UPS started its ser- vice in New York City. Thereafter it continued its expansion to arrive at the national scope outlined above. ' The package weighs no more than 50 pounds, is no larger than 108 inches, and no more than 100 pounds may be delivered from one shipper to one consignee in 1 day The average package weighs about 12 pounds UNITED PARCEL SERVICE 443 B. UPS Emphasizes the Neat Appearance of Its Vehicles and Employees' Uniforms UPS emphasizes and accentuates the "neatly uniformed dnver" and the "high standard of appearance" of its vehicle. In publications explaining its service to the public, its custom- ers and the licensing agencies of governmental bodies, a sepa- rate portion of the document is set aside to show this aspect. Pictures of the vehicles used, and of the men in uniform, illustrate the Company's position that "the most visible sign of UPS is the uniformed driver who makes the pick up and delivery calls." Another such publication contains the state- ment "The UPS delivery man. To the general public, the most visible symbol of the UPS is the uniformed driver ... " and, additionally, "All drivers are neatly uniformed for deliveries to professional offices, beauty shops, business offices, etc. .. " Generally, the picture of the UPS driver shows him in a uniform that has no decoration or adornment. No advertis- ing of any kind is permitted on the vehicle which bears only the name "United Parcel Service." The vehicles are washed daily. Uniforms are paid for by UPS and given to the driver at no cost to him. Annually, UPS spends approximately $3,- 750,000 on a national basis and $90,000 in upstate New York for the cost, maintenance, and cleaning of the uniforms used by its employees. This emphasis on a special appearance of the delivery vehicle and the uniform of its employees has been a consistent policy of UPS since at least 1930. Respondent supplies its employees with a booklet that con- tains a brief history of UPS, employee benefits, wage policies, and working conditions and a section entitled "Personal Ap- pearance UPS Uniform." Listed in this section are the re- quirements of UPS for what is called a "top notch" appear- ance. The section continues with a statement that UPS drivers have built a tradition of neat correctly worn uniforms. This is followed by a set of rules and regulations among which is, "Visible garments which are not part of the uniform are never worn with it." Respondent relies on this rule as a governing factor in this proceeding. The rule has been in effect as UPS policy since at least 1930, became national policy at all UPS plants when UPS started operations on a national basis and was in effect at all times thereafter through the dates of hearing herein. Although not specified in the rules dealing with "Personal Appearance UPS Uniform," and though not specified in the collective-bargaining agree- ment governing Local 294,° all UPS employees are permitted to wear a union button showing they have paid current dues. This button is slightly less than an inch in diameter; gives basically a brown appearance though it has some blue figures on it and black lettering. Generally, it would be considered inconspicuous. It is so found.' UPS also permits the wearing ' Indications are that collective-bargaining agreements in other areas do contain such a provision ' The union dues button at actual size is reproduced of a small, inconspicuous "Safe Driving Button," which is given annually to drivers who have been safe drivers the previous year.' Although not specifically stated in the above-mentioned booklet the requirements covering the manner in which the employee wears his uniform depends on the type of job. The most rigid standard applies to the driver of the delivery vehi- cle because of his relation to the public. Employees in the warehouse or inside the plant who have little or no public contact are not as rigidly controlled. For example, in the winter and fall a jacket is required dress for the dnver. But, when working in the warehouse sorting packages employees, including drivers, may doff their jackets and work in their shirts with the sleeves rolled up. A driver while on the deliv- ery route is not permitted to do so and would be considered improperly dressed. C. UPS Drivers at All Times Knew of the UPS Rule "That Drivers Shall Be Neatly Uniformed" In 1968, a publication called "You & UPS" was issued to the employees. It contained (a) the story of UPS from incep- tion to present national status; (b) the function and service of UPS in the U.S. economy; (c) detailed the employee- employer relationship, including a statement of wages, hours, benefits, and other features; and (d) rules and regulations of employee behavior, etc. Included among the rules was the one on "visible garments" listed above, and the statement that drivers shall be neatly uniformed. Also listed were the com- ponents of a neat appearance, and the components of the uniform issued to drivers by UPS. The publication contained pictures showing the driver in typical neat uniform and pic- tures of the standard appearance of the truck. Whether or not similar publications had been distributed to the employees prior to 1968 is of no significance to this proceeding. It was the practice and custom at the UPS centers for a supervisor to inspect the drivers before they went on their route to determine if they were neatly uniformed. The record as a whole shows that at all times the employees in this proceeding knew of the existence of the "visible garment" rule, the neatly uniformed driver rule, and knew also that UPS enforced these rules. D. UPS Forbids the Drivers to Wear a Ryan Union Campaign Button John K. Ryan was employed by UPS as a dnver. He was a shop steward for Local 294. Early in 1970, he chose to run for election as a union business agent. As part of his cam- paign, he distributed among the employees, starting in Febru- ary or March 1970,' a white button about 2-% inches in diam- eter with the legend in red reading VOTE JACK RYAN In addition, the drivers are given pen and pencil sets, sunglasses with case, and other gifts dependent on how many years of safe driving they have performed. Some of the drivers on occasion wear the eyeglass cases in the pockets of their shirts with the clip showing on the outside Company testimony indicated the latter to be a violation of the neat uniform rule ' The time of distribution is in dispute Since the buttons were continu- ously worn after distribution, it is considered unnecessary to resolve the conflict Nominations for office took place in November and an election in December 1970 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LOCAL 294.8 The button is found to be not inconspicuous. About 60 buttons were distributed. Both warehouse and driver employees wore the buttons on their uniforms daily while at work. Jack Pridell, the division manager, noticed the buttons on the 1st or 2d day the men were wearing them. On that