Reynolds Electrical & Engineering Co , Inc

REYNOLDS ELECTRICAL CO Reynolds Electrical & Engineering Co, Inc and Lila L Jones and Teamsters, Chauffeurs, Ware- housemen and Helpers, Local 631, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO and Laborers International Union of North America, Local Union No 872 Cases 31-CA-16920, 31-CA-16921, 31-CA-17022, and 31-CA-16958 February 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On October 12, 1988, Administrative Law Judge Richard D Taplitz issued the attached decision The General Counsel, joined by Charging Party Laborers Local 872, filed exceptions and a support ing brief, and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed i In agreeing with the judge that the Respondent did not violate the Act by banning the poststrike wearing of buttons containing a red line drawn diagonally through the word scab we emphasize the factual limitations of our holding In this case there were numerous hostile acts by strikers against nonstrikers during and continuing after the strike These acts included verbal abuse vandalizing automobiles the finng of shots into a home threats of personal injury and threats to drive non strikers from their jobs On the other hand there is no evidence that the Respondent bore any animosity towards the strikers During the strike it did not hire replacements When the strike ended the Respondent reem ployed all returning strikers and it had concluded new bargaining agree ments with most of the unions representing its employees Most impor tantly both before and after the strike the Respondent undisputedly per mitted the wearing of all other types of union insignia Under these par ticular circumstances relying solely on the judge s alternative rationale we find based on United Aircraft Corp 134 NLRB 1632 (1961) that the Respondents prohibition against wearing the buttons in the plant was a reasonable precautionary measure and hence did not violate Sec 8(a)(3) and (1) of the Act Raymond M Norton Esq for the General Counsel Yelverton Cowherd Esq, of Las Vegas, Nevada for the Respondent Patricia S Waldeck, Esq (Wohlner Kaplon Phillips Vogel Shelley & Young), of Los Angeles California, for Charging Party Teamsters Local 631 DECISION 947 STATEMENT OF THE CASE RICHARD D TAPLITZ, Administrative Law Judge This case was tried in Las Vegas Nevada, on May 10, 11 and 12 1988 The charge in Case 31-CA-16920 was filed on December 21, 1987 by Lila L Jones The charge in Case 31-CA-16921 was filed on December 23, 1987 by Teamsters, Chauffeurs, Warehousemen and Helpers, Local 631, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Teamsters Local 631) An order consolidating those two cases and a consolidated com plaint issued on February 26, 1988, alleging that Reyn olds Electrical & Engineering Co, Inc (Respondent or the Company) violated Section 8(a)(1) and (3) of the Na tional Labor Relations Act The charge in Case 31-CA- 16958 was filed on January 19, 1988, by Laborers Inter national Union of North America, Local Union No 872 (Laborers Local 872) The charge in Case 31-CA-17022 was filed on March 1, 1988, by Teamsters Local 631 An order consolidating all of those cases and a first amended consolidated complaint issued on March 30 , 1988, alleg ing violations of Section 8(a)(1) and (3) of the Act That consolidated complaint was further amended on April 7, 1988 Issue In a poststrike situation the Company prohibited em ployees from wearing buttons at work that contained a red line drawn diagonally through the word Scabs The sole issue is whether the Company violated the Act by prohibiting employees from wearing the buttons and by disciplining employees who wore them All parties were given full opportunity to participate to introduce evidence to examine and cross examine wit nesses to argue orally and to file briefs Briefs which have been carefully considered were filed on behalf of the Company and Teamsters Local 631 The General Counsel argued orally at the close of hearing On the entire record of the case and from my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS OF FACT I JURISDICTION The Company a Texas corporation provides con struction, maintenance and operational support to the US Department of Energy at the Nevada Test Site (NTS), located at Mercury, Nevada and at the Tonopah Test Range (TTR), located at Tonopah, Nevada as well as at other locations The Company annually purchases and receives goods and services valued in excess of $50,000 directly from suppliers located outside of Nevada The complaint alleges, the answer admits, and I find that the Company is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act Teamsters Local 631 Culinary Workers Union Local 226, a/w Hotel Employees and Restaurant Employees 292 NLRB No 104 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Union AFL-CIO (Culinary Workers Local 226) and Laborers Local 872 are labor organizations within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Sequence of Events The Company is a prime contractor for the United States Department of Energy It provides support serv ices at the NTS and the TTR The Company, among other things builds and maintains roads and power lines and provides personnel for general construction The test site and the test range are isolated facilities of enormous size The NTS is approximately the size of Rhode Island The Company houses and feeds employees at both facili ties, though some employees live off the premises The Company deals with 14 unions and has 26 different col lective bargaining agreements Those include construc tion contracts maintenance contracts, and miscellaneous ones Most of the unions the Company deals with are craft unions in the construction industry There are about 1150 employees on the payroll at the TTR of whom about 750 live on the premises The collective bargaining agreement between the Company and Culinary Workers Local 226 expired on August 8, 1987 Contracts with other unions, including one of the bargaining units represented by Teamsters Local 631, expired October 1 1987 On September 15, Culinary Workers Local 226 began a strike that lasted until November 23, 1987 Other unions honored the picket line with a sympathy strike On October 1, 1987, some of the other unions struck on their own in addition to continuing the sympathy strike t When the strike ended on November 23, 1987 all the employees who desired to do so went back to work 2 The Company did no hiring during the strike and none of the strikers were denied reinstatement at the end of the strike The Company does all hiring through the union halls In all there were about 3000 strikers About 500 to 600 union employees participated in the strike at TTR of whom about 200 were Culinary Workers and about 140 were Teamsters About 215 employees worked at TTR during the strike During the strike a great deal of invective was direct ed by the strikers against nonstrikers The strikers often yelled scab at the nonstrikers The Joint Council Teamsters newspaper of October 5 1987, made such re i Teamsters Local 631 apparently represented two separate bargaining units of drivers one of which was covered by a project labor agreement for construction That contract was in effect from 1985 through 1990 and contains a broad no strike clause Other unions had similar arrangements At this trial the parties did not litigate issues such as whether the strike was in violation of some of the collective bargaining agreements whether the strike by all the unions was a protected activity under Sec 7 of the Act (as contrasted with an unprotected strike in violation of contract) or whether various unions violated Sec 8(b)(1)(A) of the Act by attempting to discipline employees for working during the strike Some of those issues have been raised in other cases but as yet there are no Board deci sions As those matters have not been litigated in the instant case I have not considered them z An agreement had been reached at that time in most of the bargain ing units In one of the Teamsters Local 631 bargaining units an agree ment was reached at a later date even though the strike ended on No vember 23 marks as The following 18 of our members have joined the scum of the earth society by resigning from the Union and working for Reynolds as scabs All 18 people listed were fined by the Union During the strike a human image was hung in effigy with the word scab on it A mock graveyard was set up in two different places The headstones on the mock graves were in scribed with the names of people who worked during the strike One of the nonstrikers, Steve Falls,3 received a telephone call from a person identifying himself as Rick Knight, one of the stewards for Teamsters Local 631 In that telephone conversation the person who identified himself as Knight told Falls to quit or something would be put in his car that would get him fired That person threatened Falls, his wife and his children and told him that unless he quit they would find some way to quit for him, such as placing drugs in his car During the strike, tires were slashed on the cars of a number of nonstrikers The situation during the strike received considerable attention from the newspaper and TV media One TV report included a newsreel showing an individuals home that had been shot into At the last negotiating session before the strike ended the Company s general manager requested the Teamsters committee to try to put what had gone on during the strike behind them and have a harmonious and peaceful return to the job William Herbert Jr, Teamsters Union 642 president and business agent, had a different attitude Herbert acknowledged in his testimony that he told his union members to treat these people that were scabs that worked behind the picket line with a ten foot pole dust like they re supervisors However poststrike hostili ty against employees who had crossed the picket line was not limited to ostracism Lucille Grigsby a custodian for the Company struck with the others but returned after 6 weeks A week or two after the strike ended she was approached in the company parking lot by a fellow employee named Van Shoick who called her a fucking scab and a son of a bitch " Van Shoick was wearing the no scabs permitted here button that is described more fully below The fol lowing day someone scratched Grigsby s new car from the headlight across the door 4 Company employee Steve Falls worked during the strike He was one of the employees whose tires were cut and he received a threatening phone call during the strike The day after the strike ended Falls found a note in his desk which called him among other things a scab Teamsters shop stewards often called him a scab The employees whom Falls works with normally send out for 8 Falls was a member of Teamsters Local 631 and he went out on strike with the others in mid September His wife who also worked for the Company continued to work On September 19 the tires of Falls car were cut when the car was parked at his residence He became angry and went back to work After a short time he rejoined the sinkers Then he saw his name listed in the union newspaper as one of the scabs who joined the scum of the earth society The article also named his wife as a scab He again returned to work He also resigned from the Union 4 There is no evidence that Van Shoick was involved in the door scratching incident and that incident is considered only with respect to an indication of a general atmosphere at the premises at the time when the no scabs permitted here buttons were worn REYNOLDS ELECTRICAL CO lunch and have the orders brought back The first day after the strike someone urinated on a hamburger that Falls had ordered After that he brought his own lunch The day his hamburger was contaminated other employ ees made comments to Falls about how good their take out lunch was On one occasion Rick Knight one of the stewards for Teamsters Local 631, wore a no scabs per mitted here button and told other employees so that Falls could overhear Now maybe the scab will get the message ' 5 On another occasion Falls heard Knight tell ing other employees, so that Falls could overhear, We'll find some way to get rid of him one way or another Just 2 weeks before this trial someone poured a contami nating substance in the gas tank of his car and cut two of his tires Mike Baldwin is a general foreman for the Company He worked during part of the strike He is a member of Carpenters Local 1780 On December 28 1987 which was after the strike ended, skunk scent was sprayed inside his vehicle On January 26, 1988, the same thing happened The day after that more skunk scent was sprayed in his vehicle and, in addition his tires were slashed while his vehicle was parked in front of his house Skunk scent was sprayed around the front porch At work employees in the shop laughed in his presence and talked about how long it takes skunk scent to go away and how it smells again every time there is moss ture or heat In another incident, on March 26, 1988, oven cleaner was sprayed on the side of his truck One employee told Baldwin after the first incident that such things would continue to happen five more times until they figured that it cost him as much as he had made through the strike After the strike the Company received numerous re ports of incidents that reflected hostility directed from the strikers against the employees who worked during the strike There were reports of cat urine being put in an employees vehicle, of the side of an employees vehi cle being dented, of an employees home being damaged of lockers being painted with the word scab and of employees receiving threats All the victims were em ployees who had worked during the strike Company representatives also noticed that many em ployees were wearing a button on their garments The button was about 2 inches in diameter and had the word scabs written in large black letters against a white background The button contained a bold red slash run ning diagonally through the writing and a red border (For the reasons set forth below the button is referred to here as the no scabs permitted here button) Frances Claudette Enus, the Company s labor relations manager, credibly testified that the company representatives be lieved that there might be a connection between the "no scabs permitted here' buttons and the vandalism and other harassment She asked her staff to try to get state ments so that they could evaluate those claims Later the Company decided to request people to remove the `no scabs permitted here buttons 6 5 The Union fined Falls $5000 and he filed charges with the NLRB 6 George Williams the president of Culinary Workers Local 226 gave the no scabs permitted here buttons to some of his members during the 949 On December 10, 1987, company officials met with stewards from Teamsters Local 631 to discuss some safety problems and other work related matters In the course of the discussion Arwin Marrs, the Company s as sistant department manager asked the stewards to remove the no scabs permitted here buttons because he felt they were causing disharmony in the workplace The stewards said that they would go back to the em ployees and see if they could get the employees concur rence in removing them The stewards later told Marrs that they were going to remove the buttons to show good faith and that they would talk to the employees and see if they could get the employees to remove theirs The stewards did remove the buttons but sometime later they put them back on About mid December 1987, on various occasions, the Company, acting through various members of manage ment told employees that they were not allowed to wear the no scabs permitted here buttons and that they would be disciplined if they wore such buttons On December 18, 1987 the Company suspended em ployee Lila Jones, a member of Culinary Workers Local 226, because she refused to remove a no scabs permit led here button from her attire She returned to work on January 6, 1988 The following employees, each of whom was a member of Teamsters Local 631, were suspended by the Company for the period indicated next to their names because each of them refused to remove a no scabs per mitted here button from his attire Name Suspension Date Return to Work Gregory Barber 12/24/88 1/4/88 Fred Beecher 12/24/87 1/6/88 Charles Button 12/22/87 1/5/88 William Cottrell 12/24/87 1/5/88 John Deck 12/29/87 1/5/88 Larry R Gnffith 12/22/87 1/5/88 Rickey Knight 12/22/87 1/5/88 Paul La Plante 12/24/87 1/4/88 Gordon Larason 12/22/87 1/5/88 Danny Pritchett 12/22/87 1/5/88 strike However they were not commonly worn until about a week after the strike ended At that time Williams tried to talk one of his members Lila Jones out of wearing the button On December 18 1987 Jones was told by the Company s assistant department manager Krumm to remove the button When she refused to do so Williams participated in a three way telephone call in which he told Jones that the Company had made concessions to employees that the Company did not have to make that he had told the Company the Union would try and put the strike behind them and that part of that was to take off the scab buttons She still re fused to take it off and was suspended Some of the other unions took the same position Ken Lufkin who is a member of Sheet Metal Workers Local 88 was told by his business representative to collect the buttons and put them away because he would not condone the Sheet Metal Workers wearing the scab buttons Lufkin testified that he did put the buttons away to keep down the possibility of any disruption in the shop The business agent for Teamsters Local 631 William Herbert Jr took an entirely different approach He was the one who told his members to treat the scabs with a 10-foot pole He testified that he saw his mem bets wearing the buttons but did not tell them to take them off It is noted that 10 of the 11 employees named in the complaint as having been unlawfully suspended were members of Teamsters Local 631 950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Each of the suspended employees was told in writing that the no scabs permitted here buttons were disrup tive and caused an atmosphere of dissension and dishar mony They were told that if they agreed to remove the buttons they could return to work Except with regard to the no scabs permitted here buttons, the Company made no effort to limit the use by employees of buttons, inscribed T shirts and caps or other insignia Many employees wore union solidarity buttons, union steward buttons, union pride emblems, and other union insignia without any objection by the Company There was a great deal of testimony concerning the meaning of the no scabs permitted here buttons and what the wearers intended to accomplish by weanng them Larry Griffith, one of the suspended employees, agreed with Jack London's definition of a scab, which simply warms up by saying After God had finished the rattlesnake, the toad, and the vampire, he had some awful substance left with which he made a SCAB A SCAB is a two legged animal with a corkscrew soul, a water logged brain, and a combination backbone made of jelly and glue Where others have hearts, he carries a tumor of rotten principles ' He averred that he wore the button to show solidarity with the other strikers, but that he did not wear it some of the time because he was trying to keep harmony between the Union and the Company and get the work force back on the right foot He further testified that he believed the people wore the buttons to express their personal feelings to the effect that they were against people who crossed the picket line Lila Jones, another suspended employee, testified she wore the button to express solidarity with the Union Jerry Barker testified that the button meant that the wearer was not a scab' and that it was symbol for ev eryone to join together so that there would be no scabs He averred that it was an invitation for people who crossed the picket line not to do it in the future Steve Taylor testified that he did not hope to achieve anything by wearing the button and that he wore it to show that he was proud that he did not cross the picket line Rick Knight testified that he wore the button to show solidarity with the Union and that it was a symbol that they would stick together if they had to go out again Gordon Larason testified that he wore it to show support of his fellow union members and to show other people that he had not crossed the picket line He testi fled that to him the word "scab means a person who crosses a picket line and that it has no derogatory mean ing William Cottrell testified that he wore the button to show pride in the Union Danny Pritchard testified that he wore one to show solidarity with the others The above testimony was not altogether reliable in terms of defining what the button meant and what it was intended to accomplish As to what the word scab meant, there can be little question The attorney for Teamsters Local 631 stated with what can only be de scribed as refined understatement `the word scab is used by strikers with respect to nonstrikers with some bad feeling In the context of this case, the word `scab' is a strong pejorative indicating extreme contempt In a newsletter put out by Teamsters Local 631 secretary treasurer Von A Eisinger scabs were referred to as members of the scam of the earth society It is clear that by wearing the 'no scabs permitted here button the wearers were throwing an insult at the nonstrikers The nonstrikers were being called `scum of the earth" and everyone understood that To the extent that the wit nesses mentioned above testified to the contrary, I do not credit them They were not that naive The red slash through the word scabs also had a clear meaning The parties were in ag'eement that a word with a slash through it is an international symbol that means certain conduct is forbidden Thus, in a park, a picture of a dog with a red slash through it means no dogs are permitted in that park A cigarette with a slash throught it means that no smoking is permitted in that area Such a symbol can be used to show that no right turns are permitted at a traffic intersection The symbol means that the thing designated is not permitted at that place The buttons in this case can only mean no scabs permitted here and the "here" means the company premises Thus I have referred to the buttons as the 'no scabs permitted here" buttons Some employees may have worn those buttons, as they testified, to show soli danty with others who had participated in the strike However that does not help in determining what was meant by the buttons I do not believe that the witnesses were credible with regard to their testimony that indicat ed a relatively benign intent in wearing the buttons Words and symbols have meanings in the context in which they are used Here we have a poststnke situation in which threats intimidation, and the destruction of property were used to intimidate employees who worked during the strike Ir that context the no scabs permitted here' buttons were not only statements of contempt for the employees who had no participated in the strike, but also requests that the Company discharge the employees (since the Company was the only one in a position to deny permission to them to be on the property) and an attempt to intimidate those employees into quitting The wearers of the buttons may well have been showing soli danty in venting their spleen against employees who worked during the strike, but that does not change the meaning of the buttons B Analysis and Conclusions Section 7 of the Act provides in relevant part that Employees shall have the right to self organza tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac tivities 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 activi ties In general an employee has the right under Section 7 to wear a union insignia or a symbol of collective employee activity while on the job The employer, on the other hand, has the right to maintain discipline and production When those rights have to be balanced, there is a pre REYNOLDS ELECTRICAL CO 951 sumption that the wearing of the insignia is protected by the Act That presumption may be rebutted by a show ing of special circumstances, which make the employer s actions necessary to maintain production or discipline, or to insure safety Republic Aviation Corp v NLRB, 324 U S 793 (1945), Kendall Co, 267 NLRB 963, 965 (1983) However not all insignia showing collective activity by employees are protected A button that reads, "Harass the scabs until you drive them from the property" might indicate union pride and might be motivated by a desire to show solidarity with others who engaged in the strike However I do not believe that such a sign would come under the protection of Section 7 of the Act Not be cause special circumstances were present, but simply be cause the Act does not protect harassment There are sit uations when name calling and other misconduct, which fall short of the coercion or intimidation of other em ployees in the exercise of their rights protected under the Act,7 are so intertwined with protected activity that the employer's restraint of the minor misconduct will have an undue chilling effect on the protected activity In such cases discipline may not be imposed even though there is misconduct The actions of the employees and the employer must be considered in their entire context In the instant case, the Company prohibited the wear ing of the "no scabs permitted here buttons only after the strike had ended There was no restraint on the wearing of other union and union related buttons and emblems No replacements had been hired for the stnk ers and all the strikers who desired to do so returned to work It was not a situation in which the striking em ployees wanted the nonstrikers removed so that there would be room for the strikers to return It was not an organizational situation or one in which strikers were disciplined for wearing the buttons during the course of a strike There was a great deal of bitterness engendered between strikers and nonstrikers during the course of the strike There was a substantial amount of vandalism di rected against the nonstrikers as well as threats and har assment The nonstrikers had reason to believe that there was serious violence directed against them in that there was a television report of a bullet fired into the home of a nonstnker The harassment of nonstrikers continued after the strike was over There was name calling of the fucking scab and son of a bitch' variety the scratch mg of car paint, the contamination of food by urine, the statement that the strikers would find some way to get rid of the nonstrikers, the cutting of tires and the con tamination of gas in a car In addition there was the spraying of skunk scent in a vehicle, the spraying of oven cleaner on the side of a truck and the statement to a nonstnker that his property would continue to be dam aged until it cost the nonstriker as much as he had made through the strike A number of similar incidents were reported to management In that context, I am convinced that the wearing of the no scabs permitted here ' but tons was part of an overall attempt to harass the people who had worked during the strike to drive them off the job and to put pressure on the Company The harassment Cf Clear Pine Molding 268 NLRB 1044 (1984) enfd 765 F 2d 148 (9th Cir 1985) was not in itself protected and it was not so intertwined with protected activity that the Company s prohibition against the wearing of the "no scabs permitted here" but tons would have an unduly chilling effect on any pro tected activity In sum, I find that under these circum stances, the wearing of the no scabs permitted here" buttons was not protected under Section 7 of the Act, that the Company could lawfully prohibit the wearing of those buttons, and that the Company could lawfully dis cipline employees who failed to abide by that prohibi tion 8 Even if we assume for the sake of argument that the no scabs permitted here buttons were protected under Section 7 of the Act, I believe that the complaint would still have to be dismissed In such a case the protected right would have to be balanced against the legitimiate need of the Company to maintain discipline As set forth in detail above, there was a bitter strike with a great deal of harassment directed against nonstrikers and the Com pany could reasonably have believed that it would have discipline problems on its hands in terms of hostile em ployee factions after the strike was over Their fears in that regard were amply justified Also as is set forth in detail above, the harassment of the people who had worked during the strike continued after the strike was over The no scabs permitted here buttons were one part of the continuation of that harassment and were part of an overall effort to drive the employees who worked during the strike off the premises Those signs went well beyond the simple expression of distaste for the non strikers or name calling In United Aircraft Corp 134 NLRB 1632 (1961), the Board dismissed the complaint in circumstances in which a pin worn by employees was much less divisive than the one in the instant case There, after a strike was over em ployees wore a pin saying club nine" to show that they had honored a 9 week strike The employer suspended those employees for 10 days until they took off the pins There had been violence during the strike and evidence of divisiveness after the strike was over The administra tive law judge concluded that the company s ban on the club nine pins unlawfully intruded on the employees right to display union insignia and that the company s al leged apprehension that the wearing of the pins would provoke breaches of discipline was not a `special cir cumstance such as to render the prohibition lawful The Board reversed, holding that the company could lawful ly ban the wearing of the club nine pins, and that the company had a reasonable apprehension that the pins would promote disorder and lead to further divisiveness between the strikers and nonstrikers The Board conclud ed that the company s ban on pins was a reasonable pre cautionary measure under the circumstances and that the company did not violate the Act by banning employees 8 In part the no scabs permitted here buttons were an expression of opinion However there is no issue in this case concerning the first amendment of the Constitution or Sec 8(c) of the Act There is no gov ernmental action present in this case that seeks to limit free speech The General Counsel seeks to restrain the Company and not the individuals wearing the buttons The only question presented is whether the Compa ny (a nongovernmental entity) violated the Act by its actions 952 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from wearing them The instant case calls even more clearly for dismissal As in United Aircraft Corp supra the nonstrikers were subjected to substantial intimidation both during and after the strike In the instant case the no scabs permitted here buttons were much more likely to further divisiveness between strikers and the nonstrikers than the relatively innocuous club nine pins worn by employees in the United Aircraft case Here the buttons were part of a continuing harassment of the people who worked during the strike and were on their face an attempt to drive those employees away from the Company In Midstate Telephone Corp, 262 NLRB 1291 (1982), enf denied in relevant part 706 F 2d 401 (2d Cir 1983), the Board held that a company could not lawfully pro habit employees from wearing a T shirt with the picture of a cracked company logo and the writing `I survived the Midstate strike of 1971-1975-1979 In that case the Board found that there was no evidence that the strike engendered unusual discord of bitterness among employ ees that might be exacerbated to the harm of plant disci pline as a result of employees wearing the T shirts 9 The Board distinguished that case from United Aircraft Corp, supra, in which there was a finding of discord and bitter ness among groups of employees, by holding [In] United Aircraft Corporation Pratt & Whitney Aircraft Division, 134 NLRB 1632 (1961), cited with approval by the Administrative Law Judge we found that, following the conclusion of a divisive strike marked by numerous post strike instances of discord and bitterness between `loyal" strikers and those employees who crossed picket lines during the strike, an employer was privileged to prohibit the wearing of pins in the plant designating certain loyal" strikers, where substantial evidence was pre sented demonstrating the real possibility of plant disorder if the pins were worn and continually on display in the workplace In the instant case the strike was extremely divisive and was marked by numerous poststnke instances of dis cord and bitterness between strikers and those who crossed the picket line In addition, the no scabs permit ted here buttons were much more divisive than pins 9 The court in denying enforcement to that part of the Board s decision held that the employer had a legitimate interest in prohibiting the T shirts that outweighed the employees ill-defined interest in promoting union solidarity that merely designated loyal strikers Also in the in stant case the Company has presented substantial evi dence indicating the real possibility of plant disorder if the no scabs permitted here" buttons were permitted to be worn In Southwestern Bell Telephone Co, 276 NLRB 1053 (1985), the Board was faced with a situation wherein an employer removed Jack London's definition of a scab from a bulletin board and threatened employees with punishment if they reposted it That definition" is quoted in part above The Board found that the employ er violated Section 8(a)(1) of the Act In doing so the Board distinguished that case from United Aircraft, supra, by pointing out that the strike in United Aircraft, supra, was accompanied by mass picketing and violence The Board also stated Nor can we, as the dissent does, equate maintaining a notice on a bulletin board with wearing a pin bearing a slogan, the danger of confronta tion in the two situations is entirely different " In sum I find that under all the circumstances present in the instant case, the Company acted lawfully in pro hibiting the use of the no scabs permitted here buttons and in disciplining employees who refused to honor that prohibition The Company was under no compulsion to wait until resentment piled up and the storm broke before it could suppress the threat of disruption by exer cising its right to enforce employee discipline South western Bell Telephone Co, 200 NLRB 667, 671 (1972) (quoting from Caterpillar Tractor Co, 230 F 2d 357 359 (7th Cir 1956)) In the situation that it found itself, the Company took measured and reasonable steps to pre serve discipline In doing so it did not violate the Act I shall therefore recommend that the complaint be dis missed in its entirety CONCLUSION OF LAW The General Counsel has not established by a prepon derance of the credible evidence that the Company vio lated the Act as alleged in the complaint On these findings of fact and conclusion of law and on o the entire record I issue the following recommended" ORDER The complaint is dismissed in its entirety 10 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses