National Vendors, a Division of Umc Industries, Inc. v. National Labor Relations Board ( 1980 )

ARNOLD, Circuit Judge,

dissenting.

I would enforce the Board’s order.

I have no quarrel with the general principles summarized in the Court’s opinion, ante, at 1267-1268. There is no doubt that the discussion of contract negotiations that Christopher Nelke wished to engage in was an activity protected under Section 7. Company-imposed restrictions on this kind of activity in non-working areas on the employees’ own time have been presumed invalid ever since Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). Such restrictions “are violative of § 8(a)(1) unless the employer justifies them by a showing of special circumstances which make the rule necessary to maintain production or discipline.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 492-93, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370 (1978) (footnote omitted). The balancing of interests that this test makes necessary is, in the first instance, the business of the Board, not the courts. “It is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy . . The judicial role is narrow: The rule which the Board adopts is judicially reviewable for consistency with the Act, and for rationality, but if it satisfies those criteria, the Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.” Id. at 500-01, 98 S.Ct. at 2473 (footnote omitted). See also, in addition to the cases cited on this point by the Court, NLRB v. May Dept. Stores Co., 154 F.2d 533 (8th Cir. 1946).

Both the Board and the courts have applied this doctrine rather strictly in favor of the rights of employees. AMC Air Conditioning Co., 232 N.L.R.B. 283 (1977), cited by the Court, ante, at 1268, is a good example. There, an employee addressed a group of 75 co-workers in a lunchroom in a loud voice. A foreman was eating in the room at the time and promptly reported the incident to the management. The employee was fired. An administrative law judge found the company’s anti-speech rule reasonable and upheld it, but the Board reversed. No customers or visitors used the lunchroom, it said,¹ and there was no evidence that any employees had been disturbed by the speech-making. No rule banning speeches had previously been in force. The Board’s order required the posting of a notice announcing, inter alia :

WE WILL NOT prohibit our employees from giving union-related speeches or other speeches concerning protected concerted activities in non-work areas including the lunchroom on their free time.

232 N.L.R.B. at 287.

Farah Mfg. Co., 202 N.L.R.B. 666 (1973), also cited by the Court, illustrates both sides of the coin. An employee addressed a group in the company’s cafeteria. The group “began to clap their hands and to make noises,” id. at 701. Visitors and customers also used the room, id. at 707. In these circumstances, a company rule against speechmaking in the cafeteria was upheld. On the other hand, it was held to be an unfair labor practice to discharge an employee for speaking to a crowd of about 100 employees “in a very loud tone” in the “main hallway of the . . . plant during the lunchbreak,” even though “some congestion in the hallway” was created. Id. at 666. As to the latter incident, the Board, reversing a trial examiner, said:

Alvarez [the discharged employee] was engaged in a protected concerted activity . . Respondent [Farah] had no right to limit it absent some showing that Alvarez’ loud tone was creating a problem in any area of proper management concern. [There were no] demonstrably disturbing effects on plant business or operations such as distracting employees.”

Ibid. Compare McDonnell Douglas Corp. v. NLRB, 472 F.2d 539 (8th Cir. 1973), in which this Court found that an employer engaged in highly sophisticated operations, some of which were militarily sensitive and classified secret, had shown sufficient “special circumstances” to take itself out of the general rule of Republic Aviation.

As this brief reference to a few cases has, I hope, made clear, the key to resolution of this kind of case is an examination of the particular facts of each disputed situation. The Administrative Law Judge below (whose findings the Board adopted) made a thorough and judicious review of the testimony, and I cannot say that her findings are not supported by substantial evidence. She found, among other things, that Nelke had held four separate meetings in the cafeteria, each without incident or complaint from any employee. All of the meetings were held during a ten-minute break in the course of the second shift. The second-shift foreman was present at the first two meetings.²

After the fourth meeting, the company’s Director of Personnel, having previously told Nelke he could not use the union bulletin board located in the plant, suddenly banned any further meetings. The ALJ found, as a matter of fact, that Edwin J. Barutio, the company official, told Nelke not only that he could not meet in the cafeteria, but that he could not talk to any group of people anywhere on company property.

In this situation, it does not seem especially important whether Barutio and the union’s business agent were in league to cut off Nelke’s access to his constituency, although I have no reason to doubt the validity of the ALJ’s inference to this effect. Nor is it necessary for the Board to show that Nelke could not have used the union hall,³ although the business agent, to say the least, was not hospitable to this request. The crux of the matter is that the company never showed that Nelke’s meetings had been or would be disruptive. Barutio expressed fears of disruptive tendencies and potential disturbances, but the ALJ found, permissibly in my view, that they were without substance. The mere potentiality of disruption should not be sufficient to override the important Section 7 rights of an elected union official to keep the membership informed of the progress of negotiations for a collective-bargaining contract.

Because I believe that the Board’s findings are supported by substantial evidence, and that it has struck a balance between competing rights that accords with the national labor policy enacted by Congress, I respectfully dissent.

1 . But cf. Beth Israel Hosp. v. NLRB, supra, 437 U.S. at 490, 98 S.Ct. at 2468, where an employer rule forbidding the solicitation of union support and the distribution of union literature in a cafeteria during nonworking time was held unlawful even though only 77% of the cafeteria’s patrons were employees.

2 . This may be what the Court refers to, ante, at 1267, when it says “non-unit personnel. were present.” There were no more than six supervisory personnel who worked the second shift.

3 . “[T]he availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry . . . .” Beth Israel Hosp. v. NLRB, SUPRA, 437 U.S. at 505, 98 S.Ct. at 2476. I do not understand this statement to intend any greater degree of protection for “organizational activity” than for other conduct protected by Section 7. Cf. Eastex, Inc. v. NLRB, 437 U.S. 556, 570 76, 98 S.Ct. 2505, 2514 2518, 57 L.Ed.2d 428 (1978).