Page Avjet Corp.

PAGE AVJET CORP. 773 Page Avjet Corporation and District Lodge No. 141, International Association of Machinists and Aerospace Workers. Case 5-CA-16131 26 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 12 October 1984 Administrative Law Judge Mary Ellen R. Benard issued the attached decision. The Respondent filed exceptions and a supporting brief. The Board has considered the decision-and the record in light of the exceptions,and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the. recommended Order- of the administrative law judge as modified below and orders that the Re- spondent, Page Avjet Corporation, Loudon County, Virginia, its ' officers, agents, successors,` and assigns, shall take the action set forth in the Order as modified.' 1. Substitute the" following for paragraph .1(a). "(a) Promulgating and enforcing an overly broad rule that prohibits.. employees from wearing union insignia and union buttons." . . • . . 2. Substitute the attached notice for • that of the administrative law judge. "Chairman Dotson concurs in the result -solely on the basis that the Respondent's prohibition on wearing union insignia is not limited to times or places where employees are likely to be in contact with customers. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 4 - The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own- choice - To act together for other -mutual aid or pro- tection To choose not to engage in any of these protected concerted activities., WE WILL NOT promulgate and enforce an overly broad rule,that prohibits employees from wearing union insignia and union buttons. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. ' PAGE AVJET CORPORATION DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge. The original charge in this case was filed on January 30, 1984, and -amended on February 22, 1984, by District Lodge No. 141, International Association of Machinists and Aerospace Workers, (the, Union) against Page Avjet Corporation (Respondent): The - complaint issued on March 30, 1984, alleging,' in substance, that Respondent had violated Section 8(a)(1) of the National Labor Rela- tions Act by promulgating a rule prohibiting employees from wearing any noncompany buttons or patches, and enforcing- that rule so as to prohibit employees from wearing union insignia 'and : union, steward buttons. Re- spondent filed an answer in which it denied the commis- sion ' of any unfair' labor practices, and subsequently amended its 'answer to allege as ` an affirmative defense that the'Union had waived any right it had,to protest the policy.. - -A hearing was held' before me on ' May 22, 1984, in Washington, D.C. Following, the hearing, the General Counsel and Respondent filed briefs, which, have been " considered.,.., On'the_entire record in this'case and from my observa- tion: of the. witnesses and, their demeanor, I make the fol- lowing . FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation with an office and place of business in Loudon County, Virginia, where it is engaged in a fixed-base operation providing ground support services at Dulles International Airport. During the calendar year ending December. 31, 1983, Respond- ent, in the course and conduct of its business, purchased and received at its Loudon County, Virginia facility goods and materials valued in excess of $50,000 directly from points outside the Commonwealth of Virginia. Re- spondent admits, and I find, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I further find that it will ef- fectuate the purposes - of the, Act to assert jurisdiction herein. 275 NLRB No. 113 774 DECISIONS OF NATIONAL LABOR--RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is in the business of,-inter alia, providing ground services to private and corporate' aircraft 'at• fa- cilities called "fixed-base operations." Fixed-base oper- ations provide parking, towing, maintenance and clean- ing of the aircraft, transportation to and from the termi- nal for passengers and crew, and baggage and cargo han- dling. Respondent maintains these facilities at eight air- ports in the United States, including Dulles International, Airport near Washington, D.C.