Midstate Telephone Corporation petitions for review of National Labor Relations Board order finding petitioner guilty of unfair labor practices because it prohibited employees from wearing certain T-shirts, and refused to pay expenses of employee negotiators during strike. Board has cross-applied for enforcement of its order. We enforce in part, and deny enforcement in part.
Feinberg, Chief Judge, Timbers and Cardamone, Circuit Judges.
Midstate Telephone Corporation (the Company) petitions this court for review of the July 26, 1982 order of the National Labor Relations Board (the Board), finding petitioner guilty of certain unfair labor practices. The Board has cross-applied for enforcement of its order. We enforce the order in part, and deny enforcement in part.
In 1979, the Company had three separate collective bargaining agreements covering three bargaining units of the Company's non-professional employees, located in Jamestown, Fulton, and Syracuse, New York. The Company is a public utility supplying telephone service to the public in upstate New York. In February 1979, the Company proposed to the two locals of the International Brotherhood of Electrical Workers, AFL-CIO involved (collectively referred to hereafter as the Union) that a single state-wide collective bargaining agreement be negotiated to replace the three separate agreements, all of which were due to expire on October 31, 1979. After discussing the proposed negotiations with the Union, the Company prepared a draft agreement detailing the procedures to be followed in the joint negotiations. This procedural agreement, which was ratified by the employees in the three units, provided among other things that the employee negotiators would be "reimbursed for expenses incurred in such bargaining on the basis of a per diem rate of twenty dollars ($20.00) for each full day of such bargaining," plus necessary travel and lodging expenses.
The Company paid the expenses of the employee negotiators for the many bargaining sessions held between July and October 31, 1979, when the underlying collective bargaining contracts were due to expire. These contracts were then extended on a day-to-day basis until November 19, 1979, when the employees went out on strike. In April 1980, after a number of further bargaining sessions, the parties agreed on a single collective bargaining agreement, and the striking employees returned to work. The Company refused, however, to reimburse the employee negotiators for expenses incurred while attending the bargaining sessions held during the strike.
In July 1980, eighteen Company employees arrived at work wearing T-shirts emblazoned with a trademark, which was depicted as cracked in three places, and the words "I SURVIVED THE MIDSTATE STRIKE OF 1971-75-79."*fn1 All eighteen employees were told they could not work until they changed their shirts. Six had other clothing with them; the rest were excused but not paid for the time it took them to procure a change of clothing.
The Union filed unfair labor practice charges with the Board based on the refusal to pay negotiators' expenses and the T-shirt ban. In August 1981, the Administrative Law Judge (ALJ) held that the Company did not violate the National Labor Relations Act by requiring the employees to change their shirts, but found that the Company's failure to reimburse the employee negotiators' per diem, travel, and lodging expenses violated §§ 8(a)(1), (3), (5) of the Act, 29 U.S.C. §§ 158(a)(1), (3), (5). In July 1982, the Board affirmed the decision of the ALJ on the negotiators' expense issue, but reversed on the T-shirt issue, finding that the Company's refusal to allow the T-shirts violated §§ 8(a)(1) and 8(a)(3) of the Act.
The Company raises several arguments in support of its claim that it did not violate the Act by forbidding the T-shirts at issue. According to the Company, the wearing of the T-shirts was not a form of protected activity within the meaning of section 7 of the Act. Section 7 guarantees employees the "right to self-organization . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The ALJ found that in wearing the T-shirts, the employees had no legitimate or concerted purpose under section 7 because the strike was over and the employees' expression of discontent was made in a manner that "can only prolong ill feelings and poor labor relations." The Board specifically disagreed, finding that the T-shirts were intended to promote employee solidarity on a matter of mutual concern to employees. According to the Board, the conclusion of the strike and the signing of a collective bargaining agreement did not render the employees' conduct unprotected.
We conclude that even if the T-shirts were intended to promote employee solidarity, the Company did not violate the Act by prohibiting them. There are a number of cases affirming the right of employees to display union insignia or wear apparel proclaiming union support. See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03, 89 L. Ed. 1372, 65 S. Ct. 982 (1945). But as the Court made clear in Republic Aviation, the employees' right to display union-related messages, which is part of their right to organize, must be balanced against "the equally undisputed right of employers to maintain discipline in their establishments." Id. at 797-98; see also NLRB v. Floridan Hotel, Inc., 318 F.2d 545, 547 (5th Cir. 1963).
As a general rule, the balance must tip against rules restricting employees' right to wear union-related insignia or attire, unless the employer demonstrates "'special circumstances' showing that such a rule is necessary to maintain production and discipline." Floridan Hotel, Inc., 137 N.L.R.B. 1484, 1486 (1962), enforced, NLRB v. Floridan, supra, 318 F.2d 545. Special circumstances have been found in a variety of situations. See generally Pay'n Save Corp. v. NLRB, 641 F.2d 697, 700 (9th Cir. 1981) (listing examples of special circumstances); Southwestern Bell Telephone Co., 200 N.L.R.B. 667, 670 (1972) (same). In Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 358-59 (7th Cir. 1956), the court ruled that the employer could legitimately ban union buttons bearing the slogan "Don't be a Scab," since such buttons could be a "disruptive" influence on work and discipline. In Davison-Paxon Co. v. NLRB, 462 F.2d 364, 368-69 (5th Cir. 1972), a fashionable department store was allowed to prohibit large union campaign buttons because of the store's legitimate concern over the appearance of its sales personnel, and the possibility that the buttons would further disrupt relations between pro-union and anti-union employees. In Southwestern Bell, the Board ruled that the employer could legitimately prohibit employees from wearing sweatshirts bearing the slogan "Ma Bell is a Cheap Mother." According to the Board,
In view of the controversial nature of the language used and its admitted susceptibility of derisive and profane construction, Respondent could legitimately ban the use of the provocative slogan as a reasonable precaution against discord and bitterness between employees and management, as well as to assure decorum and discipline in the plant.
Southwestern Bell, supra, 200 N.L.R.B. at 670. After reviewing much of the relevant case law in this ...