Southern California Edison Co.

National Labor Relations Board - Board Decisions

Mar 25, 1985

274 N.L.R.B. 1121 (N.L.R.B. 1985)

SOUTHERN CALIFORNIA EDISON CO
Southern California Edison Company and Local
Union No . 47, International Brotherhood of
Electrical Workers, AFL-CIO-CLC. Case 21-
CA-22142
25 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 27 September 1984 Administrative Law
Judge James M. Kennedy issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an an-
swering brief.
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, 1 and
conclusions and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southern
California Edison Company, Rosemead, California,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
2 We reject the Respondent's reliance on Mrdstate Telephone Corp v
NLRB, 706 F 2d 401 (2d Cir 1983), denying enf to 262 NLRB 1291
(1982), to support its contention that wearing buttons with the slogan
"Stick Your Retro" was not protected activity Mrdstate involved em-
ployees wearing T-shirts showing a cracked employer logo and the
slogan "I survived the Midstate strikes of 1971-75-79 " The court, re-
versing the Board's determination that wearing the T-shirts was protect-
ed as intended to promote employee solidarity even after the strike,
found that the cracked logo might improperly suggest to the public that
the company was in some way coming apart Other factors relied on by
the court were that the employees had regular contact with the public
and that the shirt bore the company trademark We agree with the judge
that no similar injury to the Respondent 's public image has been demon-
strated here from the employees ' wearing the buttons , as the Respond-
ent's own witness conceded that the button had a somewhat cryptic mes-
sage having little or no significance to an outsider, and we note that the
other factors relied on by the court in Midstate are not present here We
further find that the slogan was neither vulgar nor obscene Cf South-
western Bell Telephone Co, 200 NLRB 667 (1972)
Finally, we find inapposite to this case the court's opinion in Borman 's,
Inc v NLRB, 676 F 2d 1138 (6th Cir 1982), denying enf to 254 NLRB
1023 (1981), on which the Respondent also relies There the court relied
on its findings that the employer's actions against two employees for
wearing T-shirts with the slogan "I'm tired of bustin' my ass " were
isolated and that there was no substantial evidence that the wearing of
the T-shirts constituted the exercise of any right under the Act Here, on
the other hand, over 500 employees wore the buttons, and the message
was clearly related to the substance of the pending negotiations
DECISION
1121
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried before me in Los Angeles, California, on
March 15-16, 1984, pursuant to a complaint and notice
of hearing issued by the Acting Regional Director for
the National Labor Relations Board for Region 21, on
December 15, 1983,1 based on a charge filed by Local,
Union No. 47, International Brotherhood of Electrical
Workers, AFL-CIO-CLC (the Union) on April 5 The
complaint alleges that Southern California Edison Com-
pany (Respondent) has engaged in certain violations of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act (the Act).
Two issues are presented. The first is whether or not
Respondent violated Section 8(a)(3) and (1) of the Act
by placing over 500 employees on nonwork/nonpay
status in April because the employees chose to wear a
button stating "Stick Your Retro " The second is wheth-
er or not Respondent violated Section 8(a)(5) and (1) by
refusing to meet with union officials and employees in
regularly scheduled grievance meetings during that same
period because either or both were wearing that or a
similar button.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. All
parties have filed briefs and they have been carefully
considered.
At the outset of the hearing the parties submitted a
partial stipulation of facts. That stipulation was thereafter
supplemented by testimony and documentary evidence.
