Reynolds Electrical & Engineering Co , Inc

National Labor Relations Board - Board Decisions

Feb 9, 1989

292 N.L.R.B. 947 (N.L.R.B. 1989)

REYNOLDS ELECTRICAL CO
Reynolds Electrical & Engineering Co, Inc and
Lila L Jones and Teamsters , Chauffeurs, Ware-
housemen and Helpers , Local 631 , a/w Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO and Laborers International Union of
North America, Local Union No 872 Cases
31-CA-16920, 31-CA-16921, 31-CA-17022,
and 31 -CA-16958
February 9, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On October 12, 1988, Administrative Law Judge
Richard D Taplitz issued the attached decision
The General Counsel, joined by Charging Party
Laborers Local 872, filed exceptions and a support
ing brief, and the Respondent filed an answering
brief
The National Labor Relations Board has delegat-
ed 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' and to adopt the recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
i In agreeing with the judge that the Respondent did not violate the
Act by banning the poststrike wearing of buttons containing a red line
drawn diagonally through the word scab we emphasize the factual
limitations of our holding In this case there were numerous hostile acts
by strikers against nonstrikers during and continuing after the strike
These acts included verbal abuse vandalizing automobiles the finng of
shots into a home threats of personal injury and threats to drive non
strikers from their jobs On the other hand there is no evidence that the
Respondent bore any animosity towards the strikers During the strike it
did not hire replacements When the strike ended the Respondent reem
ployed all returning strikers and it had concluded new bargaining agree
ments with most of the unions representing its employees Most impor
tantly both before and after the strike the Respondent undisputedly per
mitted the wearing of all other types of union insignia Under these par
ticular circumstances relying solely on the judge s alternative rationale
we find based on United Aircraft Corp 134 NLRB 1632 (1961) that the
Respondents prohibition against wearing the buttons in the plant was a
reasonable precautionary measure and hence did not violate Sec 8(a)(3)
and (1) of the Act
Raymond M Norton Esq for the General Counsel
Yelverton Cowherd Esq, of Las Vegas, Nevada for the
Respondent
Patricia S Waldeck, Esq (Wohlner Kaplon Phillips
Vogel Shelley & Young), of Los Angeles California,
for Charging Party Teamsters Local 631
DECISION
947
STATEMENT OF THE CASE
RICHARD D TAPLITZ, Administrative Law Judge
This case was tried in Las Vegas Nevada, on May 10,
11 and 12 1988 The charge in Case 31-CA-16920 was
filed on December 21, 1987 by Lila L Jones The
charge in Case 31-CA-16921 was filed on December 23,
1987 by Teamsters, Chauffeurs, Warehousemen and
Helpers, Local 631, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO (Teamsters Local 631) An order
consolidating those two cases and a consolidated com
plaint issued on February 26, 1988, alleging that Reyn
olds Electrical & Engineering Co, Inc (Respondent or
the Company) violated Section 8(a)(1) and (3) of the Na
tional Labor Relations Act The charge in Case 31-CA-
16958 was filed on January 19, 1988, by Laborers Inter
national Union of North America, Local Union No 872
(Laborers Local 872) The charge in Case 31-CA-17022
was filed on March 1, 1988, by Teamsters Local 631 An
order consolidating all of those cases and a first amended
consolidated complaint issued on March 30 , 1988, alleg
ing violations of Section 8(a)(1) and (3) of the Act That
consolidated complaint was further amended on April 7,
1988
Issue
In a poststrike situation the Company prohibited em
ployees from wearing buttons at work that contained a
red line drawn diagonally through the word Scabs
The sole issue is whether the Company violated the Act
by prohibiting employees from wearing the buttons and
by disciplining employees who wore them
All parties were given full opportunity to participate
to introduce evidence to examine and cross examine wit
nesses to argue orally and to file briefs Briefs which
have been carefully considered were filed on behalf of
the Company and Teamsters Local 631 The General
Counsel argued orally at the close of hearing
On the entire record of the case and from my observa
tion of the witnesses and their demeanor I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
The Company a Texas corporation provides con
struction, maintenance and operational support to the
US Department of Energy at the Nevada Test Site
(NTS), located at Mercury, Nevada and at the Tonopah
Test Range (TTR), located at Tonopah, Nevada as well
as at other locations The Company annually purchases
and receives goods and services valued in excess of
$50,000 directly from suppliers located outside of
Nevada The complaint alleges, the answer admits, and I
find that the Company is an employer engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
Teamsters Local 631 Culinary Workers Union Local
226, a/w Hotel Employees and Restaurant Employees
292 NLRB No 104
