Pathmark Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 378 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 31
378
Pathmark Stores, Inc. and Local 342-50, United Food
and Commercial Workers Union, AFL–CIO.
Case 29–CA–24285
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 21, 2002, Administrative Law Judge How-
ard Edelman issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed an answer-
ing 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 decided to
affirm the judge’s rulings, findings, and conclusions,
except as modified herein, and recommended Order.1
I. INTRODUCTION
This case arises from the Respondent’s decision to
prohibit its meat, seafood, and deli department employ-
ees from wearing certain union insignia while working in
customer service areas of the Respondent’s grocery
stores, and the further decision to suspend five employ-
ees who refused to remove the insignia prior to com-
mencing work in these areas. The complaint alleges that
the Respondent’s actions violated Section 8(a)(1) and (3)
of the Act. The judge dismissed the allegations. We
agree with his dismissal, for the reasons below.
II. THE FACTS
The Respondent operates grocery stores in and around
the New York metropolitan area. The Union represents a
unit of the Respondent’s meat, seafood, and deli employ-
ees. The parties have had a longstanding collective-
bargaining relationship.

1 The General Counsel and the Charging Party have excepted to the
judge’s reliance on certain adverse decisions of the United States
Courts of Appeals, instead of the underlying decisions of the Board. “It
has been the Board’s consistent policy for itself to determine whether to
acquiesce in the contrary views of a circuit court of appeals or whether,
with due deference to the court’s opinion, to adhere to its previous
holding until the Supreme Court of the United States has ruled other-
wise . . . [I]t remains the [judge’s] duty to apply established Board
precedent which the Supreme Court has not reversed. Only by such
recognition of the legal authority of Board precedent, will a uniform
and orderly administration of a national act, such as the National Labor
Relations Act, be achieved.” Iowa Beef Packers, Inc., 144 NLRB 615,
616 (1963), enfd. in part 331 F.2d 176 (8th Cir. 1964) (quoting Insur-
ance Agents’ International Union, AFL–CIO, 119 NLRB 768, 773
(1957)). However, we have considered those underlying Board deci-
sions and, for reasons discussed herein, find them distinguishable.
The present dispute arose in about October 1999, when
the Union learned during negotiations for a successor
collective-bargaining agreement that the Respondent was
stocking the meat departments in its stores with substan-
tial quantities of case-ready or “prepackaged” meat. His-
torically, the unit employees had cut the Respondent’s
meats fresh in the stores. The Respondent’s decision to
sell large quantities of prepackaged meat reduced the unit
employees’ working hours as well as the hiring of new
unit employees.
To address these adverse effects, the Union filed
grievances and initiated a “Freshness Campaign.” The
freshness campaign was designed to inform the public
that not all of the meat sold by the Respondent was cut
fresh and packaged by the unit employees. Outside the
Respondent’s stores, the Union distributed to the Re-
spondent’s customers handbills that truthfully explained
this circumstance, identified certain meats the Union
knew had been prepackaged, and encouraged consumers
to ask unit employees which meats they had cut fresh.
The Union emphasized the latter question because the
Respondent did not label the prepackaged meat in any
way that would distinguish it from fresh-cut meat.
The Union also distributed, and the unit employees
wore, buttons bearing similar messages. One such button
read, “Member of UFCW Local 342-50, Ask me Which
Products Were Cut Fresh Today!” Unit employees wore
these buttons throughout 2000 and 2001 in and around
the meat-cutting areas of the Respondent’s stores. These
areas were visible to customers through plate-glass win-
dows.
The Respondent did not attempt to prevent the Union
from distributing the handbills and buttons. Nor did the
Respondent attempt to prevent employees from wearing
the buttons during their working time in the stores.
The parties’ dispute over the Respondent’s sale of pre-
packaged meat continued into the spring of 2001. In
May, the Union held a rally at which it distributed to
employees T-shirts bearing the message “Local 342-50
says: Don’t Cheat About the Meat!” and hats bearing the
slogan “Don’t Cheat About the Meat!” The Union be-
lieved the Respondent was cheating its customers by
allowing them to observe unit employees cutting meat
products, thereby creating the impression that all the Re-
spondent’s meat was cut fresh, and then selling prepack-
aged meat that was not labeled as such. The rally and the
nature of the Union’s dispute with the Respondent were
well publicized in major television and print media in
New York City. There is no evidence that the Respon-
dent sought to discipline employees based on their dis-
play of the T-shirts and hats at the rally or at any other
location away from the workplace.