day, he and Ryan had a conversation. Pridell asked Ryan what union office he was running for and was told. Then Pridell asked Ryan why he had not come in to see Pridell first about the matter. Ryan apologized. He told Pridell that since the buttons had been worn about 3 years ago' he thought there was no problem now. The conversation ended when Pridell told Ryan not to put any campaign stickers on the trucks Ryan agreed. UPS had about 75 employees working out of the Albany terminal, all members of Local 294.10 Of these only the drivers had contact with the public. There were between 40-46 driv- ers employed at the time the Ryan buttons were handed out, including feeder drivers." The remainder of the employees worked inside the Albany terminal as sorters and loaders, car washers and yardmen and "student" loaders who work on a part-time basis. At least 20 of the drivers and some of the other men wore the Ryan buttons. During the cold weather the buttons were worn on jacket lapels; in the warmer weather near the shirt pocket. Some of the drivers wore the buttons daily; others less regularly while on the route. Non- drivers wore the buttons to the same extent while at work. On April 27 about 8:30 a.m. Ryan and another driver named Gerald Minogue were called in to talk to Pridell. Pridell informed Ryan and Minogue that he had received a communication from Syracuse advising that the buttons could no longer be worn on the uniform and that the men should take them off. He asked Ryan and Minogue to advise the other men. They refused. Ryan asked that the men be allowed to wear the buttons pending arbitration. Pridell refused that. Pridell stated he would hold a meeting with the The button is reproduced in actual size VOTE \ JACK RYAN other men the next day when he would tell them to take the buttons off. Also on April 27, UPS posted a notice on the bulletin board located in the main room of the building housing the trucks. This room was next to the coffeeshop and was frequented by the UPS employees engaged in driving, loading, and sorting. The notice read: NOTICE TO ALL EMPLOYEES ALL EMPLOYEES ARE REMINDED OF THE REGULATIONS CONCERNING THE WEARING OF UNIFORMS AND ACCES- SORIES NO UNAUTHORIZED ARTICLES MAY BE WORN OR DISPLAYED ON ANY PART OF THE UNIFORM EXCEPT THAT A CURRENT UNION DUES BUTTON MAY BE WORN E. UPS Suspends and Discharges 20 Drivers On April 28 at about 9 a.m., Ryan held a conversation with Lawrence Compositor, his immediate supervisor. Composi- tor called Ryan from the sort belt, away from the other employees, and told him that if he did not remove the Ryan button he could not go on the road with the truck. Ryan refused to take the button off and went back to the sort belt. About 10 minutes later Charles Jung, manager of the Troy area in the Albany terminal, spoke to Ryan in the presence of Compositor. Jung repeated the Compositor statement: if Ryan did not take off the button, he would not be allowed on the road. Ryan refused again. About 10 minutes later Pridell spoke to Ryan in the presence of Jung and Compositor. Pri- dell reiterated the previous conversation. Ryan for the third time refused and went back to the sort belt. At this time Ryan noticed that other employees wearing the Ryan button were being addressed by their supervisors. About 10 a.m. the same morning Pridell and Jung met with a group of 14 employees, all drivers. Pridell told them if they took the buttons off there was plenty of work. If not, no work. Ryan as spokesman asked: Whether the men should stay and work in the building, go out on the road, or punch out. Pridell and Jung left without answering. A few minutes later they returned. Pridell told them that if they did not take the but- tons off, they were suspended for the remainder of the day. The men punched out and left for the day.12 On April 29 Ryan reported to work again wearing his button. A meeting occurred about 8:45 a.m. in Pridell's office attended by James Morrisey, district manager, Pridell, Ryan, Minogue, and Tim Lane, Local 294 business agent. Lane and Ryan asked that the men be allowed to wear the buttons pending a grievance proceeding on the matter. Morrisey refused stating, "you are to take the buttons off first, and if you don't you are suspended pending discharge." Ryan left the meeting and walked to a group of drivers gathered prior to going to work. Jung called Ryan, Hickey, and Giering aside and handed each the suspension letter. The other men were told to go to work. ' Three years ago Ryan ran for the office of union trustee. The same button was used except that for the 1970 campaign the word "trustee" was covered over with red tape on which the work "Local" was printed in white Respondent's supervisors present at the Albany plant in 1967 testified that they had not observed the buttons being worn then. Nevertheless, on cred- ited testimony of Ryan, and on the record as a whole, it is found that the "Trustee" button was worn by UPS employees in 1967 10 Nationwide UPS employs more Teamsters' members than any other U.S company " The latter drove the over-the-road trucks from one area UPS terminal to another. " The 14 drivers were Ryan, Minogue, Pallozzi, Hickey, Fryling, Jones, Ross, Vinehout, Legnard, Cain, Grant, Folderman, Giering , and Brennan. UPS subsequently handed or sent a letter to each stating On Tuesday, April 28, 1970 you refused to follow your supervisor's instructions After repeated pleas by your Division Manager, you still refused to remove an unauthorized article from your uniform As a result of your not following your supervisor's instructions and your failure to comply with our uniform standards, we found it neces- sary to suspend you for the remainder of the day. This is notice to you that any re-occurrence of this nature will result in stronger disciplinary action UNITED PARCEL SERVICE 445 On April 30 Ryan again came to work wearing his button. Jung told him that he might as well change his uniform, he was suspended pending discharge . Ryan changed. On his way out, he joined a meeting where a group of other drivers were being addressed by Pridell , Jung, and Charles Wiggers, per- sonnel manager. One of the drivers asked about the cause of the suspension , and whether the drivers would be permitted to work if they took the buttons off. As to the original 14, they were told that the answer was, "No." F. The Drivers Are Discharged On April 30, the 14 drivers were discharged . Each received a letter dated April 30 stating: On Tuesday, April 28 , 1970 you refused to follow your supervisor's instructions and you were suspended for the remainder of the day. On Wednesday , April 29, 1970 you again refused to follow your supervisor's instructions and you were sus- pended pending discharge. This serious matter was discussed with you and the officers of your Union on April 29, 1970. After a complete review of all the facts , we now find it necessary to discharge you effective today, April 30, 1970. Six additional