-The Dulles operation is one of the four facilities whose employees are represent- ed by a labor' organization and is the only facility in- volved herein. Respondent 'voluntarily recognized the Union as bar- gaining representative of a uiiit of various employees- at` the Dulles facility in 1970 and 'the parties have entered into successive collective-bargaining - agreements since, that time. The current agreement is effective- from Janti-' ary 1, 1984, to December 31, 1986.1 There are about 60. unit employees, including-those who work in the hangar, the radio shop, the parts department, the cleaningcrew, the dispatch personnel, and the linemen. Lineman Daily "Monty" Parsell testified that. the linemen's - duties in-. clude parking and chocking the aircraft, greeting the pilot and passengers, providing fuel if needed, providing transportation to the main terminal, handling baggage, and loading cargo. Over the years, the Union has provided the employees with various buttons, badges, and pencil clips carrying the union logo, and union members wore these items with some regularity. Specifically, it is undisputed that the Union has issued a disc-shaped pin about 1-1/2'inches in diameter and.a pencil clip three-fourths inches in , di- ameter. These insignia contain the IAM'logo and are col- ored red, white, and blue. Separate badges are also issued to the stewards: a red, white, and blue - oblong clip-on badge, 2-3/4 by 2-1/4 inches, and a blue and white button approximately 1-1/2 inches in diameter; the badge is imprinted with the words "Shop Steward" and the union logo, while the button has the words "IAM Steward" and no logo. Monty Parsell -testified that he was a shop steward and that prior to September 1983, he -wore the clip-on stew- ard badge 75 percent .of the time. Parsell-'also testified. that-he also wore both the pencil clip and the pin with just the union logo on it, and that he had seen other em- ployees wearing such union insignia during the 11 years he has worked- for Respondent. John Messich, another i From the testimony of Albert Raistnck, vice president of District 141, it appears that the International Association of Machinists and Aero- space Workers consists of a number of local lodges which compnse a"disI tract, and a number of distracts which comprise the International Local Lodge 1747 represents, among others, the union members at Page. ^Dis- tnct 141 represents the local lodge and the International in such matters as contract negotiations, grievances, and arbitrations steward, indicated that he wore the round steward pin an average of 2 days per week, and that although there were some weeks that he did not wear the pin at all, other weeks he wore it everyday. Both men testified without contradiction that to their knowledge there have been no customer complaints about the union items, and that wearing the buttons and badges has not caused any friction among the employees. Parsell 'estimated that ,a lineman might have up to 6 hours of customer contact on an average day while driv- ing a van to and from the terminal but that when a line- man is loading cargo he has no customer contact except occasionally with military personnel. Messick, who is a lead mechanic in the avionics department, estimated that he has about 3 hours of customer contact per week, that the other avionics mechanics spend about 2 hours per week 'with customers, and that maintenance mechanics have only about an hour per week of customer'contact.2 B. The New Uniform Policy John J. Brill, Respondent's director of human re- sources, testified that Respondent has been attempting to improve -its customer service image in a variety of ways, including investing in new equipment, repainting present equipment,- and buying new uniforms- for the employees. The new uniforms, for employees at Respondent's fixed- base operations were introduced' in March 1983a and for linemen, mechanics, and parts and avionics department employees consisted of a light blue shirt with darker blue pants and jacket. Respondent's logo is on the right pocket-and the employee's name tag is on the-left pocket of both the shirt and jacket. Both the'shirt and the jacket have a red, white, and blue stripe-which runs from'the right shoulder into the right pocket. The parties stipulat- ed that the steward badge would partly cover Respond- ent's logo when worn on the - right front pocket of the shirt .4 The uniform also :includes a baseball -cap type hat which is dark blue in front and white -on the sides with Respondent's logo in front. The dispatchers' uniforms consist of a tie, gray trousers, and a blue blazer with Re- spondent's logo on the right front pocket. , . It is undisputed that Respondent sought to achieve a uniformity of appearance of the bargaining unit person- nel and that as part of its new policy, Respondent issued a notice with employees' 'paychecks on September 18. The notice stated, in relevant part, "No additional non- company buttons or patches are authorized on any part of the uniform including the hat." The policy's. effective date was October 1. 