Escanaba Paper Co.

National Labor Relations Board - Board Decisions

Aug 17, 1994

314 N.L.R.B. 732 (N.L.R.B. 1994)

732
314 NLRB No. 122
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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.
2 In addition, the Unions’ negotiator and some employees wore
‘‘no scab’’ buttons during negotiations. The evidence showed that
the ‘‘no scab’’ pins were worn at that time to show solidarity with
permanently replaced strikers against other employers.
3 Unless otherwise noted, all subsequent dates are in 1990.
Mead Corporation d/b/a Escanaba Paper Company
and United Paperworkers International Union
and its Locals 110 and 209 and International
Brotherhood of Electrical Workers Local 979.
Cases 30–CA–11132, 30–CA–11132–2, 30–CA–
11132–3, 30–CA–11132–4, and 30–CA–11132–5
August 17, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
On August 12, 1992, Administrative Law Judge
Leonard M. Wagman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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 as modi-
fied.
We agree with the judge, for the reasons stated by
him, that the Respondent violated Section 8(a)(1) of
the Act by prohibiting employees from displaying but-
tons, T-shirts, and other items with messages per-
taining to activities protected by Section 7 of the Act
and by promulgating and maintaining progressive dis-
cipline for violating the prohibition. The Respondent
argues that ‘‘special circumstances’’ existed at its facil-
ity that outweighed the employees’ statutory rights and
that, by agreeing to the contract, the Unions waived
the employees’ Section 7 rights to protest its provi-
sions. We find these arguments to be without merit.
Specifically, we find no evidence that the Unions
waived the employees’ rights to express their concerns
respecting terms of the collective-bargaining agreement
or other conditions of employment, and we further find
no evidence that the display of the messages at issue
here caused or threatened to cause any harm to the Re-
spondent’s operations.
The facts, as discussed in greater detail by the judge,
follow. The Respondent operates a papermill. Its pro-
duction and maintenance employees have virtually no
contact with the general public and little contact with
the Respondent’s customers and suppliers. In late
March 1989, the Respondent began negotiations with
the Charging Parties for a successor agreement cov-
ering the production and maintenance employees. In-
cluded in the Respondent’s proposals were two job
flexibility programs (Flex-I and Flex-II), which re-
quired employees to assume new duties or encouraged
them to learn different crafts for extra pay. Specifi-
cally, the Flex-I proposal provided hourly wage in-
creases to production and maintenance employees for
performing, respectively, minor maintenance and re-
pair, and additional maintenance duties. The Flex-II
proposal provided craftpersons who volunteered extra
pay for each additional craft in which they qualified.
The Charging Parties opposed the flexibility programs,
especially the voluntary Flex-II program, as possible
encroachments on unit work. In June 1989, employees
began wearing buttons to pressure the Respondent into
a favorable agreement, stating, e.g., ‘‘Just say NO—
MEAD’’ and ‘‘Hey Mead—Flex this.’’2 In November
1989, the Unions reluctantly ratified the contract after
the Respondent declared impasse and unilaterally im-
plemented the Flex programs. To show their dis-
pleasure with the unilateral implementation, the em-
ployees wore buttons, T-shirts, hats, and pins with var-
ious slogans relating to the contract negotiations and
other concerns, e.g., ‘‘Remember’ 89,’’ and ‘‘No
Scab’’ buttons, some of the latter with ‘‘Flex II’’ taped
across them.
In June 1990,3 the Respondent began recruiting em-
ployees for Flex-II, and in September the program
began functioning. On September 27-28, the Respond-
ent notified the Unions that it was prohibiting ‘‘no
scab’’ buttons in the plant, on the ground that the but-
tons called Flex-II participants scabs. The Unions as-
sured the Respondent that ‘‘scab’’ referred to striker
replacements elsewhere. Unconvinced, the Respondent
on October 2 prohibited the display of messages meet-
ing any of the following descriptions: ‘‘(1) [w]hen the
message conveyed is disrespectful and limits our abil-
ity to maintain discipline; (2) [w]hen the message is
aimed at keeping the wounds of 1989 negotiations
open’’; and (3) ‘‘[w]hen the message leaves a negative
impression on outsiders, particularly our customers/-
suppliers.’’ On October 12, the Respondent instituted
a system of progressive discipline, including discharge,
for violating the October 2 restrictions. The system
took effect on October 15.
The Respondent contended, and continues to con-
tend in its exceptions, that the sight of the pins and T-
shirts had disturbed some visitors to the plant and dis-
couraged participation in the Flex-II program; that the
Unions waived the employees’ right to protest the con-
tract’s terms; that the messages contributed to a hostile
atmosphere in the plant and between management and
the employees; and that vandalism at the plant was at-
tributable to the slogans. In addition, the Respondent
733ESCANABA PAPER CO.
4 Government Employees, 278 NLRB 378, 385 (1986)
(‘‘[S]ubstantial evidence of special circumstances, such as inter-
ference with production or safety, is required before an employer
may prohibit the wearing of union insignia, and the burden of estab-
lishing those circumstances rests on the employer’’ (citations omit-
ted).)
5 As noted above, the Respondent’s employees have limited con-
tact with its suppliers and customers. Under these circumstances, we
agree with the judge that the mere possibility that the Respondent’s
employees may come into contact with a customer or supplier does
not outweigh the employees’ Sec. 7 right to wear these emblems.
