National Labor Relations Board v. The Mead Corporation D/B/A Escanaba Paper Company

74 magis- portionately assigned

рroved the recommendation to the desk instead of regard. being trate this out on the street where AT could time be accumulated. I believe the amount of AT argues that the district court Defendant by time earned male officers who were also by awarding these committed clear error assigned duty to desk can be determined to plaintiffs the amount of damages to provide equitable damage by award com- speculative. example, For damages was testimony parison. plaintiffs provide and no Because failed to there was no evidence calculation, made or the AT I about the number arrests this believe the district court by plaintiffs issue, while were not time earned must be reversed on this and the case pre- duty. There was no evidence on desk must for a be remanded calculation of dam- averagе by AT time earned sented about the ages speculation. that is not based on by making earned AT time other officers who conclude, I To believe the district court’s night going during to court arrests at plaintiffs dispropor- determination that were day, assigned not to the desk but were tionately assigned duty to desk on the basis argues Defendant disproportionately. affirmed, of sex should be but this case must merely suggested the award was bаsed on a be remanded to the district court for a more by plain- introduced for the first time amount specific damages. determination of post-trial on tiffs in their brief filed Novem- 2,1992, merely plucked from the ber and was

air. argument. agree

I with defendant’s damages

order to receive under Title VII or 1983, principles of common U.S.C. ordinarily Memphis used.

law torts are Stachura,

Community District v. School 299, 305, 2537, 2541-42, 106 S.Ct. U.S. NATIONAL LABOR RELATIONS (1986). Back-pay awards are L.Ed.2d BOARD, Petitioner, remedy usually the make-whole used to re any dress harm suffered. еconomic Gutzwil v. (6th Fenik, ler v. Cir. The MEAD CORPORATION d/b/a 1988). Although granted courts are discre Paper Company, Escanaba awards, damage damages tion in their still Respondent. proved speculative may must be awards given. Bigelow not Pic- be RKO Radio No. 94-6250. tures, 251, 263-64, 327 U.S. 66 S.Ct.

579-80, Appeals, I United States Court 90 L.Ed. 652 believe that case, way Sixth Circuit. present there is a to deter- approximately mine how much AT time was Argued Nov. 1995. by being assigned duty, lost to desk but the require district court failed to this Decided Jan. Instead,

amount be determined. the court

merely accepted figure by plain- offered any knowledge

tiffs without if the amount of

AT working time earned officers making night

streets and arrests was $1,000

equal year. The record indicates compensated

that an officer could be at $4

per accumulating hour for AT time. ‍‌​‌‌‌​‌‌‌​​‌​​​​​​​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​​​​​​​‌​‌‍To war- per year, plaintiffs

rant would have $1000

had to AT accumulate 250 hours of time.

There was no evidence to indicate that this

number of AT hours could accumulated be

during plaintiffs dispro- the time when

76 Armstong, Deputy

Aileen A. Assoc. Gen. Counsel, (briefed), Frederick C. Havard Christopher briefed), Young (argued and N.L.R.B., DC, Washington, for Petitioner. Joseph (argued Robert Brown and briefed), Penney, Thompson, Todd D. Hiñe & Flory, OH, Dayton, Respondent. JONES, Before: MARTIN and Circuit COHN, Judges; Judge.* District MARTIN, J., opinion delivered the of the court, JONES, J., joined. COHN, in which 81), (p. separate D.J. dissenting delivered opinion. MARTIN, Jr., F. Judge.

