N.L.R.B. v. Mead Corp.

• Decision Date: 08 January 1996
• Docket Number: No. 94-6250,94-6250
• Citation: 73 F.3d 74
• Parties: 151 L.R.R.M. (BNA) 2169, 64 USLW 2512, 131 Lab.Cas. P 11,486 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The MEAD CORPORATION d/b/a Escanaba Paper Company, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 74

73 F.3d 74

151 L.R.R.M. (BNA) 2169, 64 USLW 2512,

131 Lab.Cas. P 11,486

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The MEAD CORPORATION d/b/a Escanaba Paper Company, Respondent.

No. 94-6250.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 27, 1995.

Decided Jan. 8, 1996.

Aileen A. Armstong, Deputy Assoc. Gen. Counsel, Frederick C. Havard (briefed), Christopher Young (argued and briefed), N.L.R.B., Washington, DC, for Petitioner.

Robert Joseph Brown (argued and briefed), Todd D. Penney, Thompson, Hine & Flory, Dayton, OH, for Respondent.

Before: MARTIN and JONES, Circuit Judges; COHN, District Judge. ^*

MARTIN, J., delivered the opinion of the court, in which JONES, J., joined. COHN, D.J. (p. 81), delivered a separate dissenting opinion.

BOYCE F. MARTIN, Jr., Circuit Judge.

The National Labor Relations Board petitions this Court to enforce the Board's cease and desist order against Mead Corporation. Mead Corp., 314 N.L.R.B. 732 (1994). The Board found that Mead had committed an unfair labor practice in violation of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) (1988), by prohibiting employees from wearing certain buttons, t-shirts, and other clothing which protested the terms and conditions of their employment. As a predicate to finding that Mead violated Section 8(a)(1), the Board found that the buttons, t-shirts, and other articles of clothing were worn in exercise of the employees' rights under Section 7 of the Act, 29 U.S.C. Sec. 157 (1988). Mead responds to this petition by arguing that the buttons, t-shirts and other material banned were not protected under Section 7 of the Act. Alternatively, Mead argues that, even if the banned materials were protected under the Act, special circumstances existing at the time it prohibited the employees from wearing the contested materials warranted infringement on its employees' exercise of their protected rights.

We believe the NLRB's conclusion that Mead violated Section 8(a)(1) of the Act to be supported by substantial evidence in the record as a whole.

Mead Corporation operates a paper mill in Escanaba, Michigan that manufactures and distributes news print paper. Mead employs approximately 1500 employees at the Escanaba mill, about 1050 of whom are unionized. The mill produces one-half billion tons of paper annually.

In March of 1989, the Company and the Unions began negotiations for new collective bargaining labor agreements. The parties had difficulty in coming to an agreement, primarily because Mead introduced new operating flexibility plans that received strong opposition from the Unions. The "Flex I" plan required all production and maintenance personnel to assume additional responsibilities in exchange for an hourly wage increase. The "Flex II" proposal permitted maintenance employees skilled in a particular "craft" to qualify in two additional crafts, for which they would receive a wage increase of fifty cents an hour for each additional craft.

The Unions opposed the flexibility plans, particularly the "Flex II" plan, because they believed the plans would lead to a loss of work. Beginning in June of 1989, the Unions encouraged members to wear various buttons and t-shirts opposing the Flex proposals. The buttons and t-shirts bore the legends "Just Say No--Mead" and "Hey Mead--Flex This." The union employees continued to wear these emblems throughout the course of the collective bargaining negotiations.

In October of 1989, Mead declared an impasse, terminated the former labor agreements, and unilaterally implemented several of its final proposals, including the Flex I plan. Mead and the Unions finally concluded negotiations in November of 1989, and new collective bargaining agreements went into effect. In opposition to Mead's unilateral action, the Unions issued, and union members wore, buttons proclaiming "Remember 89." In addition, as a result of Mead's unilateral action and the new labor agreements, the Unions withdrew from a popular "Continuous Improvement" program, an older program designed to enhance plant production and safety. The Unions then issued buttons and t-shirts commemorating the withdrawal, which stated "C.I. 1983-1989 is 'Dead'." Finally, after Mead began implementing the Flex II program in June of 1990, Union employees wore "No Scab" buttons which, according to Mead, were worn in opposition to those employees participating in the Flex I and II programs. The Union claimed that the buttons were directed toward the striker replacements used by Greyhound and Eastern Airlines in their own labor negotiation turmoils. Employees also began wearing "Remember Wagner, Oct. 1, 1989" buttons in reference to the suspension of union member Mike Wagner. The union employees believed that Wagner had been suspended as a reprisal for his opposition to Mead's bargaining proposals.

