Virginia Elec. and Power Co. v. N.L.R.B.

Citation703 F.2d 79
Decision Date15 March 1983
Docket NumberNo. 82-1130,82-1130
Parties112 L.R.R.M. (BNA) 3099, 96 Lab.Cas. P 14,148 VIRGINIA ELECTRIC AND POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

James A. Harper, Jr., Richmond, Va. (A. Neal Barkus, Michael H. Corley, Hunton &amp Williams, Richmond, Va., on brief) for petitioner.

Catherine Garcia, Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief) for respondent.

Before PHILLIPS and CHAPMAN, Circuit Judges, and WALTER E. BLACK, Jr., United States District Judge sitting by designation.

CHAPMAN, Circuit Judge:

Virginia Electric and Power Company (VEPCO) petitions this court for review of the order of the National Labor Relations Board (NLRB) finding it in violation of sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). Because the Board's decision is unsupported by substantial evidence, we deny enforcement of the order.

I

Virginia Electric and Power Company is a public utility that generates, sells and transmits electricity throughout the tri-state area of Virginia, West Virginia and North Carolina. It employs approximately 10,500 workers. Of these, the Utility Employees Association (UEA) represents about 3,300 office, technical and professional employees. The 4,300 maintenance and production employees are represented by the International Brotherhood of Electrical Workers (IBEW).

In late 1979, some of the office employees organized a movement to unseat the UEA as bargaining agent and replace it with the IBEW. Only about 200 employees signed cards favoring the IBEW.

On June 30, 1980, the IBEW filed a charge with the NLRB alleging that VEPCO had taken certain discriminatory actions against pro-IBEW employees. The NLRB filed a complaint against the company on August 12, 1980. In its complaint the NLRB alleged that the Company had engaged in unfair labor practices by the following:

(1) telling employees they were denied promotions because of union activities;

(2) prohibiting employees from discussing the union during non-working time;

(3) interrogating employees about their activities on behalf of the union;

(4) telling employees that sick leave benefits were the same under the UEA and IBEW contracts;

(5) instructing employees to remove union buttons;

(6) discontinuing certain job assignments; and,

(7) altering and reducing sick benefits to discourage support of the union.

On March 25 and 26, 1981 a hearing was held before an Administrative Law Judge (ALJ). After hearing all the testimony and viewing all the witnesses, the ALJ dismissed the complaint stating that:

[g]iven the size of the Company, the great number of employees involved, and the fact that no substantive unfair labor practices had [sic] been found, I will recommend instead dismissal of the complaint in its entirety.

General counsel and the IBEW filed exceptions to his decision to dismiss the complaint. On February 22, 1982, the NLRB issued its Decision and Order. The decision adopted the ALJ's findings of fact but modified his conclusions. 1 Unlike the ALJ, the Board found that VEPCO violated section 8(a)(1), 29 U.S.C. Sec. 158(a)(1) (1976), by telling employee Robin Van Burin that the Company would prefer she not wear her vari-vue button while working in the lobby area. The NLRB also found that VEPCO violated section 8(a)(1) and section 8(a)(3), 29 U.S.C. Sec. 158(a)(3) (1976), when it failed to "promote" Tanya New to "back-up" clerk because of her union activities. Because the ALJ and the Board differ in their conclusions of law, but not on the facts, we shall set forth the facts of each alleged violation in detail. 2 The two incidents in question will be addressed separately.

II

In May of 1980, Robin Van Burin, a customer contact representative, began wearing a "vari-vue" button that stated, "Keep your eye on IBEW. We will win." The button was two inches in diameter, brightly colored (red, blue and white) and a large eye that gave the appearance of winking at one viewing the button occupied the upper left portion of the button (this was the vari-vue feature). Van Burin and others wore this button, as well as other buttons, without challenge from the Company.

In July of 1980, Van Burin's supervisor requested that she serve as a part-time switchboard operator and receptionist. This position entailed sitting in the public lobby of the Mark Center in Alexandria, Virginia where she answered the switchboard and dealt with customers, salesmen and applicants for employment. Because the lobby is next to the only entrance to the building, all employees entering the building must pass by the lobby as well.

