NLRB v. Harrah's Club, 19177.
| Decision Date | 28 September 1964 |
| Docket Number | No. 19177.,19177. |
| Citation | 337 F.2d 177 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARRAH'S CLUB, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lee M. Modjeska, Gary Green, National Labor Relations Board, Washington, D. C., for petitioner.
Nathan R. Berke, Severson, Zang, Werson, Berke & Larson, George Brunn, San Francisco, Cal., for respondent.
Before HAMLIN, MERRILL and DUNIWAY, Circuit Judges.
For many years respondent Harrah's Club1 has regulated strictly the dress and appearance of its employees who come in contact with the public. One of the rules of the establishment prohibits2 the wearing by such employees of any jewelry or other personal adornment on the uniform. This rule is enforced by daily inspections conducted by management personnel before the employees go on duty. The rule has been strictly enforced in the past against badges, pins, and buttons showing religious, political, or social affiliations.
One day in 1962 one of the inspectors discovered that several of the uniformed employees were wearing union buttons or pins. It is not clear from the record that he knew they were union buttons; in fact, he testified that he did not know they were union buttons. He reported the buttons to his superiors, who in turn issued a circular to all employees reminding them of the rule against jewelry on the uniform. However, they continued to wear their union buttons. At the next inspection, the first employee in line was asked if he would persist in wearing the button. When he replied that he would, he was threatened with discharge, whereupon he and the other members in question took off their buttons. It was made clear, in answer to a question by one of the employees, that the prohibition was not concerned solely with union buttons but with jewelry or pins or buttons of any sort.3 The record shows that the wearing of union buttons was not part of any concerted campaign to organize the employees, or to promote collective bargaining, or to gain better hours, wages, or working conditions. There is no background of labor unrest in respondent's establishments, and respondent for many years has had a collective bargaining agreement with the union in question.
These essentially undisputed facts were made the basis of a charge before the National Labor Relations Board of a violation of section 8(a) (1) of the National Labor Relations Act, 49 Stat. 452 (1935), as amended, 29 U.S.C. § 158 (a) (1) (1958). The trial examiner found no violation and recommended that the complaint be dismissed. The Board by a two-to-one vote reversed the finding of the trial examiner and found that the company rule as applied to wearing union insignia violated section 8(a) (1) of the Act. It now seeks enforcement of its order, invoking the jurisdiction of this court under section 10(e) of the National Labor Relations Act, 49 Stat. 453 (1935), as amended, 29 U.S.C. § 160(e) (1958).
Before there can be a violation of section 8(a) (1)4 the employer must have interfered with, restrained, or coerced employees in the exercise of rights guaranteed by section 7, 49 Stat. 452 (1935), as amended, 61 Stat. 140 (1947), 29 U.S.C. § 157 (1958). We do not think that, under the circumstances of this case, the wearing of union buttons is a right guaranteed by section 7. Section 7 reads in part as follows:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * *." (Emphasis added.)
The Supreme Court has held that the wearing of union buttons comes under the heading of "other concerted activities."5 However, we do not think that the Supreme Court intended to erect this into a rule which makes the wearing of union buttons per se a guaranteed right.6 We think there must be evidence of a purpose protected by the act — i. e., collective bargaining or other mutual aid or protection. This record is totally devoid of any evidence of such a purpose. On the contrary, the only evidence on the question of purpose — the testimony of the employees themselves — shows that they had no express purpose in mind in wearing the buttons. There was no attempt to organize the employees: they were already organized. There was no attempt to wring from management better wages, hours, or working conditions. The Board has cited several cases to show that the wearing of union buttons is a right guaranteed by section 7,7 but it has cited no case where there was not at least some evidence of a purpose which it is the policy of the Act to protect.
The Board in its decision relies on the Floridan case, 318 F.2d 545 (5th Cir. 1963). This case was considered by the trial examiner and he distinguished it from the instant case as follows:
In addition it might be pointed out that in Floridan the wearing of the buttons was a part of the "Union's campaign to increase its membership" and the company rule was not announced until after the wearing of the union buttons had begun. We agree that Floridan is clearly distinguishable from this case.
We do not think the Board gave proper consideration to respondent's right to maintain discipline, particularly in light of what we have previously said about lack of a protected purpose.
Relying on the Republic case, the Board contends that there were no special circumstances which justified restriction of the employees' right to wear their union buttons. The Board would limit the term "special...
To continue reading
Request your trial
-
I.N.S. v. Federal Labor Relations Authority
...members. The INS points out, however, that we are not interpreting the statute's language on a clean slate. In NLRB v. Harrah's Club, 337 F.2d 177 (9th Cir.1964) (Harrah's Club ), we reviewed a National Labor Relations Board (Board) order that concluded that section 7 of the NLRA, 29 U.S.C.......
-
Superior Court of Fresno Cnty. v. Pub. Emp't Relations Bd.
...has "a need ‘to project a certain type of image to the public.’ " ( Pay’N Save , supra , at p. 700, quoting N.L.R.B. v. Harrah’s Club (9th Cir. 1964) 337 F.2d 177, 180.)5 Generally, the employer has the burden of establishing that its policy or rule is justified by special circumstances. ( ......
-
Snead v. Metropolitian Property & Casualty Ins.
...Met's business judgment to institute a reduction-in-force unless that action runs afoul of the law. See National Labor Relations Bd. v. Harrah's Club, 337 F.2d 177, 180 (9th Cir. 1964). Yet this fact in itself is not fatal to Snead's ability to establish a causal link between her disability......
-
Meijer, Inc. v. N.L.R.B.
...production"). In other courts, the right of employees to wear union insignia has been less certain. For example, in NLRB v. Harrah's Club, 337 F.2d 177, 178-79 (9th Cir.1964), the Ninth Circuit held that employees did not have a per se right to wear union insignia. Id. at 179. That is, it d......