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Union AFL-CIO (Culinary Workers Local
226) and Laborers Local 872 are labor organizations
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Sequence of Events
The Company is a prime contractor for the United
States Department of Energy It provides support serv
ices at the NTS and the TTR The Company, among
other things builds and maintains roads and power lines
and provides personnel for general construction The test
site and the test range are isolated facilities of enormous
size The NTS is approximately the size of Rhode Island
The Company houses and feeds employees at both facili
ties, though some employees live off the premises The
Company deals with 14 unions and has 26 different col
lective bargaining agreements Those include construc
tion contracts maintenance contracts, and miscellaneous
ones Most of the unions the Company deals with are
craft unions in the construction industry There are about
1150 employees on the payroll at the TTR of whom
about 750 live on the premises
The collective bargaining agreement between the
Company and Culinary Workers Local 226 expired on
August 8, 1987 Contracts with other unions, including
one of the bargaining units represented by Teamsters
Local 631, expired October 1 1987 On September 15,
Culinary Workers Local 226 began a strike that lasted
until November 23, 1987 Other unions honored the
picket line with a sympathy strike On October 1, 1987,
some of the other unions struck on their own in addition
to continuing the sympathy strike t
When the strike ended on November 23, 1987 all the
employees who desired to do so went back to work 2
The Company did no hiring during the strike and none
of the strikers were denied reinstatement at the end of
the strike The Company does all hiring through the
union halls In all there were about 3000 strikers About
500 to 600 union employees participated in the strike at
TTR of whom about 200 were Culinary Workers and
about 140 were Teamsters About 215 employees worked
at TTR during the strike
During the strike a great deal of invective was direct
ed by the strikers against nonstrikers The strikers often
yelled scab at the nonstrikers The Joint Council
Teamsters newspaper of October 5 1987, made such re
i Teamsters Local 631 apparently represented two separate bargaining
units of drivers one of which was covered by a project labor agreement
for construction That contract was in effect from 1985 through 1990 and
contains a broad no strike clause Other unions had similar arrangements
At this trial the parties did not litigate issues such as whether the strike
was in violation of some of the collective bargaining agreements whether
the strike by all the unions was a protected activity under Sec 7 of the
Act (as contrasted with an unprotected strike in violation of contract) or
whether various unions violated Sec 8 (b)(1)(A) of the Act by attempting
to discipline employees for working during the strike Some of those
issues have been raised in other cases but as yet there are no Board deci
sions As those matters have not been litigated in the instant case I have
not considered them
z An agreement had been reached at that time in most of the bargain
ing units In one of the Teamsters Local 631 bargaining units an agree
ment was reached at a later date even though the strike ended on No
vember 23
marks as The following 18 of our members have joined
the scum of the earth society by resigning from the
Union and working for Reynolds as scabs All 18
people listed were fined by the Union During the strike
a human image was hung in effigy with the word scab
on it A mock graveyard was set up in two different
places The headstones on the mock graves were in
scribed with the names of people who worked during the
strike One of the nonstrikers, Steve Falls,3 received a
telephone call from a person identifying himself as Rick
Knight, one of the stewards for Teamsters Local 631 In
that telephone conversation the person who identified
himself as Knight told Falls to quit or something would
be put in his car that would get him fired That person
threatened Falls, his wife and his children and told him
that unless he quit they would find some way to quit for
him, such as placing drugs in his car During the strike,
tires were slashed on the cars of a number of nonstrikers
The situation during the strike received considerable
attention from the newspaper and TV media One TV
report included a newsreel showing an individuals home
that had been shot into
At the last negotiating session before the strike ended
the Company s general manager requested the Teamsters
committee to try to put what had gone on during the
strike behind them and have a harmonious and peaceful
return to the job William Herbert Jr, Teamsters Union
642 president and business agent, had a different attitude
Herbert acknowledged in his testimony that he told his
union members to treat these people that were scabs
that worked behind the picket line with a ten foot pole
dust like they re supervisors However poststrike hostili
ty against employees who had crossed the picket line
was not limited to ostracism