1 - - •Robert Reardon, general -manager . of the Dulles facili- ty, sent a letter dated September 15 to James Jewell,,the president of Local Lodge 1747, informing him of the uni- 2 Parsell and Messich appeared to testify candidly and exhibited good recall and I therefore credit both witnesses - 3 All dates hereinafter are in 1983 unless otherwise indicated 4 However, it should be noted that the pockets on the jacket have'flaps while those on the shirt do not, and that Respondent's logo on the pocket of the jacket is below the flap 'The record'does not show whether the steward badge, if clipped to the flap' of the jacket pocket, would cover any part of the logo PAGE 'AVJET CORP. form policy and enclosing a copy of the September 18 notice. On September- 26, Raistrick- replied to Reardon, requesting a clarification of the "no-button" rule and spe- cifically asking: - Is it intended that our shop stewards may not wear „-buttons or badges (pin-on type) on their uniforms to identify them as such? Is it intended that our mem- bers may not- wear pencil clips on their pencils and pens furnished to them by their local union? If that is.the intent, we would appreciate hearing from you on this, matter right away. - Reardon replied by letter dated, September 29, stating, inter alia, the following: As outlined in the [uniform] Policy, no unauthor- ized badge of any type will be permitted on uni- forms supplied by the Company. . . . In response to your second ' question regarding the weanng of pencil clips on pens or pencils fur- nished to employees by their local union, I have no objection or problem with the Union providing Union-type pencils or pens. However, pencil clips, if attached and .placed in a manner that is exposed on the uniform cannot be permitted. Reardon further suggested in the letter that the Union post photographs of the 'stewards on the union bulletin board as a means of identifying them. • In the meantime, the employees at. the facility also sought clarification as to whether union buttons and badges were included in the prohibition 'announced in the September 18 notice. Thus, Monty Parsell credibly testified that' when the policy 'was distributed he called Jewell, who said that the men should stop wearing the buttons and badges until he got back to Parsell. Accord- ing to Parsell, within the week Jewell called him and said he had talked to William Luss, a vice president of Respondent, who said that the employees -could- wear the union button, the -steward -badge, and the pencil clips. Nonetheless, Reardon testified that Luss told him that all noncompany -buttons, regardless of size or type, 'were prohibited, that he was never made aware of-any change in this policy, and that on numerous occasions he asked linemen and/or mechanics to remove the pencil clip. Parsell credibly testified that in October-Reardon ap- proached -him and asked why he was wearing the stew- ard badge'and pencil clip. -Parsell recounted Jewell'sex- planation 1of his conversation with Luss: Reardon replied that Luss had, changed his' mind -and instructed Parsell to take the steward 'badge off. Parsell did., Reardon then, according'. to Parnell; said, ',Take that off, ! too, pointing to the pencil clip, and further said that he did not -want to ` send - anybody: home.. ParselL.told 'Reardon' that he would tell the other employees to remove the items from their uniforms. At tha-t.point, according to Parsell, Rear- don said in a friendly manner, : "You can do whatever you want' to 'do: If you have' to, put in a complaint or grievance, go ahead, it'll probably • be handled' higher up in the company at a higher level." On November 2, Parsell filed' a.grievance over Rear- don's instruction that he remove his steward badge. Re- 775 spondent's assistant to the general manager Claude Tyner denied -the grievance, and on November 10 Jewell wrote to Reardon appealing the denial and stating the Union's view. that the wearing of union buttons was protected ac- tivity under the National Labor Relations Act. On No- vember 14, Reardon replied, indicating that Respondent did not- believe that it had -discriminated against the Union by virtue of the ,uniform policy. Reardon also re- quested Jewell to cite those provisions of the Act the Union believed that Respondent had violated and to pro- vide recent Board decisions on the point, and stated: The Company will agree to review its Policy con- cerning the wearing of Union buttons upon receipt of the above information" from you. -Until such time the present Company uniform policy will remain in full effect. The record establishes that Respondent has continued to adhere to its "no union button" policy. Thus, Messich credibly testified that he talked with his manager,- Gary Robinson, about wearing union buttons around the be- ginning of January 1984 and that Robinson told him that he could not wear any kind of union insignia. It is also clear that both before and after the uniform policy was announced 'employees have worn some noncompany in- signia, for Monty Parsell credibly testified that some em- ployees -wear small buttons given to them by companies that use Respondent's facilities.5 However, it is also un- disputed that these insignia