Meijer, Incorporated, Petitioner/cross-Respondent v. National Labor Relations Board, Respondent/cross-Petitioner, United Food and Commercial Workers Local 951, Intervenor

Citation: 130 F.3d 1209Docket: 95-6116

Court: Court of Appeals for the Sixth Circuit; March 3, 1998; Federal Appellate Court

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Meijer, Inc. is appealing a National Labor Relations Board (NLRB) order mandating that employees at its Traverse City store be allowed to wear union insignia while on duty. The NLRB found that Meijer violated § 8(a)(1) of the National Labor Relations Act by disciplining employees for wearing union pins. Meijer permits only company-approved buttons, which include promotional and customer service-related pins, as well as union pins in union-represented stores.

The events began when Tom Kollar became the store manager in October 1992 and implemented strict enforcement of the dress code, which had previously been loosely applied. Kollar issued a memo outlining the dress code, explicitly stating which items were permissible. Although the union was organizing at the time, employees had not yet worn union pins when the memo was first distributed. 

In September 1993, employees began wearing "Union Yes" pins as part of their campaign. On October 5, 1993, Kollar instructed store managers to inform employees they could not wear these union pins, threatening disciplinary action for non-compliance. Additional notices reiterating this policy were posted by Kollar shortly thereafter. The case highlights the conflict between employee rights to union representation and employer-imposed dress codes.

On December 6, 1993, the Union filed unfair labor practice charges against Meijer, which led to a complaint from the Regional Director on January 19, 1994. The complaint alleged Meijer violated labor laws by prohibiting employees from wearing union insignia on the sales floor and by disciplining two employees for violating rules against union solicitation. Administrative Law Judge Michael O. Miller ruled that while Meijer could prohibit union hats and jackets, it unlawfully disciplined employees for solicitation and prohibited union buttons and pins. The National Labor Relations Board (NLRB) affirmed these findings on July 31, 1995. Meijer appealed, focusing on the prohibition of union pins and buttons.

The court accepted the NLRB's factual findings supported by substantial evidence and upheld the Board's interpretation of the law, denying Meijer's petition against enforcement. The NLRB argued that Meijer violated § 8(a)(1) of the Act by threatening employees for wearing union pins, an activity protected under § 7, which guarantees employees the right to self-organization and collective bargaining. The Supreme Court has recognized that wearing union insignia constitutes protected concerted activity. However, this right is balanced against the employer's right to maintain workplace discipline, as both rights are essential in a balanced labor environment.

Meijer's first argument references the case Cleveland Real Estate Partners v. NLRB (CREP), where the court upheld a shopping mall owner's right to restrict union representatives from distributing literature aimed at discouraging patronage of non-union retailers, despite allowing similar activities by non-union groups. The court ruled that the term "discrimination" in this context pertains to favoring one union over another or allowing employer-related information while excluding union-related information. Key factors influencing this narrow definition included the property owner's right to limit union literature distribution, the differing rights of employees versus non-employees, and the nature of the non-employee union representatives' activities as non-organizational informational picketing. Consequently, the court concluded that an employer could prohibit handbilling by non-employee union organizers without infringing upon labor policies. However, the considerations in CREP do not apply to Meijer's case, where the involved parties are employees, not non-employees. The court highlights that employees have a fundamental right to discuss self-organization, with restrictions only permissible if necessary for production or discipline, a standard not applicable to non-employee organizers.

CREP, 95 F.3d at 463, highlights that the case involves employees of Meijer engaged in organizational activities, which affords them greater protection under the Act compared to non-employees engaged in non-organizational activities. Employee organizational rights are prioritized, as established in NLRB v. Great Scot, Inc., where such rights are deemed central to the Act's purpose. A historical hierarchy of Section 7 rights illustrates that employees' organizational rights are the strongest, while non-employees' interests are weaker, particularly in trespass cases where property owners have a presumptive right to exclude non-employees.

