Meijer, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 50 (N.L.R.B. 1995)

50
318 NLRB No. 3
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge found that the Respondent violated Sec. 8(a)(1) by pro-
hibiting employees Tony Zeits and Betty Bogin from talking about
the Union while at work. The record does not support the finding
that this statement was made to Bogin. This factual error does not
affect the recommended Order, which is supported by the judge’s
finding that the Respondent prohibited Zeits from talking about the
Union.
2 Burger King v. NLRB, 725 F.2d 1053 (6th Cir. 1984), denying
enf. in relevant part of 265 NLRB 1507 (1982).
3 United Parcel Service v. NLRB, 41 F.3d 1068 (6th Cir. 1994),
denying enf. of 312 NLRB 596 (1993).
Meijer, Inc. and Local 951, United Food and Com-
mercial Workers International Union, AFL–
CIO. Case 7–CA–35282
July 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On February 1, 1995, Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We adopt the judge’s finding, for the reasons stated
in his decision, that the Respondent violated Section
8(a)(1) of the Act by prohibiting employees from
wearing union pins in customer areas of its retail store
in Traverse City, Michigan, and by threatening to dis-
charge employees if they persisted in wearing the pins.
In its exceptions, the Respondent submits that under
the Sixth Circuit’s decisions in Burger King2 and
United Parcel Service,3 it has established ‘‘special cir-
cumstances’’ that would support its ban on the wearing
of union pins in its Traverse City store. The Respond-
ent contends that the ban is necessary to make its em-
ployees ‘‘uniformly recognizable as representatives of
the Company and as sources of information and serv-
ice’’ to customers, and to meet the customers’ expecta-
tions of neatness and cleanliness. For the reasons set
forth below, we find that even under the Sixth Cir-
cuit’s analysis, the Respondent’s ban on union pins
here violates Section 8(a)(1) of the Act.
It is well established that an employee has the pro-
tected right to wear union insignia while at work. Re-
public Aviation, 324 U.S. 793, 801–803 (1945). An
employer can restrict employees from wearing union
pins during working time only if it demonstrates ‘‘spe-
cial circumstances’’ justifying the prohibition. United
Parcel Service, supra at 597. One such ‘‘special cir-
cumstance’’ is when the display of union insignia may
‘‘unreasonably interfere with a public image which the
employer has established, as part of its business plan,
through appearance rules for its employees.’’ 312
NLRB at 597. The Board has consistently held, how-
ever, that customer exposure to union insignia alone is
not a special circumstance allowing an employer to
prohibit display of union insignia by employees. Id.
The Sixth Circuit has found that ‘‘special cir-
cumstances’’ exist to justify the prohibition of union
buttons when an employer enforces a policy in a con-
sistent and nondiscriminatory manner. In Burger King,
supra, a union had been engaged in an organizing
drive when employees began to wear union pins on
their uniforms. The employer asked the employees to
remove the pins. The court noted that in the employ-
er’s attempt to project a clean, professional image to
the public, it ‘‘consistently enforced its policy against
wearing unauthorized buttons in a nondiscriminatory
manner.’’ The court found it significant that the em-
ployer’s ban on unauthorized pins was consistently en-
forced prior to the employees’ union activities, and the
policy was not created in response to union activities.
725 F.2d at 1055.
In applying this analysis to the facts here, we con-
clude that the Respondent has not shown that its policy
prohibiting the wearing of unauthorized buttons was
enforced in a consistent and nondiscriminatory manner.
The Respondent has a companywide policy, referred to
in its handbook, that specifically authorizes the wear-
ing of ‘‘approved Local Union buttons.’’ Employees at
the Respondent’s 53 unionized stores in the State of
Michigan wear identical union pins on their uniforms
without threat of discipline. The Respondent has of-
fered no evidence that the union pins worn in the
unionized stores in any way interfere with the image
that the Respondent wishes to convey to the public, or
that the wearing of pins has impaired the employees’
ability to serve customers.
The Respondent asserts, however, that it is not re-
quired to apply this policy to its Traverse City store
because that store is not unionized. The Respondent’s
assertion that it may discriminate against the employ-
ees in the Traverse City store based solely on the fact
that they are not represented by a union is misplaced.
The Board and courts have never found employees’
status with regard to union representation to constitute
a ‘‘special circumstance’’ justifying the ban on the dis-
play of union insignia.
Further, the manner in which the Respondent dealt
with employees wearing union pins, as opposed to em-
51MEIJER, INC.
1 After the initial briefs were filed and the time for the filing of
briefs had expired, Respondent submitted a copy of a recent appel-
late court decision, with a short memorandum about its significance.
Counsel for the General Counsel has moved to strike the argument
portion of this submission. As the rules do not provide for supple-
mental or reply briefs, General Counsel’s motion is granted.
2 In Respondent’s vernacular, employees are ‘‘associates,’’ some
supervisors or managers are ‘‘team leaders’’ and customers are
‘‘guests.’’
ployees wearing other ‘‘unauthorized pins,’’ evidences
discriminatory enforcement. Soon after employees
began to wear union pins in the Traverse City store,
the Respondent issued a detailed memorandum to its
managers explaining how they should deal with em-
ployees wearing union pins. The memorandum requires
that the managers instruct employees to remove the
union pins and, if the employees refuse, to tell them
that they are insubordinate and could be sent home.
The memorandum also requires the managers to report
each ‘‘contact’’ to Store Director Kollar. No such re-
quirements were announced with regard to employees
who wore holiday pins, photo pins, and other unau-
thorized pins on their uniforms. In addition, employees
who wore union pins were threatened with termination
and issued written warnings for doing so, whereas em-
ployees who wore other unauthorized pins were not.