Lucille Grigsby a custodian for the Company struck
with the others but returned after 6 weeks A week or
two after the strike ended she was approached in the
company parking lot by a fellow employee named Van
Shoick who called her a fucking scab and a son of a
bitch " Van Shoick was wearing the no scabs permitted
here button that is described more fully below The fol
lowing day someone scratched Grigsby s new car from
the headlight across the door 4
Company employee Steve Falls worked during the
strike He was one of the employees whose tires were
cut and he received a threatening phone call during the
strike The day after the strike ended Falls found a note
in his desk which called him among other things a scab
Teamsters shop stewards often called him a scab The
employees whom Falls works with normally send out for
8 Falls was a member of Teamsters Local 631 and he went out on
strike with the others in mid September His wife who also worked for
the Company continued to work On September 19 the tires of Falls car
were cut when the car was parked at his residence He became angry and
went back to work After a short time he rejoined the sinkers Then he
saw his name listed in the union newspaper as one of the scabs who
joined the scum of the earth society The article also named his wife as
a scab He again returned to work He also resigned from the Union
4 There is no evidence that Van Shoick was involved in the door
scratching incident and that incident is considered only with respect to
an indication of a general atmosphere at the premises at the time when
the no scabs permitted here buttons were worn
REYNOLDS ELECTRICAL CO
lunch and have the orders brought back The first day
after the strike someone urinated on a hamburger that
Falls had ordered After that he brought his own lunch
The day his hamburger was contaminated other employ
ees made comments to Falls about how good their take
out lunch was On one occasion Rick Knight one of the
stewards for Teamsters Local 631, wore a no scabs per
mitted here button and told other employees so that
Falls could overhear Now maybe the scab will get the
message ' 5 On another occasion Falls heard Knight tell
ing other employees, so that Falls could overhear, We'll
find some way to get rid of him one way or another
Just 2 weeks before this trial someone poured a contami
nating substance in the gas tank of his car and cut two of
his tires
Mike Baldwin is a general foreman for the Company
He worked during part of the strike He is a member of
Carpenters Local 1780 On December 28 1987 which
was after the strike ended, skunk scent was sprayed
inside his vehicle On January 26, 1988, the same thing
happened The day after that more skunk scent was
sprayed in his vehicle and, in addition his tires were
slashed while his vehicle was parked in front of his
house Skunk scent was sprayed around the front porch
At work employees in the shop laughed in his presence
and talked about how long it takes skunk scent to go
away and how it smells again every time there is moss
ture or heat In another incident, on March 26, 1988,
oven cleaner was sprayed on the side of his truck One
employee told Baldwin after the first incident that such
things would continue to happen five more times until
they figured that it cost him as much as he had made
through the strike
After the strike the Company received numerous re
ports of incidents that reflected hostility directed from
the strikers against the employees who worked during
the strike There were reports of cat urine being put in
an employees vehicle, of the side of an employees vehi
cle being dented, of an employees home being damaged
of lockers being painted with the word scab and of
employees receiving threats All the victims were em
ployees who had worked during the strike
Company representatives also noticed that many em
ployees were wearing a button on their garments The
button was about 2 inches in diameter and had the word
scabs written in large black letters against a white
background The button contained a bold red slash run
ning diagonally through the writing and a red border
(For the reasons set forth below the button is referred to
here as the no scabs permitted here button) Frances
Claudette Enus, the Company s labor relations manager,
credibly testified that the company representatives be
lieved that there might be a connection between the "no
scabs permitted here' buttons and the vandalism and
other harassment She asked her staff to try to get state
ments so that they could evaluate those claims Later the
Company decided to request people to remove the `no
scabs permitted here buttons 6
5 The Union fined Falls $5000 and he filed charges with the NLRB
6 George Williams the president of Culinary Workers Local 226 gave
the no scabs permitted here buttons to some of his members during the
949
On December 10, 1987, company officials met with
stewards from Teamsters Local 631 to discuss some
safety problems and other work related matters In the
course of the discussion Arwin Marrs, the Company s as
sistant department manager asked the stewards to
remove the no scabs permitted here buttons because
