Pay'n Save Corp. v. N.L.R.B.
| Decision Date | 09 March 1981 |
| Docket Number | No. 80-7120,80-7120 |
| Citation | 641 F.2d 697 |
| Parties | 106 L.R.R.M. (BNA) 3040, 90 Lab.Cas. P 12,634 PAY'N SAVE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael R. Rayton, Ryan, Swanson, Hendel & Cleveland, Seattle, Wash., for petitioner.
Kenneth Hipp, Washington, D.C., argued for respondent; Charles P. Donnelly, Washington, D.C., on brief.
Petition to Review and Cross-Application to Enforce an Order of the National Labor Relations Board.
Before PREGERSON, POOLE and NORRIS, Circuit Judges.
Pay'n Save Corporation, engaged in retailing goods to the public, petitions this court to review and set aside an order of the National Labor Relations Board (NLRB); the NLRB cross-applies for enforcement of its order. The contested order was based on the NLRB's finding that Pay'n Save had violated subsections 8(a)(1) and (3) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1) and (3), 1 by maintaining and disparately applying an unwritten rule against wearing "controversial" buttons, including union buttons, and by suspending and later discharging two employees for engaging in protected union activities. The alleged violations took place during a union organizing campaign. The NLRB's order required Pay'n Save to recognize and bargain with the union and to cease and desist from interfering with employees' exercise of protected rights, to offer reinstatement and backpay to the discharged employees, and to post an appropriate notice.
Pay'n Save contends that its prohibition of controversial buttons was a justified business decision taken to avoid antagonizing customers, that the two employees were legitimately discharged for insubordination, and that the circumstances of this case do not justify the issuance of a bargaining order. Pay'n Save also challenges two evidentiary rulings made by the administrative law judge (ALJ) in the hearing on the unfair labor practice charges.
Because we find that the NLRB's findings of fact are supported by substantial evidence on the record as a whole, and that the NLRB correctly applied the law, we deny Pay'n Save's petition and enforce the NLRB's order.
The instant dispute arose in May 1978, during an organizational campaign by the Retail Clerks Union Local No. 381 (Union) at Pay'n Save's Port Angeles, Washington, store. Dawn Frederick, a Pay'n Save sales clerk, contacted the Union in early May, obtained union authorization cards, and distributed them to other store employees. Ten of the thirteen employees signed cards.
At a May 15, 1978 meeting with Pay'n Save employees, a Union representative distributed yellow and black lapel buttons, 1 1/4 inch in diameter, some saying "Vote Yes Retail Clerks Union AFL-CIO" and others "Vote Retail Clerks Union AFL-CIO." That day and the next day, Frederick and fellow employee Joyce Berry wore the union buttons on their company-issued jackets while on the store sales floor. 2 On May 17, Assistant Store Manager Gary Jennings directed Frederick and Berry to remove the buttons; they refused, and Jennings suspended them. Later that afternoon, Store Manager Jim Hanrahan telephoned Frederick and Berry and told them they would be discharged by May 19 unless they returned to work without the buttons. Frederick telephoned Hanrahan a few minutes later, asked whether she could wear the button on her own clothing rather than on the store jacket, and was told she could. She and Berry both wore the buttons on their personal clothing when they returned to work.
On May 27, Frederick and Berry each wore a union button on their store jackets. (Berry wore an additional button on her After a hearing, an ALJ found that Pay'n Save had violated subsections 8(a)(1) and (3) of the Act by suspending and discharging Frederick and Berry, and ordered reinstatement and backpay as a remedy. The NLRB substantially affirmed the ALJ's findings, but reversed the finding that Pay'n Save's ban on controversial buttons had not been disparately applied. The NLRB also issued a bargaining order.
personal clothing.) Hanrahan called them into his office one at a time and discharged them. Although there is conflicting testimony as to exactly what was said, it is clear that Hanrahan withdrew the option of wearing the union button on personal clothing, and made it clear that the buttons were not to be worn on the sales floor at all.