This case is also distinguishable from United Parcel
Service. There, the court held that the employer main-
tained a consistent effort to project an image of clean-
liness, uniformity and efficiency, and found no evi-
dence that the employer condoned or permitted any
uniform accessories, pins, or other insignia that it did
not authorize. Significantly, the court also found that
the union had waived the employees’ right to wear un-
authorized union pins because the contract contained a
clause allowing the employer to establish dress codes
for the employees represented by the union. Here, the
Respondent selectively enforced its companywide pol-
icy permitting the wearing of union pins and, unlike in
United Parcel Service, the employees’ right to wear
such pins has not been waived through collective bar-
gaining.
Based on the above, we conclude that under the
Sixth Circuit’s Burger King and United Parcel Service
decisions, the Respondent has not demonstrated special
circumstances sufficient to justify its prohibition of the
union pins, and therefore its conduct violates Section
8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Meijer, Inc., Traverse City,
Michigan, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Joseph Canfield, Esq., for the General Counsel.
Jeffrey S. Rueble, Esq., for the Respondent.
John Schlinker, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Traverse City and Grand Rapids, Michigan,
on August 30 and 31 and October 12, 1994, based on a
charge filed by Local 951, United Food and Commercial
Workers International Union, AFL–CIO (the Union) on De-
cember 6, 1993, and a complaint issued by the Regional Di-
rector for Region 7 of the National Labor Relations Board
(the Board) on January 19, 1994, as amended at hearing. The
complaint alleges that Meijer, Inc. (the Respondent), violated
Section 8(a)(3) and (1) of the National Labor Relations Act
(the Act), by disparately and discriminatorily enforcing its
dress code and no-solicitation/no-distribution rules. Respond-
ent’s timely filed answer denies the commission of any un-
fair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all parties,1 I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
Preliminary Conclusions of Law
The Respondent, a corporation, engages in the retail sale
of groceries, household appliances, clothing, and other con-
sumer hard and soft goods, with stores located in Michigan,
Indiana, and Ohio.
Jurisdiction and labor organization status are not in dis-
pute. The complaint alleges, the Respondent admits, and I
find and conclude that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates about 85 retail stores in Michigan,
Ohio, and Indiana. The Union represents the employees in 54
lower Michigan stores and in the stores in Ohio. The em-
ployees are unrepresented in the Indiana stores and in the
Traverse City store where this dispute arose. The Union has
been conducting an organizational campaign at the Traverse
City store since 1992.
Respondent’s stores are large facilities, divided between
groceries and general merchandise. The noncustomer areas
include back areas for receiving, storage, and preparation of
merchandise, offices, and a breakroom for the employees.
The customer areas include the sales floor, a cafeteria open
to the public, and the front or service area with cash register
lanes. They are open 24 hours a day. The Traverse City store
occupies about 188,000 square feet, carries about 150,000
different items, employs over 540 associates2 and more than
40 managers. The largest number of associates and managers
work about equally divided between the first and second
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hereinafter, the joint exhibits will be identified as Jt. Exh., the
General Counsel’s Exhibits as G.C. Exh., and the Respondent’s Ex-
hibits as R. Exh.
4 All dates hereinafter are 1993 unless otherwise specified.
5 Karafa did not recall whether his conversation with Duhaime
took place on or off the sales floor but acknowledged that he would
have given the same order regardless of where he saw the union
jacket being worn. I credit Duhaime’s more complete recollection.
shifts (7 a.m. to 3 p.m. and 3 p.m. to 10 p.m.). The third
shift, where the emphasis is on maintenance and stocking, is
staffed with 3 managers, including the night store director,
and 20 to 30 associates.
B. Dress Code and Uniform Rule Enforcement
1. The rules
Respondent’s Policy & Procedure Statement, No. 183,
‘‘Proper Dress and Grooming,’’ (Jt. Exh. 1)3 provides as fol-
lows:
Associates who meet the customer must be uni-
formly recognizable as representatives of the Company,
and as sources of information and service. Our appear-
ance is particularly important. Uniforms and personal
clothing must be neat and clean. Store associates are re-
quired to follow the Uniform and Dress Standards
shown in this procedure. Name badges must be worn
by associates working in the Store.
. . . .
Special Company buttons, approved Local Union
buttons, and current Company service pins may be
worn on the uniform.
The policy statement goes on to define the personal cloth-
ing that may be worn with the required vests and smocks.
Required are neat and clean white shirts or blouses, conserv-
ative ties for the men, conservatively colored slacks, jeans,
pants, and skirts and, for employees who work outside, clean
coats in good repair. It states: ‘‘Coats, shirts or blouses with
lettering should be avoided.’’ Caps must be worn by those
employees who work with exposed food. Jewelry is per-
mitted so long as it does not pose a danger to employees
working with machinery.
Policy No. 183 also specifies that the store director may
set additional dress and grooming standards or grant excep-
tions to them to meet specific circumstances and conditions.
The Associate Handbook (Jt. Exh. 1), issued to new em-
ployees, essentially incorporates policy no. 183. They also
receive a checklist that includes the dress and grooming
code.
Tom Kollar became store director of the Traverse City
store in October 1992, after serving as a store director in
Holland, Michigan, a unionized store. He was aware of the
ongoing organizational campaign at Traverse City when he
arrived. Upon his arrival, he made notes of things he wanted
to do or change. Based on his observations that the uniforms
were sloppy and shopworn and that employees were wearing
various unapproved pins and buttons, he included ‘‘Groom
and Dress memo’’ on that list. At this point, the Union had
not begun distributing its pins, jackets, or hats and Kollar
had not seen any union jewelry or clothing worn in the store.
