Fabri-Tek, Inc. v. National Labor Relations Board (352 F.2d 577, 1965)

VOGEL, Circuit Judge.

Fabri-Tek, Incorporated, petitioner herein, has asked this court to review and set aside a decision and order of the National Labor Relations Board (hereafter Board), respondent, dated October 9, 1964, and issued pursuant to § 10 of the National Labor Relations Act (hereafter Act), 29 U.S.C.A. § 151 et seq. The Board, in its answer, has cross-petitioned for enforcement of the order. The decision and order which are the subject of review (1) found that the petitioner had violated § 8(a) (1) and (3) of the Act by requiring some of its employees to remove, and by prohibiting its employees from wearing, certain disputed union insignia at work, and by effecting the termination of six employees who refused to comply with the petitioner’s requirements that such disputed union insignia be removed, and (2) ordered petitioner to cease and desist from these and other practices, to make whole the terminated employees, and to post the appropriate notices at its plant in Amery, Wisconsin. The Board’s decision and order are reported at 148 N.L.R.B. No. 156. No jurisdictional questions are in issue.

The charge in the complaint is that Fabri-Tek, Incorporated, has “prohibited its employees from wearing union buttons, blouses and other union insignia at the plant, on the ground that wearing union buttons violated a Company rule against union solicitation”, thereby violating § 8(a) (1) of the Act, and that petitioner “discharged” six named employees “because they wore union buttons at the plant, and further because of their membership in, assistance to, and activities on behalf of the Union”, thereby violating § 8(a) (1) and (3) of the Act.

The petitioner’s answer was a general denial of all claims. It further alleged that

“ * * * employees were by the rules of the company permitted to wear union buttons at the plant at any time, except only that they were not permitted to wear or exhibit extraordinary union buttons or ordinary union buttons in an extraordinary manner having the effect of interfering or threatening to interfere with the efficient performance of the work duties of themselves and other employees on company time and premises.

“Affirmatively alleges, further, that another union was at the same times and places undertaking to solicit and campaign for employee support and that the rules of the company were applied equally to both unions and for the lawful objective of promoting and maintaining conditions of work necessary to efficient production and alleges that employees other than said employees did wear, and are wearing, insignia of said union in conformity with said rules and without objection by [petitioner].”

Subsequent to the commencement of this action and prior to trial, the six terminated employees were, at the request of the union, reinstated to employment after an absence from work of approximately one month. The reinstatement was with the understanding that they would comply with petitioner’s rules. The reinstatement agreement expressly did not, however, constitute a settlement of the issues herein.

Fabri-Tek is in the business of manufacturing magnetic memory devices for the computer or digital equipment industry. The Trial Examiner, whose findings, conclusions and recommendations were adopted in toto by the Board, found that:

“As indicated above, there is no doubt that [petitioner’s] finished product is extraordinarily complex and that each item must operate perfectly to enable the ultimate mechanism to function. It is also undisputed that each step in the fabrication of a memory frame is done by hand and requires a high degree of concentration during its performance. The production process, however, has been broken down into a great number of simple steps punctuated by frequent inspections.”

Additionally, the testimony indicated that in petitioner’s work “there is no such thing as an almost perfect piece”. The General Counsel stipulated “that these memory cores and memory frames and magnetic memory frames [used in the memory devices] must be perfect”. The malfunction of just one of the 4,-000 ferrite cores in the 2" x 2" memory frame or one poor connection in one of the 7,000 individually soldered points in the memory stack, composed of several memory frames, could make the complete piece of equipment inoperable. Petitioner’s customers include Hughes Aircraft Company, Control Data Corporation (Polaris missile program), Collins Radio, Thompson-Ramo-Wooldridge, General Electric Company, Radio Corporation of America, Radiation Incorporated, and Dynatronics, Inc. (missile tracking and other national defense programs). Fabri-Tek claims that inaccurate work or faulty materials, considering the critical ultimate defense uses of petitioner’s product, could be catastrophic to the public welfare. Without going into greater detail, it must be conceded the record indicates very clearly that a high degree of concentration is required on the part of the employees and that distractions of any kind might very well lead to inefficiency, work slowdown and costly errors.

Petitioner’s costs in wasted materials and labor are enormous due to the difficulty in producing perfect memory devices. Petitioner’s vice president of engineering, Donald Haselhorst, gave uncontradicted testimony that 10% of Fabri-Tek’s production is returned by its customers and that at least an additional 60% is rejected within the company. Petitioner thus is consistently faced with the possibility of negligence or breach of warranty actions being brought by its customers. The record indicates many good-faith actions on the part of petitioner to minimize production mistakes and inefficiency through the improvement of working conditions and the elimination of distractions to employees at their work. Examples of such actions include the installation of “kick boards” or “courtesy boards” below the benches of workers, the installation of head-high “sneeze boards” in the center of work tables to prevent distractions for the great majority of employees from other employees seated across the table, the promulgation of a rule that women workers could not wear “short shorts”, that is, anything shorter than normal bermudas, the policy of separating talkative women from each other, the taking of special care in providing lighting to improve efficient concentration, the taking of measures to avoid distractive noise, and so forth.