Based on the stipulation and the entire record of the
case, as well as my observation of the witnesses and their
demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
The stipulation recites, and I find, that Respondent at
all times material has been a public utility which trans-
mits and sells electricity to private, commercial, and in-
dustrial users and which has various facilities located
throughout southern California. During the course and
conduct of its business, Respondent annually derives
gross revenues in excess of $250,000 and annually pur-
chases and receives goods and products valued in excess
of $50,000 directly from suppliers located outside Cali-
fornia. The parties have stipulated, and I find, that Re-
spondent is and has been at all times material an employ-
er engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The parties have stipulated, and I find, that the Union
is and has been at all material times a labor organization
within the meaning of Section 2(5) of the Act
I All dates herein refer to 1983 unless otherwise indicated
274 NLRB No. 167
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
The following material is a blend of factual recitations
contained in the partial stipulation of facts as supplement-
ed by testimony. The factual disputes which are seen are
generally of little consequence and do not affect the res-
olution of the legal issues which the undisputed facts
present. I shall not, however, cite with specificity those
portions of the record in which the facts under discus-
sion may be found, for that would be unnecessary.
A. Background
Respondent and the Union have had a collective-bar-
gaining relationship involving the employees in question
since 1945, the Board having issued various certifications
of representative in 1944, 1945, and 1946. The collective-
bargaining agreement which was in effect during the
time of this dispute commenced on January 1, 1982, and
expired on December 31, 1983. The contract covers ap-
proximately 5700 employees throughout Respondent's
southern California electrical distribution system.
The collective-bargaining agreement contains a limited
midterm reopener provision, article XVI(D). The text is
set forth below.2 The clause has appeared in many prior
collective-bargaining agreements The last sentence,
which has been underscored, dealing with the retroactive
application of any across-the-board wage increase which
was reached during mid-term bargaining, has occasional-
ly been a sore point. Typically a mid-term increase
would be offered, the Union would reject it as insuffi-
cient and then Respondent would state it would invoke
the clause if the offer were not accepted and/or ratified.
In fact, however, Respondent has never actually denied
retroactivity even when it took longer than 60 days for
the parties to reach an agreement.
The 1982 reopener followed a similar pattern On De-
cember 21, 1982, Respondent tendered as its "final offer"
a wage increase of 6 percent effective January 1. On
March 11, the Union membership rejected that wage
offer Thereafter, additional negotiation sessions were
conducted between Respondent and the Union on March
18, 22, and 23. At either the March 22 or March 23
meeting Respondent's labor relations manager, Mike
Mendez, told the Union's negotiating committee that if
Respondent's wage offer was not ratified by April 15,
Respondent would invoke the 60-day limit on retroactive
pay The deadline was later extended and ultimately the
proposal was accepted. No 60-day limit was in fact
placed on the retroactive increase
B. The Buttons
Nonetheless, during the meeting one of the Union's
bargaining committee members, Neil Bong, became quite
offended by what he viewed as Mendez' threat. Indeed,
8 Art XVI (D) reads
D. Either party, by a notice in writing sixty (60) days prior to De-
cember 31, 1982, may reopen Article XII, Wages, only for the pur-
pose of negotiating general across-the -board changes in the basic
straight time rate of pay for the job classifications set forth in Exhibit
A Agreement reached as a result of such reopening shall become effec-
tive as of January 1, 1983, providing such retroactivity does not exceed
sixty (60) days " [Emphasis added I
according to the testimony of employees and union offi-
cials, the entire union negotiating team was offended.
Union Business Manager Rae Sanborn told management
that such a threat was counterproductive, that rather
than inducing employees to ratify the proposal, it would
be more likely to anger them and exacerbate the situa-
tion. In any event, Bong went home that evening deter-
mined to respond to Mendez' "threat." He caused to be
made a handful of buttons reading "Stick Your Retro."
Bong took those buttons to the union hall on the evening
of March 24, wearing one. The others were quickly
snapped _up. On Friday, March 25, he wore his button to
work without incident. That evening, he caused addition-
al buttons to be made and they too were left at the union
hall. The buttons were an instant hit and soon , according
to Sanborn, large numbers of individuals were calling the
Union to try to obtain the buttons Accordingly, the
Union hired a button manufacturer who produced more.
In addition , the Union solicited other phrases to be
placed on similar buttons. Five other buttons were made
containing the following phrases: "Retro Reminds Me of
Fishing," "Threats Make Me Sick," "Retro is a Stormy
Issue," "Bargaining Not Blackmail," and "Retro x 10."