Kollar conducted a meeting of his management staff on
October 12, 1992, where he distributed his dress code and
grooming memo (Jt. Exh. 3). It referred his subordinates to
the policy statement and directed its immediate implementa-
tion. That memo went on to reiterate what clothing was per-
mitted or required and how that clothing was to be main-
tained and worn. Specifically, it provided, inter alia:
4) 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.
Managers were to discuss the dress code with all of the em-
ployees and to monitor compliance in the future. They com-
plied with that directive.
Kollar’s October 12, 1992 dress code and grooming memo
was reissued on April 8, 1993, when there was a change in
the colors of the vests and smocks. At this point in time, the
employees had not yet begun to wear pins or clothing with
union logos while in the store.
2. Enforcement in regard to union insignia
In the summer of 1993,4 several male employees began to
wear caps and/or jackets with union logos while at work.
John Duhaime, a member of the organizing committee, wore
such a jacket in about July, while working on the third shift.
Dave Karafa, night store director, ordered him to remove that
jacket and then provided him with an acceptable substitute.
He was in the cooler, a noncustomer area where company-
supplied freezer jackets were normally worn, when that order
was given; however, his testimony indicates that he had also
worn it on the sales floor. Karafa, in ordering Duhaime to
remove the union jacket, did not distinguish between wearing
it in the back and wearing it on the sales floor.5
In August, Duhaime wore a blue and white baseball-type
cap embossed on the front with the Union’s logo (G.C. Exh.
5), while he worked on the sales floor. He was engaged in
duties requiring that he wear a hat. After about 4 hours, his
manager, Michael Esch, directed him to remove it as it was
not issued by the Company. Esch persisted in his order not-
withstanding Duhaime’s protest that it did not differ from the
vendor-provided hats other employees wore and Duhaime
complied. Tony Zeits, who wore a cap with the union logo
on the sales floor on July 17, had similarly been asked to
remove it, by Tom Sokolowski.
In about late September, the members of the Union’s orga-
nizing committee began to wear union distributed pins while
at work. Those pins (G.C. Exh. 2) were about 1 x 1/2 inches
in size, with blue and red lettering on a white background,
bordered in gold. They bore the words, ‘‘Union Yes’’ with
a checkmark in a box suggestive of a ballot, and, in smaller
letters set into the letter ‘‘O’’ in ‘‘Union’’ identified the
Union as ‘‘UFCW 951.’’ Like the jackets, they were in-
tended to show support for the Union and identify those to
whom others could go for information.
In late September, one of the managers informed Kollar
that he had observed an employee wearing a ‘‘Union Yes’’
button. Initially, Kollar directed him to just wait and take no
action while he, Kollar, sought clarification from the person-
nel department. On October 5, he issued an e-mail message
(Jt. Exh. 6) to all of the managers. It stated: ‘‘We will not
53MEIJER, INC.
6 Although the exact wording of these conversations may be some-
what disputed, the essential facts are not. The conversations took
place in a number of different departments and involved at least six
employees and five managers.
7 The statement that Zeits signed for Senn admits that he ‘‘solic-
ited Union organizing cards . . . while he was on the time clock’’
and ‘‘in the meat department.’’ His conduct was solicitation whether
or not he actually handed cards to the other employees and, as he
was on-the-clock when he did it, it is immaterial whether he was
on the sales floor, as Senn testified he was told, or in the back, as
Zeits claimed. See Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962).
allow the wearing of union pins . . . on the clock and on
the sales floor.’’ They were prohibited from being worn on
either the provided uniforms or on the employees’ personal
clothing. That memo directed the supervisors to ask employ-
ees, ‘‘politely and nicely,’’ to remove them, and to warn
those employees that refusal to comply would be insubor-
dination that could cause them to ‘‘be sent home.’’ It further
directed the supervisors, in emphatic terms, to report each
contact to Kollar. The memo concluded by reiterating that if
the buttons were being worn both on the clock and on the
salesfloor, ‘‘then the button must come off.’’
On October 8, prompted by the appearance of the Union
Yes pins, Respondent posted a notice (Jt. Exh. 5) by the
timeclock. It reiterated the general dress code standards and
stated:
Recently a number of questions have been asked re-
garding the Company’s dress code policy. Specifically,
the questions have focused on what types of pins may
be worn.
. . . .
In keeping with the purpose of [the dress code] pol-
icy, we do not allow the wearing of any buttons or in-
signias on clothing, unless approved by the Company.
This applies when the associate is wearing the Meijer
uniform and in an area open to our customers, such as
the sales floor, customer service areas, the cafeteria and
parking lot.
At about this same time that this latter memo was posted,
Kollar and other supervisors began to direct employees who
were displaying the union pin on the sales floor to remove
them. Some employees were wearing them on the smocks
and vests; Betty Bogin wore hers on the collar of her turtle-
neck sweater. She pointed that out, with no different result,
to the manager who directed her to remove that pin. Some
employees protested that they had a right, constitutional or
otherwise, to wear the pins. Those who asked what ramifica-
tions would follow from a refusal to comply were threatened
with suspensions for insubordination.6
C. No-Solicitation/No-Distribution Rules
1. The rules
The Associate Handbook (Jt. Exh. 1) provides, under ‘‘So-
licitation and Distribution of Literature,’’ as follows:
In the interest of the efficiency, convenience and the
continued good will of our customers, and for the pro-
tection of our associates, solicitation for any purpose by
any associate is not allowed during actual working time
of the associate being solicited or the associate doing
the soliciting. This rule does not apply to break periods,
meal periods or any other specified period during the
work day when both the soliciting and solicited associ-
ate are not properly engaged in performing their work
tasks.