See Sears, Roebuck & Co., 305 NLRB 193, 198–199 (1991).
6 See United Parcel Service, 234 NLRB 223 (1978); Eckerd’s
Market, 183 NLRB 337–338 (1970); Southwestern Bell Telephone
Co., 276 NLRB 1053 fn. 2 (1985).
7 262 NLRB 1291 (1982), enf. denied 706 F.2d 401 (2d Cir.
1983). We note that the court’s reversal of the Board’s finding that
the buttons were protected was based on facts distinguishable from
those in the instant case. In Midstate, the court found that the em-
ployees had significant contact with the public and that, although the
logos were not disparaging in the usual sense, ‘‘this public utility,
which constantly dealt with the public, had a legitimate concern that
the T-shirts might improperly suggest to the public that the Com-
pany was in some way coming apart.’’ 706 F.2d at 404. Here, the
employees have virtually no contact with the public; the slogans do
not disparage the Respondent’s product or intimate that the Respond-
ent is in danger; they merely express opinions respecting the Re-
spondent’s negotiating strategies and the resulting agreement. See
also Southern California Edison Co., 274 NLRB 1121 fn. 2 (1985).
As in Southern California Edison, the messages here were cryptic
and their meaning would not have been apparent to a visitor to the
plant or to a member of the public who might see the buttons, etc.
by chance. Thus, there is no danger here of injury to the Respondent
in the eyes of the public, and we emphasize that concerns relating
to the public’s response to union items are not at issue here.
8 Midstate Telephone, supra at 262 NLRB 1291.
9 See Hertz Rent-A-Car, 297 NLRB 363, 368 (1989); Albertsons,
Inc., 300 NLRB 1013, 1016–1017 (1990).
maintained that the ban also served its legitimate inter-
ests in discouraging the perpetuation of labor unrest,
maintaining discipline in the workplace, and preventing
the public from receiving negative impressions of the
Respondent.
The judge found that Section 7 of the Act protected
all the messages displayed by the employees at issue
here because the messages were directed at encour-
aging solidarity both with respect to the Respondent’s
bargaining tactics and to the unpopular agreement, es-
pecially its Flex provisions. As to the ‘‘no scab’’ but-
tons, the judge found that they had two purposes pro-
tected by Section 7 of the Act: to express solidarity
with replaced strikers at other employers, and to dis-
courage employees from participating in the Flex-II
program, thus supporting employees’ mutual aid and
protection. The judge also found that the Respondent
had not met its burden of demonstrating ‘‘special cir-
cumstances’’ that outweighed the employees’ Section 7
rights.4 He rejected as speculative the Respondent’s ar-
gument that the messages were a threat to plant dis-
cipline, noting that the record contained no evidence
that vandalism in the plant was connected with the slo-
gans; that the vandalism involved only scattered inci-
dents with minor effects; and that it had also occurred
before the events at issue. The judge found further that
the mere possibility that these messages might make a
negative impression on customers and suppliers did not
outweigh the employees’ Section 7 right to wear the
items.5 Finally, the judge found no evidence that the
wearing of these messages affected discipline, safety,
or production.
We agree with the judge that the employees’ display
of the items at issue was protected by Section 7, that
the manner of exercising the rights did not forfeit the
statute’s protections, and that the Respondent failed to
demonstrate that ‘‘special circumstances,’’ such as vio-
lence, interference with training or production, or
threats thereof, caused the Respondent’s interests in
plant discipline to outweigh the employees’ rights.6
Nor do we find that the employees’ right to protest
working conditions was affected by the signing of a
collective-bargaining agreement. See, e.g., Midstate
Telephone Corp.,7 in which the Board reversed the
judge’s finding that employees’ wearing a T-shirt bear-
ing a cracked company logo referring to negotiations
and a strike served no legitimate function after the par-
ties had reached a contract. The Board found ‘‘no
basis to conclude that this legitimate employee interest
in solidarity ceased at some indeterminate period fol-
lowing the conclusion of the strike and the execution
of a collective-bargaining agreement.’’8
We also agree with the judge that the prohibition of
insignia relating to the voluntary Flex-II program vio-
lated Section 8(a)(1). The Respondent contends that,
by agreeing to the collective-bargaining agreement, the
Unions waived the employees’ Section 7 right to pro-
test the Flex programs openly. We find no evidence
that the Unions as agents of the employees waived
rights to comment negatively on the contract’s provi-
sions. We note that the party asserting that a union has
waived employee rights in a collective-bargaining
agreement must produce ‘‘clear and unmistakable evi-
dence’’ to support such a waiver.9 The record contains
no evidence of any contract provision covering the
wearing of insignia, pins, or other paraphernalia. Thus,
we find no clear and unequivocal agreement by the
Unions to waive the employees’ statutory right to wear
emblems that support their collective concerns respect-
ing terms and conditions of employment.
Further, we note that the Flex-II program proposed
and implemented by the Respondent was wholly vol-
untary. Under Flex-II, craftpersons who volunteered
were entitled to an hourly pay increase for those addi-
tional crafts for which they qualified. Having instituted
the purely voluntary Flex-II program, the Respondent
cannot thereafter complain—in the absence of a spe-
cific contractual waiver—if its employees concertedly
oppose that program.
