Produce Warehouse of Coran, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1999

329 N.L.R.B. 915 (N.L.R.B. 1999)

PRODUCE WAREHOUSE OF CORAM 915
Produce Warehouse of Coram, Inc. and United Food
and Commercial Workers, Local 342–50, AFL–
CIO. Case 29–CA–22012
October 27, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On June 15, 1999, Administrative Law Judge Steven
Fish issued the attached decision. The Union filed ex-
ceptions and a supporting brief, and the Respondent filed
an answering 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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Richard A. Bock, Esq., for the General Counsel.
Brian K Saltz, Esq., of Farmingdale, New York, for the Re-
spondent.
Martin Milner, Esq. (Simon & Milner), of Valley Stream, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charges
filed by United Food and Commercial Workers Union, Local
342-50, AFL–CIO (the Union or the Charging Party), the Re-
gional Director for Region 29 issued a complaint and notice of
hearing against Produce Warehouse the Respondent, on Octo-
ber 30, 1998,1 alleging violation of Section 8(a)(1) and (3) of
the Act by discharging its employee Richard Davis.
The case was initially consolidated for trial with Cases 29–
CB–10601 and 29–CP–614 which alleged that the Union had
violated Section 8(b)(7)(C) and (1)(A) of the Act. Prior to trial
the Union entered into a settlement agreement, and those cases
were severed from the instant matter.
At the trial, which was held before me in Brooklyn, New
York, on January 21, 1999, the complaint was amended to re-
flect the correct name of Respondent as Produce Warehouse of
Coram, Inc. Briefs have been filed by the General Counsel and
the Respondent and have been carefully considered. On the
entire record including my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a New York corporation engaged in the
operation of retail grocery stores, including a facility located in
Coram, New York.

1 All dates are in 1998 unless otherwise indicated.
Annually, the Respondent derived gross revenues in excess
of $500,000 and purchased and received at its Coram facility
goods and supplies valued in excess of $5000 directly from
entities located outside the State of New York.
The Respondent admits, and I so find that it is now, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted and I so find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. FACTS
Richard Davis began his employment for the Respondent in
mid-September 1997 at its Coram, New York store as a
butcher. In February 1998 he was transferred to Respondent’s
West Islip store. In April 1998, he was transferred back to the
Coram location.
During his employment at the Respondent’s two stores, after
meeting with Donald Proniewych and Fred Steiniger, officials
of the Union, Davis spoke to employees at both locations con-
cerning the benefits of joining the Union. Davis also signed an
authorization card on behalf of the Union on March 16,1998.
The General Counsel adduced no direct evidence that Re-
spondent was aware of Davis’ activities in speaking to employ-
ees on behalf of the Union. In fact Davis admitted that no one
from management was aware of his support for the Union, until
he wore a union hat, as described more fully below.
In early May, Davis met with Steiniger and suggested to
Steiniger that to speed up the organizing, Davis should be pro-
vided with a union hat, which Davis would wear while at work.
The next day, Steiniger brought Davis a blue baseball cap with
the logo UFCW Local 342-50 prominently displayed thereon.
The union logo measured 1-1/4 inches high and 4 inches in
length.
On May 5, Davis testified that he wore the union hat during
his entire workday. According to Davis, Store Manager Remy
Bell and Eddie Bell one of the owners, saw him wearing the
hat, but said nothing to him about it on that day, although he
wore it for his entire shift.
Davis was off on May 6, but on May 7 he reported to work
again, and once more he wore the union hat. At some point
during that day, Eli Ruperto, Respondent’s meat supervisor
arrived at the store. He began walking around the store, accom-
panied by Respondent’s assistant manager, Joseph Delmonte.
From about 15 feet away, both Delmonte and Ruperto noticed
that Davis was wearing a hat2 but was not wearing the hat dis-
tributed by and required by the Respondent to be worn by its
employees.