In addition, distribution of literature of any kind by
any associate or other individual organization, club or
cause is not allowed in customer service areas, sales or
shopping areas of any facility during those hours when
the facility is open for business.
Other than as limited by the foregoing, employees are per-
mitted to freely converse among themselves while working.
They may discuss sports, social events, and other activities
without limitation on permissible subjects.
2. Enforcement of the no-solicitation/no-distribution
rules
On October 13, Tony Zeits was working in the back prep-
aration area with two other associates. While all of them
were working, he asked what they knew about the Union and
explained why he thought representation would benefit them.
He had authorization cards and he discussed their signing of
those cards. He did not, however, actually give either of
them a card until they were on a break. One employee
signed a card at that time.
Zeits’ activities were observed by John Felon, a journey-
man meat cutter who had been put in charge of the depart-
ment by the supervisor, Dale Senn. When Senn returned
from his vacation, about October 19, Felon reported that he
had ‘‘had some difficulty with [Zeits] . . . .’’ Senn was told
that Fenlon had repeatedly asked Zeits not to engage in so-
licitations on the sales floor and had been ignored.
Senn spoke with Zeits and wrote out a short statement
which Zeits signed, acknowledging that he understood it. In
that statement, Zeits admitted that he had been observed so-
liciting two other employees in the meat department, that he
had been asked by Fenlon to do so on his own time, that
he had disregarded Fenlon’s directions ‘‘and proceeded to
solicit the signing of Union organizing cards.’’ When ques-
tioned by Senn, Zeits acknowledged soliciting ‘‘Union orga-
nizing cards . . . while on the time clock . . . .’’ Fenlon re-
minded Zeits that such conduct was a violation of the no-
solicitation/no-distribution policy. He was given another copy
of that policy and was warned that future occurrences would
‘‘not be tolerated and will be disciplined up to and including
termination.’’ In the course of their conversation, Zeits asked
Senn what he could talk about in the back room. He was told
that he could talk about anything, such as baseball and par-
ties, except the Union. The writeup was placed in his person-
nel file, where, he was told, it would remain for 6 months
‘‘if he didn’t talk about the Union any more.’’7
Respondent requires that its cashiers have pens but does
not provide them. Employees supply their own. In mid-No-
vember, Betty Bogin, a cashier and member of the Union’s
organizing committee, placed ballpoint pens at the other
cashiers’ registers. Those pens (G.C. Exh. 3) had been pro-
vided to her by the Union and bore the Union’s name, tele-
phone number, address, and logo. In leaving the pens, she
merely stated, ‘‘Here is a pen to get you through the night.’’
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In May 1992, she had been reprimanded for passing out author-
ization cards while on the clock. That reprimand is not in issue here.
On November 23, Kollar called Bogin into his office; an-
other manager was there as a witness. Bogin asked if any-
thing was wrong. Kollar said that there was something that
they needed to talk about, something ‘‘rather serious.’’ He
had learned that she had passed out these pens. This, he said,
was a ‘‘very very serious violation of the Distribution and
Solicitation [rule], of which [she] had been apprised some
months before, and we needed to be talking about it.’’8
Bogin told Kollar that she could not believe that he had
called her in for distributing these pens and disputed that
they were literature. She denied that she had been soliciting
her fellow associates and pointed out that she had taken
nothing from them. He asked her to write out a statement of
what had occurred. She refused and he wrote one out. He
asked her to sign it; she refused. She questioned why he was
harassing her and pointed out that there were all sorts of so-
licitations taking place in the store. She mentioned such
things as Girl Scout cookies, Avon products, sports pools,
and gifts for other employees. She did not recall his re-
sponse.
About 10 days later, Bogin was called back into Kollar’s
office. She was shown and asked to sign an associate inter-
view report purporting to describe the meeting of November
23. That report stated:
We will take this time to provide Betty with another
copy of the Meijer Solicitation Policy (Associate Hand-
book pages 35 & 36). We will advise Betty that dis-
tribution of ink pens and other printed material is con-
sidered a violation of the company’s Solicitation Policy,
which includes distribution of literature, and will not be
tolerated. We consider her actions of 11/16/93 as viola-
tion of the company’s solicitation policy. Lastly, Betty
must understand that further disreguard [sic] for and
violation of the Meijer solicitation policy will subject
her to further discipline up to an [sic] including termi-
nation. This is Betty’s second specific warning
requarding [sic] violation of the solicitation policy. An-
other violation will not be tolerated.
D. Allegedly Disparate Treatment
1. Hats and jackets
Meijer associates who handle open food products, those
employed in the meat and produce departments, are required
to wear hats as hair restraints. The employer provides either
plain baseball-type caps or similarly styled caps that are sup-
plied to it by vendors. The vendor caps are in various colors
and bear the vendors’ names and/or logos. During a pro-
motion, either the plain cap or the vendor cap is worn by ev-
eryone in the department. At the end of a promotion, the
vendor caps are no longer worn; they are replaced by either
the plain caps or the caps of another vendor.
Similarly, in some stores located near a college or univer-
sity campus, back-to-school promotions have been held
wherein everyone wears hats bearing the school’s name, col-
ors, logo, or slogan. Again, such hats are only worn for the
duration of the promotion.
On occasion, employees have worn hats other than those
supplied to them by the Employer. John Duhaime has seen
several other employees wearing hats with college or NASA
logos. In only one instance, which had occurred off the sales
floor, was he able to say that a manager saw what he had
seen.