PATHMARK STORES 379
In the days immediately following the rally, five unit
employees arrived at work wearing the slogan-bearing T-
shirts and hats. Although the Respondent had no policy
on uniforms and had permitted employees to wear other
union insignia, the Respondent threatened all five em-
ployees with suspension if they did not remove these
particular T-shirts and hats before starting work. The
Respondent believed that the “Don’t Cheat About the
Meat!” slogan depicted it as dishonest and could damage
its relationship with its customers, by encouraging cus-
tomers to think—aside from the Union’s criticisms of the
sale of prepackaged meat—that the Respondent was
somehow cheating them in connection with its meat
products.
All five employees refused to remove the T-shirts and
hats prior to commencing work. Consequently, the Re-
spondent suspended each employee for several days.
III. ANALYSIS
Although employees are presumptively entitled under
Section 7 to wear union insignia or attire during their
working time, an employer may limit this activity if it
establishes “special circumstances” justifying the limita-
tions imposed. Republic Aviation Corp. v. NLRB, 324
U.S. 793 (1945). In this retail setting, given the particular
slogan involved and its reasonably likely effect on cus-
tomers, we agree that the Respondent established that its
legitimate interest in protecting its customer relationship
outweighed any legitimate interest of employees in wear-
ing the “Don’t Cheat About the Meat!” T-shirts and hats
during their working time.2 Compare, Noah’s New York
Bagels, Inc., 324 NLRB 266, 275 (1997) (finding that
employer established special circumstances justifying
ban on its delivery drivers wearing, during their working
time, a T-shirt mocking the employer’s Kosher policy).
As the judge found, the Union’s slogan was promi-
nently displayed on the T-shirts and hats, and easily
could have been read by customers shopping in the Re-
spondent’s meat department.3 Moreover, we agree with

2 We assume, for purposes of this case, that the Union’s slogan was
protected. See, e.g., Reynolds Electrical & Engineering Co., 292
NLRB 947 fn. 1 and 951–952 (1989); compare, NLRB v. Electrical
Workers Local 1229 (Jefferson Standard Broadcasting), 346 U.S. 464
(1953). Therefore we find it unnecessary to pass on any suggestion to
the contrary in the judge’s decision. We disavow the judge’s charac-
terization of the Union’s slogan as a “calculated, nasty, mean spirited
appeal by the Union to customers not to buy Respondent’s meat.”
There is no evidence that the Union acted with malice or out of ill will
toward the Respondent. Indeed, as noted above, the record indicates
that, on the whole, the parties have enjoyed a longstanding, productive
relationship.
3 The General Counsel’s reliance on the Board’s decisions in Esca-
naba Paper Co., 314 NLRB 732 (1994), enfd. 73 F.3d 74 (6th Cir.
1996); Midstate Telephone Corp., 262 NLRB 1291 (1982), enf. denied
706 F.2d 401 (2d Cir. 1983); Borman’s, Inc., 254 NLRB 1023 (1981),
the judge that the slogan was ambiguous and that it was
reasonable for the Respondent to expect that the slogan
likely could lead the Respondent’s customers to believe
that, aside from the issue of prepackaging, the Respon-
dent was cheating them in some way with respect to the
meat offered for sale.4 The General Counsel contends
that, in the context of the Union’s publicity campaign,
the Respondent’s customers might have understood the
“Don’t Cheat About the Meat!” slogan as referring to the
dispute with the Union over the sale of prepackaged
meat. Such an interpretation arguably would not have
posed the same threat to the customer relationship. But
in striking a balance between the parties’ competing in-
terests, we find that the Respondent’s concerns are ap-
propriately gauged on the basis of the more adverse, but
reasonable, construction of the ambiguous slogan. Cf.
Honda of America Mfg., 334 NLRB 746, 748 fn. 6
(2001) (employee bound by offensive interpretation of
his language, where that interpretation was reasonable in
circumstances, albeit unintended).
The General Counsel, joined by the Charging Party,
nevertheless argues that the Respondent failed to sub-
stantiate its claim that the “Don’t Cheat About the
Meat!” slogan actually threatened its customer relation-
ships. They observe, correctly, that the Respondent pre-
sented no evidence that customers decided not to buy the
Respondent’s meat because of the slogan. We do not
find the absence of such evidence significant, though,
given our finding that the slogan reasonably threatened to
create concern among the Respondent’s customers about
being cheated, raising the genuine possibility of harm to
the customer relationship. See Nordstrom, Inc., 264
NLRB 698, 701 fn. 12 (1982) (acknowledging that an

enf. denied 676 F.2d 1138 (6th Cir. 1982); and Caterpillar Tractor Co.,
113 NLRB 553 (1955), enf. denied 230 F.2d 357 (7th Cir. 1956), is
misplaced. Each of those decisions involve facts distinguishable from
those in this case.