he felt they were causing disharmony in the workplace
The stewards said that they would go back to the em
ployees and see if they could get the employees concur
rence in removing them The stewards later told Marrs
that they were going to remove the buttons to show
good faith and that they would talk to the employees
and see if they could get the employees to remove theirs
The stewards did remove the buttons but sometime later
they put them back on
About mid December 1987, on various occasions, the
Company, acting through various members of manage
ment told employees that they were not allowed to
wear the no scabs permitted here buttons and that
they would be disciplined if they wore such buttons
On December 18, 1987 the Company suspended em
ployee Lila Jones, a member of Culinary Workers Local
226, because she refused to remove a no scabs permit
led here button from her attire She returned to work
on January 6, 1988
The following employees, each of whom was a
member of Teamsters Local 631, were suspended by the
Company for the period indicated next to their names
because each of them refused to remove a no scabs per
mitted here button from his attire
Name Suspension Date Return to Work
Gregory Barber 12/24/88 1/4/88
Fred Beecher 12/24/87 1/6/88
Charles Button 12/22/87 1/5/88
William Cottrell 12/24/87 1/5/88
John Deck 12/29/87 1/5/88
Larry R Gnffith 12/22/87 1/5/88
Rickey Knight 12/22/87 1/5/88
Paul La Plante 12/24/87 1/4/88
Gordon Larason 12/22/87 1/5/88
Danny Pritchett 12/22/87 1/5/88
strike However they were not commonly worn until about a week after
the strike ended At that time Williams tried to talk one of his members
Lila Jones out of wearing the button On December 18 1987 Jones was
told by the Company s assistant department manager Krumm to remove
the button When she refused to do so Williams participated in a three
way telephone call in which he told Jones that the Company had made
concessions to employees that the Company did not have to make that
he had told the Company the Union would try and put the strike behind
them and that part of that was to take off the scab buttons She still re
fused to take it off and was suspended Some of the other unions took the
same position Ken Lufkin who is a member of Sheet Metal Workers
Local 88 was told by his business representative to collect the buttons
and put them away because he would not condone the Sheet Metal
Workers wearing the scab buttons Lufkin testified that he did put the
buttons away to keep down the possibility of any disruption in the shop
The business agent for Teamsters Local 631 William Herbert Jr took an
entirely different approach He was the one who told his members to
treat the scabs with a 10-foot pole He testified that he saw his mem
bets wearing the buttons but did not tell them to take them off It is
noted that 10 of the 11 employees named in the complaint as having been
unlawfully suspended were members of Teamsters Local 631
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Each of the suspended employees was told in writing
that the no scabs permitted here buttons were disrup
tive and caused an atmosphere of dissension and dishar
mony They were told that if they agreed to remove the
buttons they could return to work
Except with regard to the no scabs permitted here
buttons, the Company made no effort to limit the use by
employees of buttons, inscribed T shirts and caps or
other insignia Many employees wore union solidarity
buttons, union steward buttons, union pride emblems,
and other union insignia without any objection by the
Company
There was a great deal of testimony concerning the
meaning of the no scabs permitted here buttons and
what the wearers intended to accomplish by weanng
them
Larry Griffith, one of the suspended employees,
agreed with Jack London's definition of a scab, which
simply warms up by saying After God had finished the
rattlesnake, the toad, and the vampire, he had some
awful substance left with which he made a SCAB A
SCAB is a two legged animal with a corkscrew soul, a
water logged brain, and a combination backbone made of
jelly and glue Where others have hearts, he carries a
tumor of rotten principles ' He averred that he wore the
button to show solidarity with the other strikers, but that
he did not wear it some of the time because he was
trying to keep harmony between the Union and the
Company and get the work force back on the right foot
He further testified that he believed the people wore the
buttons to express their personal feelings to the effect
that they were against people who crossed the picket
line Lila Jones, another suspended employee, testified
she wore the button to express solidarity with the Union
Jerry Barker testified that the button meant that the
wearer was not a scab' and that it was symbol for ev
eryone to join together so that there would be no
scabs He averred that it was an invitation for people
who crossed the picket line not to do it in the future
Steve Taylor testified that he did not hope to achieve
anything by wearing the button and that he wore it to
show that he was proud that he did not cross the picket