There is no evidence that any employees were permitted
to wear embossed jackets in the store while on the sales
floor. Some employees have worn their own jackets, with let-
tering on them, while working in the back areas, including
the coolers, which are not areas into which customers are in-
vited. One employee was observed by Dave Karafa while
wearing a brown, heavy duty work coat with a manufactur-
er’s logo when that employee was working on a cooler out
on the sales floor. He was told to put on the Meijer-provided
freezer jacket.
Meijer does not provide hats and coats to the baggers and
maintenance workers whose duties take them on to the park-
ing lots. Those employees are permitted to wear their own
hats and jackets while outdoors in inclement weather; they
remove them upon entering the store. Although the dress
code discourages lettering from the jackets and hats worn on
the parking lots, employees have been seen to wear outer-
wear with school names and other logos. One employee even
wore a jacket embossed with the name of another food re-
tailer.
2. Pins
In addition to the name tags that Meijer requires each as-
sociate to wear, it also issues other pins to honor service or
promote products or concepts. Thus, some employees have
been seen to wear United Way pins issued by the Employer.
United Way is a charity that the Employer supports with
payroll deductions. Other employees have been issued and
wear pins with the lettering ‘‘TAC.’’ These pins, slightly
larger than the Union Yes pins, signify ‘‘Terrific Attitude
Counts.’’ Few customers, and not all of the employees, are
aware of its meaning. For a period of time, Meijer also
issued ‘‘smiley face’’ pins to cashiers as part of a promotion
to encourage faster service; it was tied in with a poster or
banner. After the promotion was concluded, employees were
directed to remove those pins. The Employer has also issued
‘‘Team 33’’ pins and pins in the shape of skeleton keys to
signify ‘‘key’’ employees.
In the stores covered by the union contract, the employees
are permitted to wear union-provided pins. Some of those
pins proclaim the Active Ballot Club with the letters
‘‘ABC,’’ indicating political action, or identify the wearer as
a union steward. The wearing of such union-oriented insignia
has come about by practice. It results from the Union pre-
vailing on grievances over employer restrictions on the dis-
play of such insignia. Notwithstanding the statement in Pol-
icy No. 183 permitting ‘‘approved local Union buttons,’’
such buttons and pins apparently have not been worn in
Meijer’s other nonunion stores. There is no evidence that the
issue ever arose in those stores.
There is considerable evidence of employees wearing un-
authorized pins on their smocks and their personal attire.
Those pins have included photo pins with pictures of chil-
dren, Christmas-related pins in the shape of Christmas trees,
Santa Claus, or teddy bears in Christmas attire, and various
other shapes.
55MEIJER, INC.
9 Duhaime saw an employee wearing such a pin while talking to
two managers off of the sales floor.
At least since Kollar came into the Traverse City store,
management has made an effort to prohibit the wearing of
unauthorized pins. Several employees acknowledged that
there was more latitude before Kollar arrived. Mary Sullivan
recalled that management held a meeting after his arrival
wherein new standards were discussed and a direction was
given that unauthorized pins be removed from the smocks.
This same employee was told, in December 1993, however,
that while she could not wear her Santa Claus pin on her
smock, she could wear it on the collar of her blouse. That
is where she wore it for at least the remainder of the day.
It is likely that this was observed by some managers as they
passed her lane several times a day and were sometimes
called to her register.
Another employee, Jon Knowles, wore several organiza-
tion or product buttons for a long time before Kollar took
over the store. After Kollar became store director, he was
asked to remove them. Once since then, shortly before this
hearing, when he again had worn a pin for several days, he
was asked to remove it. Other employees have been asked
to remove ‘‘Gay rights’’ and ‘‘Right to Life’’ buttons as well
as those that were entirely noncontroversial.
Several employees have observed other employees wearing
unauthorized pins, particularly around Christmas time. Such
observations were common and were made in areas fre-
quented by managers. Few employees could say, however,
that they saw managers actually observe the pins.9 Some em-
ployees, however, were seen to wear their pins throughout
the course of a day, in areas like the cafeteria that had its
own supervisor and was frequented by other managers during
the day.
Bogin, who was ordered to remove the Union Yes pin
from the collar of her turtleneck sweater, regularly wore a
necklace from which hung a symbol of her religious affili-
ation. That pendant was generally visible and was not con-
sidered objectionable. When ordered to remove the Union
Yes pin, she pointed out that if she had worn the symbol of
her faith on her collar, no such order would have issued. Her
argument was not disputed but was unavailing. Line Manager
Dale Senn wears a tie tack at work that has his first name
spelled out in gold letters. It is about the size of the Union
Yes button. Both he and Kollar acknowledged that if a but-
ton or tack has lettering on it, it would not qualify as jew-
elry. He has never been told to remove that tie tack.
Kollar has approached the wearing of unauthorized pins,
other than the Union Yes pin, in an admittedly low key, ‘‘ad
hoc’’ basis. He has asked employees to remove them but has
issued no reprimands to those who had failed to comply. Ex-
cept when the union-oriented pins were first noticed, he post-
ed no notices to the employees. Neither did he direct his
management staff to report the names of those wearing other
types of unauthorized pins.
3. Solicitations and distributions
As discussed above, the cashiers need pens for their daily
work and they are required to provide their own. Employees
bring in pens from home, swap pens among themselves, and
accept pens from their customers. Many of those pens bear
the names, addresses, and logos of business organizations;
some have even advertised Meijer’s competitors.
Meijer’s employees also engage in other solicitations and
distributions within the store. Girl Scout cookies and similar
products for other charitable organizations have been or-
dered, delivered, and paid for both on and off the clock and
on and off the sales floor. Until her child left the Girl Scouts
2 years ago, Bogin sold and delivered them to both employ-
ees and supervisors when one or both of the buyer and seller
were on the clock. She even used the store’s package check-
ing system to distribute the cookies. Employees have col-
lected funds for gifts for each other and for supervisors on
the register lanes and in the offices. Birthday cards have
commonly been passed down the lanes for others to sign
while they were at work; invitations to parties have been
similarly passed down the lanes.
