NLRB v. Clinton Electronics

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2528

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

CLINTON ELECTRONICS CORPORATION,

Respondent.

On Petition for Enforcement of an Order

of the National Labor Relations Board

Argued January 18, 2002--Decided March 25, 2002

Before MANION, ROVNER, and EVANS, Circuit

Judges.

EVANS, Circuit Judge. The National Labor

Relations Board seeks enforcement of its

order finding that the Clinton

Electronics Corporation committed unfair

labor practices.

Clinton manufactures and sells cathode

ray tubes, monitors, and other

electronics products at its facility in

Loves Park, Illinois. In the summer of

1995, the United Steelworkers of America,

AFL-CIO-CLC, began an organizing effort

at the facility. The union filed an

election petition and the Board ordered

an election. The union subsequently

requested the withdrawal of the election

petition. The Regional Director of the

NLRB approved the request, and no

election was held.

Subsequently, the union filed unfair

labor practice charges against Clinton.

The Acting Regional Director issued two

complaints. A consolidated hearing was

held before an administrative law judge,

and three incidents were found to violate

the Act. The NLRB, by a three-member

panel with one member dissenting, upheld

the decision of the ALJ with minor

modifications. The Board seeks

enforcement of the order.

Briefly, the incidents are as follows.

An employee, Bonnie Smith, received a

subpoena to appear at a Board

representation hearing. Smith asked

Bernadine Prock for her opinion of the

union while the two were on the

production floor. Smith and Prock were

friends, but Prock was also Smith’s

supervisor, having become a supervisor a

few months earlier after working 27 years

as an hourly employee. Prock replied,

"Off the record, Bonnie, it’s my opinion

that we could all be looking for a job."

Another employee, Holly Vineyard,

overheard this conversation and asked

Prock why she would say something like

that. While Smith was walking away, Prock

responded, "Because we would all be

looking for jobs if the union came in

there." Prock then commented on

Vineyard’s attendance record, saying that

if the union was elected, Vineyard

"probably wouldn’t even have a job."

Vineyard said, "If a union got in here I

would have sick days and personal days

and I wouldn’t have a problem at all."

Prock then stated, "We would not get

personal or sick days" if there was a

union.

The second incident involved two other

women who had been friends for a number

of years. But, as well as being a friend

whom she had known for 10 to 15 years,

Betty Krueger was also Debbie Williams’

immediate supervisor. Williams was unsure

about what she thought about the union

and asked Krueger to arrange a meeting

with the company employee relations

supervisor to discuss unionization. Then

Williams attended her first union

meeting, after which another employee

told Krueger that she had seen Williams

at the meeting. Krueger, in turn, told

Williams that she "knew Williams went to

the union meeting." Williams responded,

"I thought it was our right to be able to

do that." Krueger said, "Yes, it is."

That was the end of the conversation

about the union.

The final incident involves the

company’s rule governing solicitations

and distribution of materials. The rule

states that all solicitations are

prohibited "except when both the person

doing the soliciting and the person being

solicited are on break, on meal time, or

otherwise are properly not engaged in

performing their work tasks." Despite

this rule, the company permitted, or at

least tolerated, solicitations for things

like sports pools, Girl Scout cookie

sales, and merchandise sales to benefit

other groups. No employees were ever

disciplined for these activities.

One day, maintenance worker Daniel Lee

left his department to go to another

department, where he spoke with some of

the employees. He engaged employee

Leonard Walsh in a conversation about the

union. Two supervisors observed Lee

talking to Walsh but said nothing. A few

days later, Lee and other union

supporters were standing on the parking

lot handing out flyers. As Walsh entered

the lot the union supporters stopped him,

and Lee asked him if he had thought more

about supporting the union. Walsh

complained to his supervisor that he "got

bothered Monday and I figured maybe [Lee]

got the message and would leave me alone.

People been knocking on my door every day

at home and now they’re going to

interfere with me pulling into the

parking lot. Possibly making me late."