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 We reject the Respondent’s reliance on some appellate court de-
cisions involving facts critically distinguishable from those in this
case. Thus, Fabri-Tek Inc. v. NLRB, 352 F.2d 577 (8th Cir. 1965),
concerned a ban specifically tailored to buttons that tended to dis-
tract employees who needed extraordinary concentration to manufac-
ture memory chips. In Virginia Electric & Power Co. v. NLRB, 703
F.2d 79 (4th Cir. 1983), the court dealt with an employer’s stated
preference to an employee that the employee not wear a large,
brightly colored, and potentially provocative button while on duty at
the switchboard in a public lobby where all employees and the pub-
lic entered the employer’s building. In finding the button unpro-
tected, the court emphasized the possibility of a public conflict be-
tween union and antiunion supporters as well as with rival unions.
Unlike the broad ban here, the court noted there that the employer’s
comment was limited to one specific button. In Borman’s Inc. v.
NLRB, 676 F.2d 1138 (6th Cir. 1982), the court found a T-shirt with
the slogan ‘‘I’m tired of bustin’ my ass’’ unprotected. The court fo-
cused on its findings that wearing the T-shirt was an isolated event
and the slogan had no connection to any Sec. 7 rights. Maryland
Drydock v. NLRB, 183 F.2d 538 (4th Cir. 1950), involved a ban on
literature the court found insulting and defamatory because it in-
volved a direct attack on the employer, depicting its president as a
‘‘vulture.’’ No such personal or defamatory attacks are involved
here. But see Caterpillar Tractor Co. v. NLRB, 230 F.2d 357 (7th
Cir. 1956), which dealt with a ban on buttons reading ‘‘Don’t be a
scab.’’ The court relied, in part, on the high degree of animosity that
the term ‘‘scab’’ would arouse. The Board has never adopted the
view that the word ‘‘scab’’ is inherently disruptive, and other circuit
courts have agreed with the Board. See, e.g., Coors Container Co.,
238 NLRB 1312 (1978), enfd. 628 F.2d 1283 (10th Cir. 1980).
11 113 NLRB 577, 579 (1955), enfd. 230 F.2d 484 (6th Cir. 1956)
(Board found that a ban on wearing union insignia on company
property violated Sec. 8(a)(1)).
12 The Respondent was aware even before the start of bargaining
that the employees opposed such flex programs, as an earlier pro-
gram had been discontinued. The Respondent was also aware of the
unpopularity of the Flex proposals throughout the negotiating period,
as employees began wearing insignia expressing opposition to the
Flex programs during bargaining. The Respondent did not seek the
Unions’ agreement to a contract provision providing that the Unions
institutionally would refrain from participating in, or encouraging
their members to participate in, protests of the terms of the bar-
gaining agreement. Instead, the Respondent bypassed negotiations to
prohibit the exercise of a fundamental employee right.
Although issues such as the display of buttons, etc., could have
been raised in bargaining, we do not find that the parties were obli-
gated to come to agreement over this or any other issue. Compare
H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
13 Under the gainsharing program, the Respondent pays to its em-
ployees up to 5 percent of their W-2 income each quarter if produc-
tivity, quality, and cost effectiveness warrant such a payment.
The burden of showing special circumstances does
not necessarily require an employer to wait for actual
violence to occur.10 Rather, we weigh the employees’
right to engage in Section 7 related activities against
the Respondent’s rights to maintain discipline and pro-
duction. Thus, for example, if there are threats of mis-
conduct, an employer could take steps against the spe-
cific persons who uttered the threats. But where, as
here, there are no such threats, the Respondent cannot
implement broad restrictions which interfere with the
Section 7 rights of the employees.
The Board’s observation in Kimble Glass Co.11 is
applicable to the circumstances here:
Instead of taking appropriate measures against the
employees who threatened violence . . . the Re-
spondent took the course of least resistance and
adopted the no-badge rule to the detriment of fel-
low employees seeking to exercise their legitimate
rights.
Indeed, in this case, the Respondent’s action is even
less justifiable than the action taken by the employer
in Kimble. Here, not only is there no evidence that the
Respondent sought to discipline the perpetrators of any
violent or disruptive acts or threats thereof, there is no
evidence that such conduct or threats occurred.12
As noted above, the Respondent has failed to dem-
onstrate that any actual harm occurred or that any em-
ployees actually engaged in or threatened to engage in
misconduct related to the display of the messages. The
Respondent’s argument that displaying the items might
prolong ill feelings and worsen labor relations is not
supported by the evidence. The record fails to reveal
any showing of significant production breakdowns or
disciplinary problems in or around the Respondent’s
facility as a result of the display of opposition to the
Respondent’s bargaining tactics, the terms of the
agreement, or opposition to the Flex-II program. In
fact, the record shows that beginning in June, the Re-
spondent’s production, which had dipped earlier in the
year, improved so much that it instituted its
gainsharing program.13
With respect to the evidence of vandalism, the Re-
spondent has failed to establish any link between the
incidents it cites and the items’ messages. The Re-
spondent’s evidence generally consists of unsupported
subjective impressions. Its limited objective evidence
that ill-feeling had resulted in misconduct is of ques-
tionable reliability. As the judge noted, one of the Re-
spondent’s exhibits, the word ‘‘scab’’ that was spray-
painted on a locker, predated the contract negotiations
and the wearing of the insignia at issue here by several
years. Further, the locker belonged to a supervisor. In
addition, employees testified that such conduct as
knocking over toolboxes and putting glue in locks had
occurred for some time before the Flex programs were
proposed.