Delmonte commented to Ruperto, that Davis was out of uni-
form, since he was not wearing a Produce Warehouse hat. At
that point neither of them could tell that it was a union hat that
Davis was wearing. Ruperto and Delmonte then approached
Davis by the customer service window. When they spoke to
him they could see that Davis was wearing a union hat.
Delmonte told Davis that he should take off the hat that he
was wearing, because he was out of uniform and in violation of
company policy. Delmonte added that Davis should put on a
Produce Warehouse hat. Davis replied no, because he believed
in the hat and believed in the Union. Ruperto then told Davis to
remove the hat and put on a company hat. Davis responded no.
Ruperto replied that “it is your decision to make, either remove
2 Ruperto was the meat supervisor for all of the Respondent’s stores.
329 NLRB No. 80
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 916
the hat, put on a company hat and follow company policy, or
punch your card and leave.”
Although both Ruperto and Delmonte told Davis to put on a
produce warehouse hat, as well as to take off the union hat,
neither Delmonte nor Ruperto had a produce warehouse hat
with them at the time, and did not physically offer Davis a
company hat to wear. However, there were produce warehouse
hats available in the office and in Ruperto’s car at the time.
Davis repeated that he was not going to take off the hat.
Ruperto then instructed Davis to punch his card and leave, and
return the timecard to Ruperto. Ruperto also asked Delmonte if
he had heard what Davis said, and instructed Delmonte to write
a report exactly the way it happened.
Davis complied with Ruperto’s orders, punched out and
handed his card to Ruperto. Ruperto then informed Davis,
“You’re out of here,” and then added that Davis should tell one
of the Union’s business agents, “its not going to be that easy.”
In connection with that latter comment, Ruperto admitted
that he was aware that the Union was organizing the Company,
and that he believed that Davis was wearing the union hat, be-
cause Davis was looking to get the Union into the Company.
Therefore, Ruperto’s comment to Davis to tell the union repre-
sentative, “its not going to be that easy,” was referring to
Ruperto’s view that it was not going to be that easy to organize
Respondent’s employees. With respect to this issue, Ruperto,
who was a former union member, had previously interceded
with Avi Raitses, the Respondent’s president, at the behest of
Ralph Cartrophie an official of the Union, to attempt to per-
suade Respondent to recognize and agree to a contract with the
Union. In fact, Cartrophie and Raitses had a conversation con-
cerning the terms for a possible contract, but no agreement was
made by Respondent either to recognize or sign a contract with
the Union.
My findings above with respect to the events of May 7, is
based on a compilation of the credited portions of the testimony
of Davis, Ruperto, and Delmonte, as well as an evaluation of
two written reports prepared by officials of Respondent con-
cerning the day in question. These documents include a report
prepared by Delmonte, which made reference to the hat worn
by Davis as a “Local 342 Hat.” The other document was pre-
pared by Manager Bell, based on his oral reports of the incident
from Ruperto and Delmonte. The Respondent sought to intro-
duce this document as a business record. I received it, subject to
further argument and consideration. While I doubt that this
document would qualify as a business record, I affirm my rul-
ing to receive the document into evidence, and I have consid-
ered it in making my factual findings. Thus the Board has fre-
quently relied on hearsay testimony, which was “rationally and
corroborated by something more than the slightest amount of
other evidence.” Dauman Pallet, Inc., 314 NLRB 185, 186
(1994); Livermore Joe’s Inc., 285 NLRB 169 fn. 3 (1987); RJR
Communications, Inc., 248 NLRB 920, 921 (1980); Midland
Hilton & Towers, 324 NLRB 1141 fn. 1 (1997); Sheet Metal
Workers Local 28 (Astoria Mechanical), 323 NLRB 204, 209
(1997).
Here while the report prepared by Bell, is based on “hearsay”
reports of the events in question, it is corroborated by the credi-
ble and consistent testimony of Ruperto and Delmonte, and is
clearly rationally probative. Indeed, the only significant credi-
bility dispute between Davis and Respondent’s witnesses, is
whether Davis was instructed to put on a Produce Warehouse
hat, in addition to removing the union hat, as testified to by
Delmonte and Ruperto. Davis insists however that he was not
told anything about putting on a produce warehouse or com-
pany hat, but only ordered to remove his union hat. Davis fur-
ther testified that he did not have his produce warehouse hat
with him on that day, and had Respondent offered him a Pro-
duce Warehouse hat, he would have worn it.
