NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,395, MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979., (Aug. 17, 1994), National Labor Relations Board, (Aug 17, 1994)

MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979.

314 NLRB No. 122.Case Nos. 30-CA-11132, -11132-2, -11132-3, -11132-4 and -11132-5. August 17, 1994 Leonard M. Wagman, Administrative Law Judge. Amended September 23, 1994..

Before Gould, Stephens, Devaney, Browning and Cohen.

Joseph A. Barker, for General Counsel. Robert J. Brown (Thompson, Hine & Flory), Dayton, Ohio, for Respondent. Richard La Cosse, Pittsburgh, Pennsylvania, for Charging Parties.

Concerted or Protected Activity--Protests--“No Scab” Buttons.--The wearing or displaying of “no scab” buttons, T-shirts, other articles of clothing, decals or other items that carried messages pertaining to employees’ protest of company policies was protected under Section 7 of the Act. An employer introduced no evidence that the insignia and slogans interfered with or hampered implementation of its programs, caused disciplinary problems, or had any other consequences that would constitute special circumstances under settled precedent to forbid their use. The NLRB has never adopted the view that the word “scab” is inherently disruptive. Section 7.

Back reference: ¶2210.73.

Interference--Company Rules--Protest of Company Policy--Slogans on Buttons, T-shirts.--Although an employer contended that special circumstances justified its ban on the wearing of buttons, T-shirts and hats with slogans protesting company policy, the prohibition violated the employees’ rights under Section 7 of the Act to wear emblems that supported their collective concerns respecting terms and conditions of employment. Also rejected was the employer’s argument that two unions, by ratifying a collective bargaining agreement after the employer declared impasse and implemented new and unpopular programs, had waived the employees’ rights to protest the provisions. There was no evidence that the unions waived the employees’ rights and no evidence that the display of slogans caused any harm to the company’s operations. NLRA, Section 8(a)(1).

Back reference: ¶3830.49.

From Text of Board’s Decision

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 buttons, T-shirts, and other items with messages pertaining to activities protected by Section 7 of the Act and by promulgating and maintaining progressive discipline for violating the prohibition. The Respondent argues that “special circumstances” existed at its facility that outweighed the employees’ statutory rights and that, by agreeing to the contract, the Unions waived the employees’ Section 7 rights to protest its provisions. 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 Respondent’s operations.

The facts, as discussed in greater detail by the judge, follow. The Respondent operates a papermill. Its production 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 covering the production and maintenance employees. Included in the Respondent’s proposals were two job flexibility programs (Flex-I and Flex-II), which required employees to assume new duties or encouraged them to learn different crafts for extra pay. Specifically, the Flex-I proposal provided hourly wage increases to production and maintenance employees for performing, respectively, minor maintenance and repair, 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.” [1] In November 1989, the Unions reluctantly ratified the contract after the Respondent declared impasse and unilaterally implemented the Flex programs. To show their displeasure with the unilateral implementation, the employees wore buttons, T-shirts, hats, and pins with various 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 [2] the Respondent began recruiting employees for Flex-II, and in September the program began functioning. On September 27-28, the Respondent notified the Unions that it was prohibiting “no scab” buttons in the plant, on the ground that the buttons called Flex-II participants scabs. The Unions assured the Respondent that “scab” referred to striker replacements elsewhere. Unconvinced, the Respondent on October 2 prohibited the display of messages meeting any of the following descriptions: “(1) [w]hen the message conveyed is disrespectful and limits our ability 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 contend in its exceptions, that the sight of the pins and T-shirts had disturbed some visitors to the plant and discouraged participation in the Flex-II program; that the Unions waived the employees’ right to protest the contract’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 attributable to the slogans. In addition, the Respondent maintained that the ban also served its legitimate interests 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 encouraging solidarity both with respect to the Respondent’s bargaining tactics and to the unpopular agreement, especially its Flex provisions. As to the “no scab” buttons, the judge found that they had two purposes protected by Section 7 of the Act: to express solidarity with replaced strikers at other employers, and to discourage 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 circumstances” that outweighted the employees’ Section 7 rights. [3] He rejected as speculative the Respondent’s argument that the messages were a threat to plant discipline, noting that the record contained no evidence that vandalism in the plant was connected with the slogans; that the vandalism involved only scattered incidents 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. [4] 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 violence, interference with training or production, or threats thereof, caused the Respondent’s interests in plant discipline to outweigh the employees’ rights. [5] 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., [6] in which the Board reversed the judge’s finding that employees’ wearing a T-shirt bearing a cracked company logo referring to negotiations and a strike served no legitimate function after the parties had reached a contract. The Board found “no basis to conclude that this legitimate employee interest in solidarity ceased at some indeterminate period following the conclusion of the strike and the execution of a collective-bargaining agreement.” [7]