The Respondent has also failed to show that the dis-
play of items referring to the controversy over the
Flex-II program or the ‘‘wounds’’ from the negotia-
tions were likely to result in discord or bitterness
among employees which might endanger plant dis-
cipline, safety, or production. Initially, we note that de-
spite some employees’ expression of opposition to
Flex-II, numerous employees volunteered for the pro-
gram; in fact, the record shows that 25 percent of the
employees represented by the Paperworkers and 80
percent of those represented by the IBEW had signed
up for the program by the time of the ban. We note
735ESCANABA PAPER CO.
14 There is evidence that ‘‘heated discussions’’ took place between
participants and non-participants, with both sides expressing strong
opinions. But there is no evidence that these ‘‘discussions’’ ever re-
sulted in physical confrontations. Moreover, employee complaints
about other employees’ display of Sec. 7 related items is not a suffi-
cient basis on which to base a lawful ban on the items. See Power
Equipment Co., 135 NLRB 945, 965 (1962), enfd. in pertinent part
313 F.2d 438, 442–443 (6th Cir. 1963) (employee complaints about
other employees’ wearing union bowling shirts not sufficient to jus-
tify ban on shirts; ban violated Sec. 8(a)(1)). 1 All dates are in 1990, unless otherwise indicated.
further that some of the employees participating in the
Flex-II program also wore ‘‘no scab’’ buttons prior to
their ban.14
As a practical matter, then, the Respondent has in-
troduced no evidence that the ‘‘scab’’ buttons or any
other insignia prohibited by its October 2, 1990 ban
interfered with or hampered the implementation of the
Flex-II program, hindered production, caused discipli-
nary problems in the plant, or had any other con-
sequences that would constitute special circumstances
under settled precedent. Thus, we adopt the judge’s
findings and recommended Order as modified below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mead
Corporation d/b/a Escanaba Paper Company, Escanaba,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed the by Section 7 of the Act.’’
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT prohibit you from wearing or dis-
playing ‘‘no scab’’ buttons, T-shirts, other articles of
clothing, decals or other items which carry messages
pertaining to employees’ exercise of activities pro-
tected under Section 7 of the Act.
WE WILL NOT promulgate and maintain progressive
discipline leading to termination for violation of rules
which prohibit you from exercising activities protected
under Section 7 of the Act.
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.
MEAD PAPER COMPANY D/B/A ESCA-
NABA PAPER COMPANY
Joseph A. Barker, Esq., for the General Counsel.
Robert J. Brown, Esq. (Thompson, Hine & Flory), of Day-
ton, Ohio, for the Respondent.
Richard La Cosse, International Representative, of Pitts-
burgh, Pennsylvania, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Escanaba, Michigan, on November 5, 1991.
Upon a charge filed by United Paperworkers International
Union and its Locals 110 and 209 (referred to below, respec-
tively, as Local 110 and Local 209), in Case 30–CA–11132
on October 3, 1990,1 charges filed by International Brother-
hood of Electrical Workers Local 979 (Local 979) in Cases
30–CA–11132–2 and 30–CA–11132–3 on October 11 and
23, respectively, and on charges filed by Local 110 and
Local 209, respectively, in Cases 30–CA–11132–4 and 30–
CA–11132–5, on October 23, the Regional Director of the
National Labor Relations Board (the Board) for Region 30
issued an order consolidating cases and consolidated com-
plaint dated November 16. The consolidated complaint al-
leges that the Company, Mead Corporation d/b/a Escanaba
Paper Company, violated Section 8(a)(1) of the National
Labor Relations Act (the Act), by prohibiting its employees
from wearing ‘‘no scab’’ buttons at its plant, by prohibiting
its employees from having buttons, T-shirts, decals, or other
items conveying messages which it finds objectionable for
specified reasons, and by promulgating and maintaining pro-
gressive discipline, including termination, for violation of
these prohibitions. The Company filed a timely answer deny-
ing that it had committed the alleged 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 General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures and distributes
at nonretail paper and related products at its mill in Esca-
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
naba, Michigan. During the past calendar year, the Company,
in the course and conduct of its business operations, sold and
shipped goods and materials valued in excess of $50,000 di-
rectly to points outside the State of Michigan. The Company
admits, and I find, that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Company admits, and I find, that United Paper-
workers International Union, its Locals 110 and 209 and
International Brotherhood of Electrical Workers Local 979,
are now, and have been at all times material, labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company’s Escanaba mill employs 1500 people to
manufacture close to a half billion tons of paper annually.
Approximately 1050 of these employees are represented by
1 of 4 unions. Local 110 represents the Company’s 626
maintenance employees. Local 209 bargains collectively for
the Company’s 350 production employees. Local 979 rep-
resents the Company’s electricians, numbering approximately
50. Teamsters Local 328 represents some of the Company’s
clerical employees and some employees in the finishing
room, totaling between 25 and 30.
In late March 1989, Locals 110, 209, and Local 979 began
negotiating with the Company for a new collective-bargain-
ing agreement to cover its production and maintenance em-
ployees. In the course of the negotiations, Richard La Cosse,
the Locals’ chief spokesperson, asked Michael McDonald,
the Company’s chief spokesperson, what would happen if the
employees engaged in a strike during the contract talks.