are very small, generally less than one-fourth inch -in diameter. C. Contemporaneous Union Negotiations The negotiations for the current collective=bargaining agreement between Respondent and the Union began December 12 with Raistrick- and Luss as, the chief nego- tiators for the Union and Respondent, respectively. Ac= cording 'to- Raistrick,6 in the 'course of the negotiations, but away from the; bargaining table, he-discussed with Luss three or-four times the Union's position that'Re= spondent's 'prohibition on wearing union buttons was un- lawful. On December 12 Raistrick gave Luss a copy of a. letter he had received from the International Union,' ad- vising the-Union to file an unfair labor practice charge and enclosing a report of a Federal court of appeals deci- sion affirming a,Board finding that a no-button rule vio- lated the Act. Luss responded by giving Raistrick a'copy of an arbitration award dealing with the issue. On January' ,10, 1984, the Union and Respondent reached agreement on the new contract. That day, Rais- trick asked Luss if the Company intended to maintain the button. rule; Luss `answered' in the affirmative. Raistrick then' told Luss that the Union would' file charges with the Board. The-clause iii'the`current agreement which covers un forms is unchanged from that in the previous -contract, and reads as follows (art. XVII(g)): ` " - 5 For example, M Parsell's brother, Cass Parsell, who is also a bar- gaining unit employee and a steward , wears a pin depicting the space shuttle given to him when the shuttle came through Dulles 6 Luss was hospitalized at the time of the hearing and did not testify 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All standard uniforms, caps and coveralls which employees covered by this Agreement are-required by the Company to wear in the performance of their work shall be furnished by the Company with- out cost to the employee, and all expenses of laun- dering and cleaning of the same shall be borne by the Company, it being understood that the 'Compa- ny may establish the conditions under which such uniforms are to be worn. - - Raistrick credibly testified that he did-not try to nego- tiate a change in the uniform provision because he did not feel that the clause addressed the button issue. Brill testified that after the new contract was negotiat- ed Luss told him that Luss had informed either Raistrick or Jewell that Respondent had decided to make the pen clip an exception to the no-button rule. Brill further testi- fied that Respondent did not notify the employees that wearing the clip was acceptable. D. Analysis and Conclusions - 1. The parties' contentions The General Counsel contends that the right of em- ployees to wear union insignia is protected under the Act, and that an employer may limit that right only by a showing that special circumstances exist- which warrant the limitation. The General Counsel further asserts that Respondent has not established such special circum- stances in this case. Respondent, however, urges that the buttons at issue are conspicuous and thus a prohibition on wearing them is not unlawful. Respondent further contends that in any event, it issued its uniform policy in order to protect its public image, the wearing of any noncompany insignia would interfere with that image, and that, therefore, an absolute ban such as the one it im- posed is permissible. Finally, Respondent argues that the Union has waived any right its members may have had to wear union buttons or like items. I find no merit to Respondent's contentions; 2. The "special circumstances" issue As -the Supreme Court stated nearly 40 years ago, "The right of employees to wear union insignia at work has long been recognized as a reasonable and legitimate form of union activity and . . . curtailment of that right is clearly violative of the Act."7 However, it is also well settled that an employer may demonstrate that in a given case there are special circumstances which justify a ban or limitation on,the wearing of union buttons. A determi- nation as to whether the employer's action is lawful re- quires a balancing in each case of the employer's interest in protecting his or her business against the employees' right to wear the union insignia.8 7 Republic Aviation Corp Y. NLRB, 324 U S 793 (1945) 'e For example, the Board has found that special circumstances exist when badges or buttons interfere with work production , Hanes Hosiery, 219 NLRB 338, 345-347 (1975), Fluid Packaging Co, 247 NLRB 1469, 1474 (1980); or where they create a safety hazard, Brown Mfg Corp, 235 NLRB 1329, 1331 -32 (1978) In support of its contention that its concern for its public image justifies its prohibition on the wearing of the buttons at issue,9 the Respondent cites, inter alias cases where the Board has found that conspicuous but- tons may be banned in such service enterprises as nursing homes 10 and package delivery services. 