Northeast Industrial Service Co.

National Labor Relations Board - Board Decisions

Mar 20, 1996

320 N.L.R.B. 977 (N.L.R.B. 1996)

977
320 NLRB No. 117
NORTHEAST INDUSTRIAL SERVICE CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We find merit in the General Counsel’s exception to the judge’s
failure to find that about December 20, 1994, the Respondent’s su-
pervisor, Carter, threatened employees with discipline if they did not
remove union stickers from their hardhats. In this regard, we note
that the Respondent in its answer to the consolidated complaint ad-
mitted the allegation. Further, at the hearing, the Respondent intro-
duced into evidence a memorandum from Carter, stating that he in-
formed an employee that the failure to comply with the Respond-
ent’s hardhat policy would mean that the employee would be sent
home for the day. Additionally, Carter’s undisputed testimony
showed that about December 20, 1994, he threatened an employee
in the presence of others that the failure to remove a union sticker
from the employee’s hardhat would result in disciplinary action. It
is well established that the issuance of such a warning in the absence
of special circumstances violates Sec. 8(a)(1). Ohio Masonic Home,
205 NLRB 357, 357 (1973), enfd. mem. 511 F.2d 527 (6th Cir.
1975).
2 The judge inadvertently failed to include, in his recommended
Order, language requiring the Respondent to cease and desist from
issuing disciplinary warnings to its employees for wearing union
stickers or decals on its hardhats. Accordingly, we shall modify the
Order and substitute a new notice.
Northeast Industrial Service Company, Inc. and
Local Union 567, International Brotherhood of
Electrical Workers, AFL–CIO and Local 1253,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 1–CA–32444 and 1–CA–
32459
March 20, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 5, 1995, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a cross-exception and a support-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, North-
east Industrial Service Company, Inc., Winthrop,
Maine, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Insert the following as paragraphs 1(b) and (c)
and reletter the subsequent paragraph accordingly.
‘‘(b) Threatening employees with disciplinary action
for displaying union stickers or decals on their hard-
hats.
‘‘(c) Issuing disciplinary warnings to employees for
wearing union stickers or decals on their hardhats.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United states Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain or enforce a rule which pro-
hibits the display of any union stickers or decals on
our hardhats.
WE WILL NOT threaten employees with disciplinary
action for displaying union stickers or decals on their
hardhats.
WE WILL NOT issue any disciplinary warning to em-
ployees for wearing union stickers or decals on their
hardhats.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL revoke the warning issued to Alfred
Macmaster for displaying a union sticker on his hard-
hat and WE WILL remove it from our files and notify
him that this has been done and that this warning will
not be used against him at any time in the future.
NORTHEAST INDUSTRIAL SERVICES
COMPANY, INC.
Joseph F. Griffin, Esq., for the General Counsel.
Joseph J. Hahn, Esq. and Kate S. Debevoise, Esq. (Bernstein,
Shur, Sawyer & Nelson), of Portland, Maine, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. These
consolidated cases were tried in Portland, Maine, on July 10,
1995, based on charges filed by Local Union 567, Inter-
national Brotherhood of Electrical Workers, AFL–CIO, on
December 27, 1994, as amended (Case 1–CA–32444), and
by Local 1253, International Brotherhood of Electrical Work-
ers, AFL–CIO, on January 4, 1995, as amended (Case 1–
CA–32459), and a consolidated complaint issued by the Re-
gional Director for Region 1 of the National Labor Relations
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Also required are safety glasses and safety (steel-toed) shoes.