I find Davis’ testimony in that regard to be preposterous and
incredible. Since he had already adamantly refused to remove
the union hat twice, while insisting that he believed in the hat
and believed in the Union, it is clear that Davis was determined
not to remove it. He obviously believed that he had an absolute
right to wear the union hat, and that Respondent could not law-
fully order him to remove it. Therefore it is simply ludicrous to
believe that Davis would have complied with Respondent’s
request to remove the hat, if Respondent’s officials had
merely—handed him or offered to give him a produce ware-
house hat.
I have considered the termination notice prepared by Del-
monte immediately after the event, which as the General Coun-
sel correctly points out, makes no mention of either Ruperto or
Delmonte instructing Davis to put on a produce warehouse hat.
However, I find this omission insignificant, and overcome by
the credible testimony of Delmonte and Ruperto and Bell’s
termination report, as described above. In my view, the failure
of Delmonte to include the fact that Davis was told to put on
the produce warehouse hat in his report, is attributable to the
relative unimportance of that fact in Davis’s actions. The dis-
cussion centered primarily on the removal of the union hat, and
Davis’s insistence that he had a right to continue to wear it. The
question of substituting a produce warehouse hat was clearly
not a major issue in anyone’s mind, since in my view everyone
knew that if Davis removed the Local 342 hat, he would either
be supplied with a produce warehouse hat or wear his own. I
note in that connection that Davis never told Respondent that
he had lost or did not have his produce warehouse hat at the
time.
Furthermore, I note that Ruperto was no longer employed by
Respondent at the time of the trial, and in fact had recently quit
because he was dissatisfied with his bonus. Therefore, he has
no interest in the outcome of this proceeding, and would have
no reason not to testify truthfully, which I find that he has done.
Also, I note that Ruperto candidly admitted that he made the
comment to Davis, to tell a union official that “it won’t be that
easy.” Ruperto admitted further that he was referring to Union
organizing by that remark, and that he knew that Davis was
attempting to organize for the Union by wearing the union hat.
I find that these admissions, which would tend to be damaging
to Respondent’s case, demonstrate to me that Ruperto was be-
ing truthful in the rest of his testimony, including his assertion
that he told Davis to put on a produce warehouse hat.
Finally, I also note that since the record establishes that it is a
violation of the Board of Health rules for a butcher to be with-
out a hat, I find it unlikely that Respondent would order Davis
to remove one hat without telling him to replace it with another
hat.
On July 6, Respondent sent a letter to Davis, making an un-
conditional offer to return to work, which adds that he is ex-
pected to wear a full uniform provided by Respondent. Davis
accepted this offer by letter from the Union’s attorney on Au-
gust 19.
The Respondent defends its decision to terminate Davis
based on its alleged enforcement of a uniform policy as set
PRODUCE WAREHOUSE OF CORAM 917
forth in its employee manual. The General Counsel concedes
that this letter was a valid offer of reinstatement to Davis. In
pertinent part, the manual reads as follows:

All store employees are expected to wear the appropriate uni-
form. For the Deli and Meat Departments, the uniform con-
sists of a white-collar shirt with sleeves, Produce Warehouse
white coat, red apron, a Produce Warehouse red hat and
nametag. All other employees must wear a white-collar shirt
with sleeves, Produce Warehouse vest, and a nametag. If you
are wearing a hat, you must wear a Produce Warehouse hat
with the logo facing forward. These items must be clean and
neat. All shirts must be tucked in. No bandanas, chains, visi-
ble body piercing, or exposed skin in an unprofessional man-
ner . . . . If your manager feels your dress is not appropriate
you may be asked to leave your workplace until you are prop-
erly dressed. You will not be paid for the time you are off the
job for this purpose. Your manager has the sole authorization
to determine whether or not you are dressed appropriately and
anyone who violates the standard will be subject to appropri-
ate disciplinary action.