On August 7, 1963, the International Brotherhood of Electrical Workers (herein I.B.E.W.) filed a representation petition in the Board’s Regional Office and on September 24, 1963, the Regional Director issued his Decision and Direction of Election, holding certain classes of employees included and certain classes excluded from the stipulated production and maintenance employees unit. Almost immediately thereafter Henry C. Bennett, a “tester” employed by Fabri-Tek, began to distribute three types of union buttons which he had collected for that purpose. The Trial Examiner described these different kinds of buttons as follows:

“(a) a large round button of the type usually used in political campaigns. It is about 3 inches in diameter, made of metal with a white nonmetalic covering and has a pin and catch on the back. On its face, in red block letters almost % of an inch tall, are the words ‘VOTE I.B. E.W.’ At the bottom edge, also in red, appears the union label of the emblem’s manufacturer. [This will hereafter be referred to as the “large” button.]

“(b) a square, 2 inch emblem enclosed in a slightly larger clear plastic covering with a pin and catch on its back. The top third of the emblem is red, the center third is white and the bottom third is blue. The device is called, in the advertising novelty trade, a ‘vari-vue’ because two different representations appear in the same space, depending upon the angle from which it is viewed. In the center of the device, in black letters almost iy% inches tall, appear ‘VOTE’ and ‘I.B.E.W/ If rotated on a horizontal axis, the letters visible change back and forth several times. [This will hereafter be referred to as the “vari-vue” button.]

“(c) the customary union button, about an inch in diameter. This one has a narrow, blue border with the letters ‘I.B.E.W/ in white on its upper part and ‘AFL-CIO’ in small black letters on its lower half. The center is white and displays a clenched hand from which extend the jagged lines which conventionally represent electricity.” [This will hereafter be referred to as the “customary” button.]

Bennett was told by I.B.E.W. to hand out the buttons on non-working time and this was done. Certain employees began to wear these buttons while on the job. About the same time a rival union, International Union of Electrical, Radio and Machine Workers (I.U.E.) distributed literature at the plant gate. Those who were distributing the literature or handbills at the gate were required by Fabri-Tek to move off company premises and they thereupon distributed from adjoining property. In addition to the large and vari-vue buttons described heretofore, there were exhibited on company premises during working time other union insignia, including a woman’s blouse that was stenciled on the back with the words “VOTE I.B.E.W.” in very black 2%-inch letters, and earrings fashioned from customary union buttons.

The petitioner did not object to, nor find any fault with, the wearing in an ordinary way of the customary union buttons. However, when the petitioner became aware of the exhibition by some employees of the large and vari-vue buttons, either on outer garments or underneath a cardigan-type sweater which could be opened and closed to expose the buttons, the stenciled blouse, and the Wearing of customary union buttons as earrings for the obvious purpose of attracting the attention of other employees, it issued a memorandum as follows:

“FABRI-TEK MEMORANDUM

“Date October 1, 1963 Copies to:

To TO ALL EMPLOYEES

From Walter J. Olson

Subject

“In the past few days it has become necessary to request some employees to refrain from carrying on certain campaign activities during working hours, these activities were designed to attract attention of fellow employees and disrupt their work concentration.

“Below you will find a copy of page 23 of the company Personnel Policies, Practices of Procedures Manual. This provision of the manual prohibits campaigning during working hours.

“This provision is not intended to restrict employees in the wearing of buttons, jewelry or other personal labels that would indicate their membership in or association with a labor organization, fraternal organization, religious group, club or charitable institutions, etc.

“Employees who refuse to abide by this company rule will not be allowed to continue in the employment of this company.

/s/ Walter J. Olson Walter J. Olson Personnel Manager

WJO:ch” (Emphasis supplied.)

The Personnel Policies referred to in the above Memorandum are as follows:

“FABRI-TEK Incorporated

Personnel Policies, Practices, and Procedures

July 11, 1962

“RULES GOVERNING SOLICITATION ACTIVITIES

“It is the rule of this company that unauthorized solicitation of employees or customers upon company premises by or on behalf of any club, society, labor union, religious organization, political party, or similar association is strictly prohibited. This prohibition applies both to employees on working time and to outsiders, and it covers soliciting in any form, whether for membership, for subscription, or for payment of money.

“It is the policy of this company that under no circumstances will a permit for such solicitation be granted in the following areas.

1. General offices, including such offices as executive offices, offices of supervisor, and employment offices.

2. Manufacturing areas, stock rooms, warehouse and storerooms, cloak rooms, locker rooms, and similar areas to which the soliciting employee or outsider is not regularly admitted.

3. Public waiting rooms or reception rooms.

4. Employee restrooms and lunchroom.

“It is the policy of this company, with respect to areas of the plant which are restricted to employees only for use in off-duty periods, that a permit for outsiders to enter into such areas may be granted upon prior application and for good cause to the designated representative of management, who will supply the person with the necessary permit and an escort to accompany the outsider to and from such area.

“Civic solicitation activity, such as fund raising or promotional campaigns of such organizations as The Community Chest, Blood Bank, Red Cross, and The Aquatennial Association, may be granted access to all areas of the plant only upon the authorization of the designated representative of management.

“All employees are expected strictly to comply with this essential rule. Failure to obey the rule will result in discharge or other disciplinary action. If any employee is in doubt concerning the application of the rule to his own activity while on the premises, he is cautioned to consult with the supervisor.” (Emphasis supplied.)

Fabri-Tek attempted to show and offered to prove, through Jack R. MacAloon, its labor relations representative, that it called Clarence A. Meter, Acting Regional Director, Eighteenth Region, National Labor Relations Board, 316 Federal Building, 110 South 4th Street, Minneapolis, Minnesota, at the time it became aware that the use of the large buttons and other solicitation procedures were an “interference with the productive process”; that Meter stated to MacAloon he thought the company was within its rights to request the employees to remove the large or vari-vue buttons, the stenciled blouse and the earrings, and he would be inclined to send the employees home if they did not do so; and that Clarence Meter was the one who had later signed the complaint leading to these proceedings. The offer of proof was denied by the Examiner.

Refusal to remove the disputed insignia led to the six terminations herein involved. The petitioner continued to allow its employees to wear customary buttons in an ordinary way on the job during working time.

The Examiner and the Board, in their conclusionary findings, stated:

“The wearing of union insignia is not a form of solicitation and, therefore, the cases cited by [petitioner] involving solicitation, as well as [petitioner’s] rule on this subject, are inapplicable.”

The Examiner then concluded:

“ * * * As indicated above, [petitioner] has failed to prove its contention that the wearing of Union insignia in the plant had an effect of distracting the attention of other employees or disrupting their work concentration. It follows, therefore, and I find, that [petitioner’s] prohibition of the wearing of such insignia was not justified for the maintenance of employee efficiency or plant discipline; that by prohibiting employees Bennett, Dewey, Clarence Heacock, Mitchell, Gale, Seydel, Donohue, Petersen and Doris Heacock from wearing Union insignia, [petitioner] interfered, and continues to interfere, with the organizational rights of these and other employees in violation of Section 8(a) (1) of the Act and that, by discharging employees Bennett, Dewey, Clarence Heacock, Mitchell, Gale and Seydel for wearing Union insignia, [petitioner] discriminated against them to discourage their membership in the Union, thereby violating Section 8(a) (3) and (1) of the Act.”

After finding that the evidence of distraction of petitioner’s employees’ attention “so laboriously adduced” was “too trifling to merit serious consideration”, the Examiner additionally grounded his conclusion in the finding that Fabri-Tek “ * * * introduced no evidence to show that there was any diminution in employee output or efficiency when the buttons, blouse or earrings were being worn”.

First, it should be noted that if we were to follow the reasoning of the Examiner as adopted by the Board there arguably could not have been any violation by petitioner under § 7 as incorporated into §§ 8(a) (1) and 8(a) (3) of the Act, as set out in f.n. 1, supra. Their decision states that, “The wearing of union insignia is not a form of solicitation * * * ”, referring, of course, to the wearing of large and flashing varivue buttons, stenciled blouses and customary union buttons exhibited in an extraordinary way or manner. Despite the fact that § 7 of the Act, insofar as relevant to this case, specifically contemplates the right to solicit membership and campaign on behalf of a union, the Examiner concludes, even though he alleges that solicitation was not involved herein, that the petitioner was in contravention of the employees’ rights under § 7. It is doubtful if the denial by petitioner of the right to wear certain types of buttons in certain ways on company time could be a violation of the Act if, in fact, this was not solicitation leading to the forming of a bargaining unit within the meaning of § 7 of the Act.

Be that as it may, we feel, after reviewing the record in its entirety, that there was not substantial evidence to support the Examiner’s conclusion that the wearing of the union insignia was n