Board (the Board) on March 31, 1995. The complaint alleges
that Northeast Industrial Service Company, Inc. (Respondent
or NISCO) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by prohibiting employees from
displaying union insignia on their hardhats and by disciplin-
ing an employee for violating that rule. Respondent denies
the commission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the counsel for the General Counsel and counsel for
NISCO, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNIONS’ LABOR
ORGANIZATION STATUS—PRELIMINARY CONCLUSIONS
OF LAW
The Respondent, a corporation, with an office and place
of business in Winthrop, Maine, is engaged as a construction
industry contractor with jobsites in Rumford and Jay, Maine,
and elsewhere. Annually, in the course of its business, Re-
spondent purchases and receives goods and materials valued
in excess of $50,000 which are delivered to its Winthrop,
Maine facilities directly from points located outside the State
of Maine. The complaint alleges, the Respondent admits, and
I find and conclude that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Unions are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
NISCO provides construction, rehabilitation, demolition,
and maintenance services primarily to firms engaged in the
operation of papermills. Among the sites where it regularly
works are International Paper’s mill at Jay, Maine, and Boise
Cascade’s mill in Rumford, Maine. It employs varying num-
bers of workers in all of the construction crafts; its employ-
ees are not represented by any labor organizations.
At issue is whether Respondent’s rules which prohibit the
display of unapproved stickers on the hardhats worn by all
employees interfere with Section 7 rights and whether its dis-
cipline of an employee for violating those rules contravenes
Section 8(a)(3). The facts are not in dispute and will only
be summarily stated.
B. Facts
In 1989, NISCO adopted an extensive set of safety rules
intended to reduce an unfortunately high accident rate and
consequently high premiums for workmen’s compensation
insurance. Included within those rules is a hardhat policy,
mandating that all employees wear hardhats during all work-
ing hours.1 That policy further provides:
E. Only approved decals will be allowed on the
hardhat. Anyone changing the appearance, or adding
any unapproved substance to a NISCO hardhat, in addi-
tion to disciplinary action, may be required to pay a
$15.00 fee.
List of approved stickers or decals:
1. A 1/2’’ DYMO style, self-adhesive label indicat-
ing the employee’s first and last name.
2. A 2’’ x 3’’ Northeast Industrial sticker, place[d]
on both sides, above the attachment cut-outs.
3. 1’’ x 3’’ colored label to indicate each craft . . . .
4. A 1’’ high employee number.
As originally promulgated in 1989, the policy also pro-
vided for a safety decal bearing the logo of the Associated
General Contractors (AGC), to be placed immediately above
the employee number on the rear of the helmet. That decal
was eliminated in about 1992 to avoid an unfair labor prac-
tice charge alleging that by allowing an AGC decal, while
prohibiting the IBEW’s, the Employer was treating the
Unions disparately. At that time, it was decided to eliminate
the AGC decal, rather than allow both it and the Unions’,
to prevent proliferation of decals on the hardhats.
When employees begin work, NISCO issues hardhats, blue
in color to designate that they are NISCO employees; other
contractors use different colors. NISCO’s hardhats bear the
stickers or decals described above, i.e., the employee’s name
in 1/2-inch lettering in front, the employer’s name on 2-by-
3-inch stickers or painted on above each ear, 1-by-3-inch col-
ored decals on each side of the center line at the top of the
hat (only on larger projects), and the employee’s permanently
assigned number, in 1-inch figures, at the back.
Respondent explained that it requires and provides a stand-
ardized hardhat because it hires employees from all over the
country; they sometimes come with helmets of varying mate-
rials and in varying conditions. Standardizing allows it to
know the condition of the helmets and to attach standardized
safety accessories. The color of the hat and the craft labels
allow it to see where its employees are working and the
NISCO decals identify its employees to others. The prohibi-
tion of other decals or stickers on those hats, it asserts, is
primarily a safety measure; secondarily, it is intended to
maintain the Company’s professional image.
Thus, with respect to safety, Respondent notes that the
hardhats get dropped, banged up, and placed under other
equipment when put away at the end of a shift. They some-
times suffer cracks, gouges, and dents which may impair
their effectiveness. While it makes no specific inspections of
hardhats and other personal equipment for such defects, its
supervisors and safety personnel visually observe the hard-
hats as they walk through the jobsites. Stickers which are
placed on a hat in addition to those required by its policy
impair the ability to see whether the hat has been damaged,
NISCO maintains. On occasion, employees whose hats
showed damage or were excessively dirty have been directed
to swap their hats for new ones.