Walsh asked the supervisor how the union

members knew where he lived. He then

said, "I want to make a complaint about

being harassed at work. I didn’t think

that the company could do anything about

getting harassed at home but this was

starting to interfere with my work,

getting to work. Being on time." The

supervisor reported this conversation to

a manager, who then spoke with Walsh.

The company issued a written warning to

Lee for violating the no-solicitation

policy based on the conversation inside

the facility. The notice said "Nature of

Violation: Complaints have been brought

to our attention that you violated the

solicitation policy on page 27-policy 2

of the Company handbook." The company

would not tell Lee who complained and

refused to listen to his denials of

misconduct. As we have said, over one

dissent, the Board upheld findings that

these three incidents amounted to unfair

labor practices.

Section 7 of the National Labor

Relations Act (29 U.S.C. sec. 157) grants

employees the right to "self-

organization, to form, join, or assist

labor organizations . . . and to engage

in other concerted activities for the

purpose of collective bargaining or other

mutual aid or protection . . . ." Section

8(a)(1) of the Act (29 U.S.C. sec.

158(a)(1)) makes it an unfair labor

practice for an employer "to interfere

with, restrain, or coerce employees in

the exercise of the rights guaranteed in

section 7." An employer violates Section

8(a)(1) by coercively interrogating

employees about their support for the

union or by threatening adverse economic

consequences, such as job loss or closing

of a plant, if the employee engages in

union activities. Multi-Ad Servs., Inc.

v. NLRB, 255 F.3d 363 (7th Cir. 2001);

NLRB v. Q-1 Motor Express, Inc., 25 F.3d

473, 477 (7th Cir. 1994). Clinton was

found to have violated Section 8(a)(1) in

these incidents.

Section 8(a)(3) of the Act (29 U.S.C.

sec. 158(a)(3)) makes it an unfair labor

practice for an employer to discriminate

in regard to any condition of employment

in order to "discourage membership in any

labor organization." An employer violates

Sections 8(a)(3) and (1) of the Act by

taking adverse actions against an

employee for engaging in union activity.

Jet Star, Inc. v. NLRB, 209 F.3d 671 (7th

Cir. 2000). Clinton was found to have

violated this section in the Lee

incident.

The Board’s findings of fact are

"conclusive" if supported by substantial

evidence. Section 10(e) of the Act, 29

U.S.C. sec. 160(e); Universal Camera

Corp. v. NLRB, 340 U.S. 474 (1951).

Substantial evidence is "such relevant

evidence as a reasonable mind might

accept as adequate to support" the

Board’s conclusion. National By-Products,

Inc. v. NLRB, 931 F.2d 445, 451 (7th Cir.

1991). In addition, we owe deference to

the Board’s inferences and conclusions

drawn from the facts. U.S. Marine Corp.

v. NLRB, 944 F.2d 1305 (7th Cir. 1991)

(en banc). This Board-friendly standard

of review does not mean, however, that we

roll over and play dead. We must "examine

all of the evidence in context to ensure

that the Board’s findings fairly and

accurately represent the picture painted

by the record." NLRB v. Harvstone Mfg.

Corp., 785 F.2d 570, 575 (7th Cir. 1986).

The incident involving Krueger and

Williams involves an alleged unlawful

interrogation. In evaluating whether an

interrogation is coercive we look to the

factual context in which the questioning

occurred. Multi-Ad Servs. In NLRB v. Acme

Die Casting Corp., 728 F.2d 959, 962 (7th

Cir. 1984), we set out a number of

pertinent inquiries about the

interrogation:

[T]he tone, duration, and purpose of the

questioning, whether it is repeated, how

many workers are involved, the setting,

the interrogator’s authority, the

ambience of the questioning (has the

company created an atmosphere of

hostility to the union?), and, more

doubtfully, whether the worker answers

truthfully.