It was at this time that Van Burin's supervisor made the statement that has created this controversy. The supervisor stated to her that VEPCO would prefer her not to wear this particular button while on duty at the switchboard. This is the only evidence of any interference by the employer with any employee wearing any union insignia. In fact, the ALJ specifically found, and the NLRB adopted the finding, that "[p]eople wore buttons all over the place, and no one was ever criticized for it." Further, the ALJ found that management testified "that no one would suffer discrimination, or any kind of restraint, because of their such [sic] activities." These findings are most persuasive when one examines the facts.

Van Burin continued to wear the button and suffered no reprisal or reprimand; therefore, she was not prohibited from wearing union insignia. 3 Others wore the button, as did Van Burin, in private areas of the building without being questioned or criticized. There was no general ban on the wearing of union insignia, merely a request that while on duty where she would be making face-to-face contact with the general public that she not wear a particular button. Thus, the issue to be decided is whether such evidence supports the NLRB's conclusion that the supervisor's statement of VEPCO's preference that she not wear one particular button is a violation of section 8(a)(1).

There can be no question that employees have the right to wear buttons or other union insignia to express union support while on the job. Republic Aviation Corp. v. NLRB, 324 U.S. 793, 802 n. 7, 65 S.Ct. 982, 987 n. 7, 89 L.Ed. 1372 (1945). This practice furthers "the right effectively to communicate 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) (emphasis added). The right to wear such insignia is not without limitation; rather it is clear

[The Board must adjust] 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.

Beth Israel, 437 U.S. at 492, 98 S.Ct. at 2469 (quoting Republic Aviation Corp., 324 U.S. at 797-798, 65 S.Ct. at 985.) Therefore, the determination whether the employer's restriction is lawful requires an accommodation of the conflicting interests of employee self-organization and the employer's right to maintain proper discipline in the workplace. Republic Aviation, 324 U.S. at 798, 65 S.Ct. at 985; Fabri-Tek, Inc. v. NLRB, 352 F.2d 577, 584-5 (8th Cir.1965). Because the "wearing of union buttons [is not] per se a guaranteed right," NLRB v. Harrah's Club, 337 F.2d 177, 179 (9th Cir.1964), the employer may "prohibit or regulate the wearing of union insignia where ... there are special considerations relating to employee efficiency and plant discipline." Fabri-Tek, 352 F.2d at 585. VEPCO advances "special considerations" it contends will justify its preference.

First, they argue that all employees entering this building had to pass by this lobby where they could easily see the button. Because they were concerned that the button might provoke a confrontation between Van Burin and a supporter of the UEA in front of customers coming in to complain about their bills or service, salesmen or job applicants, they submit they were justified in attempting to avoid such a confrontation to protect their public image and to avoid public confrontations by supporters of the different unions. The ALJ found that the Company's argument was a legitimate one and that it had the right to keep employees quarreling among themselves about the two unions out of the public eye. This conclusion by the ALJ is supported both by the Beth Israel case where the Supreme Court stated that the employees' right is to communicate with one another, 437 U.S. at 491, 98 S.Ct. at 2468-69, and the fact that a company has the right (and duty) to anticipate such potential disturbances and act to prevent them. Fabri-Tek, 352 F.2d at 584; Harrah's Club, 337 F.2d at 180; Caterpillar Tractor Co. v. NLRB, 230 F.2d 357 (7th Cir.1956).

Second, VEPCO submits to this court that its actions were legal because the actions were reasonable. It did not ban the wearing of any button or union insignia, it merely requested that the employee wear a "smaller, less gaudy" button while on duty as a receptionist. Van Burin continued to wear the button in question and suffered no reprisal. Others wore the button in private areas without comment by VEPCO. They argue that in light of the provocativeness of the button, the existence of competing unions and the limited nature of its restriction, it has shown the special circumstances necessary to justify its actions, as well as showing it acted reasonably.

We agree with the ALJ. This is not a case where the employer has attempted to ban all...

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