Meijer, Inc. v. N.L.R.B.

• Decision Date: 04 March 1998
• Docket Number: 95-6309,Nos. 95-6116,s. 95-6116
• Citation: 130 F.3d 1209
• Parties: 156 L.R.R.M. (BNA) 3057, 134 Lab.Cas. P 10,102 MEIJER, INCORPORATED, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, United Food and Commercial Workers Local 951, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1209

130 F.3d 1209

156 L.R.R.M. (BNA) 3057, 134 Lab.Cas. P 10,102

MEIJER, INCORPORATED, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner United Food and Commercial Workers Local 951, Intervenor.

Nos. 95-6116, 95-6309.

United States Court of Appeals Sixth Circuit.

Argued Sept. 17, 1996.

Decided Dec. 9, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied March 4, 1998.

Jeffrey Scott Rueble (argued and briefed), Grand Rapids, MI, for Petitioner/Cross-Respondent.

Aileen A. Armstrong (briefed), Dep. Assoc. Gen. Counsel, Paul J. Spielberg, David A. Fleischer (argued and briefed), National Labor Relations Board, Appellate Court Branch, Washington, DC, for Respondent/Cross-Petitioner.

John C. Schlinker (argued and briefed), Foster, Swift, Collins & Smith, Lansing, MI, Charles F. Szymanski (briefed), Kalniz, Iorio & Feldstein, Grand Rapids, MI, for Intervenor.

Before: KEITH, NORRIS, and DAUGHTREY, Circuit Judges.

KEITH, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. NORRIS, J. (pp. 1217-19), delivered a separate dissenting opinion.

KEITH, Circuit Judge.

Meijer Inc., a food and general merchandise retailer, is appealing an order of the National Labor Relations Board ("the Board"). The order requires Meijer to allow its employees at its Traverse City store to wear union insignia while on the job. The Board has cross-petitioned for enforcement of the order.

I. STATEMENT OF FACTS

The order stems from a finding by the Board that Meijer violated § 8(a)(1) of the National Labor Relations Act ("the Act"), by taking disciplinary actions against employees who wore union pins and other union paraphernalia. ¹ Meijer only allows its employees to wear pins and buttons approved by the company on their uniforms. ² There are three types of pins that fall into that category. The employees may wear (and may be required to wear) buttons that help promote certain products or company services (e.g., a "Terrific Attitudes Count" pin); employees may wear buttons with respect to customer relations programs (e.g., "Next in Line" service at the checkout counters); and in stores where employees are represented by a union, employees may wear pins or buttons designating their union affiliation.

In October of 1992, Tom Kollar ("Kollar") became the store manager of the Traverse City store. Subsequent to his arrival, the United Food & Commercial Workers Local 951, AFL-CIO ("the Union"), began an organizing campaign at the store. Neither party disputes the fact that the dress code at the store was loosely enforced, if at all, before Kollar became store manager, and that Kollar strictly enforced the dress code after he arrived. At his first staff meeting, Kollar distributed a memo stating that: "Name badges, company approved buttons, United Way pins, and service recognition pins are the only items that are allowed on vests and smocks. All others are to be removed." Kollar later reissued the memo on April 1993 after Meijer changed the colors of its vests and smocks. The Board claims that Kollar knew that the union was conducting an organizational campaign at the time the memo was issued, even though the employees were not yet wearing union pins.

In September of 1993, the employees began to wear union pins as part of their organizational campaign. The pins were approximately one inch by one-half inch in size, with blue and red lettering against a white background with gold borders. They contained the words "Union Yes" with a checkmark within the letter "o".

On October 5, 1993, Kollar sent a memo to the store's managers, via electronic mail, directing them to notify all employees who were on the sales floor that they could not wear union pins or buttons on their uniforms. According to both parties, Kollar directed his managers to politely ask the employees to remove the pins; and if they refused to do so, to inform them that they could be sent home for insubordination. The managers were also to report each incident to Kollar. On October 8, Kollar posted notices in the employees' break room clarifying and reiterating Meijer's policy that only approved pins may be worn by employees while they are working in areas open to the public.