11 In United Parcel Service, supra, the button at issue,. which was worn by supporters of a candidate in an internal • union elec- tion, was 2-1/2 inches in diameter and bore the slogan "Vote Jack Ryan" in red against a white background. The Board found that the buttons were conspicuous and interfered with the image the company 'was trying to create. In that case, however, the union members had al- ready been permitted to wear union buttons about 1 inch in diameter on their jackets, and the rule against buttons applied only-to drivers and only while driving. In the in- stant case, in contrast, Respondent's rule- applies to all bargaining unit employees, even though; as noted above, a lineman might spend up to 6 hours_per day in contact with customers while a mechanic may spend only 1 hour per week in such contact. Indeed, Respondent's prohibi- tion is in effect regardless of the work being performed, and thus applies even when employees are loading cargo, a job involving little or no customer contact. In light of the factual differences between this case and United Parcel Service, supra, I conclude that the latter case is in- apposite here. In Evergreen Nursing Home, nurses aides were prohib- ited from wearing bright yellow 1-3/4-inch buttons with the name of the union in bold black letters. In addition, the employees who were prohibited from wearing the buttons were in constant, direct contact with elderly ill patients, and the trial examiner found that reactions - of such patients "to outside stimuli of any sort are unpre- dictable and could cause severe agitation, upsetting Re- spondent's operations and control." 12 In the instant case, of course, the factor of concern, for patients is not present, and I therefore find that Evergreen also has no application here. Certain other cases on which Respondent relies should also be discussed. In Burger King Corp. v. NLRB, 725 F.2d 1053 (6th Cir. 1984), the respondent had a regula- tion that "only company approved name tags, -buttons and alterations in uniforms are. allowed," and enforced that rule "by requiring employees to remove a union button 1-1/2 inch in diameter. The Board had found 13 a Respondent argues that it only prohibits those buttons that are con- spicuous, and concedes that the pencil clip is not conspicuous Respond- ent also contends that "unrebutted testimony established that Page is and has been willing to allow its Dulles employees to wear the 3/4 inch pen clip insignia button," citing Bnll's testimony that Luss told hurl that Luss had advised either Raistnck or Jewell that the pen clip was an exception to the no-button rule However, as Brill further -testified that Respondent has never advised the employees that wearing the -clip was acceptable, and in light of Reardon's testimony that on numerous occasions he told employees to remove buttons including the clip and that if there was at any time a change in Respondent 's policy he was not informed of it, it-is clear that as far as the employees knew, wearing the pencil clips was pro- hibited I thus find that Respondent banned not only those buttons it deemed conspicuous, but the small pencil clip as well. 10 Citing Evergreen Nursing Home, 198 NLRB'775 (1972). 11 Citing United Parcel Service, 195 NLRB *441 (1972) 12 198 NLRB at 779 13 Burger King Corp., 265 NLRB 1507 (1982) PAGE AVJET CORP. that the only support proffered by respondent for its as- sertion that it lawfully asked an employee to remove the button was that she was working at the drive-up window of the restaurant, where she had contact with customers all day. The Board further found that "mere contact with customers is not a basis for barring the wearing of union buttons," and that respondent's enforcement of its rule was therefore unlawful.14 The court, however, denied enforcement of the Board's Order, on grounds that:15 Burger King has attempted to project a clean, pro- ' fessional- image to the public. It has consistently en- forced its policy against wearing unauthorized but- tons in it nondiscriminatory manner. It is a national fast food chain deriving much of its recognition from its uniform public image. It is not asserted that this policy had its inception because of labor unions or union activities. There are special circumstances which justify this prohibition. It is noteworthy that the court majority also stated that:16 - The NLRB order regarding union buttons will not be enforced insofar as it applies to employees who have contact with the public. We think the rule in this circuit should be that where an employer en- forces a policy that its employees may only wear authorized uniforms in a consistent and nondiscrim- inatory fashion and where those employees have contact with the