We also agree with the judge that the prohibition of insignia relating to the voluntary Flex-II program violated Section 8(a)(1). The Respondent contends that, by agreeing to the collective-bargaining agreement, the Unions waived the employees’ Section 7 right to protest 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 provisions. We note that the party asserting that a union has waived employee rights in a collective-bargaining agreement must produce “clear and unmistakable evidence” to support such a waiver. [8] The record contains no evidence of any contract provision covering that eearing 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 respecting terms and conditions of employment.

Further, we note that the Flex-II program proposed and implemented by the Respondent was wholly voluntary. Under Flex-II, craftpersons who volunteered were entitled to an hourly pay increase for those additional crafts for which they qualified. Having instituted the purely voluntary Flex-II program, the Respondent cannot thereafter complain--in the absence of a specific contractual waiver--if its employees concertedly oppose that program.

The burden of showing special circumstances does not necessarily require an employer to wait for actual violence to occur. [9] Rather, we weigh the employees’ right to engage in Section 7 related activities against the Respondent’s rights to maintain discipline and production. Thus, for example, if there are threats of misconduct, an employer could take steps against the specific 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. [10] is applicable to the circumstances here:

Instead of taking appropriate measures against the employees who threatened violence ... the Respondent took the course of least resistance and adopted the no-badge rule to the detriment of fellow 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. [11]

As noted above, the Respondent has failed to demonstrate that any actual harm occurred or that any employees 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 Respondent’s production, which had dipped earlier in the year, improved so much that it instituted its gainsharing program. [12]

With respect to the evidence of vandalism, the Respondent has failed to establish any link between the incidents it cites and the items’ messages. The Respondent’s evidence generally consists of unsupported subjective impressions. Its limited objective evidence that ill-feeling had resulted in misconduct is of questionable reliability. As the judge noted, one of the Respondent’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 display of items referring to the controversy over the Flex-II program or the “wounds” from the negotiations were likely to result in discord or bitterness, among employees which might endanger plant discipline, safety, or production. Initially, we note that despite some employees’ expression of opposition to Flex-II, numerous employees volunteered for the program; 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 further that some of the employees participating in the Flex-II program also wore “no scab” buttons prior to their ban. [13]

As a practical matter, then, the Respondent has introduced 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 disciplinary problems in the plant, or had any other consequences that would constitute special circumstances under settled precedent. Thus, we adopt the judge’s findings and recommended Order as modified below.

