Restaurant Corporation of America v. National Labor Relations Board

BORK, Circuit Judge,

dissenting in part and concurring in part:

I dissent from that part of the majority opinion which holds that the petitioner, Restaurant Corporation of America (“the Company” or “the petitioner”), committed an unfair labor practice by enforcing its no-solicitation rule against Sherwood Dameron while tolerating six instances of intraemployee generosity. Because the Board’s finding of discriminatory enforcement is not based on evidence that the Company has “treated similar conduct differently,” see maj. op. at 806, is therefore unsupported by substantial evidence, and departs without explanation from the Board’s prior decisions, I would grant the petition for review and deny the petition for enforcement of the Board’s decision. 1

A.

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining.” 29 U.S.C. § 157 (1982). This provision “necessarily encompasses the right [of employees] effectively to communicate with one another regarding self-organization at the jobsite.” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491 , 98 S.Ct. 2463, 2468 , 57 L.Ed.2d 370 (1978). The right to solicit for union membership at the workplace, however, is not without limitation. Instead, the right must be balanced against “the equally undisputed right of employers to maintain discipline in their establishments.” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 , 65 S.Ct. 982, 985 , 89 L.Ed. 1372 (1945); see also NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 , 76 S.Ct. 679, 685 , 100 L.Ed. 975 (1956) (“No restriction may be placed on the employees’ right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline.”).

To accommodate these competing interests, the Board has adopted, and the Supreme Court has approved, presumptions regarding the validity of employers’ no-solicitation rules. A rule which prohibits solicitation during work hours and in work areas is presumptively valid. Conversely, a rule which prohibits solicitation during non-work hours and in non-work areas is presumptively invalid. Republic Aviation Corp., 324 U.S. at 797-98 , 803-05 & n. 10, 65 S.Ct. at 985 , 988-89 & n. 10; Beth Israel Hosp., 437 U.S. at 493 , 98 S.Ct. at 2470 .

A facially valid no-solicitation rule, however, may form the basis of a violation of the Act if it is enforced in a discriminatory manner. Evidence which shows that an employer has permitted nonunion solicitation but has enforced a no-solicitation rule against union solicitation undermines the presumption of validity: “where no-solicitation rules are applied only as to union activity while other types of solicitation have gone unchallenged by the employer, the inference arises that the rules are not being used simply to serve the ends of plant order and production.” William L. Bonnell Co. v. NLRB, 405 F.2d 593, 595 (5th Cir.1969). Thus, when the Board can “show affirmatively by substantial evidence,” Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255 , 1259 (7th Cir.1980), that an employer’s disparate enforcement of a no-solicitation rule is not related to plant discipline or efficiency, but instead is an effort to discriminate against union activity, then the employer is in violation of *811 sections 8(a)(1) and 8(a)(3) of the Act. 2 Midwest Regional Joint Bd. v. NLRB, 564 F.2d 434 , 446 (D.C.Cir.1977); William L. Bonnell Co., 405 F.2d at 595 .