public, a "special circumstance" exists as a matter of law which justifies the banning of union buttons. However, as the dissent pointed out, employees who did not meet the public were included in the company policy: 17 I conclude that, although the rule in Burger King and respondent's justification for that rule are similar to those in the instant case, the court's holding in Burger King is not dispositive here. First, it is well settled that an ad- ministrative law judge is bound to apply established Board precedent that has not been reversed by the Board or the Supreme Court.18 Accordingly, I am bound to follow the Board's decision in Burger King. Second, the court majority in Burger King expressly confined its holding to those situations in which the employees sub- ject to the ban have contact with the public. As dis- cussed. above, the prohibition on wearing union insignia 14 See also Howard Johnson Motor Lodge, 261 NLRB 866, 868 fn 6 (1982), in which the Board held that "the lawfulness of the exercise by employees of their rights under the Act, including union button wearing, does not turn upon the pleasure or 'displeasure of an employer's custom- ers " is 725 F 2d at 1055 18 Ibid " Indeed, the administrative law judge had found that respondent's application of the rule to an employee who worked in the kitchen and had no contact with the public violated Sec 8(a)(1) of the Act, and no exceptions were taken to this finding 18 Regency at the Rodeway Inn, 255 NLRB 961 fn 2 (1981) 777 in the instant case is not limited to times or places where employees are likely to be in contact with customers.19 Respondent also cites Houston Coca-Cola Bottling Co., 256 NLRB 520 (1981). In that case, the Board found that respondent's prohibition against the wearing of union in- signia when employees were away from the plant dealing with the public or in plant areas open to the public for tours was not unlawful, relying on United Parcel Service and Evergreen Nursing Home, both supra. Although the decision in Houston Coca-Cola did not refer to the size or coloring of the insignia at issue, in Burger King, supra, the Board distinguished Houston Coca-Cola on grounds that in the latter case respondent prohibited employees from wearing patches and daisies which were brightly colored and 4 to 5 inches in diameter, and that employ- ees were not told to remove buttons which were 1-1/2 inches in diameter with a "VOTE TEAMSTERS" slogan.2 0 It appears from a review of the cited cases that an em- ployer's concern for the image it presents to the public may justify some limitation on employees' wearing of union insignia if the employees to whom the prohibition is directed have significant contact with the public and if (at least in the Board's view) the insignia are conspicu- ous. As discussed above, the instant ban applies to all bargaining unit employees, regardless of the amount of contact they have with customers or the public. I there- fore find that Respondent's rule is not sufficiently nar- rowly drawn to provide an appropriate balance between Respondent's concern for its public image and the em- ployees' right to engage in protected activity. Inasmuch as I have found that Respondent's uniform policy is overly broad, it is not necessary to pass on whether the buttons and badges distributed by the Union to employees are so conspicuous as to justify Respond- ent's rule prohibiting the employees from wearing the in- signia when they are likely to have contact with mem- bers of the public. 3. Respondent's proposal to post photographs of union stewards on the bulletin boards Having found that there are no special circumstances in this case which warrant Respondent's blanket prohibi- tion against employees wearing union insignia, I further find that Respondent's proposal to post photographs of the stewards on the union bulletin board is not an ac- ceptable alternative to wearing steward badges. For, in the absence of a justification for the prohibition, there is no need for the Union to accept any alternative. Further, Respondent's proferred solution is specious at best, since it fails to address the issue of union members who are not stewards, yet want to wear union buttons. The right of employees to make known their union sympathies is a right protected by the Act. Consequently, if Respondent 19 Respondent further relies on NLRB v. Harrah's Club, 337 F.2d 177 (9th Cir 1964), in which the court denied enforcement of the Board's Order and found that an employer's rule against the wearing of any non- uniform items by employees who came in contact with the public was not unlawful For the reasons stated with respect to Burger King, I also find Harrah's inapposite. 20 265 NLRB at 1508 fn 4 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot meet the special circumstances exception, it cannot dictate how stewards can be identified without buttons, nor which buttons may be worn.