Kollar denied witnessing any of the above activities and
no employees claimed to the contrary. Similarly, Tom
Sokolowski, a supervisor at Traverse City until the end of
1993, denied seeing any of the foregoing activities since
Kollar arrived. He has removed invitations posted by the
timeclock when he saw them.
Dale Senn has seen money collected for gifts, generally in
the hallways, breakroom, or the secretaries’ office. He has
not asked whether the solicitors were on the clock but as-
sumed that, if the solicitation took place in the breakroom,
that the employees involved were not. When the secretary
was involved in the solicitation, he has assumed that she was
on the clock. He did not ask her because he considered it
‘‘no big deal.’’ Senn has seen birthday cards and invitations
passed around in the store; he has signed an employee’s
birthday card while at the front of the store.
Dave Karafa has seen employees solicit for civic and char-
itable organizations, usually in the breakroom but sometimes
on the sales floor. When it occurred on the sales floor, he
would allow it, depending on what it was. He allowed em-
ployees to hand out and sign such things as birthday cards.
In addition to the charitable or social solicitations, Meijer’s
employees have conducted and participated in football pools
and fantasy football. Although Tony Zeits never saw man-
agers participate in these activities while either they or the
employees were on the clock, he has observed managers par-
ticipating in discussions of these activities while working.
One employee has conducted a superbowl pool in each of
the last several years, preparing cards with 100 boxes on a
numbered grid, to correspond with the scores in each quarter.
Employees and managers (including Coleman and Karafa)
have selected their boxes on this grid and put their money
into the pool right at the employee’s lane. In January 1994,
however, when Kollar was solicited to participate in the pool,
he claimed that he ‘‘was shocked’’ by its impropriety. He or-
dered the solicitor to put the grid away. He did not determine
whether that employee was on the clock and he did not issue
any warnings. That employee had no prior warnings for so-
liciting and Kollar’s approach was to counsel the employee
and explain the standards. Kollar has issued only the most
casual of instructions, to some but not all of his supervisory
staff, to stop the pools if they saw them.
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Respondent has not contended that the language of its dress
code policy, permitting a store director to set additional standards or
grant exceptions, would legitimize a discriminatory rule adopted by
an individual store director.
11 Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984). As the Board
pointed out in United Parcel Service, supra at fn. 6, ‘‘the venue pro-
visions of Sec. 10(f) of the Act are such that [its] Order in this case
may be subject to review in other circuits.’’
12 The complaint alleged that Respondent had threatened to dis-
charge employees while some of the evidence indicated that the
threatened discipline was suspension for insubordination. This is a
distinction without a meaningful difference. I note that at least one
employee (Wisnaewski) was threatened with discharge and that the
Associate Handbook states that insubordination may result in termi-
nation.
Analysis
A. Union Insignia
The Board has spoken repeatedly concerning the protected
right of employees to wear union insignia while at work.
Most recently, in United Parcel Service, 312 NLRB 596, 597
(1993), enf. denied 41 F.3d 1068 (6th Cir. 1994), it stated:
It is well established that an employee has the pro-
tected right to wear union insignia while at work. Re-
public Aviation Corp. v. NLRB, 324 U.S. 793, 801–803
(1945). In the absence of ‘‘special circumstances,’’ the
prohibition by an employer against the wearing of
union insignia violates Section 8(a)(1) of the Act. See,
e.g., Ohio Masonic Home, 205 NLRB 357 (1973), enfd.
mem. 511 F.2d 527 (6th Cir. 1975).
Special circumstances may be sufficient to permit a bar on
the wearing of such insignia. Such circumstances include sit-
uations when the wearing of such insignia might ‘‘jeopardize
employee safety, damage machinery or products, exacerbate
employee dissension, or unreasonably interfere with a public
image which the employer has established, as part of its
business plan, through appearance rules for its employees.’’
However, ‘‘[c]ustomer exposure to union insignia, standing
alone, is not a special circumstance which permits an em-
ployer to prohibit display of such insignia by employees.’’
United Parcel Service, supra, citing Nordstrom, Inc., 264
NLRB 698, 700–702 (1982). See also Burger King Corp.,
265 NLRB 1507 (1982), enf. denied 725 F.2d 1053 (6th Cir.
1984), when, as here, the insignia were worn in the context
of an ongoing organizational campaign.
The union pins that the employees sought to wear in this
case are similar in size and design to those displayed by the
employees in Nordstrom, Burger King, and United Parcel
Service. Like those pins, they were small, neat, and not pro-
vocative. Respondent has shown no special circumstances, as
those circumstances are defined by the Board, that would
support its ban on the wearing of union insignia in the Tra-
verse City store. Respondent contends that uniformity and
neatness requires compliance with its prohibition. That con-
tention is undercut by the fact that the identical buttons are
worn with corporate approval and apparently without unto-
ward incident or impairment of service in a majority of its
stores. It is further undercut by the fact that Respondent per-
mits or encourages its employees to wear a variety of author-
ized pins and badges. These pins, the meanings of which are
not always readily apparent to either the customers or the
employees, includes the ‘‘TAC’’ and smiley face pins. They
are at least as inconsistent with Respondent’s claimed jus-
tification for its policy as the union insignia would be.