The Board’s finding of discriminatory enforcement in this case is not supported by any evidence which would serve to rebut the presumption that the Company’s enforcement of the no-solicitation rule against union solicitation was related to its legitimate interest in maintaining plant discipline. Instead, the sole basis for the Board’s finding of discriminatory enforcement is evidence that the Company did not enforce its no-solicitation rule against solicitations that are very different from union solicitations and which by their nature would not adversely affect plant discipline. The Administrative Law Judge’s conclusion that the Company violated section 8(a)(1) and (3) of the Act by disparately enforcing its no-solicitation rule against Herbekian and Dameron was based on evidence that, during the year prior to the discharges, the Company permitted six nonunion “solicitations.” These consisted of the following: (1) sometime in 1980, a collection was taken to buy a going-away cake for a Les Champs waiter (Transcript (“Tr.”) 265-66); (2) in December 1980, Les Champs manager Renee Loustaunau collected contributions to buy a blazer as a going-away gift for the assistant manager (Tr. 162-63); (3) in December 1980, after Loustaunau mentioned at a staff meeting that the chef’s wife was expecting a baby, several employees contributed $1.00 each for the purchase of a spoon as a gift (Tr. 231-34, 250, 266-68); (4) in December 1980, employees contributed toward the purchase of a birthday cake for a Les Champs waiter (Tr. 260 — 61); (5) in February 1981, Loustaunau and four employees chipped in to buy a going-away gift for a housekeeper (Tr. 164-65, 315-16); and (6) in March 1981, employees collected a total of $12.00 to buy a birthday cake for a Les Champs waiter (Tr. 157-58, 261-64). The AU found that these nonunion solicitations were “numerous and substantial” and that they had been condoned by the Company. Based on these findings, the AU concluded that the Company’s enforcement of the rule against Herbekian and Dameron was discriminatory and therefore violated the Act. Joint Appendix (“J.A.”) at 23. The Board adopted this finding without further explanation. Id. at 8-9.

The Board clearly has not met its burden of showing that the Company’s disparate enforcement of the no-solicitation rule was not related to the legitimate interest in plant discipline. First, it did not even address the question of whether the disparate enforcement was justified on the ground that the permitted solicitations and the union solicitation could be distinguished on the basis of that interest. Instead, the Board simply noted the number and duration of the permitted nonunion solicitations and wholly failed to consider the nature of the nonunion solicitations and their effect on the workplace. The Board did not determine whether or not the nonunion solicitations had the potential to interfere with plant discipline and thus had no basis upon which to compare them to union solicitation for purposes of the Act. If the permitted nonunion solicitations do not have the potential to affect plant discipline, then the employer’s failure to enforce the no-solicitation rule against them does not raise the inference that the rule is not being used to serve legitimate ends, and the presumption of validity stands. Because “the essence of discrimination in violation of section 8(a)(3) is treating like cases differently,” Midwest Regional Joint Bd., 564 F.2d at 442 (emphasis added), the Board was required under the Act to consider the nature of the permitted nonunion solicitations and to find that they were “like” union solicitation with respect to their potential effect on plant discipline. Because the Board has *812 not made this finding, the petition for review should be granted.

Second, had the Board considered the nature of the permitted nonunion solicitation, it would have been unable to support a finding of discriminatory enforcement consistent with the law and its prior policy concerning purely beneficent acts. The activities that the Board measured against union solicitation are, according to the Board’s prior policy, nothing like union solicitation with regard to their effect on the discipline of the workplace. All were instances of intra-employee generosity designed to express appreciation of fellow employees on occasions such as birthdays or departures. Whatever minimal disruptive effect such solicitations may have would seem to be counter-balanced by an accompanying increase in employee morale and cohesion. Thus, the Company had a legitimate business reason for permitting these types of solicitations and cannot be charged with discriminatory enforcement in violation of section 8(a)(1) and (3) of the Act.

Prior to its decision on review here, the Board had adopted and consistently applied this rationale. In dismissing a complaint alleging discriminatory maintenance and enforcement of a no-solicitation rule, the Board held:

It is to this maintenance of discipline that we must look ... in assessing the validity of the [no-solicitation] rule. No one can seriously contend that collections for a “sunshine fund” or the alleviation of the misfortunes or bereavement of an employee are the sort of activities that generate heated contention and dispute. On the other hand, the history of modem labor relations clearly demonstrates that the subject of unions and the solicitations on behalf of unions can and most certainly do generate divergent points of view among the working fraternity, even to the point of loud debate and fisticuffs. Thus it would appear that one type of solicitation is conducive to an impairment of order and discipline and the other is not. To the extent, then, that an employer, in the exercise of his established right to maintain discipline, sees fit to proscribe only the variety of solicitation that actually tends to impair discipline without interfering with the variety that does not, I fail to see that such an employer thereby rebuts the presumption that his actions are legal.