McDonald replied that the Company had ‘‘every intention of
running this mill.’’ A second company official took the occa-
sion of an interview on a local TV station to state that the
mill would continue to make paper in the event of a strike.
The negotiations ended in late October 1989, and the Locals
ratified the resulting agreements in the following month.
Throughout the negotiations, La Cosse wore a ‘‘no-scab’’
button. La Cosse’s brother-in-law, maintenance employee,
Tom Ugate, also wore a ‘‘no-scab’’ button at the mill, on the
band of his hard hat, throughout the negotiations. In mid-
September 1990, and until the Company ban, 50 to 60 em-
ployees wore ‘‘no scab’’ buttons at the Company’s mill.
The Company and the Locals engaged in negotiations on
an average of 2 days weekly, almost every week, between
late March and October 1989. Among the Company’s pro-
posals, was a two-part flexibility program. Under Flex-I, the
Company offered 50-cent hourly wage increases to the pro-
duction employees if they would perform minor maintenance
and repair, in addition to their normal production work.
Maintenance employees would receive this same increase if
they expanded their work to include additional maintenance
tasks. Under Flex-II, craftsmen, who volunteered and quali-
fied in one or two additional crafts, would receive a 50-cent
hourly wage increment for each additional qualification. The
Company would then employ these craftsmen in their sec-
ondary skills, as needed. The Locals and their constituents
opposed the flexibility program in general, but were more
vehement in their sentiment against Flex-II. This opposition
delayed the conclusion of a collective-bargaining agreement.
On or about June 1, 1989, bargaining unit employees
began wearing ‘‘Just Say No—Mead’’ buttons and ‘‘Hey
Mead-Flex This’’ T-shirts, at the mill. The purpose of these
items was to show the unity of the Locals in resisting a con-
cessionary contract. When the ‘‘Just Say No—Mead’’ button
first appeared, approximately 75 percent of the unit employ-
ees were wearing it. Employees continued to wear this button
and the ‘‘Hey Mead-Flex This’’ shirt, at work, until the
Company prohibited them in October. A T-shirt bearing the
‘‘Just Say No—Mead’’ message also appeared at the mill in
June 1989, and continued to be worn by employees until the
Company banned them in October.
In October 1989, the Company declared an impasse in ne-
gotiations and began implementing proposals it favored, in-
cluding Flex I and II. The Company also withheld implemen-
tation of contract proposals sought by the Locals, including
dues checkoff, union security, arbitration, grievance proce-
dure, premium pay, and other wage improvements.
The Locals did not strike. Nor did they take a strike vote.
Instead, the Locals held meetings throughout the negotia-
tions, which the unit employees attended. The Locals ex-
plained the significance of the Company’s contract proposals
and discouraged the employees from striking. The Locals in-
formed the employees that if they engaged in a strike, the
Company could replace them permanently.
In the course of the Locals’ meetings, Richard La Cosse,
their bargaining spokesperson, told employees that they could
show their displeasure toward the Company’s contract pro-
posals by wearing buttons, T-shirts, hats, and pins to pressure
the Company into giving them a fair agreement. The Com-
pany’s declaration of impasse and the implementation of its
proposals provoked the wearing of buttons and T-shirts bear-
ing the inscription ‘‘Remember 89.’’ Employee Joe Moberg,
who is Local 209’s vice president and chief steward, devised
the ‘‘Remember 89’’ button in September 1989. Beginning
in October 1989, employees at the Company’s Escanaba
plant began to wear these T-shirts and buttons to reflect their
belief that the Company had imposed a contract on them.
On October 1, 1989, the Company charged employee
Mike Wagner with sabotage, and disciplined him for that al-
leged misconduct by suspending him for 120 days. Local 110
considered Wagner to be one of the best operators at the
mill. A grievance, pressed by Local 110 on Wagner’s behalf,
went to arbitration, resulting in reduction of his suspension
to 60 days. However, the Company’s action provoked the
Locals to devise and issue buttons with the inscription ‘‘Re-
member Wagner Oct. 1 1989.’’ The Locals believed that the
timing of the disciplinary action against Wagner was evi-
dence of the Company’s intent to pressure them into signing
the proposed collective-bargaining agreement. Many employ-
ees wore the ‘‘Remember Wagner’’ button at the Company’s
mill, in 1989, and later, in 1990, to commemorate the Com-
pany’s action against Wagner.
The Company’s efforts in 1989, to obtain the contract it
wanted, provoked the Locals into abandoning their participa-
tion in the Continuous Improvement program. The Locals
and the Company had embarked on the joint ‘‘CI’’ program
in 1985, to develop ways to improve the mill’s production,
safety, and work environment. The Locals’ repudiation of the
‘‘CI’’ program was reflected in the appearance of buttons
and T-shirts announcing that ‘‘C.I. 1983–1989 is ‘Dead,’’’ at
the Company’s mill.
737ESCANABA PAPER CO.
In early 1990, and into the spring, the Company experi-
enced an alarming drop in production. However, beginning
in June, the Company’s production improved to the point
where it implemented its gainsharing program. Under the
gainsharing program, the Company pays to its employees up
to 5 percent of their W-2 income, each quarter, minus a
holdback, if its productivity, quality, and cost effectiveness
warrant such a payment. Productivity for the quarter ending
September 30, was such that the Company made gainsharing
payments to its employees for that period.