Meijer argues that its case aligns with the exception set forth in Burger King Corp. v. NLRB, asserting a consistent, non-discriminatory enforcement of a policy limiting employees to authorized uniforms, which it claims constitutes a 'special circumstance.' In Republic Aviation, the Supreme Court ruled that employees have a presumptive right to wear union insignia unless the employer can prove a special circumstance justifying a ban. Employers bear the burden of demonstrating the necessity of restrictions on employees' Section 7 rights to maintain production or discipline, as supported by various case law. Upon establishing presumptively invalid rules, the employer must provide evidence of special circumstances to justify such rules.

Since the Supreme Court's ruling in Republic Aviation, lower courts have struggled to define the standard for employers prohibiting employees from wearing union insignia without violating their § 7 rights. Most Circuit courts have established a rebuttable presumption favoring employees, asserting a strong right to wear union insignia, which can only be limited by the employer demonstrating special circumstances requiring reasonable accommodation. In contrast, some Circuits favor employers, reversing this presumption.

Following this majority view, the Eighth Circuit in Fabri-Tek, Inc. v. NLRB held that wearing union insignia is protected activity, only restricted if it disrupts the employer's workforce discipline. In this case, the employer sought relief from a Board order after it denied employees the right to wear large union buttons and terminated those who did not comply. The court ruled that while large insignia could disrupt discipline, employees retained the right to wear customary buttons, barring those that caused disruption.

The Fourth Circuit adopted the Fabri-Tek standard in Virginia Electric and Power Co. v. NLRB, allowing an employer to require a smaller union pin from a receptionist due to potential conflicts with competing unions. Similarly, the Fifth Circuit in Davison-Paxon Co. v. NLRB permitted prohibiting large buttons in a retail setting due to concerns about animosity between union factions affecting the workplace. Other cases, like NLRB v. Intertherm, Inc. and Caterpillar Tractor Co. v. NLRB, reinforced the principle that while employees have a strong right to wear union insignia, employers may impose restrictions if there is a legitimate concern about efficiency or discipline.

In various jurisdictions, the right of employees to wear union insignia has been inconsistently interpreted. In **NLRB v. Harrah's Club**, the Ninth Circuit ruled that employees do not have an absolute right to wear union insignia, emphasizing that such attire must connect to protected purposes under the act, like collective bargaining. The court prioritized employers' rights to maintain a specific public image through uniform policies over employees’ rights to wear union paraphernalia. 

Similarly, in **Burger King Corp. v. NLRB**, a fragmented panel adopted a comparable stance, allowing employers to ban union buttons under special circumstances where uniform policies are enforced nondiscriminately, especially when employees have public contact. However, this decision did not reconcile with **Republic Aviation**, which asserts a presumptive right for employees to display union insignia, placing the burden on employers to demonstrate special circumstances.

In **United Parcel Service v. NLRB**, the court declined to enforce a Board order against UPS for warning an employee about a union pin on his uniform, citing the collective bargaining agreement that granted UPS the authority to regulate employee appearance. Thus, the court found no violation of the employee's rights.

In **NLRB v. Windemuller Electric, Inc.**, the court also did not utilize the reasoning from **Burger King**. It upheld that employees have a presumptive right to wear union insignia on personal clothing but ruled that they could not use company-owned hardhats for this purpose, referencing property rights and previous landmark cases regarding organizing activities by non-employees.

The panel's conclusion that Republic Aviation restricts employees' rights to wear union insignia solely on their own clothing is unclear, as the insignia issue was not central to the case's resolution. The panel failed to address the tension between its strict property rights approach and the 'special circumstances' standard established by the Burger King Court. Additionally, the Sixth Circuit's ruling in NLRB v. Mead Corp. emphasized that employers bear the burden of proving the existence of special circumstances when attempting to restrict insignia. Following the principles from Republic Aviation, employees generally have a presumptive right to wear union insignia, which should not be overridden unless the employer demonstrates a compelling special circumstance.

The Supreme Court has articulated a balance between employees' rights to organize and employers' property rights, emphasizing two key categories for evaluating these cases: the strength of the employer's interests and the strength of the employees' Section 7 rights. The Court established that employers can only restrict union literature distribution or insignia under narrow circumstances that require demonstrating a necessity for maintaining production or discipline. This reinforces the near-absolute right of employees to wear union insignia, underscoring the need for justifiable reasons for any restrictions imposed by employers.