Emerson Elec. Co., 187 N.L.R.B. 294 , 300 (1970) (footnote omitted). The view that purely beneficent acts are different in kind from union solicitations for purposes of a claim of discriminatory maintenance or enforcement of a no-solicitation rule is also shared by other courts that have addressed the issue. See United Aircraft Corp. v. NLRB, 440 F.2d 85, 96-97 (2d Cir.1971); Hosiery Corp. of Am. v. NLRB, 422 F.2d 784, 787-88 (4th Cir.1970); Serv-Air, Inc. v. NLRB, 395 F.2d 557, 560 (10th Cir.1968); TRW, Inc. v. NLRB, 393 F.2d 771 , 774 (6th Cir.1968). 3

Based on the eloquent reasoning of the Board, and on the cited precedent, I would hold that the solicitations permitted in this case are not similar to union solicitation with respect to their effect on the workplace and, therefore, that the Company’s failure to treat the two alike does not constitute “discrimination” within the meaning of section 8(a)(3) of the Act. In my view, any other holding would render mainte *813 nance of a no-solicitation rule practically impossible and would completely deprive an employer of his right to maintain discipline in the workplace. For instance, under the Board’s approach, which considers only the number and duration of nonunion solicitations without regard to the nature of those solicitations, even a brief exchange between two employees about getting together after work could not be tolerated by employers without risking a later finding that they have engaged in illegal discrimination. Unless employers are willing to enforce no-solicitation rules against such conduct, they will be forced to forgo enforcement of the rule to prevent other, more disruptive forms of solicitation. The Act does not require that choice.

B.

I would also grant the petition for review because the Board’s decision is clearly inconsistent with its past decisions. See NLRB v. Sunnyland Packing Co., 557 F.2d 1157, 1160 (5th Cir.1977). The Board has never based a finding of disparate enforcement on the type of nonunion solicitations at issue here. Instead, the Board has consistently held in the past that “an employer’s tolerance of isolated beneficent solicitation does not by itself constitute sufficient evidence of disparate treatment of union solicitation.” Hammary Mfg. Corp., 265 N.L.R.B. 57 , 57 n. 4 (1982); see also Saint Vincent’s Hosp., 265 N.L.R.B. 38 , 40 (1982), enforced, 729 F.2d 730, 735 (11th Cir.1984); The Seng Co., 210 N.L.R.B. 936 , 936 (1974); Serv-Air, Inc., 175 N.L.R.B. 801 , 802 & n. 3 (1969).

Though the ALJ in this case concluded that the six instances of permitted nonunion solicitation in the year preceding the discharges were “numerous and substantial,” this finding is not supported by substantial evidence. The Board has not even attempted to explain why six instances of nonunion solicitation constitute “numerous and substantial” solicitations while five instances of nonunion solicitation do not. See Serv-Air, Inc., 175 N.L.R.B. at 801. Thus, the Board’s decision in this case is flatly inconsistent with all of its prior decisions on this issue.

In fact, the Board has in the past refused to find unlawful discrimination when the incidents of permitted nonunion solicitation were as “isolated” and of a more disruptive character than the nonunion solicitations in this case. In Serv-Air, Inc., the Board held that a finding of disparate enforcement was not established by an employer’s permission of at least three solicitations to pay for flowers to be sent to the widows of deceased employees and to the hospitalized wife of an employee, as well as two solicitations regarding employee contributions to the Community Chest and the Red Cross. 175 N.L.R.B. at 801. Similarly, in United Aircraft Corp. v. NLRB, 440 F.2d 85, 96-97 (2d Cir.1971), the Board found no disparate enforcement of a no-solicitation rule even though the employer “periodically” allowed solicitation for charities and gifts.