This court will enforce the NLRB's order if the NLRB correctly applied the law and if its findings of fact are supported by substantial evidence on the record as a whole. Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, at 724 (9th Cir. 1980). 3
Although Pay'n Save's employee handbook contained no written regulation concerning buttons or insignia, the company alleges it had a long-standing policy prohibiting employees from wearing political, controversial, or offensive insignia on store jackets. It argues that this policy was meant to avoid the appearance of an endorsement of a controversial position that might offend customers.
This circuit has held that, absent "special considerations," an employee has a right, protected by section 7 of the Act, 4 to wear union buttons and insignia at work. NLRB v. Essex Wire Corp., 245 F.2d 589, 593 (9th Cir. 1957). See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). A later opinion made it clear that this right is not per se guaranteed by the Act; "evidence of a purpose protected by the act" is also required. NLRB v. Harrah's Club, 337 F.2d 177 (9th Cir. 1964). In the instant case, the button-wearing was linked to such a protected purpose the Union's attempt to organize Pay'n Save's employees. Thus Pay'n Save's ban on wearing union buttons interfered with the exercise of a protected right a violation of section 8(a)(1) of the Act unless there were special considerations justifying the ban.
The NLRB has found such special considerations, justifying a prohibition on wearing union insignia, in cases where the insignia could exacerbate employee dissension, 5 jeopardize employee safety, 6 or damage machinery or products. 7 The courts have recognized additional "special considerations" distraction from work demanding great concentration 8 and a need "to project a certain type of image to the public." 9 Only the last of these special factors is even arguably present in the instant case.
Pay'n Save argues that its ban on union buttons was justified by its legitimate concern about the image projected to the public by its employees and compares its policy to that upheld in NLRB v. Harrah's Club, 337 F.2d 177 (9th Cir. 1964). That case, however, is quite different from the present one, since in Harrah's Club "the wearing of the union buttons was not part of any concerted campaign to organize the employees" or otherwise to exercise rights protected by the Act, id. at 178, and was thus not in itself a protected activity, id. at 179. The court's remark, id. at 180, that Harrah's concern with "the appearance of its uniformed employees" would in the circumstances of that case have been sufficient justification for prohibiting the buttons even if button-wearing in itself had been a protected right was dictum, unnecessary to the decision of the case. 10
Pay'n Save also cites the Fifth Circuit's decision in Davison-Paxon Co. v. NLRB, 462 F.2d 364 (5th Cir. 1972), which held that a fashionable department store was justified in prohibiting its employees from wearing a large, gaudy union button on the selling floor. The Fifth Circuit noted that the store "was concerned primarily with the button's capacity to antagonize its customers" the same interest Pay'n Save asserts here. Id. at 369. And Davison-Paxon, unlike Harrah's Club, did uphold a ban on a union button while a union organizing campaign was in progress. Nevertheless Davison-Paxon is distinguishable from our case because it involved "animosity between union and anti-union factions at the store" that made the ban on the union buttons reasonable. Id. Moreover, Davison-Paxon involved a fashionable department store that liked its employees to double as customers and models for its merchandise, id. at 368.
Finally, this case is different from either Harrah's Club or Davison-Paxon because the NLRB found that Pay'n Save had disparately enforced its controversial-button rule against Frederick and Berry. 11 Substantial evidence in the record indicates that, although Pay'n Save had consistently enforced its rule against political buttons, various non-political but potentially controversial buttons had been tolerated on employees' store jackets while the employees were in contact with the public. Buttons with religious messages, religious holiday insignia, and product promotional insignia had been permitted. Moreover, company officials appeared to disagree as to precisely what Pay'n Save's unwritten rule prohibited. 12
Thus, there is substantial evidence to support the NLRB's finding that Pay'n Save violated section 8(a)(1) of the Act by maintaining and disparately applying a rule against wearing political or controversial
buttons, including union buttons. Pay'n Save has not met its burden of establishing that its policy was justified by "special considerations." 13
Given that, absent special circumstances, the wearing of union buttons at work during a union organizational drive is an activity protected under the Act, the illegality of suspending or discharging an employee for wearing a union button is an obvious corollary. Subsection 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate against an employee for engaging in protected union activity. 14
The employer's motivation is controlling in determining whether subsection 8(a)(3) is violated by a...
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