¹	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.
²	Unless otherwise noted, all subsequent dates are in 1990.
³	Government Employees, [1985-86 CCH NLRB ¶17,733] 278 NLRB 378, 385 (1986) (“[S]ubstantial evidence of special circumstances, such as interference with production or safety, is required before an employer may prohibit the wearing of union insignia, and the burden of establishing those circumstances rests on the employer” (citations omitted).)
⁴	As noted above, the Respondent’s employees have limited contact 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., [1991-92 CCH NLRB ¶17,004] 305 NLRB 193, 198-199 (1991).
⁵	See United Parcel Service, [1978 CCH NLRB ¶18,964] 234 NLRB 223 (1978); Eckerd’s Market, [1970 CCH NLRB ¶22,007] 183 NLRB 337-338 (1970); Southwestern Bell Telephone Co., [1985-86 CCH NLRB ¶17,581] 276 NLRB 1053 fn. 2 (1985).
⁶	[1992-93 CCH NLRB ¶15,049] 262 NLRB 1291 (1982), enf. denied [97 LC ¶10,072] 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 employees 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 Company was in some way coming apart.” 706 F.2d at 505. Here, the employees have virtually no contact with the public; the slogans do not disparage the Respondent’s product or intimate that the Respondent is in danger; they merely express opinions respecting the Respondent’s negotiating strategies and the resulting agreement. See also southern California Edison Co., [1985-86 CCH NLRB ¶17,593] 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.
⁷	Midstate Telephone, supra at 262 NLRB 1291.
⁸	See Hertz Rent-A-Car, [1989-90 CCH NLRB ¶15,905] 297 NLRB 363, 368 (1989); Albertsons, Inc., [1991-92 CCH NLRB ¶16,407] 300 NLRB 1013, 1016-1017 (1990).
⁹	We reject the Respondent’s reliance on some appellate court decisions involving facts critically distinguishable from those in this case. Thus, Fabri-Tex Inc. v. NLRB, [52 LC ¶16,721] 352 F/2d 577 (8th Cir. 1965), concerned a ban specifically tailored to buttons that tended to distract employees who needed extraordinary concentration to manufacture memory chips. In Virginia Electric & Power Co. v. NLRB, [96 LC ¶14,148] 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 public entered the employer’s building. In finding the button unprotected, the court emphasized the possibility of a public conflict between 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, [94 LC ¶13,695] 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 focused 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, [18 LC ¶65,912] 183 F.2d 538 (4th Cir. 1950), involved a ban on literature the court found insulting and defamatory because it involved a direct attack on the employer, dipicting its president as a “vulture.” No such personal or defamatory attacks are involved here. But see Caterpillar Tractor Co. v. NLRB, [29 LC ¶69,794] 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 had 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., [1978-79 CCH NLRB ¶15,213] 238 NLRB 1312 (1978), enfd. [89 LC ¶12,237] 628 F.2d 1283 (10th Cir. 1980).
¹⁰	113 NLRB 577, 579 (1955), enfd. [29 LC ¶69,800] 230 F.2d 484 (6th Cir. 1956) (Board found that a ban on wearing union insignia on company property violated Sec. 8(a)(1)).
¹¹	The Respondent was aware even before the start of bargaining that the employees opposed such flex programs, as an earlier program had been discontinued. The Respondent was also aware of the unpopularity of the Flex proposals throughout the negotiating period, as employees began wearing insignia expresing 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 bargaining 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 obligated to come to agreement over this or any other issue. Compare H.K. Porter Co. v. NLRB, [69 LC ¶10,696] 397 U.S. 99 (1970).
¹²	Under the gainsharing program, the Respondent pays to its employees up to 5 percent of their W-2 income each quarter if productivity, quality, and cost effectiveness warrant such a payment.
¹³	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 resulted in physical confrontations. Moreover, employee complaints about other employees’ display of Sec. 7 related items is not a sufficient 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 justify ban on shirts; ban violated Sec. 8(a)(1)).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,395, MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979., (Aug. 17, 1994), National Labor Relations Board, (Aug 17, 1994)

MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979.

314 NLRB No. 122.Case Nos. 30-CA-11132, -11132-2, -11132-3, -11132-4 and -11132-5. August 17, 1994 Leonard M. Wagman, Administrative Law Judge. Amended September 23, 1994..

Before Gould, Stephens, Devaney, Browning and Cohen.

Joseph A. Barker, for General Counsel. Robert J. Brown (Thompson, Hine & Flory), Dayton, Ohio, for Respondent. Richard La Cosse, Pittsburgh, Pennsylvania, for Charging Parties.

Back reference: ¶2210.73.

Back reference: ¶3830.49.