Less weight may be accorded to the contention that Re-
spondent disparately condoned the wearing of other unau-
thorized pins while forbidding the union insignia. The record
establishes that even prior to the appearance of the Union
Yes pins, Kollar had issued memoranda to his management
staff requiring the removal of all unauthorized pins and but-
tons. Thereafter, there was enforcement, albeit not always ef-
fective, of that rule. Employees were usually, but not always,
told to remove holiday and other pins, particularly those that
carried a message that might be controversial. As the Board
noted in Hertz Rent-A-Car, 305 NLRB 487, 488 (1991),
Member Devaney dissenting, ‘‘occasional lapses in an other-
wise consistent application of a detailed uniform policy do
not persuade us that there was inconsistent and discrimina-
tory enforcement.’’ That there were numerous observations
of employees wearing unauthorized pins suggests lax en-
forcement but, in the absence of more evidence that such
conduct was observed by management, does not establish it.
I do note, however, differences in the manner Respondent
approached the union insignia from that accorded other unau-
thorized pins. Some weight must be given to the fact that
Mary Sullivan was told that, while she could not wear a
Santa Clause pin on her smock, she could wear it on the col-
lar of her blouse. Bogin had been expressly told, in October,
that she could not wear the union pin on either her smock
or on the collar of her turtleneck sweater. Noted, too, was
the tie tack that Dale Senn wore while at work, spelling out
his name. It was acknowledged that a pin with lettering or
words on it would not qualify as permissible jewelry.
I also note that Kollar issued generalized memoranda to
the managers regarding the dress code but did not make any
special effort to enforce the rules regarding to the various
Christmas pins, a recurring problem. When the union insig-
nia began to appear, however, he issued a very explicit
memo to the managers. It instructed them, in detailed terms,
in how to deal with employees wearing the union insignia
and it required that each contact be reported to Kollar. No
such requirement was made with regard to employees flout-
ing its rule with other pins and insignia. Kollar also issued
a separate memo to the employees, at the same time as this
memo to the supervisors, which, while not mentioning the
union insignia, was admittedly spurred by the appearance of
such insignia.10
I am compelled to follow Board precedent unless and until
that precedent is reversed by the Supreme Court, notwith-
standing contrary appellate court decisions in the circuit in
which the unfair labor practice occurred.11 Accordingly, I
find no special circumstances justifying Respondent’s prohi-
bition on the wearing of discrete union insignia. I also find
some evidence of disparate and discriminatory treatment ac-
corded the union insignia. I therefore conclude that Respond-
ent’s prohibition of these small union pins and its threats to
suspend or discharge employees for insubordination if they
persisted in wearing them are violative of Section 8(a)(1).12
Even under the standards applied by the Sixth Circuit
Court of Appeals in United Parcel Service and Burger King,
supra, a finding of violation is warranted as those situations
are distinguishable from the instant case. As noted above,
Respondent did not uniformly bar the wearing of union in-
57MEIJER, INC.
13 Respondent acknowledged that baggers and maintenance person-
nel wore personal jackets while working outside. In its brief, it as-
serted that they wore, or would be permitted to wear, jackets or hats
with the Union’s logo while on the parking lot. This assertion ap-
pears to conflict with the express prohibitions of the October 8
memo.
14 See Visador Co., 303 NLRB 1039 fn. 2 (1991), in which the
judge made such a finding, to which no exceptions were filed.
signia, as those employers did. It approved and allowed such
insignia to be worn in the majority of its stores. It offered
its policy, which provided that a neat and uniform appear-
ance was required so that its employees would be recogniz-
able as representatives of the Company and as sources of
service and information, as the justification for the prohibi-
tion. It did not, however, point to any diminution of the ef-
fectiveness of those employees who wore the union insignia
in other stores.
United Parcel Service is further distinguishable in that the
employer’s right to selectively ban some insignia, while au-
thorizing others, existed in the context of a collective-bar-
gaining agreement. The court noted that that agreement con-
tained no limitation on the employer’s right to set appearance
and uniform standards. There was no such agreement in Tra-
verse City such as would have given the Union a role in
questioning application of the Employer’s dress code. To the
extent that the Union was involved in this issue at Respond-
ent’s other stores, it had secured the Employer’s agreement
to the wearing of the same and other similar union insignia
on a companywide basis.
Similarly, the court’s decision in Burger King may be fur-
ther distinguished from the instant case. Respondent’s prac-
tice permitted the wearing of approved pins and religious
medallions and pendants. In contrast, it appears that the
Burger King management prohibited the wearing of all pins,
including those of a religious nature, except for approved
name tags and buttons. There was no evidence that Burger
King authorized the wearing of any button or pins beyond
the name tags.
The wearing of hats and coats bearing the Union’s name
and/or logo, I believe, stands on different footing. The logo
or name on these items of clothing are larger and more ob-
trusive than the neat and discrete union pins. Except for
baggers and maintenance workers while they are out on the
parking lot, Respondent prohibits the wearing of personal
hats and coats in the customer areas of the store.13 In those
in-store areas where hats and coats are required, they are part
of the established uniform and Respondent provides them.
Sometimes, it provides hats, which are supplied to it by ven-
dors, in the vendor’s colors and with the vendor’s name
and/or logo. When it does so, it is part of a promotion, con-
ducted for a limited period of time, and the hats are worn
by all of the employees in the department. They become part
of the uniform and maintain Respondent’s desired uniform-
ity. I find no violative conduct in maintenance and enforce-
ment of Respondent’s policy with respect to the wearing of
hats and jackets with union identification in customer areas
of the store, other than the parking lots.