All six buttons were distributed systemwide by the
Union through its stewards Each of the buttons is 2-
5/16 inches in diameter. Individuals attached them to
various items of clothing, often their own personal ap-
parel, but sometimes upon a company uniform3
Beginning on April 1, employees who were seen wear-
ing the "Stick Your Retro" button were told that, if they
chose to wear the button, they would not be permitted
to work. Instead, they would be placed on nonwork,
nonpay, nondisciplinary status. This decision was the
result of some policy meetings which commenced on
April 1 and continued through April 8. As a result of the
policy decision, as previously noted, and as stipulated by
the parties, more than 500 employees were placed on
nonwork, nonpay, nondisciplinary status.
On April 8, the Union, realizing that large numbers of
its members had been sent home, decided it would be
best to resolve the button problem and its concomitant
lost wage problem by litigation , rather than by confron-
tation. Accordingly, it conducted a rally and press con-
ference in front of Respondent's Rosemead, California
general office. At that rally it announced that it would
seek to solve the problem through the courts and recom-
mended that the employees remove the buttons so they
could return to work. On the following day, all the em-
ployees who had been wearing the "Stick Your Retro"
button reported to work without it and were permitted
to perform their assigned tasks.
C. The "I'm Hot" Button
In the past, Respondent itself has encouraged employ-
ees to wear certain buttons. Two years before this inci-
dent, Respondent, in the course of a United Fund drive,
issued "I'm Hot" buttons-meaning the wearer was en-
8 It should be observed that only two classifications of employees actu-
ally wore uniforms These were meter readers and field service represent-
atives
SOUTHERN CALIFORNIA EDISON CO 1123
thusiastic about the United Fund. The button was hot
pink in color and a double entendre was clearly intend-
ed. Obviously the direct intent was to encourage contri-
butions and relate them to the centrally located "Ther-
mometer" measuring gift amounts As the buttons them-
selves did not refer to the thermometer, the slogan and
color were designed as an attention -getter , having a mild
sexual connotation aimed at fundraising.
D. The Grievance Meetings
Simultaneously with the advent of the antiretro button
wearing, Respondent and the Union had previously
scheduled a number of grievance meetings, each at vari-
ous steps in the grievance-arbitration process. Without
describing each meeting in detail, they were scheduled to
be conducted on April 5, 6, and 7 Three meetings were
scheduled for Long Beach. At the first two, when the
employees and their union representatives appeared
wearing "Retro Reminds Me of Fishing" badges, Re-
spondent Divisional Vice President Ron Blake said he
would not conduct any discussion about the grievances
as long as the buttons were being worn. At the third
meeting that day, one which involved a contractual
deadline which triggered liability in the event it was not
conducted, Blake and his assistant Bowles conducted the
meeting despite the fact that the employees and union of-
ficials continued to wear the "Retro Reminds me of
Fishing" badges.
On April 6 , a similar grievance meeting was conducted
in Rialto. This time Union Representative Dave Cosner,
and Union Steward Neil Bong were wearing "Stick
Your Retro" buttons and, although warned by Division
Superintendent Ernie Richau that the meeting would not
be conducted and Bong would be sent home if they
wore the buttons, both did so. Accordingly, Richau can-
celed the meeting. Finally, on April 7, another meeting
was scheduled at another office in Rialto When Union
Assistant Business Manager Franz and Steward Hammer
arrived for the meeting, Respondent Labor Relations
Representative Mike Flenniken refused to conduct the
meeting because Franz was wearing a "Stick Your
Retro" button Hammer, however, was not.
In addition, on April 6 a slightly different incident in-
volving buttons and grievances occurred. It appears that
Respondent and the Union had some long neglected
fringe benefits negotiations to conduct and a meeting was
scheduled on those matters at the general office in Rose-
mead. Labor Relations Manager Mendez, well aware of
the button problem, did not want to conduct the meeting
in the general headquarters if, as was likely, the union of-
ficials would be wearing the buttons. Accordingly, he re-
scheduled the meeting to a nearby country club. And, as
expected, when the union representations arrived at the
country club for the meeting, they were wearing the
"Stick your Retro" button as well as the other buttons.
