noting that an employer may restrict its workers’ right to wear union apparel in “special circumstances,” which may arise when employees have significant contact with customers, when the apparel denigrates the company’s business, and when the “slogans are patently offensive or vulgar”
How later courts described this case
- noting that an employer may restrict its workers’ right to wear union apparel in “special circumstances,” which may arise when employees have significant contact with customers, when the apparel denigrates the company’s business, and when the “slogans are patently offensive or vulgar”
- observing that employers may ban insignias bearing slogans that “are patently offensive or vulgar”
Written by the judges who cited it.
The opinion
COHN, District Judge,
dissenting.
The record does not support the conclusion that there is sufficient evidence that the wearing of the buttons did not interfere with maintenance of discipline and order in the workplace. Because participation in Flex II was voluntary, Mead found itself post-contract ratification with employees working side-by-side, doing the same job, but being paid differently. The button wearers were protesting the two-level pay scale and were accusing fellow workers of being “scabs.” This was, in my view, the necessary special circumstance that allowed for the ban.
The Board’s determination that there was no evidence that the slogans were likely to result in a loss of discipline makes one wonder what would have sufficed short of a physical confrontation. The record contains several photographs of obviously Flex-related and hostile graffiti which the administrative law judge and the Board noted, but did not address. 1 In their decisions, each addressed only the photograph depicting graffiti that predated the Flex controversy and then concluded that Mead’s evidence of vandalism consisted of “unsupported subjective impressions.”
While there are limitations on an employer’s right to restrict rights guaranteed workers by law, the employer should not have to wait until an incident occurs to take preventative measures. The employer here was doing no more than that.
. According to the administrative law judge:
"Two of the pictures show graffiti referring to the Flex II participants as "scabs” and making obscene remarks about them. Of the remaining four photographs, one shows graffiti referring to Flex II in an obscene manner, one refers to Flex II participants as "scabies,” one asserts that the "Union” "makes the choice for you in Flex II,” and the fourth, shows “scab" inscribed on the door of a locker. This locker is used by a supervisor. Also, when the picture was taken, the "scab" inscription had been on its door for approximately four years.”