In the one instance involving a jacket with union insignia,
however, the supervisor’s order was given when the em-
ployee was wearing it in a noncustomer area. Notwithstand-
ing that the employee’s duties took him on to the sales floor,
nothing was said about where he could wear his jacket. Rath-
er, a blanket directive was given (and the supervisor admitted
in his testimony that he would have given the same order
without regard to where he saw the jacket being worn).
Clearly an employer may not (absent evidence of likely dis-
ruptions or endangerment) prohibit the wearing of union in-
signia in areas not involving customer contact. I therefore
find Karafa’s order violative of Section 8(a)(1).
B. Solicitation and Distribution
Respondent maintains a facially valid no-solicitation/no-
distribution rule. Zeits, I have found, violated that rule by so-
liciting employees to sign authorization cards while both he
and they were working. To the extent that the discipline as-
sessed to him was for this conduct it does not violate the Act
unless the rule was applied in a discriminatory fashion to
union activity. Eaton Corp., 302 NLRB 410, 413 (1991).
General Counsel further contends that Senn illegally enforced
the no-solicitation rule by prohibiting an employee from
merely talking about the Union. Senn’s statements regarding
to what Zeits could talk about and when the reprimand
would be removed from his file establishes this violation. A
rule that prohibits employees from talking about a union that
does not extend to all nonwork subjects is invalid and unlaw-
ful. ‘‘Where an employer forbids employees to discuss
unionization on worktime but permits discussion of other
subjects unrelated to work [as here] the disparate rule is itself
unlawful.’’ Jennie-O Foods, 301 NLRB 305, 316 (1991). I
note that, while no separate violation is alleged, Bogin was
similarly told that she could not discuss the Union while at
work.
I am satisfied that, with the exception of union-related
conduct, Respondent has, at best, been lax in the enforce-
ment of its no-solicitation/no-distribution rule. Girl Scout
cookies and similar civic and charitable fund raisers are sold
and/or purchased and distributed in the store, openly by em-
ployees who are on the clock. Birthday cards are passed
around for signing with management’s tacit approval. Invita-
tions are distributed on the lanes and funds are collected for
gifts for employees and supervisors in work areas. Football
pools are conducted, openly and with the participation of su-
pervisors.
In the context of such lax enforcement of its no-
solicitation/no-distribution rule with respect to matters other
than union activity, Respondent cannot validly enforce those
rules against employees engaged in union solicitations or dis-
tributions. I therefore find that its discipline of Anthony Zeits
for soliciting union authorizations, as well as its enforcement
of the no-solicitation rule so as to prohibit employees from
talking about unions, violates Section 8(a)(3) and (1) of the
Act. Action Auto Stores, 298 NLRB 875 (1990).
The foregoing applies with equal force to the warning
given to Betty Bogin for distributing union literature in the
form of pens bearing the Union’s name and address. Assum-
ing that this could be deemed a distribution of literature,14
the rule was clearly applied disparately as to such conduct.
Respondent provides no pens to its cashiers but expects those
employees to provide them. They bring in their own pens or
secure them from other employees and from customers. The
pens they use bear all sorts of names and logos, even those
of competing retailers. There is, quite clearly, no prohibition
on employees giving one another pens even when those pens
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
16 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
bear messages or advertising. To prohibit Bogin from passing
out these pens and to discipline her for doing so, is violative
of Section 8(a)(3) and (1) and I so find.
CONCLUSIONS OF LAW
1. By disparately enforcing its dress code and no-
solicitation/no-distribution rules so as to discriminatorily pro-
hibit union activity, and by threatening to enforce those rules
with suspensions and terminations, the Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
2. By issuing warnings to Anthony Zeits and Betty Bogin
for violation of its disparately enforced no-solicitation/no-dis-
tribution rules, the Respondent has discriminated against
them because of their union activity and has violated Section
8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Respondent discriminated against An-
thony Zeits and Betty Bogin by issuing warnings to them, I
shall recommend that those warnings be rescinded, that all
reference to them be removed from Respondent’s files and
that the employees be notified in writing that this has been
done and that the warnings will not be used against them in
any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Meijer, Inc., Traverse City, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Disparately enforcing its dress code and no-
solicitation/no-distribution rules so as to discriminatorily pro-
hibit union activity.
(b) Threatening to suspend or discharge employees who
talk about the Union or who violate its disparately enforced
dress code and no-solicitation/no-distribution rules.
(c) Issuing warnings to its employees for violation of its
disparately enforced no-solicitation/no-distribution rules.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind that October 5, 1993 directive prohibiting the
wearing of union pins while employees are on-the-clock or
are working on the sales floor.
(b) Rescind the warnings issued to Anthony Zeits and
Betty Bogin for violating its no-solicitation/no-distribution
rules, remove all reference to those warnings from Respond-
ent’s files, and notify the employees in writing that this has
been done and that the warnings will not be used against
them in any way.
(c) Post at its facility in Traverse City, Michigan, copies
of the attached notice marked ‘‘Appendix.’’16 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT disparately enforce our dress code and no-
solicitation/no-distribution rules so as to discriminatorily pro-
hibit union activity.
WE WILL NOT threaten to suspend or discharge employees
who talk about the Union or who violate our disparately en-
forced dress code and no-solicitation/no-distribution rules.
WE WILL NOT issue warnings to our employees for viola-
tion of our disparately enforced no-solicitation/no-distribution
rules.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the warnings issued to Anthony Zeits
and Betty Bogin for violating our no-solicitation rules and
WE WILL remove all reference to those warnings from our
files and notify the employees in writing that this has been
done and that the warnings will not be used against them in
any way.
59MEIJER, INC.
WE WILL rescind that October 5, 1993 directive prohibit-
ing the wearing of union pins while employees are on-the-
clock or are working on the sales floor.
MEIJER, INC.