line Rick Knight testified that he wore the button to
show solidarity with the Union and that it was a symbol
that they would stick together if they had to go out
again Gordon Larason testified that he wore it to show
support of his fellow union members and to show other
people that he had not crossed the picket line He testi
fled that to him the word "scab means a person who
crosses a picket line and that it has no derogatory mean
ing William Cottrell testified that he wore the button to
show pride in the Union Danny Pritchard testified that
he wore one to show solidarity with the others
The above testimony was not altogether reliable in
terms of defining what the button meant and what it was
intended to accomplish As to what the word scab
meant, there can be little question The attorney for
Teamsters Local 631 stated with what can only be de
scribed as refined understatement `the word scab is used
by strikers with respect to nonstrikers with some bad
feeling In the context of this case, the word `scab' is a
strong pejorative indicating extreme contempt In a
newsletter put out by Teamsters Local 631 secretary
treasurer Von A Eisinger scabs were referred to as
members of the scam of the earth society It is clear
that by wearing the 'no scabs permitted here button the
wearers were throwing an insult at the nonstrikers The
nonstrikers were being called `scum of the earth" and
everyone understood that To the extent that the wit
nesses mentioned above testified to the contrary, I do not
credit them They were not that naive
The red slash through the word scabs also had a
clear meaning The parties were in ag'eement that a
word with a slash through it is an international symbol
that means certain conduct is forbidden Thus, in a park,
a picture of a dog with a red slash through it means no
dogs are permitted in that park A cigarette with a slash
throught it means that no smoking is permitted in that
area Such a symbol can be used to show that no right
turns are permitted at a traffic intersection The symbol
means that the thing designated is not permitted at that
place The buttons in this case can only mean no scabs
permitted here and the "here" means the company
premises Thus I have referred to the buttons as the 'no
scabs permitted here" buttons Some employees may
have worn those buttons, as they testified, to show soli
danty with others who had participated in the strike
However that does not help in determining what was
meant by the buttons I do not believe that the witnesses
were credible with regard to their testimony that indicat
ed a relatively benign intent in wearing the buttons
Words and symbols have meanings in the context in
which they are used Here we have a poststnke situation
in which threats intimidation, and the destruction of
property were used to intimidate employees who worked
during the strike Ir that context the no scabs permitted
here' buttons were not only statements of contempt for
the employees who had no participated in the strike, but
also requests that the Company discharge the employees
(since the Company was the only one in a position to
deny permission to them to be on the property) and an
attempt to intimidate those employees into quitting The
wearers of the buttons may well have been showing soli
danty in venting their spleen against employees who
worked during the strike, but that does not change the
meaning of the buttons
B Analysis and Conclusions
Section 7 of the Act provides in relevant part that
Employees shall have the right to self organza
tion, to form, join, or assist labor organizations, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted ac
tivities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have
the right to refrain from any or all of such activi
ties
In general an employee has the right under Section 7 to
wear a union insignia or a symbol of collective employee
activity while on the job The employer, on the other
hand, has the right to maintain discipline and production
When those rights have to be balanced, there is a pre
REYNOLDS ELECTRICAL CO 951
sumption that the wearing of the insignia is protected by
the Act That presumption may be rebutted by a show
ing of special circumstances, which make the employer s
actions necessary to maintain production or discipline, or
to insure safety Republic Aviation Corp v NLRB, 324
U S 793 (1945), Kendall Co, 267 NLRB 963, 965 (1983)
However not all insignia showing collective activity by
employees are protected A button that reads, "Harass
the scabs until you drive them from the property" might
indicate union pride and might be motivated by a desire
to show solidarity with others who engaged in the strike
However I do not believe that such a sign would come
under the protection of Section 7 of the Act Not be
cause special circumstances were present, but simply be
cause the Act does not protect harassment There are sit
uations when name calling and other misconduct, which
fall short of the coercion or intimidation of other em
ployees in the exercise of their rights protected under the
Act,7 are so intertwined with protected activity that the