According to Respondent’s president, Raitses, this policy
was instituted sometime in early 1997, because he and his part-
ner decided to maintain a policy that employees dress should be
neat, clean, and uniform in order improve Respondent’s public
image.
While Davis testified that he was not familiar with the em-
ployee manual or its contents with regard to uniforms, he does
admit that in October 1997, Respondent distributed produce
warehouse hats to employees, and informed employees that
they were required to wear these hats every day. Davis further
admits that since that time, both he and other employees in the
store wore these produce warehouse hats on a regular basis.
Davis also furnished testimony however that there were
some occasions where both he and other employees were per-
mitted to wear personal hats for various periods of time without
being disciplined by Respondent. According to Davis, Respon-
dent’s practice was to permit employees to wear their own per-
sonal hat if they forget to bring or lost their produce warehouse
hat. However, he admits that normally, when an employee
wears their own hat, Respondent’s manager would approach
them, and bring the employee a produce warehouse hat, and tell
them to remove their personal hat and wear Respondent’s hat.
Davis specifically recalled one occasion in early 1998, when
Respondent hired a new meat wrapper. At that time, Ruperto
gave the meat wrapper Davis’s produce warehouse hat to wear,
and he (Davis) wore a hat with the logo East Hampton on it.
Davis claims that he wore this hat for about a week, until Bell
came over to him, brought him a produce warehouse hat and
instructed Davis to remove his personal hat and put on Respon-
dent’s hat. On another occasion, Davis testified that he lost his
Produce Warehouse hat, and again wore the East Hampton hat
for 2 days, after which again Bell told him to take the East
Hampton off and put on a produce warehouse hat, which Bell
handed him at the time.
Davis also testified that another butcher, Al Tischler wore a
New York Yankee hat for about a week, although Davis could
not recall when this occurred. After seeing Tischler wear the
Yankee hat for a week, Davis asserts that he saw Bell bring
Tischler a produce warehouse hat and instruct Tischler to re-
move his Yankee hat and wear Respondent’s hat. Tischler al-
legedly complied with Bell’s request.
Fred Steiniger, an organizer for the Union also furnished
some testimony on this subject. He asserts that he visited the
Coram store in connection with his organizing efforts, and on
three occasions he observed employees wearing nonproduce
warehouse headgear. These three instances allegedly involved
one employee wearing a Jets hat, and another employee wear-
ing a bandana on two separate occasions. According to Steini-
ger, both of these employees were employed in the meat de-
partment, and he saw them for about 10–15 minutes.
However Steiniger could not be sure whether a manager ob-
served these employees wearing this noncompany headgear,
although he states that the manager at the time was standing at
the cashiers, 15 feet away from the meat department, from
where the manager could have seen these employees.
According to Respondent’s witnesses, Bell, Delmonte and
Ruperto, if an employee wears a nonproduce warehouse hat,
Respondent will supply them with a produce warehouse hat,
and the employee will be told to remove their personal hat and
wear Respondent’s hat. If for some reason, Respondent does
not have one of its own hats available, it will on occasion sup-
ply the employees with a plain white hat to wear.
Bell testified that he did not recall ever seeing Tischler wear-
ing a Yankee hat, or any employee wearing a Jets hat or an East
Hampton hat. Tischler did not testify.
Bell did testify however, that one employee in the meat de-
partment, Vinnie Mealy, had shaved his head, and asked Bell
for permission to wear a red bandana under his Produce Ware-
house hat, so he could keep his head warm. Bell testified that
he felt that this request was reasonable and within company
policy, so he granted Mealy permission to wear the bandana
under his hat. Delmonte corroborated Bell’s testimony that an
employee was given permission by Bell to wear a bandana
under his hat, and that the employee regularly did so.