-. 4. The waiver issue - - Respondent's final argument- is that the Union has waived its right to protest the no-button policy because it has _agreed to the, language in article XVII(g) of the collective-bargaining agreement that "the Company may establish--the ,conditions under' which- such uniforms are to be worn." I disagree. - 'Since the right to wear union`-`insig-nia is a Section 7 right, a waiver of that right must be clear and'uninistak. able.21 As-disdussed'above, Raistrick testified that he did not .request a- change in the wording of article XVII(g) in the contract negotiations held iii late December 1983 and early January 1984 because he felt that that section did not address the no-button policy. • I agree, for on its face the contract provision applies to when uniforms will be worn,,not what else maybe worn at the same time. Further, Raistrick and Luss discussed the policy infor- mally three or four times during the, negotiations and -ex- changed cases dealing with the issue, and Reardon con- ceded at''the"hearing that he was aware throughout the contract negotiations that the Union objected 'to, Re- spondent's 'button rule. In addition,, as noted earlier, when the parties reached'a tentative agreement, Raistrick informed Luss' that the Union would' file a charge with the Board'over'Respondent's:refusal to permit employees to wear union insignia. In: these -circumstances, it is clear that. the .Union never gave, any indication that 'it' acqui- es'c,ed • in,the , Company's' policy, and, indeed, that the Union has consistently :maintained its., position that the policy. violated. both the nondiscrimination provisions. of the contract -and the Act. f 'therefore find that Respond- ent has not-de monstrated that the Union has waivedi'its right to protest the policy." - ` In 'summary, I' find that -the- Union has not waived its right to' protest' Respondent's " policy announced in, Sep- tember- 1983 concerning union' buttons and badges, and, balancing the Employer's concerns against 'the employ- ees' Section 7 rights, I • further ,, find that Respondent 'has not shown that special circumstances, exist which- justify its prohibition against employees wearing any union in- signia on. their uniforms. I, therefore conclude that by im- plementing' this prohibition, Respondent ' has- violated Section 8(a)(1),of the Act. On' the basis of the' above findings of fact and the entire record in the case, I make the following " CONCLUSIONS' OF L'Aw 1-. Page 'Avjet' Corporation 'is an employer 'engaged in , commerce within, the , meaning , of, Section 2(2),,, (6); and (7) of the Act. rn; r Tide Water Associated Oil Co, 85 NLRB 1096, 1.098. (1949),, Gem City Ready Mu Co : 270 NLRBW1260 (1984) , 2. District Lodge No. 141, International Association of Machinists and Aerospace Workers is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By promulgating a rule prohibiting employees from wearing any noncompany buttons or patches, and en- forcing that rule so as to prohibit employees from wear- ing union insignia and union steward buttons, Respond- ent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend . that it be or- dered to cease and desist therefrom and to take -certain affirmative action designed to effectuate the purposes of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed22 " ORDER The Respondent, Page Avjet Corporation, Loudon County, Virginia, its officers, agents, successors, and as- signs, shall 1. Cease'and desist from (a) Promulgating a rule prohibiting employees from wearing any noncompany buttons or patches, and en- forcing that rule so as to prohibit employees from -wear- ing union insignia and union steward buttons. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to'engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. . 2.. Take the following affirmative action which is nec- essary•to effectuate the policies of the Act. (a) . Post at its Dulles International Airport facility copies of the attached notice marked "Appendix."23 Copies, of the notice, on forms provided by the Regional Director for Region 5, .after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 corisec6ti've days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to; ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the .Regional Director in writing within 20 'days from the date of this Order what steps, the Re- spondent has taken to comply. ' ' ` . zz If no 'exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and, recommended Order shall,,as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed' waived for all pur- poses ' a 23 if this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order, of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al,Labor Relations Board "