employer's restraint of the minor misconduct will have
an undue chilling effect on the protected activity In
such cases discipline may not be imposed even though
there is misconduct The actions of the employees and
the employer must be considered in their entire context
In the instant case, the Company prohibited the wear
ing of the "no scabs permitted here buttons only after
the strike had ended There was no restraint on the
wearing of other union and union related buttons and
emblems No replacements had been hired for the stnk
ers and all the strikers who desired to do so returned to
work It was not a situation in which the striking em
ployees wanted the nonstrikers removed so that there
would be room for the strikers to return It was not an
organizational situation or one in which strikers were
disciplined for wearing the buttons during the course of
a strike There was a great deal of bitterness engendered
between strikers and nonstrikers during the course of the
strike There was a substantial amount of vandalism di
rected against the nonstrikers as well as threats and har
assment The nonstrikers had reason to believe that there
was serious violence directed against them in that there
was a television report of a bullet fired into the home of
a nonstnker The harassment of nonstrikers continued
after the strike was over There was name calling of the
fucking scab and son of a bitch' variety the scratch
mg of car paint, the contamination of food by urine, the
statement that the strikers would find some way to get
rid of the nonstrikers, the cutting of tires and the con
tamination of gas in a car In addition there was the
spraying of skunk scent in a vehicle, the spraying of
oven cleaner on the side of a truck and the statement to
a nonstnker that his property would continue to be dam
aged until it cost the nonstriker as much as he had made
through the strike A number of similar incidents were
reported to management In that context, I am convinced
that the wearing of the no scabs permitted here ' but
tons was part of an overall attempt to harass the people
who had worked during the strike to drive them off the
job and to put pressure on the Company The harassment
Cf Clear Pine Molding 268 NLRB 1044 (1984) enfd 765 F 2d 148
(9th Cir 1985)
was not in itself protected and it was not so intertwined
with protected activity that the Company s prohibition
against the wearing of the "no scabs permitted here" but
tons would have an unduly chilling effect on any pro
tected activity In sum , I find that under these circum
stances , the wearing of the no scabs permitted here"
buttons was not protected under Section 7 of the Act,
that the Company could lawfully prohibit the wearing of
those buttons, and that the Company could lawfully dis
cipline employees who failed to abide by that prohibi
tion 8
Even if we assume for the sake of argument that the
no scabs permitted here buttons were protected under
Section 7 of the Act, I believe that the complaint would
still have to be dismissed In such a case the protected
right would have to be balanced against the legitimiate
need of the Company to maintain discipline As set forth
in detail above, there was a bitter strike with a great deal
of harassment directed against nonstrikers and the Com
pany could reasonably have believed that it would have
discipline problems on its hands in terms of hostile em
ployee factions after the strike was over Their fears in
that regard were amply justified Also as is set forth in
detail above, the harassment of the people who had
worked during the strike continued after the strike was
over The no scabs permitted here buttons were one
part of the continuation of that harassment and were part
of an overall effort to drive the employees who worked
during the strike off the premises Those signs went well
beyond the simple expression of distaste for the non
strikers or name calling
In United Aircraft Corp 134 NLRB 1632 (1961), the
Board dismissed the complaint in circumstances in which
a pin worn by employees was much less divisive than the
one in the instant case There, after a strike was over em
ployees wore a pin saying club nine" to show that they
had honored a 9 week strike The employer suspended
those employees for 10 days until they took off the pins
There had been violence during the strike and evidence
of divisiveness after the strike was over The administra
tive law judge concluded that the company s ban on the
club nine pins unlawfully intruded on the employees
right to display union insignia and that the company s al
leged apprehension that the wearing of the pins would
provoke breaches of discipline was not a `special cir
cumstance such as to render the prohibition lawful The
Board reversed, holding that the company could lawful
ly ban the wearing of the club nine pins, and that the
company had a reasonable apprehension that the pins
would promote disorder and lead to further divisiveness
between the strikers and nonstrikers The Board conclud
ed that the company s ban on pins was a reasonable pre
cautionary measure under the circumstances and that the
company did not violate the Act by banning employees