drivers were discharged on May 5 and each received a letter dated May 5 similar to the discharge letter quoted above except that the refusals occurred on different dates." G. The Drivers "Grieve " and the Grievance Goes to Arbitration On May 12, 1970, UPS and Local 294, in accord with the terms of the collective-bargaining agreement , submitted the suspension and discharge to arbitration . All the parties to the arbitration put in an appearance and were represented by counsel. All the parties hereto stipulated that the arbitration was conducted fairly; that among the subjects upon or of which testimony was taken were : (1) company rules regarding uni- forms; (2) promulgation of those rules; (3) longevity of the rules; and (4) certain instances where that rule was enforced by other arbitrators. The arbitrator's decision dated May 28 , 1970, provided in pertinent part: The parties stipulated the issue to be decided as follows: Was the discharge of [20 dischargees herein] for just cause under the Collective Bargaining Agreement? If not, what shall the remedy be? Full opportunity was afforded the parties to be heard, to offer evidence and argument , and to examine and cross- examine witnesses. At the conclusion of the hearing, both parties expressly stated that they had presented their respective cases in full. The award of the same date provided in pertinent part: I do not believe any worthwhile purpose would be ac- complished by reviewing in detail the events and inci- dents that led up to the discharge of the numerous griev- ants named in this proceeding. The basis on which these grievants were discharged was predicated on their insubordination in refusing to follow Company directives to remove election campaign but- tons that they had been wearing on their work uniforms. The grievants alleged that their refusal to remove the buttons was based on past practice , that they had worn 11 The six drivers were Rolfe, Hubicki, Foland , Thomas, Parks, and Butch the identical button in 1967, and in addition, had worn various other kinds of buttons, pins, ornaments, and pocket pen holders throughout the years without ques- tion by the Company .... The Union also contended that the Company 's discharge of six employees of this group on or about May 4, 1970 without a prior written notification to the Union of an infraction of a Company rule was contrary to the provi- sions and intent of Article 10, "Discharge or Suspen- sion", of the labor agreement, and the Company had not met a condition precedent to discharge. The Company testified that their business has been de- veloped over the years and a public image created of a neatly uniformed driver as one symbol of an efficient, well managed service operation.... ... The basic question presented to this arbitrator does not involve the right of the Company to make rules or regulations pertaining to the wearing of Company fur- nished uniforms. The issue before me is whether these grievants were discharged for just cause under the Col- lective Bargaining Agreement. Evidence and testimony adduced at the hearing in- dicated that the Company had discharged some of these grievants without fulfilling their complete obligation pursuant to the contract: that of at least one warning notice in writing to the employee with copies to the Union and job steward of the complaint. In my opinion, sustaining the discharge of only part of this group would be unfair and discriminatory , and discharge in any event would be too severe a penalty for the actions of this group as a whole . However, the employees are not with- out fault. They may not take matters into their own hands, but must take orders even if they believe it violates the labor agreement, and in turn, rely on the grievance procedure for their relief. After careful consideration of all of the evidence and testimony, it is my opinion that the grievants be promptly reinstated to their former positions but with- out back pay for the first week of the period of time they have lost from their employment with the Company H. The Drivers Return to Work Pursuant to the Arbitration Award UPS reinstated the drivers pursuant to the award and the drivers returned to work . UPS paid the backpay as directed. On June 2, Ryan reported to work wearing the Ryan button. He was called into Pridell's office. There a conversation took place among Pridell, Morrisey, Ryan, and Minogue. Mor- risey told the drivers they could not wear the buttons; that under the award , UPS felt they still had the right to tell the drivers whether they could or could not wear the buttons. The men responded that they would take the matter up with the National Labor Relations Board . The meeting ended. The men took the buttons off and went back to work . That was the situation at the time of the hearing. I. UPS Drivers at Irregular Times and Instances Wore Items Not Considered "Neat Uniform" Within the past 3 years, instances occurred in the Albany center where drivers went on the route wearing items on their uniform, other than the Ryan button, dressed in garments, or 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presenting appearances that were considered violative of the visible garment or "neatly uniformed driver" rules." 1. Here follow some instances where the record contains no evidence of action taken by UPS with regard to the item worn. (a) Driver Parks: (1) In September 1969 wore a white button 1-Y, inches in diameter with the word Hustle! on it in black letters." The capital H was three-eighths of an inch high. (2) About 1 or 1-Y, years before the hearing, wore a white button about 2-Y, inches in diameter advertising West- ern Minnesota Steam Thresher's Reunion, Inc., and showing a threshing machine in black. (3) In the summer of 1969 wore a red oval button about 3-Y, inches long advertising SDP, which letters were in white edged in blue, the D being about I -X inches high. (4) In the summer of 1969 wore a white button about 1-% inches in diameter bearing the statement in red letters about five-eighths of an inch high, I LOVE YAMAHA. Items 1 through 4 were each worn about 2 or 3 weeks. (b) Driver Pallozzi: (1) In March or April 1970 for 2 or 3 weeks wore on his jacket a white button about 2Y, inches in diameter celebrating the centennial of the City of Cohoes, New York, with a picture of a mustached head and raised derby hat on a red background. (2) In the winter of 1969, for about 2 months, wore in the lapel of his jacket a plastic rosebud. (c) Drivers Ryan and Minogue wore nonuniform shoes on individual days preceding the hearing. 