Krueger made a statement that she

understood Williams had been at the union

meeting; apparently, unintimidated by the

statement, Williams pointed out that she

had a right to be there. Krueger did not

pursue the topic, nor did she object to

Williams’ view that she had a right to be

at the meeting. The conversation was

extremely short. Krueger did not seek

Williams out to talk to her; they met by

accident on that occasion and Williams

initiated the dialog. Of further, and

major, significance is the fact that the

two women had a longstanding friendship.

Neither this, nor, for that matter, the

relationship between Prock and Smith, was

a purely business-like, hierarchical

relationship between a boss and an

employee. Krueger, in fact, was a low-

level supervisor. It is hard to find

anything resembling coercion in this

encounter. What occurred, we think, is a

far cry from what one would ordinarily

conclude is "coercive interrogation."

Thus, we conclude that there is no

substantial evidence to support an unfair

labor practice finding on this point.

The Board found that Prock’s statements

to Smith constituted a threat of job loss

if the union were certified. While the

ALJ discussed the subsequent statements

to Vineyard, it was Prock’s statement to

Smith that they could all be looking for

jobs if the union came in which

constituted the unfair labor charge

before the ALJ and the Board, as both

correctly recognized.

It is well-established that a threat of

a plant closing is a per se violation of

Section 8(a)(1). Multi-Ad Servs. The

reach of that section is limited by

Section 8(c), 29 U.S.C. sec. 158(c),

which provides that an employer’s

expressions of "any views, argument, or

opinion . . . shall not constitute or be

evidence of an unfair labor practice . .

. if such expression contains no threat

of reprisal or force or promise of

benefit." A statement must be evaluated

in the context in which it was made. NLRB

v. Gissel Packing Co., 395 U.S. 575

(1969); NLRB v. Champion Labs., Inc., 99

F.3d 223 (7th Cir. 1996).

Looking at Prock’s statement in context

leads us to conclude that the record

lacks substantial evidence to support a

finding of an unfair labor practice. The

statement, made in a casual conversation

on the factory floor, is not clearly a

threat of job loss; it is an expression

of a personal opinion. Prock qualified

her statement as her opinion and,

further, said her view was "off the

record." And who was she? Like Krueger,

she was a low-level supervisor, who had

only recently been made a supervisor. She

continued to socialize with the employees

who had been her friends before she

became a supervisor. She did not suggest

that she was speaking on behalf of higher

level management. Her remark was her

view, perhaps her personal fear, of job

loss if the union were certified. Prock

was herself hardly in a position to

threaten job loss. The record is full of

speculation regarding the effects of the

statement, but speculation is not

evidence. We find no substantial evidence

supporting this finding of the Board.

Finally, the Lee episode. The Board

found that Clinton’s actions violated, as

relevant here, Section 8(a)(3) and (1) of

the Act, which makes it an unfair labor

practice for an employer to discourage

membership in a labor organization. An

employer violates these sections by

taking adverse action against an employee

for engaging in union activity. NLRB v.

Joy Recovery Tech. Corp., 134 F.3d 1307

(7th Cir. 1998). Whether an employer’s

adverse action violated the Act usually

depends on the employer’s motive. If

substantial evidence supports the Board’s

finding that anti-union considerations

were a "motivating factor" in an adverse

action taken against an employee, the

decision of the Board must be affirmed

unless the record supports a conclusion

that the employer would have taken

adverse action even in the absence of

union activity. If the Board finds that

the reason given by the employer either

did not exist or that the employer did

not rely on that reason, the inquiry is

over. Jet Star, Inc. The Board’s decision

as to Lee is, we think, supported by

substantial evidence.

There is substantial evidence to show

that the written warning to Lee was

motivated by union animus. To establish

anti-union animus the Board must

establish that the employee was engaged

in union activities, that the employer

knew of the activities, that the employer

harbored animus toward union activities,

and that there was a causal connection

between the animus and the decision to

discipline. Multi-Ad Servs. Here, the

warning was issued in the midst of the

union-organizing campaign. The evidence

shows that Clinton became aware of Lee’s

union activities. The evidence also shows

that even though a supervisor and a

manager observed Lee’s conversation with

Walsh inside the factory, the company

took no action until it later learned,

when Walsh complained about Lee’s

solicitation, that the conversation was

related to union activity. The company

disciplined Lee immediately after

learning that he was soliciting for the

union. The company also issued the

warning without conducting an independent

investigation into Walsh’s allegations.

After Lee received the warning, the

company refused to listen to his denials.

In addition, the Board reasonably found

that the company’s proffered reason for

disciplining Lee--that he violated the

no-solicitation policy by the

conversation with Walsh on the factory

floor--was pretextual. The ALJ noted that

Lee could not be disciplined for

solicitation at Walsh’s home or in the

parking lot as both actions are protected

by the NLRA. See Republic Aviation v.

NLRB, 324 U.S. 793 (1945). The only thing

the company could discipline him for was

the conversation. But the company did not

show it would have disciplined Lee for

that conversation in the absence of his

protected activity. First of all, we

again note that a manager and a

supervisor saw that the conversation was

going on but did not object to it. It was

only after Walsh complained about Lee’s

union activity that anything was done.

The fact that the conversation passed

without incident until Walsh complained

supports the finding that the company’s

claim that the conversation (without

regard to its content) was the reason for

the discipline is simply not true. The

fact that the company departed from its

prior practice in administering Lee’s

discipline adds further support to the

Board’s finding.

Finally, the company violated Section

8(a)(1) of the Act by interfering with

the right to self-organization by

itsdiscriminatory enforcement of the no-

solicitation rule. Rights protected under

the NLRA include the right of individual

employees to solicit on behalf of a

union-organizing campaign. However, with

respect to solicitation, an employer has

a legitimate interest in maintaining

discipline and production. For that

reason it may, in fact, limit

solicitation generally during work time.

Republic Aviation. However,

discriminatory enforcement of a valid no-

solicitation rule violates the Act. That

is what happened here. This kind of

disparate enforcement of an otherwise

valid no-solicitation rule violates

Section 8(a)(1). Midwest Stock Exchange,

Inc. v. NLRB, 635 F.2d 1255 (7th Cir.

1980).

On the basis of violations found in the

Lee incident, the Board’s request for

enforcement of its order is GRANTED. As to

the other two incidents, enforcement is

DENIED. No costs are awarded.

MANION, Circuit Judge, concurring in part

and dissenting in part. I fully agree

with the court that the Board’s unfair

labor practice findings against Clinton

with respect to the "Smith/Prock" and

"Krueger/Williams" incidents are not

supported by substantial evidence. I

depart, however, from the court’s

conclusion that substantial evidence

supports the Board’s finding that Clinton

violated sec.sec. 8(a)(3) and (1) of the

Act when it reprimanded Daniel Lee for

soliciting co-worker Leonard Walsh in a

harassing manner, about joining the

union, during the company’s business

hours.

Lee began working in Clinton’s

maintenance department in 1977. On

February 5, 1996, during regular work

hours, Lee left the maintenance

department and went to the yoke pinning

department where he engaged in a

conversation with Walsh about joining the

union. Walsh complained to his

supervisor, Emma Hall, that Lee was

harassing him about joining the union.

Walsh informed Hall that Lee had

solicited him for union membership on

numerous occasions outside of work, and

was now bothering him during the workday,

even though he had clearly expressed to

Lee that he was not interested in joining

the union. Clinton responded to Walsh’s

complaint by issuing Lee the following

warning: "[c]omplaints have been brought

to our attention that you violated the

solicitation policy on page 27-policy 2

of the company handbook. Any other

violation of company policy will result

in further disciplinary action."

As the court acknowledges, Lee asked

Walsh to join the union on several

occasions. See ante at 3. Although it is

true that many of the solicitations,

while no doubt intrusive on Walsh’s

personal privacy (e.g., bothering him at

home), constitute protected activity

under the NLRA, see Republic Aviation v.

N.L.R.B., 324 U.S. 793, 803 n.10 (1945),

Lee’s solicitation of Walsh at his work

area during regular business hours is

not. See Nat’l By-Products, Inc. v.

N.L.R.B., 931 F.2d 445, 452 (7th Cir.

1991) (holding "’[a]n employer may have

and enforce a rule prohibiting

solicitation by union and other employees

in working areas during working hours.’")

(citation omitted). There is also no

dispute about the validity of Clinton’s

no-solicitation rule. Therefore, the only

questions before us are whether

substantial evidence supports the Board’s

findings that: (1) Clinton was motivated

by anti-union animus when it issued the

warning to Lee, and (2) Clinton enforced

its no-solicitation rule in a manner

violative of the NLRA.

The court contends there is substantial

evidence to show that the written warning

to Lee was motivated by union animus. See

ante at 8. First, the court notes "the

warning was issued in the midst of the

union organizing campaign," and that

Clinton was aware of Lee’s union

activities. Id. Second, the court relies

heavily on the fact that Clinton took no

action against Lee until after Walsh

filed a complaint, even though a

supervisor and manager witnessed Lee

speaking with Walsh at his work area in

the yoke pinning department. Id. Third,

the court notes that Clinton "issued the

warning [to Lee] without conducting an

independent investigation into Walsh’s

allegations," and "refused to listen to

his denials." Id. Finally, the court con

tends that Clinton departed from prior

practice in issuing Lee a warning for

violation of the no-solicitation rule.

Id. at 9.

While it is uncontested that Clinton

issued the warning to Lee during a union

organizing campaign, and that the company

was aware of Lee’s pro-union sentiments,

the remainder of the court’s conclusions

are not supported by the evidentiary

record. As an initial matter, there

should be no inference of anti-union

animus simply from the fact that a

manager and supervisor allowed two

employees to briefly engage in a

conversation during the workday. As the

court notes, at the time of this

conversation Clinton was aware of Lee’s

union activity. Yet, at the same time,

neither the supervisor nor the manager

who witnessed the conversation was aware

that Lee was soliciting Walsh for union

membership (or for that matter anything

else), or that Walsh considered Lee’s

solicitation of him as harassment.

Additionally, Clinton issued the warning

based on Walsh’s subsequent complaint.

Walsh was tired of being repeatedly

harassed by Lee about joining the union.

He told Lee that he did not want to join

the union, but Lee persisted in

interrogating him about the matter. While

Walsh could not stop Lee from bothering

him outside of work, he knew that Lee was

not permitted to bother him during work.

Once this occurred, Walsh filed a

complaint against Lee, and Clinton

responded to the complaint by issuing the

warning.

Furthermore, Lee’s warning from Clinton

was minimal. Clinton neither fired nor

suspended him. Lee was given the

opportunity to respond to the charges

filed against him on the notice form.

Instead of addressing the charges,

however, Lee responded: "I feel I have

been set up with this fictitious warning.

They know I am involved with the USSW

[i.e., the union]." This response shows

that Lee was fully aware that the warning

concerned his solicitation of employees

for union membership. Nevertheless, he

did not request that the company clarify

the nature of the complaint filed against

him, or that the matter be looked into

any further. He simply denounced the

complaint as being "fictitious." Given

the inadequacy of this response, as well

as the minimal nature of discipline

involved, it was improper for the Board

to infer anti-union animus from the

manner in which Clinton addressed Walsh’s

complaint. We have held that an employer

"should be free to prohibit solicitations

on the premises that interfere with or

bother employees or customers . . . ." 6

West Ltd. Corp. v. N.L.R.B., 237 F.3d

767, 780 (7th Cir. 2001). The Board’s

decision to discredit Clinton’s

nondiscriminatory reason for issuing the

warning was unjustified, and amounts to

the Board substituting its own business

judgment for that of the employer. See,

e.g., N.L.R.B. v. Louis A. Weiss Mem’l

Hosp., 172 F.3d 432, 446 (7th Cir. 1999)

(holding that "’[a]n employer not

motivated by anti-union animus may freely

exercise its business judgment . . . and

the board should not substitute its

judgment for the employer’s.’") (citation

omitted). It is worth noting that the

ALJ’s own findings of fact demonstrate

that Clinton had a legitimate reason for

issuing the warning notice to Lee:

[Lee’s] explanation for even being in the

yoke pinning department on February 5 is

contradicted by the undisputed evidence

about the work, which had been assigned

to him at that time. His description of

the work which he purportedly had been

performing there, greasing a conveyor, is

contradicted by the uncontestedevidence

that conveyor greasing could not be

accomplished while that department was

operating, nor could it be accomplished

in so short a period and in the manner

which Lee described it.

Lee’s blatant misrepresentation is

consistent with his "fictitious warning"

response to Clinton’s reprimand.

The ALJ’s finding that "solicitations--

for sports and other pools, for school

related events such as Market Days and

for Girl and Boy Scout sales--occurred

with significant regularity at

[Clinton’s] facility," and that "some

employees had participated in such

activities during work time and, in fact,

that supervisory personnel had

participated in such activities on

occasions when employees were involved

were supposed to be working," does not

support a conclusion that the company’s

issuance of the warning was fueled by

anti-union animus or that its no-

solicitation policy was enforced in a

manner violative of the NLRA. "Whenever

the Board cites anti-union discrimination

as the basis of its orders, we have

required it to establish that the cases

among which the employer has

distinguished are indeed ’similar’ in all

respects relevant to labor policy, and we

have refused to enforce the Board’s

orders when it falls short." Guardian

Indus. Corp. v. N.L.R.B., 49 F.3d 317,

321 (7th Cir. 1995). This incident falls

short of that standard. We have held that

"[a]n employer may not discriminate in

violation of section 8(a)(1) by denying

’union access to its premises while

allowing similar distribution or

solicitation by non-employee entities

other than the union.’" 6 West Ltd.

Corp., 237 F.3d at 779 (emphasis added)

(citation omitted). There is nothing in

the record to support a finding that

Lee’s solicitation of Walsh is similar to

other solicitations involving sports

pools or Girl Scout cookies. First, there

is no evidence of other incidents where

employees complained of being solicited

in a harassing manner, or that, upon

being notified of such conduct, Clinton

failed to address an employee’s

complaint. Second, we have held that

solicitations for sports pools (i.e., the

NCAA tournament), Girl Scout cookies, and

other community or personal projects are

not similar to unwanted union (or anti-

union) solicitations. Id. at 780

("[S]olicitations for Girl Scout cookies,

Christmas ornaments, hand-painted

bottles, and the other examples listed by

the ALJ certainly cannot, under any

circumstances, be compared to union

solicitation as support for the ALJ’s

determination that the [employer] engaged

in a discriminatory application of its

non-solicitation policy.").

In sum, I completely agree with the

court’s conclusion that the Board’s

findings of unfair labor practice for the

"Krueger/Williams" exchange and the

"Smith/Prock" encounter are not supported

by substantial evidence. While I

acknowledge that the "Lee/Walsh" incident

presents a closer question, Lee’s

solicitation on behalf of the union is

not similar to the examples of community

service or personal solicitations

enumerated by the ALJ. Because

substantial evidence does not exist to

support the Board’s findings that

Clinton’s decision to issue the warning

to Lee was motivated by anti-union

animus, or that the company enforced its

no-solicitation policy in a manner

violative of the NLRA, I would deny the

Board’s request for enforcement of its

order with respect to the Lee/Walsh

incident as well.