World Color (USA) Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 2014 Decided January 16, 2015

No. 14-1028

WORLD COLOR (USA) CORP., A WHOLLY OWNED SUBSIDIARY

OF QUAD/GRAPHICS, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1037

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Ronald J. Holland argued the cause for petitioner. With

him on the briefs was Ellen M. Bronchetti.

David A. Seid argued the cause for respondent. With him

on the brief were Richard F. Griffin, Jr., John H. Ferguson,

Linda Dreeben, and Jill A. Griffin.

Before: GARLAND, Chief Judge, WILKINS, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

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Wilkins, Circuit Judge:

This case comes before the Court on petition for review

of an order of the National Labor Relations Board. At issue is

a World Color policy prohibiting employees from wearing

baseball caps except for caps bearing the company logo. The

NLRB determined that this policy violates the rights of World

Color employees. Because the Board relied on a faulty

premise in making its determination, we grant the petition for

review and remand to the Board for reconsideration.

I.

Petitioner World Color is a wholly owned subsidiary of

commercial printing corporation Quad/Graphics (“Quad”).

World Color operates a printing facility in Fernley, Nevada.

This facility is subject to Quad policies, including the

employee policy that is at issue in this case. J.A. 4. The

challenged policy is found in the “Corporate Safety Program”

section of the Employee Guidelines, and reads as follows:

All hair hanging past the bottom of the collar must be

secured to the head while in the production areas. If hair

does not hang past the collar but could potentially get

caught in our equipment, it must be secured to the head

with a hairnet or by other means. Baseball caps are

prohibited except for Quad/Graphics baseball caps worn

with the bill facing forward. Ponytails are strictly

prohibited. Facial hair longer than the base of the neck

must be secured. J.A. 117.

The Graphic Communications Conference of the

International Brotherhood of Teamsters filed an unfair labor

practice charge before the NLRB, asserting that this policy

“interfere[s] with, restrain[s] or coerce[s] employees in the

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exercise of their Section 7 rights.” 1 J.A. 91; see 29 U.S.C.

§ 158(a)(1) (“It shall be an unfair labor practice for an

employer to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 157 of this

title.”). The rights in question are “the right to self-

organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

purpose of collective bargaining.” 29 U.S.C. § 157.

It is beyond dispute that 29 U.S.C. § 157 protects an

employee’s right to wear union insignia at work unless special

circumstances are present. See Republic Aviation Corp. v.

NLRB, 324 U.S. 793, 801 (1945). The Administrative Law

Judge assigned to the case determined that the hat policy

violated this right. In doing so, the ALJ determined that the

hat policy was distinct from Quad’s uniform policy, and that

Quad had not substantiated its claims of special circumstances

regarding the safety of press operators, concerns about gang

activity, and employee presentation. World Color (USA)

Corp., 360 NLRB No. 37, 2014-15 NLRB Dec. ¶ 15759,

2014 WL 559195, at *13-14 (Feb. 12, 2014). The ALJ

recommended an order barring World Color from enforcing

the “discriminatory” hat policy.

World Color filed exceptions to the order and the

decision, which were considered by a three-member panel of

the National Labor Relations Board. World Color (USA)

Corp., 2014 WL 559195, at *1. The panel accepted the ALJ’s

determination that the hat policy was distinct from Quad’s

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While there were other charges made by the Graphic

Communications Conference, the hat policy is the only issue

that is before this Court.

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uniform policy and noted that, even were the hat policy a part

of the uniform policy, it would still be subject to the “special

circumstances” test. Id. at *1 n.3. The panel struck the

portions of the ALJ’s order referring to the policy as

“discriminatory,” instead relying on the policy’s overbreadth

to establish a violation of § 158(a)(1). Id. The overbreadth

determination was based on the Board’s conclusion that it was

“undisputed that the policy on its face prohibits employees

from engaging in the protected activity of wearing caps

bearing union insignia.” Id. The NLRB ordered World Color

to rescind the hat policy, issue a revised policy, and post a

notice stating that the NLRB had found that World Color had

violated federal labor laws. Id. at *3-4. World Color filed a

timely petition for review, and the NLRB cross-filed an

application for enforcement of the order.

Contrary to the Board’s assertion, World Color did

dispute that the hat policy facially prohibits employees from

wearing caps bearing union insignia. We therefore grant the

petition for review and remand to the NLRB for

reconsideration.

II.

As this Court described in Guardsmark, LLC v. NLRB,

475 F.3d 369, 374 (D.C. Cir. 2007), the NLRB’s

determination of whether a policy violates § 158(a)(1)

involves a two-step inquiry. “First, the Board examines

whether the rule explicitly restricts section 7 activity; if it

does, the rule violates the Act.” Id. (citations omitted)

(internal quotation marks omitted). If the policy does not

explicitly restrict protected activity, the Board considers

whether “(1) employees would reasonably construe the

language to prohibit Section 7 activity; (2) the rule was

promulgated in response to union activity; or (3) the rule has

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been applied to restrict the exercise of Section 7 rights.” Id.

(quoting Martin Luther Memorial Home, 343 NLRB 646, 647

(2004) (internal quotation marks omitted).

The NLRB short-circuited this inquiry at the first step by

concluding that there was no dispute regarding whether the

policy facially prohibited employees from wearing caps

bearing union insignia. We disagree with this conclusion.

Although the hat policy restricts the type of hat that may be

worn, it does not say anything about whether union insignia

may be attached to the hat. Moreover, the general uniform

policy allows employees to accessorize “in good taste and in

accordance with all safety rules” and asserts that “[a]ll

uniform requirements will be applied in accordance with

applicable laws.” J.A. 112. World Color has consistently

argued that the hat is part of its uniform policy and that World

Color’s policies therefore facially allow an employee to adorn

their Quad hat with union insignia. Indeed, World Color

made this argument before the Board, asserting that “the hat

policy does not expressly prohibit employees from wearing

union insignia at work, on their hat or otherwise,” and noting

that “the Government presented no evidence that Quad’s

policy prevents employees from wearing union insignia on

their hats . . . the policy simply prevents employees from

replacing the Company hat with any hat of their own

choosing.” Respondent Quad/Graphic Inc.’s Brief in Support

of its Exceptions to Decision and Order of the Administrative

Law Judge at 15-16, World Color, 2014 WL 559195. The

Board’s conclusion that “it is undisputed that the policy on its

face prohibits employees from engaging in the protected

activity of wearing caps bearing union insignia” is therefore

contradicted by the record. World Color, 2014 WL 559195,

at *1 n.3 (emphasis added).

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III.

This Court will uphold an order of the NLRB unless it

“has no rational basis or is unsupported by substantial

evidence.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929,

935 (D.C. Cir. 2011) (quoting United Mine Workers of Am. v.

NLRB, 879 F.2d 939, 942 (D.C. Cir. 1989) (internal quotation

marks omitted)). In the present case, the NLRB’s order was

premised on its finding that there was no dispute concerning

whether World Color’s hat policy facially prohibited

employees from wearing hats bearing union insignia. As

discussed above, this finding has no basis in the record before

the agency. Although the policy required employees to wear

a Quad hat rather than any other hat – including a union hat –

the company argued that it allowed employees to “bear union

insignia” on the Quad hat by accessorizing it in an appropriate

manner. We therefore grant the petition for review and

remand to the NLRB for reconsideration. The NLRB’s

application for enforcement is consequently denied.

So ordered.