concurring in part and dissenting in part.
Although I agree with Judge Morton that the Board’s determination regarding coercive interrogation should not be enforced, I do not agree with Judge Morton’s and Judge Engel’s decision that the Board’s order regarding union buttons should not be enforced because this case presents a set of facts which constitute “special circumstances” as a matter of law justifying Burger King’s banning of union buttons. In my opinion, there is ample case law as well as substantial evidence supporting the Board’s finding that Burger King violated section 8(a)(1) of the Act by prohibiting a restaurant employee from wearing a union button.
An employee has a right, protected by section 7 of the Act, 29 U.S.C. § 157, to wear union buttons and insignia at work, unless the employer demonstrates the existence of “special circumstances” which necessitate the banning of such insignia in order to reduce employee dissension or distractions from work, maintain employee safety and discipline, protect machinery or products, or project a certain image to the public. Pay ’N Save v. N.L.R.B., 641 F.2d 697, 700 (9th Cir.1981). Only the last of these special factors is even arguably present in the instant case; indeed, the Board found and the record supports that the union button involved here is small, innocuous, and unprovocative. There is no evidence in the record indicating even the possibility that customers might complain about such buttons or that these buttons damaged the employees’ image more than the few buttons sanctioned by the employer. Furthermore, Burger King’s ban applies to all of its employees, including those who do not have any public contact; as such, Burger King’s justification for the ban is insufficient See N.L.R.B. v. Montgomery Ward & Co., Inc., 554 F.2d 996, 1000 (10th Cir.1977).
I simply cannot distinguish this case on any meaningful ground from those cases in which courts have found “special circumstances” did not exist to justify banning employees from wearing union buttons while they are working and having public contact at a convenience store; see Pay ’N Save v. N.L.R.B., or a department store, see NLRB v. Montgomery Ward. Moreover, the Board’s order regarding union buttons at Burger King is consistent with its earlier order in Glenlynn, Inc., d/b/a McDonald’s Drive-In Restaurant, 204 NLRB 299, 310 (1973), prohibiting a restaurant virtually identical to Burger King from banning its employees’ wearing of union buttons.