Fun Striders, Inc. v. National Labor Relations Board

HUG, Circuit Judge,

dissenting:

I respectfully dissent.

The record clearly reveals that the decision not to allow Carranza, Castro, Ruiz and Marin to return to work was made solely by one man, Jack Atkins, the director of manufacturing. Therefore, the relevant inquiry in this case is the reason for his decision.

It is admitted that the reason was that Atkins believed the four persons had passed out leaflets at the entry gate. It is troubling that he could identify no reason why he believed Marin was involved in that activity. He stated he saw Carranza and Castro handing out the leaflets and saw Ruiz holding a stack of them, but he could state no reason why he thought Marin had been involved. This, of course, leads to a possible inference that his reason was not solely because of the leaflet activity, but rather that the four were key instigators in the employee demands and organizational efforts.

However, neither the AU nor the Board based their decisions on that ground. They concluded that the four employees were not allowed to return to work because they had passed out the leaflets and that this was a protected activity.

The essential question in my judgment is whether the Board was correct in determining that passing out the leaflets was a protected activity. If the Board’s finding that this constituted a protected activity is a finding supported by substantial evidence, then under our standard of review the Board’s order must be enforced.

There is no doubt that the leaflets had heavy communist overtones and that this was very offensive to Atkins. He could, indeed, have fired the employees for distributing communist literature if it was not a protected activity. No state action was involved in this case. The Supreme Court in Hudgens v. NLRB, 424 U.S. 507, 513 , 96 S.Ct. 1029, 1033 , 47 L.Ed.2d 196 (1976) has held that first amendment free speech issues are not involved in unfair labor practice cases. As pointed out in several of our opinions, an employer can discharge an employee for a good reason, a bad reason or no reason so long as it is not for protected activity. Lippincott Industries, Inc. v. NLRB, 661 F.2d 112, 115 (9th Cir. 1981); L’Eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1341 (9th Cir. 1980).

Therefore, because there was no labor contract that required good cause for discharge and because an employer may then discharge an employee for a good reason, a bad reason, or no reason unless it involves a protected activity, the issue is whether they were discharged for a protected activity.

I find this to be a close question. The leaflets contained considerable communist rhetoric and some encouragement to organize communist units within the factory. I have no doubt that if this were the sole content of the leaflets, the distribution would be unprotected political activity. See Eastex, Inc. v. NLRB, 437 U.S. 556, 563-70 , 98 S.Ct. 2505, 2511-14 , 57 L.Ed.2d 428 (1978). However, the leaflets also contained considerable material relating to the conditions of employment that were the subject of the labor dispute between Fun Striders and its employees. Distribution of such material is protected by the National Labor Relations Act. Id. at 565, 567-68 , 98 S.Ct. at 2512, 2513-14 . The mixture of *664 protected and unprotected matter in a leaflet presents a special problem. Eastex dealt with this problem in the context of whether the material was unprotected so as to justify an employer in preventing its distribution on company premises. The situation is different in the heat of a labor dispute. It is apparent that a balance must be struck. Certainly the distribution of a political leaflet does not become a protected activity merely because the leaflet contains a reference to employee complaints. On the other hand, the distribution of a leaflet that is directed toward expressing employee dissatisfaction with conditions of employment will not be removed from the protection of the Act merely because the leaflet contains some political statements. Considerable latitude in language in the expression of employee complaints has traditionally been allowed in the midst of a labor dispute. See Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53, 61-63 , 86 S.Ct. 657, 662-663 , 15 L.Ed.2d 582 (1966). NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029-30 (6th Cir.), cert. denied, 419 U.S. 828 , 95 S.Ct. 47 , 42 L.Ed.2d 52 (1974). It seems that more latitude should be allowed in finding protected activity when the consequences are the discharge of an employee for expressions of views during a labor dispute than would be the case when the issue is the prospective application of an employer rule.

In any event, in this case, the ALJ and the Board both concluded that on balance the distribution of these leaflets was protected activity. This is an area of labor law in which the expertise of the Board is entitled to considerable deference. For this reason, I would agree with the majority that this finding was supported by substantial evidence and the conclusion was not an abuse of discretion.

Having found that the distribution of the leaflets was protected activity, the majority concludes the refusal to reinstate was nonetheless justified by a legitimate business reason. The justification is that “Fun Striders reasonably believed that this advocacy threatened to inject violent confrontation into the plant.” It is here that I part company with the majority.

Atkins clearly found the communist material personally offensive. He related that he had been in Hungary and Poland on a factory tour for five months, had seen the way the communist system worked in those factories, and found it most oppressive. He is a sincere and avowed anti-communist, and thus was enraged by the distribution of this literature. However, there is no evidence that he actually believed that this advocacy would result in violence in the factory. 1 His testimony only indicated his *665 displeasure with the contents of the leaflets and his belief that the four were communists. He did not notify his supervisors of any such potential violence. He did not indicate that the past conduct of these employees justified such a conclusion. I find nothing in Atkins’s testimony to indicate that this action was necessary to preserve the peace at this factory, nor that he even believed it was necessary.

If there were a question whether the four employees were discharged for their protected section 7 concerted activities, or their unprotected communist organizational efforts, then we would engage in the dual motive analysis. This analysis would be in accordance with the new approach set out in Wright Line, 251 NLRB No. 150 , 105 LRRM 1169 (1980), as approved in our circuit in Doug Hartley, Inc. v. NLRB, 669 F.2d 579, 580-81 (9th Cir. 1982); NLRB v. Nevis Industries, Inc., 647 F.2d 905 , 909 (9th Cir. 1981). Under that test, once the General Counsel had shown that union or another section 7 protected concerted activity was “a motivating factor,” the employer would bear the burden of proving that the denial of reinstatement would have been made in the absence of the employee’s participation in the protected activity.

In this case, the ALJ, the Board, and the majority all agree that the motive for the denial of reinstatement was the distribution of leaflets and they also agree that this was protected activity. The mixed motive analysis is thus unnecessary.

Because I find no evidence that Atkins denied reinstatement for a legitimate business reason, I would enforce the order of the Board.

. The transcript of Atkins’s initial testimony reveals the following:

Q Okay. And at the time you denied reinstatement to Mr. Ruiz and Mr. Marin, you based your decision on good faith belief that these people had distributed literature?

A Yes.

There was no further testimony concerning any fears that the distribution of the literature would lead to violence in the factory.

At a later point in the transcript when Atkins was recalled as a witness the testimony was as follows:

Q So you fired the four people because of your belief that they were communists at the time?

A I object to that word “fired.” They were not welcome back to work.

Q You didn’t welcome them back because of your belief that they were communists at that time?

A That’s right.

Q You never interviewed these particular people at that time to obtain their explanations regarding these events; is that correct?

A You mean did I have conversation with the four people who were not welcome back?

Q Yes.

A Other than telling them on that August—

Q Did you ever ask them for their particular side of the story with respect to the leaflets?

A No.

Q In fact, you never had a conversation with them after the walk-out commenced; is that correct?

A Uh-huh.

There was no further testimony that Atkins thought this would lead to violence in the plant. This elaboration by Atkins, that he refused reinstatement because the distribution of the literature indicated that they were communists, would be relevant to a mixed motive determi *665 nation. It would bear on the question whether the four employees were denied reinstatement because of protected or unprotected activity as discussed infra. However, it provides little, if any, support for a finding of immediate threatened violence in the factory.