Gary Lee; James Amburn v. National Labor Relations Board

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 GARY LEE; JAMES AMBURN,
Petitioners,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, No. 01-2075 
and
COMMUNICATIONS WORKERS OF
AMERICA; BELLSOUTH
TELECOMMUNICATIONS, INCORPORATED,
Intervenors. 
On Petition for Review of an Order of the
National Labor Relations Board.
(11-CA-17096; 11-CA-17140; 11-CB-2699; 11-CB-2688)
Argued: February 26, 2002
Decided: January 4, 2005
Before WIDENER and LUTTIG, Circuit Judges,
and Henry M. HERLONG, Jr., United States District Judge
for the District of South Carolina, sitting by designation.
Vacated and remanded with directions by published opinion. Judge
Widener wrote the opinion, in which Judge Luttig and Judge Herlong
concurred.
COUNSEL
ARGUED: John Connor Scully, Jr., NATIONAL RIGHT TO
WORK LEGAL DEFENSE FOUNDATION, Springfield, Virginia,

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for Petitioners. Richard A. Cohen, Senior Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Respondent.
Steven T. Breaux, BELLSOUTH CORPORATION, Atlanta, Georgia,
for Intervenor BellSouth. James Bryan Coppess, Washington, D.C.,
for Intervenor CWA. ON BRIEF: Arthur F. Rosenfeld, General
Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Fer-
guson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent. Michael Carlin, Wash-
ington, D.C.; John L. Quinn, Decatur, Georgia; Laurence Gold,
Washington, D.C., for Intervenor CWA.
OPINION
WIDENER, Circuit Judge:
Petitioners Gary Lee and Jim Amburn petition for review of a
National Labor Relations Board (NLRB or the Board) Decision and
Order dismissing their complaint against BellSouth and Communica-
tions Workers of America, AFL-CIO (CWA). Lee and Amburn assert
that the uniform logo policy of BellSouth and the CWA, requiring
employees to wear both the BellSouth logo and the union logo, vio-
lates Section 7 of the National Labor Relations Act (NLRA or the
Act), 29 U.S.C. § 157, in that it interferes with an employee’s right
to refrain from concerted union activity. Alternatively, Lee and
Amburn contend that even if there is no Section 7 violation, compel-
ling employees to wear the union logo violates the employees’ free-
dom of speech and association under the First Amendment. Although
the Board concluded that placement of the CWA logo on company
uniforms implicates Section 7 interests, the Board found that the col-
lectively bargained uniform policy was a "special circumstance"
which outweighed any intrusion on Section 7 rights and accordingly
dismissed the complaint.
For the reasons that follow we grant the petition for review, vacate
the Board’s Order dismissing the complaint, and remand with direc-
tions to the Board to modify its order consistent with this opinion.
Because we hold that the BellSouth-CWA policy expressed in the
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Collective Bargaining Agreement violates 29 U.S.C. § 157, we do not
reach the First Amendment question.
I.
BellSouth and the Communications Workers of America (CWA)
have had a longstanding collective bargaining relationship since the
1940’s. The company and the union entered into a collective bargain-
ing agreement effective August 6, 1995 to August 8, 1998. The agree-
ment required employees in specified job classifications, primarily
telecommunications, and those who had contact with the public to
wear a uniform bearing both the BellSouth logo and the CWA logo.
The uniform program is mandatory for all employees in specified job
categories, whether they are members of the union or not, and those
who do not comply with the uniform requirement are subject to disci-
pline.
Petitioners Gary Lee and Jim Amburn, who are not union mem-
bers, were among those employees of BellSouth required to wear the
uniform displaying both the company and the union logos. Lee and
Amburn objected to wearing the union insignia and filed unfair labor
practice charges against BellSouth and CWA. The two complaints,
alleging that BellSouth had violated Section 8(a)(1), (2), and (3) of
the NLRA and that CWA had violated Section 8(b)(1)(A) and (2) of
the Act,1 were consolidated by Order of the NLRB General Counsel.