Though the solicitations permitted in Serv-Air and United Aircraft were limited to “beneficent acts,” they differ from the solicitations permitted in this case because solicitations on behalf of charities involve outside organizations. With respect to their effect on plant discipline, therefore, charitable solicitations may be more like union solicitations than are solicitations that represent employees’ generosity to one another. Thus, it is significant that the Board has been unable even to identify a case in which a finding of disparate enforcement was based solely on an employer’s permission of charitable solicitations. 4

Finally, the cases cited by the Board do not support its decision in this case. In Midwest Stock Exch., Inc. v. NLRB, 635 F.2d 1255 (7th Cir.1980), the court found that an employer discriminatorily enforced its no-soliciation rule by strictly enforcing the rule against union activities but permitting “[s]uch drives as the Crusade of Mercy, collection of blood in a bloodmobile ... [on the employer’s] premises, the selling of *814 Avon products, Tupperware, boat cruise tickets, raffle tickets, Girl Scout cookies, and a number of other items.” Id. at 1270. Of course, these numerous and varied solicitations were not limited to acts of employee generosity to fellow employees or even to charitable solicitations. Rather, they involved solicitations for personal profit as well as highly organized campaigns on behalf of outside business organizations and thus posed a much greater potential for interference with work than the solicitations the Company permitted here.

The remaining cases cited by the Board are simply inapposite. Though some involved acts of generosity between employees, all permitted anti-union or pro-company solicitation, solicitation that is unquestionably similar to union solicitation in its effect on the discipline of the workplace. See, e.g., Midwest Regional Joint Bd. v. NLRB, 564 F.2d 434 , 446 (D.C. Cir.1977) (disparate enforcement found where “Company countenanced the distribution of pro-Company literature ..., while strictly enforcing the rule with respect to the distribution of pro-Union literature ”); Ridge-wood Management Co. v. NLRB, 410 F.2d 738, 740 (5th Cir.) (no-solicitation rule discriminatory where employer permitted solicitations ranging from candy sales to church donations as well as solicitations designed to persuade employees not to unionize), cer t. denied, 396 U.S. 832 , 90 S.Ct. 87 , 24 L.Ed.2d 83 (1969); NLRB v. Electro Plastic Fabrics, 381 F.2d 374, 376 (4th Cir.1967) (no-solicitation rule found discriminatory where employer permitted collections for gifts for employees, sales of cosmetics and other merchandise, and anti-union solicitations). That the employer permitted anti-union or pro-company solicitations in all of these cases conclusively distinguishes them from the present case.

For these reasons, and because I believe that the majority decision will have an unhappy effect on the workplace, I respectfully dissent.

. I concur in the result reached by the majority with respect to the discharge of Roxie Herbekian and in the majority’s affirmance of the Board’s decision that the petitioner violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1) (1982), by interrogating employees about union activities.

. Section 8(a)(1) of the Act provides:

It shall be an unfair labor practice for an employer ... to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7 of the Act].

29 U.S.C. § 158 (a)(1) (1982).

Section 8(a)(3) of the Act provides:

It shall be an unfair labor practice for an employer ... by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

29 U.S.C. § 158 (a)(3) (1982).

. The majority contends that all but one of these cited cases are irrelevant because in each case the court addressed a no-solicitation rule which prohibited only union solicitation and in this case the no-solicitation rule prohibits all solicitation. See maj. op. at 808-809 n. 6. This statement is incorrect. The type of no-solicitation rule at issue in a particular case has no relevance to the question of whether an employer has discriminated against union solicitation. When a no-solicitation rule by its terms prohibits only union solicitation, and an employer permits nonunion solicitation, the issue is whether the rule was adopted to discriminate against union activity. When a no-solicitation rule prohibits all solicitation and an employer permits nonunion solicitation but prohibits union solicitation, the issue is whether the rule is being discriminatorily applied against union activity. But the underlying legal analysis in each case is the same — the issue is whether the employer has treated similar conduct differently. Thus, one line of cases serves as precedent for the other line of cases on the question of whether an employer has discriminated against union activity.

. Depending on the number and intrusiveness of the solicitations, I assume that such permission could amount to disparate enforcement if the Board found the relevant charitable solicitations to be similar to union solicitation in terms of the potential interference with work.