In Escanaba Paper, supra, the employer prohibited its employees
from wearing pins and T-shirts it deemed disrespectful but, among
other things, in that case, unlike here, the employees had virtually no
contact with the public. In Midstate Telephone, supra, the employees
wore T-shirts depicting the employer’s logo as cracked and stating, “I
survived the Midstate Strike of 1971–75–79.” In Borman’s, supra, the
employees wore T-shirts with the slogan, “I’m tired of bustin’ my ass.”
In Caterpillar Tractor, supra, the employees wore a button bearing the
slogan, “DON”T BE A SCAB!” In those cases, unlike here, the T-shirt
or button slogans made no negative reference or allusion to the com-
pany’s sales practices, as the “Don’t Cheat About the Meat!” slogan
here suggests.
4 By way of contrast, the Union distributed another button—which
read “Member of UFCW Local 342-50, Ask me Which Products Were
Cut Fresh Today”—that was much clearer in communicating the Un-
ion’s message that some of the Respondent’s meat products were not
cut fresh in the stores.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
employer may take appropriate preemptive steps to pro-
tect its business).5
For all of these reasons, we find that the Respondent
satisfied its burden of establishing “special circum-
stances” to justify its decision to prohibit unit employees
from wearing the “Don’t Cheat About the Meat!” T-
shirts and hats during their working time in the Respon-
dent’s grocery stores. We therefore find that the Re-
spondent did not violate the Act by imposing this prohi-
bition or by suspending the five employees who refused
to comply with it. Accordingly, we shall dismiss the
complaint.
ORDER
The complaint is dismissed.

Amy J. Gladstone, Esq. and Tara A. O’Rourke, Esq., for the
General Counsel.
Marvin M. Goldstein, Esq. and Elana Gilard, Esq. (Proskauer
Rose, LLP), for the Respondent.
Marc A. Stefan, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on May 14, 2002, in Brooklyn, New York.
On June 8, 2001, unfair labor practice charges were filed by
Local 342-50 United Food and Commercial Workers Union
AFL–CIO (the Union) against Pathmark Stores, Inc. (Respon-
dent) alleging violations of Section 8(a)(1) and (3) of the Act.
On February 27, 2002, a complaint issued alleging the viola-
tions charged.
Based upon the entire record herein, including my observa-
tion of the demeanor of witnesses, and briefs filed by counsel
for the General Counsel, counsel for the Union, and counsel for
Respondent, I make the following findings of fact and conclu-
sions of law.
At all material times, Respondent, a domestic corporation,
with its principal office and place of business located in Car-
teret, New Jersey, has been engaged in the operation of retail
grocery stores throughout the United States, including stores
located in Shirley, New York (the Shirley facility); Forest Ave-
nue, Staten Island, New York (the Forest Avenue facility);
Amboy Road, Staten Island, New York (the Amboy Road facil-
ity); Ozone Park, New York (the Ozone Park facility); and
Richmond Avenue, Staten Island, New York (the Richmond
Avenue facility).
During the past year, which period is representative of the
Respondent’s operations in general, in the course and conduct
of its business operations, Respondent derived gross revenues
in excess of $500,000. During the same period, in the course

5 This is not a case, then, in which an employer’s claim of disruption
is based on the contention that customers might simply be displeased
by or opposed to protected union activity. Compare, Howard Johnson
Motor Lodge, 261 NLRB 866, 868 fn. 6 (1982), enfd. 702 F.2d 1 (1st
Cir. 1983).
and conduct of its business operations, Respondent purchased
and received at its various grocery stores, goods and products
valued in excess of $5000 directly from points located outside
the State of New York.
It is admitted, and I conclude that at all material times, Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I conclude that at all material times,
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
There is no real dispute as to the essential facts of this case.
The Union and Respondent have had a collective-bargaining
relationship for approximately 35 to 40 years. The collective-
bargaining unit of Respondent’s meat, seafood, and deli de-
partment employees represented by the Union consists of ap-
proximately 375 full-time and between 950 and 1200 part-time
employees.
In around October or November 1999, during contract nego-
tiations for the current collective-bargaining agreement be-
tween the Union and Respondent, the Union discovered that
Respondent was shipping prepackaged meat into its stores.