In June 1990, the Company began to recruit for its Flex-
II program. In late September, the Company put Flex-II into
effect. Toward the end of summer, according to Michael
McDonald, the Company’s assistant director of human re-
sources: ‘‘there was graffiti up, and a lot of buttons, and
managers and employees were complaining of harassment
and threats, tool boxes turned over, and tool boxes destroyed,
and Lock Tight poured in locks.’’ He also testified about
sabotage to some oxyacetylene systems and management’s
concern about safety.
However, I find from employee Joe Moberg’s testimony
that the alleged sabotage to the oxyacetylene system, which
occurred in June, consisted of an open valve on an acetylene
gas tank, in the course of Flex team training. The Company
soon took the precaution of putting the acetylene gas tanks
in locked cages. There were no further incidents involving
acetylene gas. The record did not show any connection be-
tween the open gas valve and employee hostility toward the
Flex program.
I find from employee Michael Skorupski’s and employee
Bill Brower’s testimony, that the tipping over of toolboxes,
and other abuses of toolboxes, have occurred at the mill
since they began working there, over 20 years ago. In any
event, there was no showing that either the toolbox sabotage
or the abuse of locks were attributable to the controversy in-
volving the 1989 collective-bargaining agreement between
the Locals and the Company, the Flex programs or to the ap-
pearance of any of the buttons or T-shirts discussed above.
McDonald also testified about the hostility between em-
ployees, who were opposed to Flex-II, and who labeled those
who were joining the program as ‘‘scabs.’’ Indeed, the
record shows that employees taped ‘‘Flex II’’ on to their ‘‘no
scab’’ buttons. McDonald repeatedly used ‘‘war’’ to describe
the atmosphere at the Company’s mill in September. How-
ever, there was no showing of any fighting, disorderly con-
duct, interference with Flex training, production breakdown
or disciplinary problems in or around the mill, growing out
of the opposition to the Flex-II program, or resulting from
the display of any of the buttons or T-shirts discussed above.
The Company offered six photographs as evidence of the
provocative graffiti about which its witness, McDonald, testi-
fied. A Company security guard took the pictures in late
September, at the mill. Two of the pictures show graffiti re-
ferring to the Flex-II participants as ‘‘scabs’’ and making ob-
scene remarks about them. Of the remaining four photo-
graphs, one shows graffiti referring to Flex-II in an obscene
manner, one refers to Flex-II participants as ‘‘scabies,’’ one
asserts that the ‘‘Union’’ ‘‘makes the choice for you in Flex
II,’’ and the fourth, shows ‘‘scab’’ inscribed on the door of
a locker. This locker is used by a supervisor. Also, when the
picture was taken, the ‘‘scab’’ inscription had been on its
door for approximately 4 years.
The Company also introduced copies of the ‘‘NO Bul-
letin,’’ an underground publication circulated at its mill from
time to time, designed to mimic the Company’s ‘‘Bulletin.’’
Included in the ‘‘NO Bulletin’’ are critical and disrespectful
comments about members of management and company poli-
cies. Supervisors are referred to as ‘‘stupidvisors.’’ The ‘‘NO
Bulletin’’ refers to Wallace Goode, the Company’s director
of manufacturing operations, as ‘‘Wally NoGoode.’’
McDonald testified that the T-shirts and buttons worn by
employees, which bore inscriptions such as ‘‘Just Say No—
Mead’’ and ‘‘Hey Mead—Flex This,’’ were a source of em-
barrassment to the Company, when observed by suppliers,
customers, and other visitors to the mill. In April or May,
the Company disciplined an employee for flashing a T-shirt,
which had ‘‘Hey Mead—Flex This’’ plus some ‘‘derogatory
gesture’’ imprinted on it, at suppliers, who were visiting the
mill. McDonald also testified that during the summer of
1990, some visitors ‘‘were just kind of appalled at some of
the things that people were wearing.’’ He did not identify the
items which had horrified the visitors.
On September 27 and 28, the Company notified the Locals
that ‘‘no scab’’ buttons were prohibited at the mill. The
Company’s objected to this button because it had noted
‘‘continuing references to Flex-II mechanics as scabs.’’ In
discussions with the Company’s management, the Locals as-
serted that the ‘‘no scab’’ buttons were not directed at the
Flex-II program. The Locals assured the Company that their
members were wearing these buttons in reaction to the strike
replacements at Greyhound, Eastern Airlines, and another
employer. The Company remained convinced that Flex-II
participants were the targets of the ‘‘no scab’’ buttons.
On October 2, the Company announced the following re-
strictions to its employees:
Beginning on Monday, October 15, buttons, T-shirts,
decals, etc. . . . that meet any of the following tests
will not be allowed on the millsite:
When the message conveyed is disrespectful and
limits our ability to maintain discipline.
2. When the message is aimed at ‘‘keeping the
wounds from 1989 negotiations open.’’
3. When the message leaves a negative impression
on outsiders, particularly our customers/suppliers.
The letter announcing these restrictions, signed by Wallace
H. Goode, the Company’s director of manufacturing oper-
ations, closed with this paragraph:
I am asking for your support. Negotiations have been
over since November of 1989. There are buttons, T-
shirts, etc. in the mill that meet one of the above three
tests (No Mead, Remember Mike Wagner, Remember
89, and others). We sincerely believe they are disrup-
tive to our environment, and keep people focused on
the past and not on the future.