E. Respondent 's Explanations for Its Actions
Robert Schaefer , the district manager for the San Ber-
nardino district , testified that he objected to the antiretro
buttons because "it had to do with negotiations that were
going on at that time" He further went on to differenti-
ate between an ordinary union button or insignia such as
a penholder or hat on the grounds that "union member-
ship is an ongoing thing . . where negotiations are
not."
Mendez testified that he viewed the "Stick Your
Retro" button as a "hostile or agressive statement
toward management." Indeed, he viewed the button as a
personal attack upon him, aware that he was the one
who had invoked the 60-day limitation. Both he and
Schaefer also saw "Stick Your Retro" button as having
an obviously obscene as well as hostile meaning. At the
hearing, they both attempted to justify the restriction on
the button on the ground that employees wearing the
button would come into customer contact and might re-
flect badly on the Company's public image, considering
that it is a public utility holding a monopoly on the
supply of electric power in the area
With respect to the latter contention, the evidence is
quite slim that anybody employed by Respondent, in-
cluding those members of the customer service depart-
ment , actually have significant contact with the general
public. The two job classifications which do, meter read-
ers and field service representatives, wear uniforms for
easy identification, but their exposure to customers is ac-
tually quite limited. Meter readers are notoriously invisi-
ble and a field service representative, effecting some sort
of inspection or minor repair, would presumably be en-
gaged in that activity rather than in extensive conversa-
tions with a customer Once in a while, it was pointed
out, even construction personnel meet the public. On oc-
casion it is their duty to advise customers that electric
power will be turned off In that event, such individuals
have fleeting conversations with homeowners.
And, while it is true that employees may be seen in
public, driving vehicles, working in crews, etc, there
would be little or no occasion for conversation. In fact,
the button being worn by such workers would not even
be noticeable. When conversations do occur, they are
usually brief and directed to the business at hand. The
button would be an unlikely topic of conversation.
Moreover, the message on the button was probably
not intelligible to an outsider. Company officials testified
that "retro" was not a word likely to be understood by
individuals not familiar with circumstances at the Com-
pany. In fact, the message was so cryptic that when
Steward Bong began to wear it initially, his supervisor
did not understand its meaning. Bong was of little help,
too, telling him that it meant "whatever he wanted it to
mean ." Thus, Schaefer's testimony to the effect that the
wearing of "Stick Your Retro" buttons by such individ-
uals would tend to offend customers seems unlikely.
IV. ANALYSIS AND CONCLUSIONS
It has long been held that union buttons themselves are
protected by the Act. Certainly steward buttons and
membership buttons have been considered fully protect-
ed and only in the event of specified circumstances do
they lose that protection See Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945). Usually those buttons are
readily identifiable as the union's Nonetheless the Board
has held that slogans not containing union identification,
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but known to be a union communication, were likewise
protected. Borman's, Inc., 254 NLRB 1023 (1981).
Indeed, to lose the protection of the Act, the slogan must
be offensive or severely disparage the employer. South-
western Bell Telephone Co., 200 NLRB 667 (1972) ("Ma
Bell is a Cheap Mother"), But, in Mid-State Telephone
Corp., 262 NLRB 1291 (1982), a union T-shirt depicting
the company's logo as cracked and displaying the slogan,
"I Survived the Mid-State Strikes of 1971-1976-1979"
was held to be protected. However, the Second Circuit
Court of Appeals disagreed and refused to enforce the
Board's Order 706 F.2d 401 (1983). Similarly, the Board
held a shirt designed to support a union grievance con-
taining the phrase "I'm Tired of Bustin' My Ass" to be
protected. Borman 's, Inc., supra In that case, of course,
the word "ass" would generally be considered crude
and/or obscene. Nonetheless, the Board found the entire
slogan to be protected because it was in support of clear-
ly protected activity, i.e., the grievance itself. Again, an
appellate court disagreed, 676 F.2d 1138 (6th Cir. 1982).