On December 6, 1993, the Union filed unfair labor practice charges against Meijer. On January 19, 1994, the Regional Director issued a complaint alleging that Meijer violated the Act by prohibiting employees from wearing union buttons, hats, and jackets while the employees were on the sales floor, and by disciplining two employees for violating its rules against union solicitation and distribution. The case was tried before Administrative Law Judge Michael O. Miller, who held that although Meijer had not violated the Act by prohibiting employees from wearing union hats and jackets on the sales floor, it violated the Act by disciplining two employees for flouting the rules against solicitation and distribution, and by prohibiting employees from wearing union buttons and pins on the sales floor. On July 31, 1995, the Board affirmed the rulings of the ALJ and adopted his recommended order. Meijer appeals to this Court, seeking a review of only those portions of the Board's order pertaining to the wearing of union pins and buttons.

II. DISCUSSION

A. Standard of Review

We accept the Board's factual findings if they are supported by "substantial evidence on the record" as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951); NLRB v. Okun Bros. Shoe Store, Inc., 825 F.2d 102, 105 (6th Cir.1987); Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir.1985). The Board's construction of the Act should be upheld if it is "reasonably defensible." Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979). Other questions of law are reviewed de novo. NLRB v. C.J.R. Transfer, Inc., 936 F.2d 279, 281 (6th Cir.1991).

The Board argues that Meijer violated § 8(a)(1) of the Act because it interfered with its employees' § 7 rights by threatening them for engaging in protected activity--i.e., for wearing union pins. ³ Because the Board's conclusion is supported by substantial evidence on the record, we deny Meijer's petition to deny enforcement of the Board's order. We, therefore, grant the Board's petition for enforcement of its order.

B. Statutory Background

Section 7 of the Act guarantees employees "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...." 29 U.S.C. § 157. Section 8(a)(1) protects these rights by making it an unfair labor practice for an employer "to interfere with, restrain or coerce employees in the exercise of the rights guaranteed" by § 7. 29 U.S.C. § 158(a)(1).

The Supreme Court has held that the wearing of union insignia, including buttons and pins, falls within the definition of "other concerted activities" in furtherance of the rights of self-organization granted by § 7 of the Act, and is therefore protected activity. Republic Aviation Corp. v. NLRB, 324 U.S. 793 795-804, 65 S.Ct. 982, 984-88, 89 L.Ed. 1372 (1945). The practice of wearing union insignia furthers "the right [of employees] to communicate [effectively] with one another regarding self-organization at the jobsite." Beth Israel Hospital v. NLRB, 437 U.S. 483, 491, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978). This general right, however, is not without limitation. The Supreme Court has held that it is the duty of the Board to work out a balance

between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.

Beth Israel, 437 U.S. at 492, 98 S.Ct. at 2469 (quoting Republic Aviation, 324 U.S. at 797-98, 65 S.Ct. at 985-86).

C. Meijer's First Argument

Meijer's first argument is that this issue is governed by our opinion in Cleveland Real Estate Partners v. NLRB ("CREP"), 95 F.3d 457 (6th Cir.1996). Meijer strongly urges us to adopt the reasoning and result of this Court's decision in CREP. In CREP, we held that it was permissible for the owner of a private retail shopping mall to preclude union representatives from distributing handbills directed at shoppers in order to discourage them from patronizing non-union retailers, even though the owner permitted handbilling and solicitation by non-union permittees in the mall. Id. at 461-62.

We reversed the Board's determination that the company had engaged in unlawful discrimination against non-employee union representatives by prohibiting them from handbilling in a shopping mall which it managed, while permitting solicitation and handbilling by the Girl Scouts, the Knights of Columbus, political candidates, and school children selling candy, among others. The Court held that the "term 'discrimination' as used [in this context] means favoring one union over another, or allowing employer-related information while barring similar union-related information." Id. at 465.

The Court noted three factors peculiar to that case, which led it to a narrow definition of discrimination. First, as a general rule an "owner of private property ... need not ... permit the distribution of union literature on its property." Id. at 462. Second, "there is a substantial difference between the rights of employees and [that] of non-employees with respect to the distribution of union literature on privately owned property." Id. at 463....