2. Some instances in which the wearing was discontinued for reasons other than the request of a supervisor: (a) Driver Vinehout in the fall of 1969 wore a pen and pencil holder in his shirt pocket. The red flap of the holder showed outside the pocket, and stated in white letters, "ASK FOR MURIEL the light cigar." Driver Minogue, about the same time, wore a similar pen and pencil holder advertising Motorola. When vests were issued for the winter the items were discarded. (b) On St. Patrick's Day 1969 and 1970, driver Hickey wore on his cap a white button about 1-'/, inches in diameter bearing the Irish and American flags. Below the button were two pieces of green ribbon and a shamrock. Driver Ryan has worn on his jacket a similar button on St. Patrick's Day and other Irish decorations in the shape of Irish hats and Irish clay pipes made out of green pipe cleaners. Driver Irvin wore a green shirt on St. Patrick's Day 1970. (c) Drivers O'Donnell, Hickey, Linstead, and Finlan wore nonregulation trousers on the route until UPS issued regula- tion trousers to them.16 " Received in evidence were 10 photographs contained in four copies of "Big Idea " The latter is a UPS monthly magazine prepared under UPS direction and delivered to UPS employees . It depicts the activities of the Company and its employees and carries pictures of employees at work and engaged in extracurricular activities The Big Idea for upstate New York is published at Syracuse, New York. The period covered by these magazines extended from November 1967 through February 1970. Some of the photo- graphs showed employees of UPS at work Others showed a picture of the individual from the waist up and nothing else All the photographs showed what appeared to be violations of the "neatly uniformed driver" concept Under these circumstances, lacking other details, a determination that a violation existed was too difficult to make In any event , assuming that each photograph did show a violation, it is found that the nature of the violation is in the same category as found with regard to the specific uniform viola- tions listed and dealt with in this section " This description and those following are not of the entire button or item but of its salient features. 16 Ryan was shop steward from 1967 on. He reported the wearing of the trousers as a violation because he wished to see those men "dressed in the proper Company uniform " He was aware that the men were wearing many of the items listed herein . He reported no other violation , claiming he did (d) On a rainy day or days in the winter of 1970, Parks, Andrew, and Budney wore parkas; Lucksinger wore a blue windbreaker; Minogue and five other drivers wore a nonregu- lation hat with a brim all round it. 3. Some instances where a UPS supervisor took action: (a) Subsequent to the arbitration award Vinehout wore a raincoat while on the route. A supervisor asked him to take it off. He did. A grievance is presently pending on the matter. Other drivers do wear raincoats. (b) On different occasions, Parks wore his shirttails outside his trousers. Pridell spoke to him about it and he corrected the dress. Pridell, to correct the matter, procured for Parks a shirt jacket which is worn outside the belt. On other occ- aions Pridell has spoken to Parks about grooming his side- burns and mustache. (c) In late winter or early spring 1970 Pridell asked driver Forrest to remove an undescribed button from his jacket. In late fall or early winter 1969 Pridell asked driver Rishald to remove a button from his uniform that was red and "had something to do with skiing." In both instances the button was removed. (d) A driver named Foland, in the winter of 1970, wore his sideburns long. Pridell asked Ryan as shop steward to speak to him to cut them shorter. Ryan did not do so. Nevertheless a short time thereafter, Foland started to wear his sideburns at permissible length. (e) The week before the hearing driver Budney was wearing a green raincoat. At his supervisor's request he removed it. J. UPS Enforces Its Neatly Uniformed Driver Rule on a National Basis Placed in evidence to show that UPS attempts to enforce its visible garment and neatly uniformed driver rules on a national basis were four awards of arbitrators in areas other than Albany. 1. New Jersey. The UPS rule prohibited drivers from wear- ing turtleneck sweaters. The contract between the Union and UPS in that area contained a general management provision not contained in the union agreement covering Albany. Un- der that provision UPS was permitted to establish working rules. A grievance was heard in January 1969 concerning the wearing of turtleneck sweaters by UPS drivers while deliver- ing packages. In March 1969, the arbitrator upheld the rule prohibiting turtleneck sweaters. He stated: "the distinguish- ing mark of a uniform may not be changed at the whim of an individual required to wear that uniform. The uniform is a mark or symbol of an organization. When that uniform is changed in any manner not reflecting its original design and purpose, the purpose of the uniform is lost along with uni- formity ...... 2. California. The UPS rule prohibited beards. The Cali- fornia union agreement contained a provision providing that "employees must strictly comply with the company's regula- tions concerning wearing of uniforms and personal appear- ance." In January 1969, the arbitrator upheld the UPS ban on beards for drivers. 3. New York City. In August 1968, the arbitrator upheld the UPS prohibition against drivers wearing beards, declaring that the Company has the right to require its employees who come in contact with the public to be clean shaven and that the rule was reasonable in that it was aimed "toward preserv- ing the Company's public image." not know they were violations until April 1970 This last statement is not credited UNITED PARCEL SERVICE 447 4. New York City. About July 24, 1970, UPS drivers com- menced wearing Black Power buttons and others of various kinds, colors, and sayings. UPS prohibited the wearing of these buttons. About the same time, UPS permitted the driv- ers to wear a white button about 1-3 inches in diameter showing the American flag and in blue, the words LOCAL 804 I.B.T. HONORS AMERICA. The button reproduced in actual size follows: On July 28, 1970, the arbitrator ordered:" All company employees coming in contact with the pub- lic are hereby directed to forthwith cease and desist at all times during work hours from wearing in, on or about their UPS uniforms, whether issued or bought, any and all emblems, insignia, ornaments, writings or legends of any kind or nature, etc. including but not limited to the use of United States flag or emblem or those of any other nation, or the emblem or insignia of any racial, religious, ethnic or political entity with the sole exception of the UPS badge and the Local 804, IBT current Union dues button as heretofore normally required and permitted. After the award, no buttons of any kind were permitted to be worn except the current union dues button. Drivers were not permitted to work if they wore the flag button. Evidence was introduced to show that feeder drivers in the New York area (Maspeth, Long Island) were wearing the flag button at that terminal at 3 a.m. the day of the hearing and at service areas on the New York thruways during the preceding week. K. On