Despite the contrary views of these two particular
courts, the use of off-color language has, in grievance
resolution contexts, also been held to be protected by the
Board and enforced by various courts. E.g., NLRB v.
Cement Transport, 490 F.2d 1024, 1029-30 (6th Cir.
1974); Falcon Plastics, 397 F.2d 965 (9th Cir. 1968) (Jus-
tice Barnes, dissenting).
In any event, the phrase "Stick Your Retro" is con-
ceded by Company Official Schaefer to have a some-
what cryptic meaning He agreed that the word "Retro"
would have little or no meaning to an outsider, such as a
customer Furthermore, the "Stick Your Retro" portion
of the slogan certainly has a common nonobscene inter-
pretation, i.e., stick it in your "ear." Later, one of the
buttons was converted to a "Stick Your Retro in the
Bank" button.
Respondent agrees that the other five buttons were
protected and claims to have taken no action against any
employee for wearing any of the other five All buttons
were readily recognized by Respondent's officials
Mendez, Schaefer, and others as being a union activity.
They were well aware that it was a response to Mendez'
threat to invoke the retroactive limitation clause con-
tained in the contract. Thus, all six buttons were seen by
the Company as having union authorization. Yet they
chose to scotch the button which could most easily be
interpreted as advocating rionratification or as having an
offcolor message Moreover, Mendez viewed it as a per-
sonal affront to his conduct in the negotiations.
However, under the rule of Borman's, supra, the
"Stick Your Retro" button itself was protected. In fact,
its message was less offensive than that found to be pro-
tected in Borman 's. There the slogan contained an ob-
scene word; here, it did not. Furthermore, I find that Re-
spondent's principal motivation in suppressing the button
was to influence the outcome of the ratification vote
then in progress. A ratification vote is obviously an inter-
nal union matter and, absent evidence of a disruptive in-
fluence, is none of the employer's business Union mem-
bers are free to advocate for or against union policies
and, so long as their advocacy does not interfere with
production, it is protected. Interfering with the employ-
ees' conduct in this regard clearly deprives them of a
protected Section 7 right. Paranite Wire Cable Div., 164
NLRB 319 (1967); UMC Industries, 244 NLRB 1023
(1979), enf. denied on other grounds 630 F.2d 1265 (8th
Cir. 1980).4
I reach that conclusion because it seems unlikely that
Respondent was truly offended by the possibly offcolor
interpretation which could be placed on the phrase. It
seems clear that Respondent was more concerned with
the content of the message. It is true that it permitted
other buttons referring to negotiations, but of the five
other buttons only three actually referred to the retroac-
tivity issue. Two, the "Threats Make Me Sick" and
"Bargaining Not Blackmail" buttons, did not. Of the
other three, two, "Retro Is a Stormy Issue" and "Retro
x 10," are vague enough to be interpreted as not having
the vehemence of "Stick Your Retro." The fifth, "Retro
Reminds Me of Fishing," also has a vague and uncertain
interpretation. It, however, actually may have been more
vehement than the "Stick Your Retro" button, for its
proponents were suggesting that they would not work in
the event of company emergencies and were planning to
tell the employer that they had "gone fishing." It ap-
pears, however, that Respondent's officials did not rec-
ognize that vehemence
The "Stick Your Retro" button, on the other hand,
conveyed multiple messages , none of which was accepta-
ble to Respondent . It is true that it could be interpreted
as having an obscene message; yet it does not clearly
convey it. The thought behind it, "We reject your invo-
cation of the retroactive wage limitation in the contract,"
is apparent without implying an obscene word. Further-
more, it can be seen as direct opposition to a company
official's stand taken at the bargaining table And it can
be seen as having an intensity which the other five did
not display. Finally, it was the first button to appear and
apparently the most popular. It quickly spread through-
out the system. Thus, Respondent, as conceded by
Schaefer, viewed it as a direct impediment to the con-
tract's ratification.5
In sum , Respondent reacted principally to the content
of the message insofar as it presented a roadblock to an
agreement It was not, in my view, truly reacting to the
possible obscene interpretation which might be implied.
As noted, offcolor interpretations of similar messages are
not offensive to the Company The "I'm Hot" buttons of
the United Fund campaign offended no one. Likewise,
this offcolor interpretation offended no one. Respondent,
although it claimed to be able to find witnesses who
would testify that they were offended by it, never ad-
duced any such testimony.6 I find, therefore, that the
4 Cf NU-Car Carriers, 88 NLRB 75 (1950), enfd 189 F 2d 756 (3d Cir
1951), cert denied 342 U S 919 (1952)
5 I note that Mendez was not concerned about the Union and its com-
mittee wearing the buttons in the more limited atmosphere of the country
club Obviously, his purpose in having the meeting at the country club
was to control transmission of the message It was not to limit the im-
plied obscenity because, had the club been concerned with that, he
would have decided to keep the obscenity "in house" at company head-
quarters, rather than to expose strangers at the country club
s In this regard , I am not unmindful that recently there was a popular
country and western song by singer Johnny Paycheck as well as a movie
Continued
SOUTHERN CALIFORNIA EDISON CO
"Stick Your Retro" button was fully protected by the
Act Respondent 's attack on it interfered with the ratifi-
cation process, something it could not lawfully do
With respect to Respondent 's refusing to conduct
grievance meetings with employees to union officials
who were wearing the button , I find such refusal to be a
violation of the obligation to meet and deal with the rec-
ognized union and, thus, to be a violation of Section
8(a)(5) and (1). Little needs to be said in this regard. It
has long been held that both parties having a 9(a) rela-
tionship are obligated to continuously meet and deal
with each other in the grievance -arbitration context.
Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966).
Respondent refused to do so here on the grounds that
the wearing of the "Stick Your Retro" button was im-
proper In point of fact, however , it refused to meet on
at least one occasion with union officials and members
who were wearing a "Retro Reminds Me of Fishing"
button, and Respondent 's argument is simply not consist-
ent In any event , it is my view that , no matter what but-
tons were being worn , Respondent was not privileged to
refuse to meet and deal with the Union on matters being
pursued through the grievance-arbitration process 7 at
least so long as they did not cause an unreasonable dis-
ruption.
V THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(1), (3), and (5) of the Act, I
entitled, "Take This job and Shove It " Little, if any, outcry was heard in
society over that particular title even though it contains exactly the same
implied obscenity that Respondent wishes to assign to this particular
button
At the hearing , Respondent offered as a defense to its conduct an
argument that the Union had waived the right to have its members wear
such buttons It cited art XIII of the collective -bargaining contract enti-
tled "Bulletin Boards " The article is set forth in full in 9 of the partial
stipulations of facts, but may be summarized as setting forth conditions
under which Respondent would erect bulletin boards which the Union
could use The last sentence states , "There shall be no other distributions
or posting by employees or union representatives of notices, pamphlets,
advertising or political matter of any other kind of literature upon any
other company property, except with the written consent of the compa-
ny, provided , however, that nothing herein shall be construed to prohibit
union solicitation on company property by an employee outside of work-
ing hours " Respondent contends that this language constitutes a waiver
of the employees ' right to wear union buttons
At the hearing I was presented with an argument based on the tran-
script of the 1945 negotiations Aside from that transcript , there have
been no definitive interpretations of art XIII by a court, by an arbitrator,
or by the Board (It does appear that a Regional Director of the National
Labor Relations Board administratively reviewed it, but his view is with-
out binding weight ) The rule , of course , is that for a union to waive the
Sec 7 rights of its members , the waiver must be "clear and unequivocal "
The language itself does not refer in any way to the wearing of buttons
It is true that there was some discussion in the 1945 negotiations regard-
ing the wearing of "Red Cross emblems," but whatever the concern was
it did not translate to union buttons One of the concerns the parties had
in 1945 was the posting of material on company property such as walls,
power poles, vehicles , and the like Nothing definitive was ever said re-
garding union buttons Accordingly, I conclude at the hearing that Re-
spondent 's presentation of evidence in support of a waiver argument
could not constitute a legal defense because there had never been a clear