1Section 8(a)(1) provides that "it shall be an unfair labor practice for
an employer to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in [Section 7]." 29 U.S.C. § 158(a)(1). Sec-
tion 8(b)(1)(A) parallels 8(a)(1), except that it refers to unfair labor
practices committed by a labor organization, specifically, that "it shall be
an unfair labor practice for a labor organization or its agents to restrain
or coerce employees in the exercise of the rights guaranteed in [Section
7]." 29 U.S.C. § 158(b)(1).
Section 8(a)(2) states that "it shall be an unfair labor practice for an
employer to dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it."
29 U.S.C. § 158(a)(2).
Section 8(a)(3) of the Act provides that "it shall be an unfair labor
practice for an employer by discrimination in regard to hire or tenure of
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The parties entered into a stipulation of facts and, upon a motion to
transfer, the parties agreed to submit the consolidated case directly to
the Board.
We have jurisdiction under NLRA Section 10(f), 29 U.S.C.
§160(f), to review the Board’s final order, but our review is somewhat
limited. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951). We review the Board’s findings of fact only to determine
whether they are supported by substantial evidence in the record as
a whole. See Universal Camera, 340 U.S. at 487-88; NLRB v. CWI
of Maryland, Inc., 127 F.3d 319, 326 (4th Cir. 1997). In reviewing
legal conclusions, we defer to the Board’s interpretation of the Act
"so long as its reading is a reasonable one." Holly Farms Corp. v.
NLRB, 517 U.S. 392, 409 (1996). Although we will not disturb the
Board’s order if the Board’s findings of fact are supported by substan-
tial evidence from the record as a whole, we have recognized that "a
reviewing court is not barred from setting aside a National Labor
Relations Board decision when it cannot conscientiously find the evi-
dence supporting that decision is substantial, when viewed in the light
that the record in its entirety furnishes, including the body of evidence
opposed to [the] Board’s view." Virginia Electric & Power Co. v.
NLRB, 703 F.2d 79, 81, n.2 (4th Cir. 1983) (citing Weirton Steel v.
NLRB, 689 F.2d 504 (4th Cir. 1982), quoting Universal Camera, 340
U.S. at 488).
II.
Employees have a presumptive right to wear union insignia as part
of their Section 7 right to engage in concerted activities related to
union organization and collective bargaining.2 See Eastern Omni
employment or any term or condition of employment to encourage or
discourage membership in any labor organization." 29 U.S.C. § 158
(a)(3). The parallel section for labor organizations, Section 8(b)(2), simi-
larly provides that "it shall be an unfair labor practice for a labor organi-
zation or its agents to cause or attempt to cause an employer to
discriminate against an employee in violation of subsection (a)(3) of this
section." 29 U.S.C. § 158 (b)(2).
2Section 7 of the NLRA provides:
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Constructors, Inc. v. NLRB, 170 F.3d 418, 424 (4th Cir. 1999) (citing
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-04 (1945)). In
its decision, the Board recognized this right as well established under
Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). Section 7 not
only protects employees’ right to engage in union activities such as
wearing union insignia, it also protects those employees who choose
not to participate in union activities. It follows then, that if there is a
presumptive right to wear union insignia as part of engaging in union
activity under Section 7, there is a reciprocal Section 7 right contained
in that section’s "right to refrain" language to choose not to wear
union insignia. "The right to refrain from joining or assisting a union
is an equally protected right with that of joining or forming a union."
BE & K Constr. Co. v. NLRB, 23 F.3d 1459, 1462 (8th Cir. 1994)
(citations omitted).
Although Section 7 embodies both the right to wear union insignia
and the corollary right to refrain from wearing union insignia, the
Board recognized that rights surrounding the display of union insignia
are not absolute and may be abridged when special circumstances
exist. See Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418,
424 (4th Cir. 1999). Finding that special circumstances existed in the
case at hand, the Board concluded that the uniform policy was lawful.
Specifically, the Board found that the mandatory uniform policy
advances BellSouth’s "public image business objective." It found that
placing the BellSouth logo alongside the CWA logo on the uniforms
muted any message of individual support the union logo might con-
vey, and that the policy was a product of the collective bargaining
process. We find that the Board’s conclusions regarding the existence
of special circumstances are not supported by substantial evidence.
"Employees shall have 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 or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as
authorized in section 8(a)(3)." 29 U.S.C. § 157 (italics added).
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We have found that regulation of the display of union insignia is
warranted where "the employer . . . show[s] that there are special cir-
cumstances that justify its actions to maintain employee discipline
and efficiency." Virginia Electric and Power Co. v. NLRB, 703 F.2d
79, 83 (4th Cir. 1983); see also, Eastern Omni Constructors, Inc. v.
NLRB, 170 F.3d 418, 425 (4th Cir. 1999) (finding valid safety con-
cerns justified the ban on union decals on hardhats). The Board has
also found special circumstances justifying regulation of union insig-
nia in contexts other than employee safety and discipline. "One such
‘special circumstance’ is where the display of union insignia may
‘unreasonably interfere with a public image which the employer has
established, as part of its business plan, through appearance rules for
its employees.’" Meijer, Inc. and Local 951, United Food and Com-
mercial Workers International Union, 318 N.L.R.B. 50, 50 (1995).
We are mindful that "[t]he Board has consistently held, however, that
customer exposure to union insignia alone is not a special circum-
stance allowing an employer to prohibit display of union insignia by
employees." Meijer Inc. and Local 951, United Food and Commer-
cial Workers International Union, 318 N.L.R.B. at 50. So, in this
case, the converse is true and the employer may not require display
of union insignia for customer exposure alone.
Thus, a company may prohibit display of union insignia where
such display unreasonably interferes with its established public
image. In the inverse case with which we are presented, where a com-
pany seeks to require, rather than prohibit, display of union insignia,
we safely assume, without deciding, that BellSouth may require the
display of the union insignia if the absence of the union logo unrea-
sonably interferes with its established public image. But there is no
evidence to that effect, not even the stipulation of the parties.
The parties agree that BellSouth’s uniform policy was designed to
present a professional image to their customers and the general public
and that the company considered a uniform policy to be "a critical
aspect of its strategy to succeed in a new competitive environment."
BellSouth asserts that the display of the union logo on the uniforms
signifies a labor-management partnership which makes service inter-
ruptions due to labor disputes less likely and represents that their
employees are well-trained, well paid, and more experienced with a
stable work environment. The Board agreed that the display of the
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union logo in conjunction with the company logo "reasonably can be
seen to convey a message that BellSouth is a unionized employer and,
along with the CWA, enjoys a labor-management partnership, that is,
a bargaining relationship characterized by cooperation, not conflict."
We disagree that the display of the two logos reasonably conveys the
public image BellSouth seeks to project.
There is no evidence that the display of the union insignia conveys
BellSouth’s intended message. In fact, rather than view the union logo
as representing a labor-management partnership which makes labor
disputes less likely and a reflection of a stable work environment, the
public may view the union logo with suspicion and associate it with
service disruptions and labor disputes, see, for example, Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 695 (1983), particularly in a right-
to-work State such as North Carolina. Furthermore, it is entirely rea-
sonable that a person viewing an employee wearing union insignia
would assume that the employee is a union member and supports the
union. Indeed, this is the assumption the Board itself has made repeat-
edly in upholding the Section 7 rights of employees to display union
insignia. See e.g., Leather Center Inc., 312 N.L.R.B. 521, 529
(1993)("The wearing of union insignia while at work to express
employee solidarity has long been recognized as an exercise of
employee rights under Section 7 of the Act.") (citing Republic Avia-
tion Corp. v NLRB, 324 U.S. 793, (1945)); Electro-Wire Truck &
Industrial Products Group, 305 N.L.R.B. 1015, 1023 (1991)
("Knowledge of the union activities, or sympathies, of [the employ-
ees] is not disputed. Each was wearing union insignia at the times of
the discharges.")