Employers challenging employees' rights to self-organization under § 7 must demonstrate that accommodating such rights would adversely affect production or discipline, a principle reaffirmed by Lechmere and rooted in Supreme Court precedent. While employees have the right to wear union insignia, this right is not absolute and can be restricted by the employer if they can show a special circumstance requiring such limitations, including potential impacts on production, employee dissension, safety, or the employer's public image. Meijer’s argument for banning union insignia due to potential public conflict between union and non-union supporters lacks evidentiary support and is therefore rejected. Similarly, claims of public confusion as a justification for the ban have been previously dismissed in Republic Aviation. Consequently, Meijer has not met the burden of proof to substantiate its claims regarding the negative impact of union insignia on its operations or public image. The Board's enforcement request is granted while Meijer's petition is denied. A dissenting opinion indicates disagreement with the enforcement of the National Labor Relations Board's order. The case specifically involves Meijer's refusal to allow employees in Traverse City, Michigan, to wear union buttons, while employees are required to wear store-issued promotional pins.

Store employees occasionally wore unauthorized pins, including holiday-themed and issue-oriented pins (e.g., 'gay rights', 'right to life'). Store director Tom Kollar consistently enforced a policy requiring the removal of these pins, a shift from the previous sporadic enforcement prior to his 1992 hiring. The legal precedent established in Republic Aviation Corp. v. NLRB dictates that while an employer can prohibit solicitation during working hours, any restrictions outside of those hours must not be discriminatory against union activities. It is presumed that rules banning union solicitation on company property during non-working hours are unreasonable unless justified by special circumstances. Recent court rulings affirm that an employer can restrict employees from wearing union buttons if the policy is uniformly applied and if employees have public-facing roles. However, such policies must be enforced nondiscriminatorily; allowing certain solicitations while prohibiting union-related ones does not constitute discrimination.

Requiring employers to forbid charitable solicitations does not advance relevant labor policies, as it does not interfere with employees' rights under section 7 of the National Labor Relations Act (NLRA). A private property owner allowing charitable activities does not implicate NLRA policies and does not constitute an unfair labor practice when subsequently restricting nonemployee distribution of union literature. The court recognizes that employers in service industries, like Burger King, have a legitimate interest in projecting a professional image, which can outweigh certain employee rights under § 8(a)(1) in specific circumstances.

The majority argues that the discrimination definition from Cleveland Real Estate Partners should not apply here because it pertains to non-employee solicitors, while this case involves employees. They assert that applying this definition would conflict with the Supreme Court's ruling in Republic Aviation, which allows for some limitations on employee expressions of support for unions to maintain workplace discipline. The union's claim that no compelling balance is present is dismissed, as employers' interests in a consistent public image are acknowledged.

Furthermore, the union's assertion that applying the Cleveland definition would overturn Republic Aviation's rule is exaggerated, as such a ruling would be limited to specific cases regarding uniform standards. The court emphasizes that it is inappropriate to apply varying definitions of discrimination on a case-by-case basis under the same statutory provision. The case is compared to United Parcel Service v. NLRB, where the court found that an employer's refusal to allow union pins, while permitting other pins, did not amount to discrimination. The majority's attempt to distinguish the current case based on a collective bargaining agreement is deemed unpersuasive, as workers do not have the right to enforce their own appearance standards.

The court recognizes an employer's authority to prohibit employees from wearing union buttons when they interact with the public, provided there is a consistently enforced nondiscriminatory dress code that mandates authorized uniforms. The dissenting opinion argues against an order requiring Meijer to stop unlawful practices, rescind a notice against union insignia, revoke warnings to employees Zeits and Bogin, and notify them of these actions. Meijer's dress code emphasizes that employees must maintain a recognizable uniform appearance, with specific allowances for company and union buttons. The Board's claim that Meijer inconsistently enforced its policy regarding union insignia across different stores is deemed weak, as the order can be upheld on other grounds. Additionally, the dissent highlights that the Supreme Court's framework in labor relations, particularly in Lechmere v. NLRB, should not be disrupted by blurring established categorical distinctions regarding employee rights and employer property rights. The majority opinion does not clarify where employees wore their union buttons, only noting their presence "in the plant," referencing prior case law.