Prepackaged meat is meat Respondent purchases from an out-
side distributor that is already sliced and packaged when it
arrives in Respondent’s stores. The evidence established that
with the influx of prepackaged meat, the scheduled working
hours for unit employees decreases as well as the hiring of new
unit employees. As a result of these effects on the terms and
conditions of employment of the unit employees, on November
30, 1999, the Union filed its first grievance concerning pre-
packaged meat.
Although the grievance was eventually settled and with-
drawn, the labor dispute over prepackaged meat continued.
Respondent continued to bring vast amounts of prepackaged
meats into its stores. The Union continued to file numerous
grievances over the subject and to date many of those griev-
ances are still pending.
Throughout the year 2000, until February 2001, the Union
regularly distributed handbills outside of Respondent’s stores.
The purpose of the handbills was to communicate to the public
that not all of the meat sold by Respondent was freshly cut and
packaged by the unit butchers and wrappers employed by Re-
spondent. Additionally, during the same period, the Union
distributed buttons to Respondent’s unit employees proclaim-
ing: “Member of UFCW Local 342-50, Ask me Which Prod-
ucts Were Cut Fresh Today!” The entire bargaining unit wore
these buttons throughout the years 2000 and 2001 and many
employees still wear these buttons today.
The Union ceased all handbilling concerning prepackaged
meat in February 2001, as per a settlement agreement entered
into between the Union and Respondent dated February 8, 2001
(the February 8 Agreement). However, despite the parties’
entrance into the February 8 Agreement, the dispute over Re-
spondent’s introduction of prepackaged meat continued. In this
regard, in around the end of March 2001, without the contrac-
tually required notice to the Union, Respondent announced to
its employees its intention to ship in large volumes of prepack-
aged pork into its stores and, consequently, to cease having the
unit butchers cut certain types of pork, which was customarily
PATHMARK STORES 381
cut by these butchers. As the result of this new influx of pre-
packaged meat, unit employees began to lose overtime work
and their Sunday hours.
To protest its ongoing dispute with Respondent over Re-
spondent’s introduction of prepackaged meat, the Union
planned a rally for Memorial Day weekend, May 30, 2001.
Around 300–400 union members and representatives attended
the rally, which took place off of the parking lot of Respon-
dent’s store located on Richmond Avenue in Staten Island, and
lasted from around 11 a.m. to 1 p.m. At the rally, the Union
distributed T-shirts bearing the message, “Local 342-50 says:
Don’t Cheat About the Meat!” and hats and leaflets stating,
“Don’t Cheat About the Meat!” After the rally, the Union dis-
tributed extra T-shirts and hats to union members who visited
its offices. The rally was well publicized, with television cov-
erage of it appearing on the Channel 5 News and in articles the
next day in both the New York Times and the Staten Island
Advance.
All of Respondent’s meat departments are equipped with
windows enabling customers to observe unit employees cutting
and wrapping meat. Therefore, the Union believed Respondent
was deceiving the general public into thinking that the prepack-
aged meat that they were buying, which was not specifically
identified as such, was freshly cut and packaged by unit em-
ployees. The Union contended, the catch-phrase “Local 342-50
Says: Don’t Cheat About the Meat!” was aimed at persuading
Respondent to distinguish which of its meat products were
prepackaged, and which were freshly cut and packaged by unit
employees in Respondent’s meat departments. The Union felt
strongly that Respondent had a responsibility to notify its cus-
tomers which product were which. The Union contends the
slogan was directed at Respondent’s actions and had no inten-
tion to disparage the prepackaged meat products. The slogan
was not intended to attack the safety of the prepackaged meat
products nor was it intended to suggest that the meat was dan-
gerous in any way.
In the days immediately following the May 30, 2001 rally,
five employees arrived ready to work their respective shifts at
Respondent’s Shirley, Forest Avenue, Ozone Park, Richmond
Avenue, and Amboy Road stores. Upon their arrival, each of
the five employees was clad in both T-shirts and hats which
stated, “Local 342-50 says: Don’t Cheat About the Meat!”
Agents of Respondent threatened each of the five employees
with suspension if they did not remove these shirts and hats.
The slogans on these shirts and hats were in bold letters, which
would be easily readable by customers in the store. When these
employees were told by their supervisor to remove their shirts
and hats before they commenced work in the retail selling area
of the store they refused. Respondent then suspended these
employees for several days.