From Text of Board’s Decision

The Board’s observation in Kimble Glass Co. [10] is applicable to the circumstances here:

¹	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.
²	Unless otherwise noted, all subsequent dates are in 1990.
³	Government Employees, [1985-86 CCH NLRB ¶17,733] 278 NLRB 378, 385 (1986) (“[S]ubstantial evidence of special circumstances, such as interference with production or safety, is required before an employer may prohibit the wearing of union insignia, and the burden of establishing those circumstances rests on the employer” (citations omitted).)
⁴	As noted above, the Respondent’s employees have limited contact 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., [1991-92 CCH NLRB ¶17,004] 305 NLRB 193, 198-199 (1991).
⁵	See United Parcel Service, [1978 CCH NLRB ¶18,964] 234 NLRB 223 (1978); Eckerd’s Market, [1970 CCH NLRB ¶22,007] 183 NLRB 337-338 (1970); Southwestern Bell Telephone Co., [1985-86 CCH NLRB ¶17,581] 276 NLRB 1053 fn. 2 (1985).
⁶	[1992-93 CCH NLRB ¶15,049] 262 NLRB 1291 (1982), enf. denied [97 LC ¶10,072] 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 employees 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 Company was in some way coming apart.” 706 F.2d at 505. Here, the employees have virtually no contact with the public; the slogans do not disparage the Respondent’s product or intimate that the Respondent is in danger; they merely express opinions respecting the Respondent’s negotiating strategies and the resulting agreement. See also southern California Edison Co., [1985-86 CCH NLRB ¶17,593] 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.
⁷	Midstate Telephone, supra at 262 NLRB 1291.
⁸	See Hertz Rent-A-Car, [1989-90 CCH NLRB ¶15,905] 297 NLRB 363, 368 (1989); Albertsons, Inc., [1991-92 CCH NLRB ¶16,407] 300 NLRB 1013, 1016-1017 (1990).
⁹	We reject the Respondent’s reliance on some appellate court decisions involving facts critically distinguishable from those in this case. Thus, Fabri-Tex Inc. v. NLRB, [52 LC ¶16,721] 352 F/2d 577 (8th Cir. 1965), concerned a ban specifically tailored to buttons that tended to distract employees who needed extraordinary concentration to manufacture memory chips. In Virginia Electric & Power Co. v. NLRB, [96 LC ¶14,148] 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 public entered the employer’s building. In finding the button unprotected, the court emphasized the possibility of a public conflict between 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, [94 LC ¶13,695] 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 focused 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, [18 LC ¶65,912] 183 F.2d 538 (4th Cir. 1950), involved a ban on literature the court found insulting and defamatory because it involved a direct attack on the employer, dipicting its president as a “vulture.” No such personal or defamatory attacks are involved here. But see Caterpillar Tractor Co. v. NLRB, [29 LC ¶69,794] 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 had 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., [1978-79 CCH NLRB ¶15,213] 238 NLRB 1312 (1978), enfd. [89 LC ¶12,237] 628 F.2d 1283 (10th Cir. 1980).
¹⁰	113 NLRB 577, 579 (1955), enfd. [29 LC ¶69,800] 230 F.2d 484 (6th Cir. 1956) (Board found that a ban on wearing union insignia on company property violated Sec. 8(a)(1)).
¹¹	The Respondent was aware even before the start of bargaining that the employees opposed such flex programs, as an earlier program had been discontinued. The Respondent was also aware of the unpopularity of the Flex proposals throughout the negotiating period, as employees began wearing insignia expresing 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 bargaining 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 obligated to come to agreement over this or any other issue. Compare H.K. Porter Co. v. NLRB, [69 LC ¶10,696] 397 U.S. 99 (1970).
¹²	Under the gainsharing program, the Respondent pays to its employees up to 5 percent of their W-2 income each quarter if productivity, quality, and cost effectiveness warrant such a payment.
¹³	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 resulted in physical confrontations. Moreover, employee complaints about other employees’ display of Sec. 7 related items is not a sufficient 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 justify ban on shirts; ban violated Sec. 8(a)(1)).

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,395, MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979., (Aug. 17, 1994), National Labor Relations Board, (Aug 17, 1994)

From Text of Board’s Decision

Footnotes

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,395, MEAD CORPORATION dba ESCANABA PAPER COMPANY and UNITED PAPERWORKERS INTERNATIONAL UNION et al. and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 979., (Aug. 17, 1994), National Labor Relations Board, (Aug 17, 1994)

From Text of Board’s Decision

Footnotes