and unequivocal waiver of the Union 's rights to wear buttons Indeed,
Respondent itself admits that union members commonly wear union in-
signia of various kinds, buttons, penholders, caps, and jackets without art
XIII permission Thus, even under its own view of art XIII, union insig-
nia may be placed on employees' clothing No waiver may be inferred
1125
shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. In this regard, Re-
spondent shall be ordered immediately to pay each em-
ployee who was sent home because he or she wore a
union button in March or April 1983 the amount of
money he would have earned had he or she not been
sent home Such amounts shall include overtime, wheth-
er mandatory or voluntary, if it had been scheduled. In
addition, Respondent shall pay interest on said amounts
in accordance with Isis Plumbing Co., 138 NLRB 716
(1962), as modified by Florida Steel Corp., 231 NLRB 651
(1977). Finally, Respondent shall be required to expunge
from its records any reference to the incidents, shall pro-
vide written notice of such expunction to each of them,
and to inform each that his or her conduct in wearing
the button will not be used as a basis for further person-
nel action concerning them.
On the foregoing findings of fact and the entire record
in this case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Southern California Edison Com-
pany, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3. Respondent violated Section 8(a)(3) and (1) of the
Act when, during April 1983, it refused to allow employ-
ees to work who chose to wear a button expressing bp-
position to Respondent's proposal to limit retroactive ap-
plication of a wage increase.
4. Respondent violated Section 8(a)(5) and (1) of the
Act when, during April 1983, it refused to conduct
grievance-arbitration meetings with the Union when
union representatives or employees arrived at such meet-
ings wearing buttons expressing opposition to Respond-
ent's proposal to limit retroactive application of a wage
increase. ,
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent, Southern California Edison Compa-
ny, Rosemead, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Placing employees on nonwork, nonpay status, be-
cause they choose to wear buttons containing messages
protected by Section 7 of the Act.
(b) Refusing to bargain with Local Union 47, Interna-
tional Brotherhood of Electrical Workers , AFL-CIO-
CLC because its officials or its members choose to wear
8 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
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buttons containing messages protected by Section 7 of
the Act.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Pay each employee who was placed on nonwork,
nonpay status in April 1983 because he or she was wear-
ing a button protected by the Act the amount of pay,
plus interest , he or she would have earned , including
overtime, had the employee not been placed on such
status.
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records, timecards
personnel records, work schedules and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this order.
(c) Remove from its personnel and all other records
any and all references to the employees ' being placed
upon nonwork , nonpay status because they wore the
aforesaid buttons and to notify each in writing that it has
done so and that evidence of the incidents shall not be
used against them in any way.
(d) Post at its Rosemead , California general office and
any other office or installation in southern California
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Regional
Director for Region 21, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
9 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT place on nonwork, nonpay status any
employee who chooses to wear buttons containing mes-
sages protected by Section 7 of the Act.
WE WILL NOT fail or refuse to bargain with Local
Union No. 47, International Brotherhood of Electrical
Workers, AFL-CIO-CLC by refusing to conduct griev-
ance-arbitration meetings at which union officials or em-
ployees choose to wear messages protected by Section 7
of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights protected by Section 7 of the Act.
WE WILL pay each employee who was placed on non-
work, nonpay status in April 1983 for wearing buttons
protected by the Act, the amount of pay, plus interst, he
or she would have earned, including overtime, had the
employee not been placed on such status.
WE WILL expunge from our personnel file and all
other records any and all references to employees being
placed on nonwork, nonpay status because they wore
buttons protected by the Act and WE WILL notify each
employee in writing that we have done so and that evi-
dence of the incidents shall not be used as a basis for
future personnel action against them.
SOUTHERN CALIFORNIA EDISON COMPANY