If non-union members, in exercising their Section 7 right to refrain
from union activities, choose not to display the union logo on their
uniforms, their actions cannot unreasonably interfere with BellSouth’s
public image because there is no evidence that particular image is
conveyed by the display of the union logo in the first instance. In
short, there can be no interference with a message that is not necessar-
ily being conveyed. Therefore, without evidence of special circum-
stances that show BellSouth’s required display of the union logo
reasonably conveys its established public image, the intrusion on the
Section 7 rights of employees who object to the CWA logo cannot be
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justified and BellSouth and CWA may not regulate the display of
union insignia in contravention of employees’ Section 7 rights.3
As additional evidence of the special circumstances that would per-
mit BellSouth and CWA to require display of the union logo, the
Board relies on the fact that the context of this dispute involved the
"legitimate interests of both the Employer and the Union, as
expressed through the collective bargaining process that national
labor policy endorses." The Board accurately notes that "[i]t is a fact
of life under the Act that employees opposed to union representation
remain members of the bargaining unit, so long as the union enjoys
majority support." Granted, as the duly elected bargaining representa-
tive, CWA has the authority to waive an employee’s statutorily pro-
tected rights. See Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
705-06 (1983). However, "a union may bargain away its member’s
economic rights, but it may not surrender rights that impair the
employees’ choice of their bargaining representative. See NLRB v.
Magnavox Co. supra, at 325." Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 705-06 (1983).4
The fact that the mandatory uniform policy at issue here is a result
of collective bargaining does not make it lawful, nor has precedent
come to our attention among NLRB cases or our own to suggest that
collectively bargained provisions fall within the "special circum-
stances" that permit the regulation of union insignia. By protecting
employees’ right to engage in activities supporting a union or to
3Because we find that the Board’s conclusion that special circum-
stances exist is not supported by substantial evidence, we need not reach
the First Amendment argument raised by Lee and Amburn.
4Metropolitan Edison depended on NLRB v. Magnavox Co., 415 U.S.
322 (1974) for the quoted statement. In Magnavox, a union had, by con-
tract with the employer, waived the employees’ right to distribute litera-
ture with respect to union representation "even in non-working areas
during non-working time." The Sixth Circuit upheld the waiver, 474 F.2d
at 1269. The Court reversed the court of appeals, however, its necessary
holding being that such § 7 rights are not waivable, as Metropolitan Edi-
son construes Magnavox. Although Metropolitan Edison and Magnavox
are as close to the facts of this case as any which have come to our atten-
tion, neither of those cases was mentioned in the Board’s opinion.
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refrain from such support, Section 7 rights are integral to employees’
rights to choose their bargaining representative and thus cannot be
bargained away by either the union or the company. Even though it
may be true that nonunion members are "subject to displays of their
bargaining representative’s name, initials, logos, and symbols in a
variety of everyday contexts" we are of opinion that being required
to display the union logo on your person is fundamentally different
than being exposed to the logo on bulletin boards and company forms.
Mentioning the same on various papers concerning company and
employee business could not reasonably be taken to convey an indi-
vidual’s support of the union, as does the display on the uniform.
III.
For the foregoing reasons, we find that the Board’s conclusion that
the mandatory display of the union logo is lawful because special cir-
cumstances are present is not supported by substantial evidence. By
paying to place the union logo on the uniforms and making the wear-
ing of the union logo on uniforms a condition of employment, Bell-
South violated Section 8(a)(1), (2), and (3) of the Act. Similarly,
CWA violated Section 8 (b)(1)(A) and 8(b)(2) of the Act by propos-
ing and agreeing to require employees to wear the union logo and by
accepting BellSouth’s financial support. Thus, we grant the petition
for review, vacate the Board’s dismissal order, and remand to the
Board with directions to modify its order consistent with this opinion.
VACATED AND REMANDED WITH DIRECTIONS
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