Also, Raitses testified that although Respondent’s manual
policy is based on a desire for uniformity of employees, it has
not enforced the manual requirement that employees wear
white shirts. Raitses explains that Respondent did not enforce
the manual requirement with respect to white shirts, because
Respondent did not supply white shirts to employees, as it does
with company vests, coats, aprons, and hats that Respondent
does supply. Thus Respondent does not feel, according to Rait-
ses that it is morally right to force an employee to buy a white
shirt if they do not have one. However, with respect to items
that it does supply such as hats and vests, Raitses asserts that it
can and has strictly enforced its manual policy that employees
wear these items at all times.
III. ANALYSIS
It is well established that an employee has the protected right
to wear union insignia while at work. Republic Aviation, 324
U.S. 793, 801–803 (1945). However, an employer can lawfully
restrict employees from wearing union insignia if it demon-
strates the existence of “special circumstances.” United Parcel
Service, 312 NLRB 596, 597 (1993), enf. denied 41 F.3d 1068
(6th Cir. 1994). One of the special circumstances that has been
recognized is where the display of union insignia unreasonably
interferes with a public image which the employer has estab-
lished, as part of its business plan, through appearance rules for
its employees. United Parcel, supra; Nordstrom Inc., 264
NLRB 698, 700 (1982); Evergreen Nursing Home,198 NLRB
775, 778–779 (1972); United Parcel Service, 195 NLRB 441
(1972); Houston Coca Cola Bottling Co., 256 NLRB 520, 524
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 918
(1981). However, in this connection, the Board continues to
hold the view, that mere employee contact with customers does
not, standing alone, justify an employer prohibiting the wearing
of union insignia. United Parcel, supra at 507; Nordstrom,
supra; Florida Hotel of Tampa, 137 NLRB 1484 1962), enfd.
as modified on other grounds 318 F.2d 545 (5th Cir. 1963).3
“Rather, the entire circumstances of a particular situation must
be examined to balance the potentially conflicting interests of
an employee’s right to display union insignia and on em-
ployer’s right to prohibit such display.” Nordstrom, supra at
700.
The Board deals with a myriad of factors in balancing these
rights. One of the more significant factors in this assessment is
the size or unobtrusiveness of the particular union insignia in-
volved. United Parcel Service, supra, 312 NLRB at 597 (union
pin found to be small, inconspicuous, and free of provocative
message. The Board found that pin did not unreasonably inter-
fere with employer’s desired public image, and that it had not
established special circumstances sufficient to justify prohibi-
tion. The Board distinguishes the prior case involving the same
employer, 195 NLRB 441, 450 where the Board upheld em-
ployer’s prohibition of a much larger pin).
Thus where the item involved is a hat which includes a union
insignia, which is clearly not small or unobtrusive, such dis-
plays can lawfully be prohibited by an employer, pursuant to
the enforcement of an established and nondiscriminatory uni-
form rule. Meijer Inc., 318 NLRB 50, 57 (1995), Sears Roe-
buck & Co., 300 NLRB 804, 806 (1990); See also Noah’s New
York Bagels, 324 NLRB 266, 275 (1997) (rule prohibiting
wearing buttons invalid, but rule requiring the wearing of com-
pany T-shirts valid).
Based on the above summary of the applicable law, I find
that Respondent’s rule requiring the wearing of company hats
as a part of its uniform policy to be a valid special circumstance
and an exception to the general right of an employee to display
union insignia. Indeed General Counsel does not contend to the
contrary, but instead argues that although the rule itself may be
valid, it cannot be discriminatorily or disparately enforced.
Williamette Industries, 306 NLRB 1010 fn. 2 (1992), Sears
Roebuck, supra. Moreover, if the valid policy has been dispar-
ately enforced, this is itself an unfair labor practice, which
means that any defense that an employee was insubordinate by
refusing to comply Sears Roebuck with a request to remove the
hat must be rejected, supra at 810.
While I agree with the General Counsel’s citations as to the
applicable law on this subject, I do not believe that this record
has established sufficient evidence of discriminatory enforce-
ment of Respondent’s valid uniform policy to warrant a finding
of unlawful conduct by Respondent.
I do agree that a prima facie case of discriminatory motiva-
tion in Respondent’s decision to terminate Davis has been es-
tablished, by virtue of the timing of the discharge, Ruperto’s
admission that he knew that Davis was organizing for the Un-
ion by wearing the union hat, and Ruperto’s comment to Davis
to tell a union official that “its not going to be that easy.”4

3 I note however that this position has been rejected by some circuit
courts. Burger King v. NLRB, 725 F.2d 1053 (6th Cir. 1984); United
Parcel, supra at 41 F.3d 1068 (6th Cir. 1994); NLRB v. Harrah’s Club
337 F.2d 177, 180 (9th Cir. 1964).
4 I note however that although a reasonable interpretation of this re-
mark, would indicate antiunion animus, i.e., anyone who organizes will
be terminated, the statement could be subject to a benign interpretation.
The burden than shifts to Respondent to demonstrate that it
would have taken the same action, absent Davis’ union activity.
Wright Line, 251 NLRB 1083 (1980). This issue is largely de-
pendent on resolution of the issue of whether Respondent has
shown a consistent uniform application of the policy in issue.
Sears Roebuck, supra. I conclude that Respondent has made
such a showing, based on the credible, consistent, and essen-
tially mutually corroborative testimony of Ruperto, Delmonte,
Bell, and Raitses. That testimony which has not been signifi-
cantly contradicted by the General Counsel’s witnesses estab-
lishes that Respondent requires employees to wear various
items of company supplied clothing, such as vests, coats,
aprons, and hats, and that whenever it sees an employee violat-
ing this policy by wearing personal items instead of Respon-
dent’s authorized item, it orders such employee to remove their
personal item and put on the company article of clothing.
The General Counsel did present some evidence of alleged
discriminatory enforcement of Respondent’s policy. However, I
find such evidence to be insubstantial and unpersuasive. Thus
Davis testified that he observed employee Al Tischler wearing
a Yankee hat for about a week. Notably he furnished no testi-
mony that Bell or any other supervisor observed Tischler wear-
ing the hat during this period of time, and did nothing about it.
What Davis did testify to however, was that he did observe and
heard Bell instruct Tischler to remove the Yankee hat and put
on Respondent’s hat.
Similarly, Davis also testified that he wore a hat with an East
Hampton logo, on two occasions, for periods of 2 days to a
week. In each case however, he admits being told by Bell to
remove the East Hampton hat, and replace it with the Respon-
dent authorized hat previously distributed to employees.
Steiniger’s testimony that he saw two employees for 10–15
minutes wearing a Jets hat or bandana is totally worthless, since
he could not testify that any supervisor observed these events.
With respect to the bandana, I credit the corroborative and logi-
cal testimony of Bell and Delmonte, that Bell gave permission
to an employee to wear a bandana, under his company author-
ized cap, because the employee requested permission due to
having shaved his head.
Although this is on its face inconsistent with Respondent’s
written policy, which forbids the wearing of bandanas, I find
that the credible reasons given by Respondent to allow an ex-
ception in this one case, particularly where the bandana was
covered by Respondent’s authorized hat, convinces me that this
deviation from policy, does not indicate discriminatory en-
forcement of Respondent’s uniform requirements.
I find similarly with respect to Respondent’s admission that
it did not enforce the requirement in its manual that employees
wear white shirts. I conclude that Raitses’s credible explanation
that Respondent did not enforce this requirement because it did
not, unlike the hats and vests, supply these items to employees,
to be sufficient to dissipate any inference that the difference in
treatment of these articles of clothing by Respondent was moti-
vated by union or other unlawful considerations.
The General Counsel places strong emphasis on the testi-
mony of Davis, which was not substantially contradicted by
Respondent’s witnesses, that in past cases of enforcement of

Thus, it could be inferred that all Ruperto was saying was that the Un-
ion would not be able to organize by wearing union hats, because Re-
spondent would simply enforce its lawful rule to prohibit such conduct,
and if necessary discharge employees who refuse to comply with an
order to follow such rules.
PRODUCE WAREHOUSE OF CORAM 919
the policy, Respondent’s officials would normally physically
bring a replacement hat to the offending employees and offer it
to them, while ordering the employees to remove their personal
hats. The General Counsel contends that constitutes significant
evidence of disparate and discriminatory enforcement of Re-
spondent’s policy, which warrants the conclusion that Respon-
dent’s conduct was unlawful. He notes further that Ruperto
admitted in his testimony that “well, maybe I should have of-
fered him a hat.” Thus it is argued that the failure to do so con-
stituted an abandonment of Respondent’s prior practice of of-
fering a replacement hat, and manifests a discriminatory appli-
cation of the policy with regard to Davis. I do not agree.
In my view, the failure to physically offer Davis a replace-
ment hat was an insubstantial deviation from Respondent’s past
procedures in enforcing the rule, having no bearing on the de-
terminative issue in question. That is, whether the decision of
Respondent to enforce the rule was discriminatorily motivated.
I do not believe that the relatively minor issue of whether Re-
spondent physically brought or offered Davis a replacement hat
is pertinent to the issue of its motivation for enforcing the pol-
icy in the first place against Davis. Clearly, the question of the
availability of a replacement hat had no bearing on the decision
of Davis to refuse to remove the union hat and put on Respon-
dent’s hat, or the Respondent’s decision to issue these instruc-
tions to him or to terminate him when he refused to comply.
Ruperto credibly testified that he did not offer Davis a replace-
ment hat because he believed that Davis had a company hat and
Davis did not ask for one. This was a quite reasonable and logi-
cal position to take, since it is clear and must have been clear to
Ruperto, that Davis had no intention of removing the union hat.
Davis did not indicate that he did not have his company hat, or
that he would have complied with Ruperto’s instructions if he
had one. Indeed I discredited Davis’ preposterous testimony
that he would have done so, in view of Davis’s assertion that he
was wearing the hat because he believed in the Union. There-
fore the issue of the availability of the replacement hat was a
nonissue, having no bearing on anyone’s conduct in this matter.
This “deviation,” is clearly unlike the departures from past
practice, which the Board has found to be discriminatory, such
as in Sears Roebuck, supra, where the evidence revealed that
employees had worn noncompany hats for substantial periods
of time, in the presence of supervisors. That evidence estab-
lishes that the Employer tolerated the wearing of hats which
clearly violated the Employer’s uniform policy, while enforcing
it discriminatorily, when the employees chose to violate the
policy while wearing union hats. That is not the case here, since
the failure to physically supply a replacement hat is not signifi-
cant or the same as the relevant issue of the decision to enforce
the policy itself.
In that connection, the evidence disclosed above, established
at most an occasional lapse in an otherwise consistent enforce-
ment of a detailed uniform policy, which is insufficient to es-
tablish inconsistent or discriminatory enforcement. Hertz Corp.,
305 NLRB 487, 488(1991); United Parcel, supra, 195 NLRB at
450, and Kendall Co., 267 NLRB 963, 965 (1983). Accord-
ingly, I conclude that since Respondent has demonstrated that
its action to enforce its generally consistent policy as to Davis
was not discriminatorily motivated, then his refusal to comply
with a lawful order of Respondent constituted insubordination
warranting his termination. Cf. Sears Roebuck, supra. Therefore
Respondent has met its burden of establishing to my satisfac-
tion, that it would have discharged Davis, absent his union
activities, or put another way, if Davis had refused to remove
any personal hat and replace it with Respondent’s hat.
Based on the foregoing, I shall recommend dismissal of the
complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not violated the Act in any manner as al-
leged in the complaint.
Based on the above findings of fact and conclusions of law
and on the entire record, I issue the following recommended5
ORDER
It is ordered that the complaint be dismissed in its entirety.

5 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.