8 In part the no scabs permitted here buttons were an expression of
opinion However there is no issue in this case concerning the first
amendment of the Constitution or Sec 8 (c) of the Act There is no gov
ernmental action present in this case that seeks to limit free speech The
General Counsel seeks to restrain the Company and not the individuals
wearing the buttons The only question presented is whether the Compa
ny (a nongovernmental entity) violated the Act by its actions
952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from wearing them The instant case calls even more
clearly for dismissal As in United Aircraft Corp supra
the nonstrikers were subjected to substantial intimidation
both during and after the strike In the instant case the
no scabs permitted here buttons were much more
likely to further divisiveness between strikers and the
nonstrikers than the relatively innocuous club nine
pins worn by employees in the United Aircraft case Here
the buttons were part of a continuing harassment of the
people who worked during the strike and were on their
face an attempt to drive those employees away from the
Company
In Midstate Telephone Corp, 262 NLRB 1291 (1982),
enf denied in relevant part 706 F 2d 401 (2d Cir 1983),
the Board held that a company could not lawfully pro
habit employees from wearing a T shirt with the picture
of a cracked company logo and the writing `I survived
the Midstate strike of 1971-1975-1979 In that case the
Board found that there was no evidence that the strike
engendered unusual discord of bitterness among employ
ees that might be exacerbated to the harm of plant disci
pline as a result of employees wearing the T shirts 9 The
Board distinguished that case from United Aircraft Corp,
supra, in which there was a finding of discord and bitter
ness among groups of employees, by holding
[In] United Aircraft Corporation Pratt & Whitney
Aircraft Division, 134 NLRB 1632 (1961), cited with
approval by the Administrative Law Judge we
found that, following the conclusion of a divisive
strike marked by numerous post strike instances of
discord and bitterness between `loyal" strikers and
those employees who crossed picket lines during
the strike, an employer was privileged to prohibit
the wearing of pins in the plant designating certain
loyal" strikers, where substantial evidence was pre
sented demonstrating the real possibility of plant
disorder if the pins were worn and continually on
display in the workplace
In the instant case the strike was extremely divisive
and was marked by numerous poststnke instances of dis
cord and bitterness between strikers and those who
crossed the picket line In addition, the no scabs permit
ted here buttons were much more divisive than pins
9 The court in denying enforcement to that part of the Board s decision
held that the employer had a legitimate interest in prohibiting the T shirts
that outweighed the employees ill-defined interest in promoting union
solidarity
that merely designated loyal strikers Also in the in
stant case the Company has presented substantial evi
dence indicating the real possibility of plant disorder if
the no scabs permitted here" buttons were permitted to
be worn
In Southwestern Bell Telephone Co, 276 NLRB 1053
(1985), the Board was faced with a situation wherein an
employer removed Jack London's definition of a scab
from a bulletin board and threatened employees with
punishment if they reposted it That definition" is
quoted in part above The Board found that the employ
er violated Section 8(a)(1) of the Act In doing so the
Board distinguished that case from United Aircraft, supra,
by pointing out that the strike in United Aircraft, supra,
was accompanied by mass picketing and violence The
Board also stated Nor can we, as the dissent does,
equate maintaining a notice on a bulletin board with
wearing a pin bearing a slogan , the danger of confronta
tion in the two situations is entirely different "
In sum I find that under all the circumstances present
in the instant case, the Company acted lawfully in pro
hibiting the use of the no scabs permitted here buttons
and in disciplining employees who refused to honor that
prohibition The Company was under no compulsion to
wait until resentment piled up and the storm broke
before it could suppress the threat of disruption by exer
cising its right to enforce employee discipline South
western Bell Telephone Co, 200 NLRB 667, 671 (1972)
(quoting from Caterpillar Tractor Co, 230 F 2d 357 359
(7th Cir 1956)) In the situation that it found itself, the
Company took measured and reasonable steps to pre
serve discipline In doing so it did not violate the Act I
shall therefore recommend that the complaint be dis
missed in its entirety
CONCLUSION OF LAW
The General Counsel has not established by a prepon
derance of the credible evidence that the Company vio
lated the Act as alleged in the complaint
On these findings of fact and conclusion of law and on
othe entire record I issue the following recommended"
ORDER
The complaint is dismissed in its entirety
10 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses