Fun Striders, Inc. v. National Labor Relations Board , 686 F.2d 659 ( 1982 )

FARRIS, Circuit Judge:

Fun Striders, Inc., petitions for review of an order of the National Labor Relations Board finding that Fun Striders violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), by discharging and refusing to reinstate four employees who Fun Striders believed had distributed certain literature during an unannounced employee work stoppage. See Fun Striders, Inc., 250 N.L.R.B. 520 (1980). Fun Striders contends that the NLRB erred (1) by finding the employees’ distribution of communist-oriented literature to be protected activity and (2) by failing to apply a dual or mixed motive analysis to the discharges. The NLRB cross-applies for enforcement of its order. We set aside the order and refuse enforcement.

I. THE DISPUTE

Fun Striders, Inc., is engaged in the manufacture of shoes and handbags. On August 24, 1978, in protest of the piece-rate set on a new shoe style, stitching department employees in one of its three plants stopped work. While the employees were on the picket line, members of the Progres-' sive Labor Party appeared outside the plant and began selling their newspapers. The Party members offered to prepare and provide leaflets relating to the labor dispute. An employee, Carranza, accepted the offer, assisted in the preparation of a leaflet, and distributed it the next day. The leaflet urged employees to strike and to form a union. It also advocated “violent revolution,” “destruction of all bosses,” and “armed revolution of all the working class.” Other leaflets of a similar nature were distributed by employees on the next two working days. At the conclusion of the protest, Atkins, the plant manager and an avowed anticommunist, refused to allow four employees (Carranza, Castro, Marin, and Ruiz) to return to work because he believed they were associated with the Party and had advocated the violent overthrow of the plant and its supervision.

On February 8, 1979, the Board’s regional director issued a complaint alleging that the refusal to reinstate the four employees violated sections 8(a)(3) and (1) of the Labor Act, 29 U.S.C. §§ 158(a)(3), (1) (1976). The administrative law judge held that Fun Striders had violated section 8(a)(1). As to the section 8(a)(3) charge, the judge found that Fun Striders did not act out of anti-union animus. Because such animus is an element of section 8(a)(3) violations,¹ he made no finding regarding the alleged violation of section 8(a)(3). The Board affirmed and ordered remedies including reinstatement, back pay, and notice posting. Fun Striders, Inc., 250 N.L.R.B. 520, 520 (1980).

II. SECTION 8(a)(1) VIOLATION

Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by [section 7 of the Act, 29 U.S.C. § 157 (1976)].” Section 8(a)(1) was intended as a general definition of employer unfair labor practices. Violations of it may be either derivative, independent, or both.

A. Derivative Violation

A derivative violation is premised on a violation of sections 8(a)(2)-(5), 29 U.S.C. § 158(a)(2)-(5) (1976), which establish more specific categories of employer unfair labor practices. In general, a violation of one of these provisions will support a finding that section 8(a)(1) has been derivatively violated. See NLRB v. Swedish Hospital Medical Center, 619 F.2d 33, 35 (9th Cir. 1980) (dictum). Here, however, the Board failed to find a section 8(a)(3) violation. The Board’s counsel is therefore precluded from justifying the section 8(a)(1) violation as a derivative violation.

B. Independent Violation

Section 8(a)(1) may also be violated by acts that do not violate the more specific provisions. Such a violation is established by showing:

(1) that employees are engaged in protected activities, American Ship Building Co. v. NLRB, 380 U.S. 300, 308, 85 S.Ct. 955, 962, 13 L.Ed.2d 855 (1965);

(2) that the employer’s conduct tends to “interfere with, restrain, or coerce employees” in those activities, see Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977) (quoting section 8(a)(1)) (interrogation); and

(3) that the employer’s conduct is not justified by a legitimate and substantial business reason, see Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 269, 85 S.Ct. 994, 999, 13 L.Ed.2d 827 (1965).

See generally 18B T. Kheel, Labor Law § 10.02[2] (1981).

1. Protected Activity. The administrative law judge found that the distribution of the leaflets was protected activity. Pun Striders contends that the judge applied an incorrect legal standard in making this finding. It argues that the judge should have considered the political content of the leaflets. Distribution of literature that is purely political is an unprotected activity. Kg., Firestone Steel Products Co., 244 N.L.R.B. No. 148, 102 L.R.R.M. 1172 (1979) (state political campaign literature); Ford Motor Co., 221 N.L.R.B. 663, 666 (1975) (political campaign literature), enforced mem., 546 F.2d 418 (3d Cir. 1976); see also Ford Motor Co. (Rouge Complex), 233 N.L.R.B. 698, 705 (1977) (NLRB conceded Revolutionary Communist Party literature unprotected). Where, however, leaflets contain non-political matter as well as political matter related to employee interests, distribution is protected. Eastex, Inc. v. NLRB, 437 U.S. 556, 563-70, 98 S.Ct. 2505, 2511-14, 57 L.Ed.2d 428 (1978). The administrative law judge could properly conclude that distribution of the leaflets here was protected activity. See also Feeder-Root Co., 237 N.L.R.B. 1175, 1176-77 (1978).

2. Interference. Fun Striders does not dispute that its refusal to reinstate the employees interfered with distribution of the leaflets.

3. Business Justification. Fun Striders contends, however, that its refusal to reinstate was justified. It argues that the violent, destructive nature of the material in the leaflet provided a legitimate business reason for its actions. It also asserts that the Board erred in finding a violation where Fun Striders’ motives were entirely legitimate. While admitting that the legitimacy of Fun Striders’ motive precluded a section 8(a)(3) violation, the Board contends that motive is irrelevant to the section 8(a)(1) violation.

Although anti-union motive is required in section 8(a)(3) violations, it is not an essential element of section 8(a)(1) violations. See Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 269, 85 S.Ct. 994, 999, 13 L.Ed.2d 827 (1965). Nonetheless, motive is relevant.² In a section 8(a)(1) discharge case, if an employer demonstrates a legitimate, substantial business reason for the dismissal, “the burden shifts to the Board to establish that the primary motivation for the discharge was to penalize the employee for his [protected activity].” NLRB v. William S. Carroll, Inc., 578 F.2d 1, 4 (1st Cir. 1978); see Litton Dental Products v. NLRB, 543 F.2d 1085, 1087-88 (4th Cir. 1976); NLRB v. Elias Brothers Restaurants, Inc., 496 F.2d 1165, 1167 (6th Cir. 1974) (per curiam) (“motiv[ation] in part”); NLRB v. Fairview Hospital, 443 F.2d 1217, 1219 (7th Cir. 1971) (motive must be solely legitimate); see also NLRB v. Alamo Express, Inc., 430 F.2d 1032, 1035-36 (5th Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971); NLRB v. Crosby Chemicals, Inc., 274 F.2d 72, 74 & n.5 (5th Cir. 1960).

The leaflets urged the employees to engage in a violent struggle against management. Fun Striders reasonably believed that this advocacy threatened to inject violent confrontation into the plant. It had a legitimate and substantial business reason to keep those it believed had distributed the offending leaflets out of the plant by refusing to reinstate them. Once Fun Striders made this showing, the Board had the burden of proving that Fun Striders’ true motive was to interfere with protected activity. Its failure to carry this burden led to the administrative law judge’s specific finding that Fun Striders had no anti-union animus.

Where, as here, the employer acts out of entirely legitimate motives, the business need to preserve peace precludes a finding that section 8(a)(1) has been violated by refusal to reinstate employees advocating violence. The result may differ in another case, where the employer’s motives are mixed or in any event less clearly legitimate than here. The record before us, however, does not support the Board’s determination that Fun Striders violated section 8(a)(1). Its order is set aside.

Enforcement denied.

1 . NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967). Although no proof of anti-union motive is required when the conduct is “inherently destructive” of employee rights, in such cases the employer may rebut the resulting presumption by proving that the challenged actions were motivated by legitimate business considerations. See id. Here, the administrative law judge’s specific finding of a lack of anti-union animus resolved the motive issue in favor of the employer.

2 . Our previous cases do not clearly define the relevance of employer motive in a section 8(a)(1) proceeding. See, e.g., Ad Art, Inc. v. NLRB, 645 F.2d 669 (9th Cir. 1980) (assuming, without deciding, that anti-union animus is required to find section 8(a)(1) violation); Stephens Institute v. NLRB, 620 F.2d 720, 726 (9th Cir.) (upholding findings that sections 8(a)(1) and (3) had been violated, without separate analysis, in a single paragraph discussing dominant motive test), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980).