In September of 1990, Mead requested that Union members refrain from wearing the "No Scab" buttons. In October of 1990, without any investigation and without notice, Mead announced that it intended to formally ban certain button, t-shirt, and decal slogans. According to Mead, the slogans at issue were infringing upon its ability to maintain order and discipline in the workplace and were threatening workplace safety. Mead's formal ban announced that all buttons, t-shirts, and decals would be prohibited:

1. When the message conveyed is disrespectful and limits our ability to maintain discipline.

2. When the message is aimed at "keeping the wounds from the 1989 negotiations open."

3. When the message leaves a negative impression on outsiders, particularly our customers/suppliers.

Mead expressly identified the slogans "Hey Mead--Flex This," "Just Say No--Mead," "Remember 89," and "Remember Mike Wagner" as prohibited by the ban. In conjunction with the ban, Mead introduced a system of progressive discipline for displaying any prohibited slogans. The Union subsequently filed unfair labor practice charges against Mead, claiming that Mead's ban violated the Union employees' rights under Section 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157 (1988).

On November 5, 1991, a hearing was held before an administrative law judge. The administrative law judge found that the buttons, t-shirts, and decals at issue were protected under Section 7 of the Act, and that Mead violated Section 8(a)(1) of the Act by prohibiting its employees from wearing any of these items. The Board subsequently affirmed the administrative law judge's rulings, findings, and conclusions, and adopted his order as slightly modified. The Board's order requires Mead to cease and desist from prohibiting the exercise of its employees' rights under Section 7 of the Act, and requires Mead to post copies of an appropriate notice in the workplace informing Mead employees of the termination of its ban on union insignia.

We review the Board's findings of fact to determine if they are supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). Evidence is substantial when, viewing the record as a whole, reasonable minds would find the evidence sufficient to uphold the Board's decision. NLRB v. Spring Arbor Dist. Co., 59 F.3d 600, 604 (6th Cir.1995) (citations and quotations omitted). "The Board's application of the law to particular facts is also reviewed under the substantial evidence standard." East Tennessee Baptist Hosp. v. NLRB, 6 F.3d 1139, 1143 (6th Cir.1993). This Court will not reverse the Board's reasonable inferences even if we would have decided the issue differently. Id. (citations omitted).

Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under [Section 7]" of the Act. 29 U.S.C. Sec. 158(a)(1) (1988). Section 7 of the Act confers upon employees the right engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Sec. 157 (1988). Employees' Section 7 rights include the right to wear union-related insignia while at work to show support for the Union and their fellow Union members. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802-03, 65 S.Ct. 982, 987-88, 89 L.Ed. 1372 (1945); Larand Leisurelies, Inc. v. NLRB, 523 F.2d 814, 818-19 (6th Cir.1975). Balanced against the employees' rights under Section 7 is the "equally undisputed right of employers to maintain discipline in their establishments." Republic Aviation, 324 U.S. at 798, 65 S.Ct. at 985. "Opportunity to organize and proper discipline are both essential elements in a balanced society." Id.

In this case, the Board found that the Union employees' display of pro-union, anti-employer, anti-agreement sentiments--through the use of buttons, t-shirts, and decals--was a protected activity under Section 7. Mead takes issue with this conclusion, arguing that the anti-Flex and various other slogans at issue in this case do not fall within the ambit of Section 7, and that, in any event, the employees waived their right to campaign against the Flex program once they ratified the collective bargaining agreement.

We disagree. Substantial evidence supports the Board's conclusion that Union employees wore the slogans at issue here for mutual aid and support both during and after the contract negotiations with Mead. Each of the slogans is directly related to the labor contract negotiations or to specific incidents arising, or so the Unions reasonably believed out of the management-labor dispute. As such, these slogans are unlike the slogan at issue in Borman's, Inc. v. NLRB, 676 F.2d 1138, 1139 (6th Cir.1982), in which we held that the statement "I'm tired of bustin' my ass" was unrelated to the exercise of any Section 7 rights. Instead, the slogans at issue here are more analogous to those worn by employees in Pay'n Save Corp. v. NLRB, 641 F.2d 697,...