In mid-December 1994, Respondent had crews working at
both International Paper in Jay, Maine, and Boise Cascade in
Rumford, Maine. On those crews were several journeymen
electricians, members of either Local 567 or Local 1253,
IBEW. At the Unions’ urgings, those employees placed
stickers on the backs of their hardhats, above their employee
numbers, where the AGC sticker had earlier been displayed.
Those union stickers were round, either 1 or 3 inches in di-
ameter, red, white, black, and gold in color, and bore the
979NORTHEAST INDUSTRIAL SERVICE CO.
2 Incorrectly rendered in the transcript as Mault Construction; the
record is corrected accordingly.
3 Inferentially, counsel for the General Counsel would also distin-
guish the instant situation from Kendall Co., supra, on which Re-
spondent also relies. In that case, for obvious safety reasons, the em-
ployer prohibited loose or hanging jewelry which could catch in ma-
chinery. The Board found ample support for that employer’s safety
based rule.
4 It is a minor distinction that, in Standard Oil and Andrews, the
employees were expressly told that they were permitted to wear in-
signia on the other clothing. While no such statements were made
here, the employees obviously knew that was permitted by NISCO
and they availed themselves of the opportunities to do so.
IBEW’s logo, consisting of its name and date of organiza-
tion, with a hand holding bolts of lightning. The intent in
affixing those decals was ultimately organizational, to iden-
tify those who were union members so that other employees
could ask questions of them.
The IBEW stickers were quickly noticed by management,
as were some other unrelated stickers. The issue was imme-
diately addressed in regularly scheduled safety meetings
where the hardhat policy was read to the employees without
any reference to the fact that some of them were wearing
IBEW stickers. The employees were told, individually and in
those meetings, to remove the offending stickers. When they
asked, they were told that discipline would result from a re-
fusal to comply. One employee, Alfred Macmaster, was di-
rected to remove a safety sticker provided by the mill, as
well as the IBEW sticker, from the outside of his hat. He
asked for something in writing. On the following day,
Macmaster was given a first (written) verbal warning stating:
‘‘Displaying other than Company stickers on hardhat (Stick-
ers are identified in employee handbook).’’ It indicated that
a second violation would result in time off and a third would
bring about his termination. The employees were not other-
wise disciplined and those who voluntarily quit thereafter
were rated as eligible for rehire. One went on to another
NISCO jobsite.
Respondent does not prohibit employees from wearing
union insignia on their work clothes or from displaying them
on their lunch and toolboxes or other equipment. Employees
have worn jackets and T-shirts with union logos and placed
union stickers on their personal equipment, without suffering
any adverse response from management.
C. Analysis
The Board has spoken repeatedly concerning the right of
employees to wear union insignia while at work. Recently,
in United Parcel Service, 312 NLRB 596, 601 (1993), enf.
denied 41 F.3d 1068 (6th Cir. 1994), it stated:
It is well established that an employee has the pro-
tected right to wear union insignia while at work. Re-
public Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945). In the absence of ‘‘special circumstances,’’ the
prohibition by an employer against the wearing of
union insignia violates Section 8(a)(1) of the Act. See,
e.g., Ohio Masonic Home, 205 NLRB 347, enf. mem.
511 F.2d 527 (6th Cir. 1975).
It has also stated that ‘‘a rule which curtails that employee
right is presumptively invalid unless special circumstances
exist which make the rule necessary to maintain production
or discipline, or to ensure safety.’’ Kendall Co., 267 NLRB
963, 965 (1983).
Such special circumstances, to the extent relevant here, in-
clude situations where the wearing of the insignia might
‘‘jeopardize employee safety . . . or unreasonably interfere
with a public image which the employer has established, as
part of its business plan, through appearance rules for its em-
ployees.’’ United Parcel Service, id., citing Nordstrom, Inc.,
264 NLRB 698, 700–702 (1982); and Kendall Co., id. What
is called for is a balancing of the conflicting rights, i.e., the
employees’ organizational rights against the employer’s right
to maintain discipline or to achieve other legitimate business
objectives, under the existing circumstances. Standard Oil
Co. of California, 168 NLRB 153, 161 (1968), citing Fabri-
tek, Inc., 148 NLRB 1623 (1964), enf. den. 352 F.2d 577
(8th Cir. 1965).