Analysis and Conclusion
Respondent contends that at the time of the suspensions of
the employees set forth in the complaint, there was no labor
dispute as defined in Section 2(9) of the Act. The definition of
a “labor dispute” is broad, and includes “any controversy con-
cerning terms, tenure, or conditions of employment.” See
Emarco, Inc., 284 NLRB 832 (1987); Brownsville Garment
Co., 298 NLRB 507, 508 at fn. 4 (1990); Compuware Corp.,
320 NLRB 101 (1995).
Respondent does not dispute that a “labor dispute” within the
meaning of Section 2(9) of the Act existed in connection with
the dispute concerning prepackaged veal during the period of
the year 2000, but contends that the labor dispute ended on
February 8, 2001, when Respondent agreed not to sell prepack-
aged veal. However, less than a month later, in March, Re-
spondent began to sell large quantities of prepackaged pork and
the Union proceeded to resume its protest against prepackaged
meat. This is evidenced by the May 30 rally in Respondent’s
parking lot at a Staten Island store. At this rally, “Don’t Cheat
The Meat” hats, T-shirts, and leaflets were distributed to any-
one attending the rally. Moreover, television and the New
York Times covered the rally. At best, a short hiatus of less
then a month took place. The labor dispute really never
stopped. I make no distinction between prepackaged veal and
pork; both products are meat products, except that pork is not
kosher. Accordingly, I reject Respondent’s contention, and
conclude that the labor dispute was continuous from at least
2000 to date.
Under Section 7 of the Act, employees have the right to en-
gage in activity for their “mutual aid or protection,” including
communicating about their terms and conditions of employ-
ment. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
However, the law is equally well settled that there is no ab-
solute right for union members to wear union insignia, or other
union-sponsored attire, in the workplace under Section 7 of the
Act. Rather, there must be a balance between the Union’s right
to self-organize and the employer’s right to maintain discipline.
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797–798
(1945); United Parcel Service, 312 NLRB 596, 597 (1993), enf.
denied 41 F.3d 1068 (1994). Indeed, both the Board and courts
have consistently recognized an employer’s right to ban the
wearing of union-issued insignia, materials, or attire where an
employer can establish the existence of “special circumstances”
such as preventing alienation of customers. See Burger King v.
NLRB, 725 F.2d 1053, 1055 (6th Cir. 1984); United Parcel
Service, supra (holding that special circumstances may be pre-
sent if an employee shows that union insignia “may reasonably
interfere with the public image which the employer has estab-
lished as part of its business plan through appearance rules for
its employees”). NLRB v. Harrah’s Club, 337 F.2d 177 (9th
Cir. 1964).
The decisions set forth by the Board and the courts analyze
both the content and the context of the slogan, and have held
that where the message is objectionable, an employer may law-
fully prohibit the display of the attire. See, e.g., Noah’s New
York Bagels, Inc., 324 NLRB 266 (1997) (employer permitted
to ban employee from wearing T-shirts bearing slogan “If its
not Union, its not Kosher,” because the message of the T-shirt
mocked employer’s Kosher policy); Southwestern Bell Tele-
phone Co., 200 NLRB 667, 669–670 (1972) (employer permit-
ted to ban use of the “provocative slogan” “Ma Bell is a Cheap
Mother” due to the “controversial nature of the language used
and its admitted susceptibility of derisive and profane construc-
tion); Borman’s Inc. v. NLRB, 676 F.2d 1138 (6th Cir. 1982)
(circuit reversed a Board determination, and found that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 382
employer permitted to ban employees from wearing T-shirts
bearing the slogan “I’m tired of bustin’ my ass.” The employer
perceived the slogan as unfair and inaccurate, and susceptible
to an improper inference by outsiders). Caterpillar Tractor Co.
v. NLRB, 230 F.2d 357, 358–359 (7th Cir. 1956) (court refused
to enforce an Order of the Board which permitted employees to
wear buttons with the slogan “Don’t Be A Scab.” Court held
that “[I]t is proper to forbid the wearing of slogan buttons in a
Union’s campaign in order to restrict the activities which dis-
rupt, or tend to disrupt production and to break down employee
discipline”). Moreover, in Midstate Telephone Corp. v. NLRB,
706 F.2d 401, 402 (1983), the Second Circuit refused to enforce
an Order of the Board which permitted employees to wear T-
shirts bearing the words “I survived the Midstate Strike of
1971–75–79,” written in type-face that was cracked in three
places. Since the slogan was found to denigrate the public
utility’s image, the court held that the employer could ban the
wearing of the T-shirts. Id. at 404. The court stated: “This
public utility which constantly deals with the public, had a le-
gitimate concern that the T-shirts might improperly suggest to
the public that the Company was in some way coming apart.”