April 28, Driver Grant Was Interrogated by Jung Driver Grant wore the "Ryan" button regularly. On April 28, he arrived at work but was not wearing the button. Be- tween 8:30 and 9 a.m. Jung and he had a conversation near Grant's truck. About the same time, in the nearby area, a group of drivers wearing "Ryan" buttons were being told, by Pridell, as stated in section D, above, that they could not go out if they continued wearing the button. Grant had delayed his departure on the grounds that he had been assigned a new area, and wanted first to look the parcels over. Jung urged him to leave and asked him if he was delaying because he was in sympathy with the group who were wearing the buttons. Jung continued, if you are "go and join them." Grant joined the group to hear Pridell tell them that if they took the buttons off, they could go to work. Though not wearing a button, Grant did not go out on delivery. " The New York State courts upheld the award Grant testified he had been wearing the Ryan button for at least 1 month prior to the conversation with Jung. Undoubt- edly this was known to Jung. Add this fact to the above incident and it appears that Jung was telling Grant to join his fellow button wearers. The conversation under these circum- stances is not considered interrogation of employees so as to constitute a violation of Section 7 of the Act In any event, this action not apparently threatening and occurring as an isolated instance does not warrant the issuance of ai, order. Analysis and Conclusions 1. The arbitration award does not govern this proceeding Respondent moved to dismiss the complaint herein upon the authority of Spielberg Manufacturing Company, 112 NLRB 1080, 1082, which states in effect that the Board will give binding effect to arbitral determinations made in pro- ceedings to which all parties have acquiesced, where the pro- ceedings are fair and regular on their face, and where the results are not repugnant to the purposes and policies of the Act." The motion is denied. The parties stipulated that the arbitration proceeding:" was entered into with the consent of all parties involved and was conducted fairly, among the subjects upon which tes- timony was taken was (1) company rules regarding uniforms; (2) promulgation of that rule; (3) longevity of that rule; and (4) certain instances where that rule was enforced by other arbitrators. Many of the witnesses who testified in this hear- ing testified before the arbitrator. They stated that their tes- timony in essence was the same in both hearings. Many of the exhibits in this proceeding were exhibits before the arbitrator. No transcript of the arbitration proceedings was made. Respondent, citing Terminal Transport Company, Inc., 185 NLRB No. 96, contends that "Where it is clear that all the issues were presented at the arbitration, this Board will honor the arbitration award."20 In this instance, the arbitra- tion award is the major basis for the interpretation of the arbitration proceeding. It is not clear that, in the arbitration, the "violation of the Act issue" was presented, disposed of, or considered. A careful analysis of the award cited in perti- nent part, above, shows that the arbitrator did not consider the question of the wearing of the Ryan button and its rela- tion to the Act in rendering his decision." '" As to each of these, however, each case must rest on its own bottom Denver-Chicago Trucking Company, Inc, 132 NLRB 1416, 1421 19 Local 294 was a party to the arbitration but did not participate in this hearing. 10 Terminal Transport is inapposite In that case the Board reversed the Trial Examiner, saying In our opinion, the Trial Examiner exceeded his authority under the Spielberg doctrine in rejecting the award either because he would have reached a different result on the evidence presented to the arbitration panel or because the award, in his view, evidenced a failure of the arbitrators to resolve the issue of discrimination Under established policy, the validity of an award is not to be determined on the basis of whether the Board would reach the same result on the record made before an arbitration' Howard Electric Co., 166 NLRB 338, 341 Furthermore, in Steelwork- ers v Enterprise Wheel & Car Corp, supra, the Supreme Court established standards for reviewing arbitration awards by the courts, which would apply equally under Spielberg, since designed to implement like statutory policies At p 596 , the Court stated "The refusal of the courts to review the meets of an arbitration award is the proper approach to arbitration under collec- tive-bargaining agreements The federal policy of settling labor disputes by arbitration would be undermined if the courts had the final say on the merits of the awards " As stated in the text , the arbitration award does not show that the discriminatory actions of UPS as such were considered " Edward Axel Roffman Associates, Inc, 147 NLRB 717, 724, also cited by UPS, is inapposite . Roffman clearly states that the issue brought before (Cont.) 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The award sets forth clearly that the question before the arbitrator was whether the drivers were discharged for just cause under the collective-bargaining agreement . The alleged reason for the discharge was insubordination, i.e., a refusal to remove the "Ryan" button when ordered to be their super- visors. The arbitrator points out that the Company had not complied with the terms of the collective-bargaining agree- ment by giving some of the employees a notice in writing but not to all. On this basis he decided that " sustaining the dis- charge of only part of this group would be unfair and dis- criminatory, and discharge would be too severe a penalty for the actions of this group as a whole." Accordingly he ordered that the 20 employees be reinstated. However, he found that in being insubordinate, by taking "matters into their own hands," "not taking orders even if they believe [they] violate the labor agreement," and in not relying "on the grievance procedure for relief," the discharged employees were "not without fault." Accordingly, he ordered that the drivers be "reinstated to their former positions but without backpay for the first week of the period of time they have lost." The arbitrator stated further that "The basic question presented to this arbitrator does not involve the right of the Company to make rules or regulations pertaining to the wearing of Company furnished uniforms." The above analysis shows that the arbitrator did not con- sider the question raised by the complaint in this proceeding; i.e., the button itself, the circumstances under which it was worn, the reasons for the request that it be removed, the right of the employees to wear the button, or whether the refusal to permit the UPS employees to wear that button was a violation of the Act. Under these circumstances, the Board will exercise its discretion not to be bound by the award