A balancing of the competing interests leads me first to
conclude that Respondent’s ‘‘image’’ argument is without
merit. Respondent has alluded to no dress code or other re-
quirement that its construction employees adhere to any
standard of neatness or uniformity. Rather, it has adduced
evidence that union insignia are permitted on clothing, other
than hardhats, and on equipment; it has not shown how such
an additional display on the hardhat would adversely impact
on its image. Nor has it shown that the IBEW decals at issue
were particularly conspicuous or provocative. See United
Parcel Service, supra, and Nordstrom, Inc., supra. Further,
the employees have no public contact and only limited con-
tact with representatives of the mills which are Respondent’s
customers. See Malta Construction Co., 276 NLRB 1494,
1495 (1985).2 It is, moreover, arguable that decals which
identify its craft workers as union members, and therefore
graduates of, or participants in, established apprenticeship
programs, enhances rather than detracts from a construction
industry employer’s professional image.
A more difficult question is presented by Respondent’s
safety concerns. Counsel for the General Counsel relies prin-
cipally on Malta Construction Co., supra, and would distin-
guish the cases relied on by Respondent, Andrews Wire
Corp., 189 NLRB 108 (1971), and Standard Oil, supra.3 A
brief discussion of each case is warranted.
In Standard Oil, the employer had a longstanding rule,
based on safety concerns, prohibiting the adorning of its
hardhats with stickers or decals, whether union related or not.
Those hats were a near fluorescent orange, visible at long
distances to the employer and equipment drivers. Its worksite
was a refinery where ‘‘highly volatile, dangerous, and haz-
ardous gases necessitated an elaborate safety precaution sys-
tem.’’ Malta, supra at fn. 4. Similarly, in Andrews Wire, the
employer issued bright, highly visible hardhats in a poorly
lighted working environment. In each case, the employer as-
serted that less bright decals placed on those hats would di-
minish their visibility and impair safety. In each, the employ-
ees were permitted to display union insignia on any item of
clothing other than their hardhats and they did so.4 Of note
is the following language adopted by the Board in Standard
Oil:
The safe management . . . is a heavy responsibility
on the Company which it may not shirk. As the court
said in Harrah’s Club [337 F.2d 177, 180 (9th Cir.
1964)] in regard to a similar decision of management:
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I have no doubt but that application of the rule would be held
valid were employees to plaster the hardhats with stickers of suffi-
cient size and number so as to preclude management from seeing its
color or from eyeballing it for defects. That, however, is not the case
here and I would be loath to see such a situation arise. The Unions
would waste their own assets and this Agency’s limited resources to
continuously test this issue by trying to see how many stickers, and
of what size, it could display before the rule could be validly ap-
plied.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
This is a valid exercise of business judgment, and it
is not the province of the Board or of this court to
substitute its judgment for that of management so
long as the exercise is reasonable and does not inter-
fere with a protected purpose.
In Malta Construction, supra, an employee was terminated
after he persisted in wearing union stickers on his company
provided hardhat in contravention of the employer’s orders.
In that case, as here, the employer allowed its employees to
wear union insignia on their personal attire and there was no
showing of disparate treatment. The primary issue presented
there was whether the employer had the right to deny the use
of company property for union-related purposes. The Board,
citing Republic Aviation, supra at 797–798, noted that
‘‘[T]he right of employees to wear union insignia at work
has long been recognized as a reasonable and legitimate form
of union activity.’’ It further noted its statement in Kendall
Co., supra at 965, that ‘‘a rule which curtails that employee
right is presumptively invalid unless special circumstances
make the rule necessary to maintain production or discipline,
or to ensure safety.’’
In Malta, supra, as in Standard Oil and Andrews, supra,
the employer claimed that its bright orange colored hats
aided it in distinguishing its employees from those of other
contractors and assisted operators and drivers in spotting em-
ployees working around their equipment. That employer fur-
ther claimed that employees would not stop with just one or
two stickers on the hardhats but might cover them with stick-
ers, some of which might be vulgar or offensive to the public
with whom the employees might come in contact. The
Board, however, noted that the employees worked outdoors
during the daytime, that nothing impaired respondent’s abil-
ity to observe its employees, and that the employee in ques-
tion wore only two stickers which did not obscure the color
of the helmet. It also pointed out that the employer was able
to identify its foremen although they wore less noticeable
hardhats.