In the instant case the caps and shirts worn by the employees
prominently displayed the “Cheat the Meat” logo were worn
during working hours and easily read by customers.
As set forth above, throughout the year 2000 and until Feb-
ruary 2001, the Union wore buttons during working hours
which said: “Members of UFCW Local 342-50, Ask Me Which
Products Were Cut Fresh Today!” Respondent took no action
to prevent the wearing of such buttons. In fact some of the
employees continue to wear such buttons to date. The Union
could have chosen a different logo, which set forth their dispute
without denigrating Respondent, to its customers, but instead
deliberately chose a logo, which I conclude, severely denigrates
all Respondent stores in the eyes of its customers. The word
“cheat” as defined in the dictionary means, among other things:
“To practice fraud or deceit.” “To defraud, swindle.” “To
violate rules and regulations.” This is nasty stuff. Moreover,
it’s ambiguous. It could mean that Respondent is putting the
wrong weight on the label, using stale or tainted meat, substi-
tuting horsemeat for beef, or other dishonest or fraudulent prac-
tice. I conclude this was a calculated, nasty, mean spirited
appeal by the Union to customers not to buy Respondent’s meat
by employees wearing the offensive buttons and shirts, during
working hours, getting paid, and in the presence of customers.
I further conclude that the special circumstances required to ban
the wearing of such apparel clearly exist. Republic Aviation;
Burger King, supra, and Midstate, supra.
Counsel for the General Counsel cites among other cases U.
S. Postal Service, 241 NLRB 389 (1979), and New York Uni-
versity Medical Center, 261 NLRB 822 (1982), which she con-
tends establish that similar slogans were found by the Board to
be protected concerted activities. However, in both cases the
slogans did not involve customers on a selling floor, the public,
or the services delivered by the employers.
In U. S. Postal Service, supra, a postal employee who was a
union steward wrote in the union’s newsletter an article refer-
ring to management supervisors as “flunkies” and referring to a
supervisor as an “a-hole.” The only reason set forth for the
steward’s suspension was his “Disrespectful Attitude towards
Postal Supervision.”
In New York University, supra, during a national union con-
vention, a group of dissident employees ran a separate slate of
candidates. In this connection two union employees distributed
to other employee’s leaflets, which stated:

Join the Committee Against Racism. Vote Slate 2, The Anti-
Racist Slate . . . [T]he NYU bosses have turned their security
guards into a fascist Gestapo illegally searching workers and
firing them.

Moreover, the judge specifically found that: “The leaflets do
not attack or disparage the services that Respondent delivers
viz, health care services.”
Counsel for the General Counsel also cites Escabana Paper
Co., 314 NlRB 732 (1994), enfd. 73 F.3d 74 (6th Cir. 1996). In
connection with how the Board defines “special Circum-
stances” under Republic, supra. In Escabana, the Board re-
jected the employers, argument that the sight of pins and T-
shirts with slogans (e.g., “Hey Med-Flex This!”, “No Scab”,
and “Remember ‘89”) distributed to some visitors to the plant,
discouraged participation in the flex training program, caused a
hostile atmosphere, and vandalism in the plant. However, the
Board found specifically that the employees had virtually no
contact with the general public and little contact with the Re-
spondent’s customers and suppliers. 314 NLRB 732. More-
over, the Board specifically distinguished Escabana from Mid-
state, supra at 733 fn. 7, wherein it stated:

262 NLRB 1291 (1982), enf. denied 706 F.2d 401 (2nd Cir.
1983). We note that the court’s reversal of the Board’s find-
ing that the buttons were protected was based on facts distin-
guishable 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 404.]

Accordingly, I find that Respondent has established the exis-
tence of special circumstances that remove the offensive slo-
gans from protected concerted activity. Burger King, supra,
United Parcel, supra, and Midstate, supra.
The courts and the Board have held that where the employ-
ees’ conduct exceeds the bounds of legitimate campaign propa-
ganda, or is so disrespectful to the employer so as to impair
discipline, the offending employees may be suspended or dis-
charged. Southwestern Bell, supra, Caterpillar Tractor, supra,
and Harrah’s Club, supra.
ORDER
Accordingly, I conclude that Respondent’s suspensions in
the instant case do not violate Section 8(a)(1) and (3) of the Act
as alleged, and recommend that the complaint be dismissed in
its entirety.