dissenting.
Because I would decline to enforce the order of the National Labor Relations Board, I respectfully dissent.
At issue in this appeal is whether Meijer, Inc. violated § 8(a)(1) of the National Labor Relations Act when it refused to allow store employees who had contact with the public to wear union buttons. The store at issue is in Traverse City, Michigan, and is not covered by a union contract. Meijer requires its employees to wear name tags and pins issued to them honoring quality service or advertising store promotions. In accordance with this policy, Meijer issued pins to its employees for them to wear, which included “TAC' — ■ *1218Terrific Attitude Counts” pins, “smiley face” pins, pins promoting the team concept at the store, pins in the shape of skeleton keys signifying “key” employees, and United Way pins. Meijer also issued to its employees promotional buttons advertising new releases in the video department or current store specials, such as sales on potato chips.
On occasion, store employees would wear unauthorized pins, such as Christmas tree pins, teddy bear pins, or pins with photos of children. Some employees wore issue-oriented pins such as “gay rights” or “right to life” pins. Store director Tom Kollar would ask employees to remove the unauthorized pins. He enforced this policy whether or not the offending employee was wearing a seasonal holiday pin or an issue-oriented pin, such as a “gay rights” or a “Union Yes” pin. Prior to Kollar’s hiring in 1992, the uniform policy at the Traverse City store had been enforced sporadically. However, Kollar, upon becoming store manager, Kollar began consistently to enforce the store dress code.
In Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), the Supreme Court held that an employer’s ban on solicitations, uniformly applied to all types of soliciting and not motivated by a desire to interfere with union activity, nevertheless constituted an unfair labor practice when enforced against employees soliciting union membership in the plant by passing out application cards to other employees during lunch periods. The Court recognized that resolving the case required a balancing of the organizational rights of the employees and the right of employers to maintain discipline in the workplace. See Republic Aviation, 324 U.S. at 797, 65 S.Ct. at 985. In so holding, the Court relied upon the presumptions established in Peyton Packing Co., 49 N.L.R.B. 828 (1943):
The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee’s time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.
Republic Aviation, 324 U.S. at 803 & n. 10, 65 S.Ct. at 988 & n. 10 (citing Peyton Packing Co.).
Recent decisions from this court provide a legal basis for Meijer’s refusing to allow employees to wear pro-union buttons. We have held that an employer may prohibit employees from wearing union buttons if the employees have contact with the public and if the employer has a consistently enforced policy that employees may wear only authorized uniforms. See Burger King Corp. v. NLRB, 725 F.2d 1053, 1055 (6th Cir.1984). However, the employer must enforce the policy in a nondiscriminatory manner. Just last year, in Cleveland Real Estate Partners v. NLRB, 95 F.3d 457 (6th Cir.1996), this court held that the term “discrimination” means “favoring one union over another, or allowing employer-related information while barring similar union-related information.” Id. at 465 (citing NLRB v. Babcock & Wilcox, 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956)). Thus, the fact that an employer allows charitable solicitations but not distribution of union literature does not constitute discrimination:
No relevant labor policies are advanced by requiring employers to prohibit charitable solicitations in order to preserve the right to exclude nonemployee distribution of union literature when access to the target audience is otherwise available. The purpose of section 8(a)(1) is to prevent employers from interfering with employees’ exercise of section 7 rights. An owner of private commercial property who permits a charitable organization to distribute information or conduct solicitations on its prop-
*1219erty simply does not implicate the policies of the NLRA and does not, without more, render an employer guilty of an unfair labor practice when later it chooses to follow the general rule of validly posting its] property against nonemployee distribution of union literature.
Id. (quotation marks and citation omitted).
Moreover, in Burger King, this court recognized that employers in service industries have an interest in projecting a consistent, professional image to the public. 725 F.2d at 1055. Thus, in this limited “special circumstance,” the balance under § 8(a)(1) tips in favor of the employer’s interests.
The majority believes that the Cleveland Real Estate Partners’ definition of discrimination should not be applied in the instant ease, since Cleveland Real Estate Partners involved non-employee solicitors and this ease involves employees. To apply the Cleveland Real Estate Partners definition here, they argue, would be inconsistent with the Supreme Court’s ruling in Republic Aviation. However, Republic Aviation clearly does not mandate that employees’ expression of support for a union may never be limited by employers. Quite the contrary, in Republic Aviation the Court recognized the need to balance the interest of the employees in self-organization and the interest of the employer in maintaining a disciplined, productive workplace. Although the Court held that the prohibitions on solicitation and the wearing of union buttons in the industrial plant constituted an unfair labor practice, it also made clear that special circumstances may exist where such limitations are permissible.
Although the union asserts that “no compelling ... balance” is presented in this case, we have recognized the interest that employers in service industries have in projecting a consistent, professional public image. Burger King, 725 F.2d at 1055. Likewise, the union’s contention — that applying the Cleveland Real Estate Partners’ definition to cases like ours would effectively overturn the rule of Republic Aviation — overstates the impact of such a holding, which would be limited to the Burger King and uniform pin situations. These cases turn on the definition of the same term, under the same provision of the same subsection of the same federal statute: § 8(a)(1) of the National Labor Relations Act. It would be wrong to apply different definitions of this vital term on a ease-by-case basis.
Moreover, the policy considerations noted in Cleveland Real Estate Partners apply equally here. In Cleveland Real Estate Partners, this court said that an employer who allowed charitable solicitations simply does not implicate the policies of the NLRA. Likewise, in the instant case, the union alleges that the employer discriminated against protected activity when it supplied employees with buttons to promote store products and services. But buttons announcing potato chip prices simply do not implicate the policies of the NLRA.
This court has already applied, at least implicitly, something like the Cleveland Real Estate Partners’ definition of discrimination to cases arising under Burger King. In United Parcel Serv. v. NLRB, 41 F.3d 1068 (6th Cir.1994), we held that the employer’s refusal to allow employees to wear union pins, while allowing the wearing of other pins, did not constitute discrimination in violation of § 8(a)(1). The facts of the instant case are strikingly similar to those in United Parcel Service, but the majority attempts to distinguish the two by noting that the basis for the United Parcel Service decision was that the collective bargaining agreement in force between UPS and the union gave UPS the right to “promulgate and enforce appearance standards.” However, since workers, whether unionized or not, do not actually possess the right to promulgate and enforce their own “appearance standards,” distinguishing these cases on this ground strikes me as unpersuasive.
As demonstrated by Cleveland Real Estate Partners, Burger King, and United Parcel Service, this court recognizes an employer’s right to prohibit the wearing of union buttons by employees when the employees have contact with the public and the employer has a consistently enforced a nondiscriminatory policy requiring that employees wear only authorized uniforms.
I respectfully dissent.