BOYCE Circuit The Natiоnal peti- Labor Relations Board tions this Court to enforce the Board’s cease against and Corporation. desist order Mead (1994). Corp., 314 N.L.R.B. 732 The Board found that Mead had committed practice unfair labor in violation of Section * Cohn, sitting designation. The Honorable Avem United States Dis- Judge Michigan, trict for the District of Eastern Act, 8(a)(1) legends Labor Relations The buttons and t-shirts bore the National 158(a)(1) (1988), by prohibiting Say “Hey § No—Mеad” and 29 U.S.C. “Just Mead —Flex buttons, t- wearing employees certain This.” The union continued to shirts, clothing protested which throughout and other wear these emblems the course employment. of their terms conditions bargaining negotiations. collective finding violated predicate that Mead As im- October of Mead declared an 8(a)(1), the Board found Section passe, agree- the former terminated labor buttons, t-shirts, other аrticles of cloth- ments, unilaterally implemented several employees’ ing worn in exercise including proposals, of its final Flex I Act, 7 of the 29 U.S.C. rights under Section plan. finally Mead and the Unions concluded responds petition to this 1989, in negotiations November of and new buttons, and by arguing that the t-shirts bargaining agreements collective went into protected material banned were not other opposition In to unilateral effect. Mead’s Alternatively, Act. under Section 7 of the action, issued, and the union mem- Unions if argues the materi- Mead even banned wore, proclaiming bers buttons “Remember Act, protected special were under the als addition, 89.” In a result of uni- as Mead’s existing prohibit- at the it time circumstances labor agreements, lateral action and the new employees wearing the contested ed the popular from a infringement its em- the Unions withdrew “Contin- materials on warranted Improvement” program, pro- protected rights. uous an older ployees’ of their exercise designed plant gram production to enhance that We believe the NLRB’s conclusion safety. then buttons and The Unions issued 8(a)(1) Act to be of the Mead violated Section withdrawal, commemorating and t-shirts the in the rec- supported by substantial evidence Fi- whiсh stated “C.I. 1983-1989 is ‘Dead’.” as a ord whole. nally, began implementing after the Mead in operates paper mill Corporation Mead a 1990, program II in of Flex June Union Escanaba, and Michigan that manufactures which, employees wore “No Scab” buttons employs print paper. distributes news Mead Mead, according opposition to were worn in employees Esca- approximately 1500 at the employees participating in the Flex to those mill, of whom are unionized. naba about 1050 programs. II that I and The Union claimed produces mill one-half tons of The billion the directed the striker buttons were toward annually. paper replacements by Greyhound East- used and 1989, the Company In March of the and negotiation labor ern Airlines their own began negotiations collective for new Unions wearing Employees began also turmoils. bargaining agreements. parties The labor 1,1989” Wagner, “Remember Oct. buttons coming agreement, to difficulty had an suspension of union member reference the op- primarily Mead introduced new because Wagner. employees union be- Mike The erating flexibility strong that plans received a Wagner suspended had been as lieved I” “Flex opposition from the Unions. ‍‌​‌‌‌​‌‌‌​​‌​​​​​​​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​​​​​​​‌​‌‍The bargain- reprisal opposition for his to Mead’s required plan production all and maintenance ing proposals. personnel responsibili- additional to assume hourly wage increase. exchange ties for requested September In of permitted proposal “Flex II” mainte- The wearing members refrain from Union particular employees nance skilled in a In October of the “No Scab” buttons. crafts, qualify in for “craft” to two additional notice, any investigation and without without they wage increase of which would receive formally that it intended to Mead announced craft. fifty cents an hour for each additional t-shirt, button, slogans. ban certain decal Mead, According slogans at were flexibility plans, issue opposed The Unions upon ability to order plan, infringing II” maintain particularly the “Flex workplace in the plans believed would lead to a loss threatening safety. for- workplace Beginning work. in June the Unions buttons, t-shirts, that all encouraged to wear buttons mal ban announced members various prohibited: opposing proposals. and decals would be and t-shirts message conveyed Baptist Hosp. is disre- standard.” East Tennessee When NLRB, (6th Cir.1993). ability spectful and limits our discipline. This Court will not reverse the Board’s rea- if sonable inferences even we would have message “keep- is aimed at 2. When the (citations differently. decided the issue negotiations Id. ing the wounds from the 1989 omitted). open.” message negative 3. When the leaves a 8(a)(1) Act, Under Section it outsiders, impression particularly on our practice employer is an unfair labor for an customers/suppliers. with, restrain, “interfere or coerce “Hey expressly identified the rights guaranteed the exercise of the un This,” Mead,” Say Mead —Flex “Just No— der [Section 7]” of the Act. 29 U.S.C. 89,” Wag- “Remember and “Remember Mike 158(a)(1) (1988). § Section of the Act con conjunc- prohibited by ner” ban. upon employees right engage fers ban, system tion with the Mead introduced purpose “concerted activities for the of col progressive discipline displaying any bargaining lective or other mutual aid or prohibited slogans. subsequently The Union protection.” Em U.S.C. practice chаrges against filed unfair labor ployees’ rights Section 7 include the Mead, claiming that Mead’s ban violated the insignia wear union-related while at work to employees’ rights Union under Section 7 of support show for the Union and their fellow Act, the National Labor Relations 29 U.S.C. Republic Corp. Union members. Aviation v. 157(1988). NLRB, 793, 802-03, 982, 324 U.S. 65 S.Ct. 5, 1991, hearing On November was held 987-88, (1945); 89 L.Ed. 1372 Larand Lei judge. an before administrative law The ad- surelies, NLRB, 814, Inc. v. 523 F.2d 818-19 judge law ministrative found that thе but- (6th Cir.1975). against employ Balanced tons, t-shirts, pro- and decals at issue were rights ees’ under 7 “equally Section is the Act, tected under Section 7 of the and that undisputed right employers of to maintain 8(a)(1) Section of the Act violated discipline in Republic their establishments.” prohibiting employees wearing any from Aviation, 798, at 324 U.S. 65 S.Ct. at 985. subsequently of these items. The Board af- “Opportunity organize proper and disci judge’s rulings, firmed the administrativе law pline are both essential elements in a bal conclusions, findings, adopted and and his society.” anced Id. slightly order as modified. The Board’s or- requires der to cease and desist from case, In this the Board found that the prohibiting employees’ the exercise of its employees’ display pro-union, Union anti- Act, rights under Section 7 of the and re- employer, anti-agreement sentiments— quires post copies aрpropriate Mead to of an through buttons, t-shirts, the use of and de workplace informing notice Mead em- protected activity cals—was a under Section ployees of the termination of its ban on union conclusion, 7. Mead takes issue with this insignia. arguing that the anti-Flex and various other slogans at issue in this case do not fall within findings We review the Board’s 7, event, any the ambit of Section they supported by fact to if determine are employees right waived their to cam substantial evidence. Universal Camera paign against program the Flex once NLRB, 488, Corp. 474, v. 340 U.S. 71 S.Ct. bargaining ratified agreement. the collective 456, 464-65, 95 L.Ed. 456 Evidence when, viewing disagree. is substantial the record aas We sup- Substantial evidence whole, ports reasonable minds would find the evi the Board’s conclusion that Union em- uphold dence sufficient to ployees slogans thе Board’s deci wore the at issue here for Co., Spring sion. NLRB v. support Arbor Dist. 59 mutual aid and during both and after (6th Cir.1995) (citations 600, F.3d 604 negotiations the contract with Mead. Each omitted). quotations applica Board’s slogans directly “The is related to the labor tion of particular the law to facts is negotiations specific also contract or to incidents arising, believed, reviewed under the substantial reasonably evidence or so the Unions

79 justify a restriction on As order to management-labor dispute. out of the rights, slogan employees’ exercise of Section 7 such, unlike the at slogans are these Borman’s, NLRB, employer must demonstrate “the existence of v. 676 F.2d Inc. issue (6th Cir.1982), ‘special circumstances’ which necessitate the 1138, in which we held 1139 my banning insignia in order to reduce “I’m tired of bustin’ such that the statement any employee dissension or distractions the exercise of unrelated to ass” was work, Instead, employee safety slogans at maintain and disci rights. 7 Section machinery products, pro pline, protect worn or or analogous to those here are more issue NLRB, public.” Burger ject image to the Pay’n Corp. v. a certain by employees in Save (9th NLRB, 1053, Cir.1981), 697, King Corp. 725 F.2d 1056 v. 699-701 641 F.2d (6th Cir.1984) (Merritt, J., concurring part that the buttons Ninth Circuit held which the AFL-CIO,” ‍‌​‌‌‌​‌‌‌​​‌​​​​​​​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​​​​​​​‌​‌‍dissenting part). Special circum Retail Clerks Union “Vote Yes organization, were stances arise most often where support of Union worn in public, Da significant have contact with the 7 of the Act. protected under Section NLRB, 364, vison-Paxon Co. Further, Union members did not (5th Cir.1972); slogans where the 368-69 their Section waive their to exercise denigrate employer’s product or issue Al by signing agreement. the labor rights NLRB, business, Corp. v. Midstate Tel. certainly may waive statuto though unions (2d Cir.1983); аnd where F.2d 403-04 bargaining rights during the rily created vulgar, patently offensive or are and un must be “clear process, this waiver Co., Bell Tel. 200 N.L.R.B. Southwestern Co. v. Metropolitan Edison mistakable.” (1972). Employers may infringe also 693, 708, NLRB, 103 S.Ct. 460 U.S. employees’ rights to the ex upon Section (1983); East Tennes L.Ed.2d 387 necessary and or tent Hosp., at 1144. Waivers Baptist see Leisurelies, workplace. in Larand der the used as bar statutory rights are often of Finally, employers have 523 F.2d at 818-19. gain in to chips by order gaining Unions interest, in unifor applicable, where dress negotiat employers while concessions contact mity where have extended bargaining agreement. ing a new collective v. public. See Parcel Serv. with the United agree into a labor It be hard to read would Cir.1994). (6th NLRB, 41 1071-72 F.3d important as rights as ment a waiver of lan in 7 absent those contained Section argues on the Mead first that its ban of sрecifically addressed to guage waiver necessary to maintain slogans at issue was support right. The record does not that Relying workplace. in on Cat the union members argument that the NLRB, F.2d erpillar Co. v. Tractor cer protest to impliedly waived their that, (7th Cir.1956), argues at 358-59 bargaining aspects the collective tain of buttons, respect to “No Scab” least with the they simply ratified the agreement because inhеrently disruptive of the buttons were agreement. Tractor, the Caterpillar workplace order. adopted per se apparently that Seventh Circuit Mead’s contention turn now to We inherently term “scab” was rule that the existed in this ease special circumstances workplace and therefore disruptive of the infringement upon permitted Mead’s which by employers. legitimately may be banned of their Section employees’ its exercise However, Caterpillar to the extent that on Id. that its restriction rights. Mead claims interpreted adopting neces- Tractor has been display slogans at issue was the any 1) allowing employers to ban per se discipline in the work- sary to: maintain rule it, decline 2) thing term “scab” on we with the discourage perpetuation of labor place; Instead, it more 3) we believe unrеst; and, messages to follow it. prevent derogatory employer’s need to balance the public. appropriate Accord- being conveyed to the fi’om against the discipline and order maintain “special considerations” ing to Mead these rights in each employees’ Section Pay’n Corp., union Save warranted its ban. See Workers, Plant involving spe- case. See Linn United (listing cases 641 F.2d at 700 657, 661-62, 53, 60-61, circumstances). 86 S.Ct. 383 U.S. cial (1966) (noting L.Ed.2d 582 that “the argues Board Mead also that the ban served the ‘scab,’ epithets legitimate purpose has that discouraging concluded such as perpetua- ‘unfair,’ tion of labor commonplace plant. and ‘liar’ are in unrest at the Mead these negotia- Mead claims struggles because the labor and not so indefensible as to re- tions concluded and the labor 7”). contracts were protection move them from the signed display late the continued Further, that we believe substantial evi- slogans simply the anti-Mead kept supports dence the Board’s decision that open negotiations wounds from the 1989 justify slogans Mead did not its ban of the served as a manage- “constant irritant” to ground issue on the that ban was neces- ment. Corp., See Midstate Tel. 706 F.2d at sary discipline. Mead introduced However, 404. we do nоt read Midstate as tampering, graffiti, evidence of toolbox heat- permitting employer pro-union bans on mes- employees, ed discussions between and al- sages every message time the happens to leged “sabotage” to show that its ban was past refer to a confrontation between man- necessary However, to maintain order. agement unions, and the nor do we believe Board found that the evidence of toolbox Midstate proposition stands for the that em- tampering going years had been on for ployers may slogans simply ban was not a result of the current labor strife. as a management. serve “constant irritant” to Also, the Board graff- noted that some of the Although may these be facts relevant to de- iti had been on the walls for at least four termining management justified whether is years, which that it banning case, indicates was unrelated insignia union in each we problems occurring the labor important 1989 and believe the factor Midstate is Finally, testimony that there was that the t-shirts at issue in implied that case alleged sabotage public to the oxyaeetylene system public utility to an that the company way coming Here, “was some actually apart.” open consisted of a valve left Id. on an certainly acetylene almost did during tank irritate man- the course of agement, part operat- because Mead was training. involving No further incidents ing under a ultimately labor contract acetylene unsatis- tanks occurred. While it is true factory many employees. union employers need not wait until violence However, we do not slogans imply believe the erupts taking precautionary measures, before “coming apart” Mead is or that Mead’s Bell, Southwestern 200 N.L.R.B. at product is somehow defective. finding Board’s precautionary that the mea- necessary sures were not pre- on the facts Finally, Mead contends that its ban supported by sented here is evi- substantial necessary prevent was derogatory mes dence. sages from being conveyed public. to the slogans Mead claims that presented the a addition, reject In argu we Mead’s negative substantial inference to customers ment that messages the other banned were and other outsiders who visited its Escanaba inherently disruptive they “blatantly plant, simply and that protected its ban insubordination, urge destructiveness and de legitimate maintaining positive interest in slogans “Hey This,” fiance.” The Mead-Flex public However, image. slogans the at issue Say Mead,” “Just and “Remember No— this infringe upon case do not Mead’s Wagner certainly discontent, ’89” do show public Bell, image. Unlike Southwestern anger, arising even out of the 1989 contract N.L.R.B. slogans the profane. are not negotiations. However, they urge do not Borman’s, See also (uphold 676 F.2d at 1139 stop doing jobs their or to ing ban slogan where profanity). contained supervisors. fact, refuse to listen to their In Further, Midstate, slogans unlike the the production up significantly was at the Mead slogans at issue here denigrate do not plant during period question. most of the product, Mead’s nor do ridicule ‍‌​‌‌‌​‌‌‌​​‌​​​​​​​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​​​​​​​‌​‌‍the sum, In we believe substantial sup evidence company itself. slogans simply Instead the ports the Board’s determination that Mead’s express the union members’ dissatisfaction necessary ban was not discipline management with Only over labor issues. workplace. and order in the slogan Say the “Just arguably No—Mead”

«1 employer tative interpreted implying one measures. The was could be here doing no more than that. purchase products. not How- should ever, given the fact that we believe in contact employees were seldom with slogan negative the had public, any effect customers, periodic suppliers, and

on Mead’s event, any negligible. In it did

visitors was justify pro-union absolute ban on

not ultimately adopted by

slogans Mead. WEST, Howard Charles Petitioner- sum, the Board’s decision to we believe Apрellee, supported by substantial evidence. Ac- be cordingly, Board’s order. we ENFORCE the SEABOLD, Warden, William

COHN, Judge, dissenting. District Respondent-Appellant. support not The record does conclusion No. 95-5148. there is sufficient evidence that wearing of the buttons did not interfere with Appeals, United States Court discipline and order in the maintenance Sixth Circuit. workplace. participation II Because Argued Oct. 1995. post-con- voluntary, itself was Mead found employees working tract ratification with Decided Jan. 1996. side-by-side, doing job, being but same Rehearing Suggestion Rehearing for differently. The wearers paid button were En Banc Denied Feb. protesting pay the two-level scale were accusing being fellow workers of “scabs.” view, was, necessary my special

This allowed the ban.

circumstance that

The determination that was Board’s there likely

no evidence that the one

result a loss of makes won have short

der what would sufficed

physical The record contains confrontation. obviously photographs of Flеx-relat

several graffiti

ed and hostile which the administra noted, judge

tive law Board but did decisions,

not In their each ad address.1 graffi only photograph depicting

dressed controversy predated

ti Flex

then evidence of van concluded subjective “unsupported

dalism consisted

impressions.” employ- an

While there are limitations on rights guaranteed

er’s to restrict work- law, by employer not

ers should have preven-

wait until incident occurs to take II,” you judge: for According law "Union” "makes choice Flex to the administrative fourth, graffiti referring inscribed on the pictures and the shows “scab" "Two show making participants super- the Flex II obscene remarks about them. Of as "scabs” is used ‍‌​‌‌‌​‌‌‌​​‌​​​​​​​‌‌‌‌​‌​​​‌​‌‌​‌​​‌​​​​​​​​‌​‌‍door of a locker. This locker remaining taken, Also, picture was visor. when the photographs, graffiti referring one four shows ap- inscription "scab" had been on door manner, II one refers to in an obscene Flex years.” proximately four "scabies,” participants one asserts that the II

Case Details

Case Name: National Labor Relations Board v. The Mead Corporation D/B/A Escanaba Paper Company

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 8, 1996

Citation: 73 F.3d 74

Docket Number: 94-6250

Court Abbreviation: 6th Cir.