Thus, the Board concluded that the respondent had ‘‘failed
to prove that the complete prohibition of insignia on its hard-
hats was necessary to enable it to identify its employees.’’
It also concluded that, in the circumstances of the construc-
tion industry, the ‘‘public contact’’ argument was not estab-
lished by the evidence. It therefore rejected the employer’s
claim that ‘‘special circumstances based upon legitimate pro-
duction or safety reasons’’ existed to justify its prohibition.
The rule and its enforcement were deemed violative of Sec-
tion 8(a)(3) and (1).
In the instant case, the Employer has asserted that the
placement of stickers, either 1 or 3 inches in diameter, im-
pairs its ability to determine, during casual inspections,
whether the integrity of the hardhats has been impaired.
Without making any measurements, it is fair to state that
even the larger of those stickers would cover less than a
tenth of the hat’s surface. Respondent has not claimed or
shown that the employees have placed multiple stickers on
the hats. Neither has it shown so great a safety-related con-
cern for dented, gouged, or otherwise damaged hardhats that
it would institute regular and closer inspections of them. The
record evidence, moreover, reveals that Respondent had pre-
viously allowed a similarly sized sticker to be placed on the
identical spot on the helmet where the IBEW members
sought to display their union logos. That sticker, promoting
safety and the AGC, was subsequently prohibited, not for
safety reasons but only because its presence might legitimate
demands to place union stickers on those hats. If the AGC
sticker did not impair inspection of the hardhats than the
Unions’ stickers cannot be said to do so, and Respondent’s
safety-based claims must fall.
Based on the foregoing evidence, I must conclude that the
instant case is closer to Malta Construction than it is to
Standard Oil, Andrews, or Kendall. Management’s claim of
a safety-based justification for its rule does not withstand
scrutiny. There is no ‘‘reasonable’’ safety-related rule (within
the contemplation or meaning of the quote from Harrah’s
and Standard Oil set forth above) which would bar a substi-
tution of agency judgment. Thus, I must conclude, ‘‘Re-
spondent has failed to establish any special circumstances
based on legitimate production or safety reasons to justify
prohibition.’’ Malta Construction, supra at 1495. I therefore
find that the enforcement of Respondent’s hardhat rule vio-
lates Section 8(a)(1) to the extent that it prohibits the place-
ment of any union insignia on those hats.5 I further find that
by disciplining Alfred Macmaster for violation of that rule,
it has violated Section 8(a)(3).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminated against an employee
engaged in union activity by issuing a warning to him for
wearing a single union sticker on his hardhat, I find that it
must revoke that warning and remove it from its files and
notify him in writing that it has done so and that this warn-
ing will not be used against him in the future in any way.
CONCLUSIONS OF LAW
1. By maintaining and enforcing a rule prohibiting em-
ployees from placing any union stickers or decals on its
hardhats, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
2. By issuing a warning to Alfred Macmaster for violating
its rule prohibiting the display of any union stickers or decals
on its hardhats, the Respondent violated Section 8(a)(3) and
(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
981NORTHEAST INDUSTRIAL SERVICE CO.
7 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Northeast Industrial Service Company,
Inc., Winthrop, Maine, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining and enforcing a rule which prohibits the
display of any union stickers or decals on its hardhats.
(b) In any like or related manner interfering with, restrain-
ing, or coercing you in the exercise of the rights guaranteed
you by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Revoke the warning issued to Alfred Macmaster for
displaying a union sticker on his hardhat and remove it from
its files and notify him that this has been done and that this
warning will not be used against him at any time in the fu-
ture.
(b) Post at its facility in Winthrop, Maine, and its jobsites
in Jay and Rumford, Maine, copies of the attached notice
marked ‘‘Appendix.’’7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.