On October 12, the Company promulgated a progressive
system of discipline, up to and including discharge, for viola-
tions of its restrictions on the wearing of T-shirts, buttons,
and other items it deemed objectionable, at the mill. This
system was to be effective on and after October 15.
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Sec. 7 of the Act provides in pertinent part:
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.
Sec. 8(a)(1) of the Act provides in pertinent part:
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees on the ex-
ercise of the rights guaranteed in section 7.
3 Affd. sub nom. NLRB v. Electrical Workers IBEW Local 1229,
346 U.S. 464 (1953).
B. Analysis and Conclusions
The General Counsel contends that the Company violated
Section 8(a)(1) of the Act by prohibiting ‘‘no scab’’ buttons
from being worn by its employees at the mill, by prohibiting
the wearing of buttons, T-shirts, decals, and other items
which it finds objectionable, as set forth in the rules issued
on October 2, and by maintaining progressive discipline lead-
ing to discharge for violation of these unlawful rules. The
Company urges dismissal of the complaint on the ground
that its restrictions of buttons, T-shirts, decals and other
items, and the imposition of discipline to enforce them, did
not run afoul of the Act because they ‘‘served legitimate
concerns of maintaining discipline and harmonious em-
ployee-management relations at the Escanaba mill.’’ In addi-
tion, the Company argues that the messages on some of the
proscribed buttons and T-shirts were not protected by Section
7 and Section 8(a)(1) of the Act. (C.P. Br. p. 11).2
The Board has held that ‘‘in the absence of special cir-
cumstances, employees have a Section 7 right under the Act
to wear insignia at work referring to unions or other matters
pertaining to working conditions for the purpose of mutual
aid or protection.’’ Midstate Telephone Corp., 262 NLRB
1291, 1292 (1982), enf. denied in pertinent part 706 F.2d 401
(2d Cir. 1983). The Board has also accorded the Act’s pro-
tection to employees when they used literature, such as car-
toons (Trover Clinic, 280 NLRB 6 (1986)), or a monthly
newspaper (United Parcel Service, 230 NLRB 1147 (1977)),
to criticize conditions of employment, or to promote more fa-
vorable collective-bargaining results for themselves.
In Jefferson Standard Broadcasting Co., 94 NLRB 1507,
1511–1512 (1951),3 the Board declared that Section 7 of the
Act ‘‘protects employees . . . when they . . . denounce their
employer for his conduct of labor relations or affairs ger-
mane to the employment relationship.’’ Further, the Board
has recognized that ‘‘employees have a legitimate interest in
seeking to promote solidarity among their fellow employees
with respect to matters of mutual concern, such as an eco-
nomic strike to secure a favorable collective bargaining
agreement.’’ Midstate Telephone Corp., supra at 1291. Ex-
tending the policy set out in Midstate Telephone, the Board,
in Southwestern Bell Telephone Co., 276 NLRB 1053, 1058
(1976), accorded the protection of Section 7 of the Act to
employees, who after an economic strike, had posted Jack
London’s perjorative appraisal of nonstriking employees, en-
titled ‘‘Definition of a Scab’’ at the employer’s plant, in an
effort to strengthen employee support for future economic
strikes.
However, the Supreme Court and the Board have limited
employee conduct in support of Section 7 purposes. Thus,
assuming that the Section 7 purpose has been shown, there
is ‘‘a further inquiry to determine whether [the employees’]
concerted activities were carried on in such a manner as to
come within the protection of Section 7.’’ NLRB v. Electrical
Workers IBEW Local 1229, supra. In making such deter-
minations, the Board has adhered to the principle expressed
by the Supreme Court in Republic Aviation Corp. v. NLRB,
324 U.S. 793, 797–798 (1945), that the Board is charged
with ‘‘working out an adjustment between the undisputed
right of self-organization assured to employees under [Sec-
tion 7 of the Act] and the equally undisputed right of em-
ployers to maintain discipline in their establishments.’’ Here,
under settled Board policy, the Company had the burden of
presenting substantial evidence of ‘‘special circumstances’’
such as interference with discipline, production and safety, to
justify its restrictions on displays of buttons, wearing apparel
and other items carrying messages pertaining to its employ-
ees’ exercise of activities protected by Section 7 of the Act.
Government Employees, 278 NLRB 378, 385 (1986).
The Board has found ‘‘special circumstances’’ and deter-
mined that an employer’s right to maintain discipline out-
weighed the right of employees to wear shirts adorned with
a message. In Southwestern Bell Telephone Co., 200 NLRB
667 (1972), the Board permitted an employer to prohibit the
wearing of shirts bearing ‘‘an obscene epithet ridiculing
management, where the profane nature of the message was
deemed likely to interfere with the maintenance of decorum
and discipline in the plant.’’ Midstate Telephone Corp., 262
NLRB 1291, 1292 (1982), enf. denied in pertinent part 706
F.2d 401 (2d Cir. 1983). The Board has also upheld an em-
ployer’s ban on the wearing of pins designating certain em-
ployees as ‘‘loyal’’ strikers, where the employer showed that
the display of such pins was likely to provoke fighting and
name-calling at its plant. United Aircraft Corp., 134 NLRB
1632, 1635 (1961). Other ‘‘special circumstances’’ permit-
ting bans are, attacks on an employer’s products or services
(NLRB v. Electrical Workers IBEW Local 1229, supra), and
malicious falsehoods (National Steel Corp., 236 NLRB 1033
(1978)).