and will proceed with its determination as provided under the Act.22 Respondent's motion to dismiss the complaint on the grounds that the arbitration is controlling is accordingly de- nied. 2. The wearing of the "Ryan" button is a protected activity and the UPS notice of April 28 forbidding certain employees to wear them violated Section 8(a)(1) of the Act Ryan was engaged in a campaign to get himself elected business agent of Local 294. This was strictly an intraunion matter. However, the activity is protected under Section 7 of the Act in that the employees have as much interest in who represents them in their affairs with the employer as they have in fixing the terms of their collective-bargaining agree- ment.23 It is established Board and court law that employees have the right while at work to wear union buttons or other in- signia related to concerted activities24 under the guarantees the Board was the issue heard by the arbitrator See also Local 1522, IBEW (Western Electric Co., Inc.), 180 NLRB No 18, where in dismissing the complaint, the Board majority stated, "the award resolved the very issue that is determinative of the instant complaint." " Milne Truck Lines, 171 NLRB No. 25, TXD, II, D, par 8, The John Klann Moving and Trucking Company, 170 NLRB No 133 See Ford Motor Company (Sterling Plant), 131 NLRB 1462, 1463, Rotax Metals. Inc., 163 NLRB 72, 78, cf International Harvester Company, Indianapolis Works, 138 NLRB 923, 928, enfd sub nom. Ramsey v. N.L.R.B., 327 F 2d 784 (C.A 7), wherein the Board stated "The record is clear that the issues was fully and fairly litigated before an impartial arbitrator " " See Aerodex, Inc, 149 NLRB 192, 198, General Aniline & Film Corpo- ration, 145 NLRB 1215, 1218 " The insignia may be on buttons, emblems, articles of clothing, posters, and other media. See Fabri-Tek Incorporated, 148 NLRB 1623, and cases listed in fn 10, reversed 352 F 2d 577 (C.A 8) Also The Annin Company, set forth in Section 7 of the Act25 except under certain special circumstances more fully developed in the next section. In this case no question is raised concerning the wearing of the Ryan button by the sorters, loaders, car washers, yard- men, and student loaders at the plant, or by the drivers while in the plant . Nor has any showing been made of any special circumstances or conditions that would justify UPS in pro- hibiting them from wearing26 the buttons.27 The notice, posted by UPS on April 28, was directed to "ALL EMPLOYEES." It prohibited the drivers, while work- ing inside the center, and the other UPS employees whose work kept them inside the center from wearing the Ryan button. Under the circumstances of this case such an indis- criminate prohibition was improper and constituted a viola- tion of Section 8(a)(1) of the Act. It is so found. 3. The UPS order directed to the drivers was justified and reasonable The UPS notice and orders prohibited the drivers from wearing the Ryan button while they were on the delivery route away from the Brown's Road plant. The question whether this prohibition violates the Act is narrower than the one resolved above but more difficult. Two conflicting rights are involved and need resolution: (1) The right accruing to UPS because of its business organization to prohibit the driv- ers from wearing the Ryan button while in UPS uniform on the delivery route; (2) the right of the drivers to wear the button because they are participating in an activity protected by Section 7 of the Act. a. The Board has the function of resolving conflicting rights on a case-to-case basis The Supreme Court in Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 797-798, stated that it was the task of the Board to resolve these conflicting rights, and find ... an adjustment between the undisputed right of self- organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited to the sense that they can be exercised without regard to any duty which 151 NLRB 1512, 1519; Lone Star Textiles, Inc., 152 NLRB 244, 255; The Shelby Manufacturing Company, 155 NLRB 464, 472, Webb Furniture Corporation, 158 NLRB 1003; Gray-Syracuse Inc, 170 NLRB No. 193; Lake City Foundry Company, Inc, 173 NLRB No. 159, Central Soya of Canton, Inc., 180 NLRB No 86, enfd 75 LRRM 2656 (C A 5), Lyncoach and Truck Company, Inc., 183 NLRB No 133 TheLoray Corporation, 184 NLRB No 57, TXD, III, B, section entitled "Fifth." Nor is it essential that the union insignia be connected with an organizing campaign See Standard Oil Company of California, 168 NLRB 153, fn. 1 Kayser-Roth Hosiery, supra- , Republic Aviation Corporation v. N.L.R.B., 324 U S 793, 801-803, Kimble Glass Company, 113 NLRB 577, enfd 319 F 2d 424 (C.A 7), Brewton Fashions, Inc., 145 NLRB 99, Floridan Hotel of Tampa, Inc, 137 NLRB 1484, 1486, enfd as modified 318 F 2d 545 (C.A 5), Harrah's Club, 143 NLRB 1356, reversed 337 F 2d 177 (CA. 9), Consolidated Casinos Corp., 164 NLRB 950, and Eckard's Market, Inc, 183 NLRB No. 40 " Caterpillar Tractor Company v N.L.R.B., 230 F 2d 357 (C A 7); Boeing Airplane Company v NL.R.B, 217 F 2d 369 (CA 6); United Aircraft Corporation, 134 NLRB 1632, 1633, Campbell Soup Company, 159 NLRB 74, 76-79, Serv-Air, Inc, 161 NLRB 382, 415-417, enfd 395 F 2d 557, 562 (C.A 10), cert. denied 393 U S 840; Portage Plastics Company, 163 NLRB 753, 759-760; Taylor Instrument Companies, 165 NLRB 843, 846, fn 3, Kayser-Roth Hosiery Co., 166 NLRB 372, 404, Standard Oil Company of California, 168 NLRB 153, fn 1 " Middendorf, district manager UPS, testified that the "neatly uni- formed drivers" rule did not apply while the drivers were "sorting" packages in UPS premises and it was permissible for drivers to wear the Ryan buttons there UNITED PARCEL SERVICE 449 the existence of rights in others may place upon em- ployer and employee. Opportunity to organize and proper discipline are both essential elements in a ba- lanced society. The Supreme Court in Republic Aviation went on to say that the Act does: not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary the Act left to the Board the work of applying the Act's general prohibitory language in the light of the infinite combinations of events which might be charged as viola- tive of its terms. The Board in resolving cases dealing with the conflicts arising in this area has recognized that violations or nonviola- tions arise as individual matters and need to be determined on a case-to-case basis. In Fabri-Tek Inc., 148 NLRB 1623, 1630, the Board, citing Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 616, fn. 2, stated, "what is basically involved in each case arising in this area is the necessity of striking a proper adjustment between conflicting rights against the background of particular fact situations."28 The Board reaffirmed this principle of "proper adjust- ment" or "reasonable balance" in the recent case of Sylvania Electric Products, Inc., 174 NLRB No. 159. In that case, an organizing campaign was going on at the Sylvania