In the instant cases, the wearing of the buttons and T-
shirts had legitimate, concerted purposes protected by Section
7 of the Act. The Locals and their adherents were seeking
to bolster solidarity among the Company’s employees, in the
face of what they perceived to be a harsh contract and a pro-
vision which diminished employment opportunities. The
‘‘Just Say No—Mead.’’ the ‘‘Remember Wagner Oct. 1
1989,’’ the ‘‘C.I. 1983–1989,’’ and the ‘‘Remember ’89’’
messages on T-shirts and buttons worn at the Company’s
mill, were clearly directed at encouraging solidarity in protest
of the Company’s bargaining policy.
The ‘‘no scab’’ buttons had two purposes, both protected
by Section 7 of the Act. The first was to support strikers
elsewhere. Signal Oil & Gas Co., 160 NLRB 644, 649
(1966).
However, contrary to the Locals’ assertions, I find from
the employees’ use of ‘‘scabs’’ to refer to volunteers for the
Flex-II program, and the sudden appearance, at the mill, of
approximately 50 ‘‘no scab’’ buttons, in September, when
the program was reaching fruition, that the buttons were also
directed at that program. This second purpose was to dis-
courage employees from participating in a program which
the locals and some employees perceived as a threat to their
jobs. Thus, the wearing of these buttons was in the interest
739ESCANABA PAPER CO.
4 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.
5 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.’’
of seeking mutual aid or protection to safeguard the jobs of
the employees covered by the collective-bargaining agree-
ment, and thus came within the protection of Section 7 of
the Act. Midstate Telephone Corp., 262 NLRB at 1292.
The ‘‘Remember Wagner Oct. 1, 1989’’ button reflected
the perception of the Locals and the employees that the dis-
cipline inflicted on employee Wagner was part of the Com-
pany’s effort to pressure them to accept the pending collec-
tive-bargaining agreement, which they considered to be too
favorable toward the Company. The need for solidarity con-
tinued after the ratification of the collective-bargaining agree-
ment, to encourage employees to remain out of the voluntary
Flex-II program and to persuade the Company to soften its
bargaining policy when negotiating for the next agreement
with the Locals. That the messages on these buttons and T-
shirts kept ‘‘the wounds from 1989 negotiations open’’ did
not deprive them of the Act’s protection. Midstate Telephone
Corp., supra. Nor did the possibility of ‘‘a negative impres-
sion on outsiders, particularly . . . customers/suppliers’’ pro-
vide the Company with ground for restricting the buttons, T-
shirts and other items worn at the mill by its employees.
Borman’s, Inc., 254 NLRB 1023, 1025 (1981), enf. denied
676 F.2d 1138 (6th Cir. 1982).
Unlike the shirt in Southwestern Bell, supra, the ‘‘no
scab’’ button banned on September 27 and 28, and the but-
tons, and T-shirts proscribed by the Company in its letter of
October 2, contained no obscene epithet ridiculing the Com-
pany or its management. The ‘‘Just say No—Mead’’ button
may have offended the Company, but it did not encourage
disrespect toward management, disregard of safety, or a
slowdown in work.
Further, unlike United Aircraft Corp., supra, there was no
showing by substantial evidence that the controversy regard-
ing the Flex-II program was likely to result in fighting, or
any unusual outbursts of discord or bitterness between the
Flex-II volunteers and the other employees, which might be
encouraged by the appearance of the ‘‘no scab’’ buttons, T-
shirts, or other items carrying that inscription, which the
Company has banned. Nor was there any substantial evi-
dence showing that any of the other buttons and T-shirts
complaining of the Company’s bargaining policy or of Mike
Wagner’s punishment might impair discipline, safety, or pro-
duction at the Company’s facility.
Finally, the Company has not shown any special cir-
cumstances which permitted it to impose the broad restric-
tions, which it promulgated on October 2. The tests set forth
in that announcement clearly ran afoul of the Board’s poli-
cies safeguarding the rights of employees to use buttons, T-
shirts, decals, and other items to carrying messages pertain-
ing to their activities protected under Section 7 of the Act.
In sum, I find that by banning the ‘‘no scab’’ buttons, by
promulgating and maintaining the restrictions which it an-
nounced on October 2, and by promulgating and maintaining
the progressive system of discipline for violations of those
restrictions, which it announced on October 12, the Company
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, and
thereby violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Mead Corporation d/b/a Escanaba Paper Company is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. United Paperworkers International Union, its Locals 110
and 209, and International Brotherhood of Electrical Workers
Local 979 are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
3. By prohibiting employees from wearing or displaying
‘‘no scab’’ buttons, other buttons, T-shirts, other articles of
clothing, decals, or other items which carry messages per-
taining to employees’ exercise of activities protected under
Section 7 of the Act, and by promulgating and maintaining
progressive discipline leading to termination for violation of
those prohibitions, the Company violated Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices effect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair 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.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Mead Corporation d/b/a Escanaba Paper
Company, Escanaba, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from wearing or displaying ‘‘no
scab’’ buttons, T-shirts, other articles of clothing, decals, or
other items which carry messages pertaining to employees’
exercise of activities protected under Section 7 of the Act.
(b) Promulgating and maintaining progressive discipline
leading to termination for violation of rules which prohibit
employees from exercising activities protected under Section
7 of the Act.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Escanaba, Michigan, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, 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 Respondent has
taken to comply.