plant. Servomation, an independent company, maintained food vending machines at Sylvania's plant. To service its equipment in Sylvania's plant, Servoma- tion employes a man or woman on each of three daily shifts to work full time at said premises. These em- ployees have no specific times for breaks but are permit- ted to rest and to eat their meals whenever their work permits. Servomation has a policy of longstanding that its employees who perform services at the premises of its customers are not to involve themselves in any union organizing campaign that may be taking place among the customers' employees and are to remain completely neutral in such circumstances. An employee of Servomation was discharged for participat- ing in the Sylvania organizing campaign. The Board held that the discharge was not a violation of the Act stating: While the neutrality rule serves as a limitation upon Servomation's employees' statutory rights, not every im- pingement upon the rights granted employees by the Act constitutes an unfair labor practice. [ Ursula Cervantes, et all, d/b/a Panaderia Sucesion Alonso, 87 NLRB 877, 881-882. See also General Electric Company, 161 NLRB 615, Central States Petroleum Union, Local 115 (Stan- dard Oil Company), 127 NLRB 223, affd. sub nom. Lo- cal 483, Boilermakers v.N.L.R.B., 288 F.2d 166, cert. denied 368 U.S. 832; N.L.R.B. v. Whiting Milk Corp., 342 F.2d 8 (C.A. 1).] Many situations present a complex of conflicting considerations which require the Board to strike a balance between legitimate competing interests what will best effectuate national labor policy. In such '" The Board with court approval has attempted in similar areas to achieve a reasonable balance between the statutory right of employees to organize and the right of the employer to control the use of his premises One such example is the solicitation and distribution of union literature on company premises See Peyton Packing Co, 49 NLRB 828, enfd. 142 F 2d 1009 (C A 5) The language laying down the precept of "reasonable bal- ance" established there was approved by the Supreme Court in Republic Aviation Corporation v N.LR.B., 324 U S 793, and specifically reaffirmed in NLR B v The Babcock & Wilcox Company, 351 U.S 105, 112, stating, "Accommodation between the two [rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other " cases the Board's "special function [is to apply] the gen- eral provisions of the Act to the complexities of indus- trial life ... and of `[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases' from its spe- cial understanding of 'the actualities of industrial rela- tions."' [N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 236.] The Board, adopting the language of the Trial Examiner, continued: the business justification for Servomation's neutrality rule overbalances its interference with the exercise by Servomation's employees of their statutory rights and is therefore valid. b. UPS' policy of maintaining its public image constitutes a special circumstance As already stated the right of employees to display union insignia or wear union buttons at work has long been recog- nized as a reasonable and legitimate form of union activity. The Board has permitted the employer to prohibit the wear- ing of the insignia or the button where special considerations or circumstances relating to employee efficiency, safety, or plant discipline exist.29 These special considerations or cir- cumstances generally deal with companies or organizations that are engaged in the production of goods. However, where an employer is supplying a service to the public and its gm- ployees are in regular contact with the public an additional special consideration or circumstance arises: that of the em-. ployer's "public image." ° The Board has been aware that a different special circum- stance exists for service organizations. See The Floridan Ho- tel, supra, 137 NLRB 1486, Harrah's Club, 143 NLRB 1356, Weinacker Brothers Inc., 153 NLRB 468 (June 25, 1965), in which the Board considered the effect of the wearing of union buttons or insignia upon the "dignity of Respondent's opera- tion." The court, when it reversed the Board,30 N.L.R.B. v. Harrah's Club, 337 F.2d 177 (C.A. 9), September 28, 1964, considered this distinction vital and found the prohibition reasonable. It stated at page 180: The Board would limit the term "special circumstances" to those considerations relating to employee efficiency, safety or personal friction. We do not give the term such a restrictive meaning. Most business establishments, par- ticularly those which like respondent, furnish services rather than goods, try to project a certain type of image to the public. One of the most essential elements in that image is the appearance of its uniformed employees who furnish that service in person to customers. With the foregoing as preamble, the circumstances of this case may be considered. UPS since 1907 has been a service organization. Since at least 1930 it has made decided efforts to establish as a busi- ness policy the neatly uniformed driver as an integral part of its public image. This policy was continued when UPS started to operate on a national basis and has been continued to the present. It spends approximately $3,750,000 a year in supply- ing and maintaining the drivers' uniforms. This public image is also an integral part of its advertising and of the publica- tions it issues to procure business and in applying for Federal See footnote 26. S0 The court also stated that though the Supreme Court had held that wearing of union buttons was a concerted activity, the Supreme Court did not intend this as "a rule which makes the wearing of union buttons per se a guaranteed right. We think there must be evidence of a purpose protected by the Act, i.e., collective bargaining or mutual aid or protection. This record is totally devoid of any evidence of such purpose." 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and state licenses to do business . Routinely the drivers go through a daily inspection before going out on the route to determine that they are "neatly uniformed ." Although the collective-bargaining agreement between Local 294 and UPS does not contain a provision to that effect , other collective- bargaining agreements with the Teamsters in other parts of the country contain a clause that the "employees must strictly comply with the Company 's regulations concerning wearing of uniforms and personal appearance . Failure to do so is ground for discipline and a repeated failure is ground for discharge." UPS, to maintain this public image on a national basis, has taken violators of the neat uniform policy to arbi- tration to enforce that policy including a rather devastating situation in New York involving the wearing of Black Power buttons and an American flag button. The public image developed by UPS appears to be an inte- gral part of its business and a substantial business asset. If it were harmed or destroyed by the actions of the drivers, there is no way of determining what the damage to UPS might be. It seems, however, that where an action by the drivers ap- pears potentially harmful, an injunction against putting that act into effect seems reasonable and appropriate . As the court stated in Harrah's Club,supra at page 180, "Respondent should not be required to wait until it receives complaints or suffers a decline in business to prove special circumstances. [Footnote omitted.] Businessmen are required to anticipate such occurrences and avoid them if they wish to remain in business.... " Unlike the union dues button, the Ryan button is conspicu- ous. The question of conspicuousness plays an important role in those cases. The inconspicuousness of the union button is especially emphasized by the Board. Note Consolidated Casi- nos Corp., 164 NLRB 950, when the Board specifically stated "the buttons were inconspicuous ." In Eckard's Market, 183 NLRB No. 40, the Board stated the proposition more em- phatically: Clearly, the vague, general evidence presented by Re- spondent was not substantial enough to establish either of the latter "special circumstances" warranting removal of the small, innocuously labeled union buttons worn by its employees. It appears reasonable to conclude that UPS' public image would have to be affected adversely by the display of the conspicuous Ryan button. It follows that it is equally reason- able to conclude that UPS' business would have to be ad- versely affected to the extent the public image was damaged. Under present regulations the uniformed driver on the route is permitted to wear his current union dues button. With it on he is still neatly uniformed . The union dues button is part of the public image that UPS has created. By this action, the guaranteed right of the UPS driver to wear a union button in public is protected and sustained . It is concluded that the circumstances of this case do not warrant that the right should be extended to include the Ryan button ; that the restriction against the drivers wearing the Ryan button on the route is reasonable and just. c. In resolving conflicting rights, the balance favors UPS The General Counsel and the Charging Parties have shown numerous instances where the neatly uniformed driver rule has been violated . Some of the men have worn beards, when clean shaven is the neat appearance . Other men have worn black loafers where tie shoes constitute neat appearance. In- stances were shown where drivers wore buttons larger or smaller than the Ryan button, and dealing with various sub- jects of a personal but nonunion nature. The record is replete with such examples . Also, the record shows that among UPS supervisors, there is a difference of opinion as to what may or may not be worn to constitute a neat uniform . Neatness is a subjective matter and it is not the purpose of this decision to attempt to define it. The examples of violation only show that UPS is having problems in attempting to carry out its neat uniform policy effectively . The evidence does not in any way show UPS is letting down on this effort," or that it is favoring one form of violation over another . Forty years is a long span of time and occasional lapses do not constitute an official, universal, and consistent program of nonenforce- ment. From the record in this case, the prohibition against the wearing of the Ryan buttons by the drivers = is another at- tempt by UPS to enforce the rule that has been in existence. The record does not show that the prohibition was directed against the employees concerted activities . This conclusion is strongly supported (a) by the absence of any showing in this record of union animus on the part of UPS or that it was motivated by discriminatory considerations ;" and (b) also by the fact that prior to the prohibition, the drivers were permit- ted to wear the button on the route for a period of at least 30 days. As a practical matter, the driver on the route is giving up very little in not wearing the Ryan button. His union affilia- tion and union activities are made known to the public by wearing his union dues button. The public, at large, is little, or not at all, interested in the competition for the post of business agent that recurs internally to Local 294. The pur- pose of the button is to induce other members of Local 294 to vote for Ryan. This purpose may be achieved at the plant or in places where other members of Local 294 are present. The probabilities are very small that this purpose will be achieved were the button worn by the driver on his route. The record contains no evidence on this subject. Nevertheless, it is not unreasonable to find that the number of Local 294 members that a UPS driver meets on the delivery route is negligible. Thus, in balancing conflicting rights as stated above, the restriction posted here deprives the employee of something of small value in relation to the potential damage to UPS. Accordingly, in view of the foregoing finding and the record as a whole, it is found that the UPS notice and order prohibiting the drivers, while away from the plant, from wearing the Ryan button is reasonable and just and does not violate Section 8(a)(1) of the Act. It follows that the suspen- sion and discharge of the 20 drivers does not violate Section 8(a)(3) of the Act. VI THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV and V, above, occurring in connection with its operations described in section II, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. I I A small aside: Human nature being what it is it seems only natural the drivers should continue in their attempts to wear something decorative, or otherwise breach in a minor fashion the rigidity of this rule. Note that the drivers continued to wear the American flag button even though the arbitra- tor and the courts forbade it I' As opposed to the wearing of the buttons by the other employees. II This statement applies also to the finding of 8(a)(1) violation with regard to the notice Despite the notice, there is no showing that the UPS employees were prohibited from wearing the Ryan button while working in the plant UNITED PARCEL SERVICE 451 Upon the basis of the foregoing findings of fact and upon the entire record of the case, I make the following: CONCLUSIONS OF LAW 1. UPS is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 294 is a labor organization within the meaning of Section 2(5) of the Act. 3. By posting a notice forbidding all its employees, while at work, from wearing buttons showing a union insignia or statement, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged and is engagin in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found, Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged and is engaged in certain unfair labor practices within the meaning of the Act, I shall recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. [Recommended Order omitted from publication.]