“Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision.”
How later courts described this case
- “Evidence is considered substantial if it is adequate, in a reasonable mind, to uphold the decision.”
- noting that reviewing courts rarely disturb determinations of credibility made by the Board
- ability to freely distribute literature does not alter employee’s right to post union literature on employer bulletin boards
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
dissenting.
This is not a case of the employer’s rejecting posting of union notices. Rather it involves the authority of an employer to defeat the misuse and abuse of bulletin boards maintained by Roadway Express for intended general legitimate use of its employees. Roadway Express proferred a reasonable and justifiable basis for its action in this case to preclude disparagements and direct threats to its terminal manager in charge of the employer’s operation. Throughout this dispute a bulletin board has been maintained for Teamsters Local No. 20. No one has even contended on behalf of the bargaining agent for Roadway Express employees that the respondent company has attempted to stop it from using a bulletin board for union purposes. I would find that there is no substantial evidence to support an unfair labor practice charge under these circumstances.
Two facts are particularly persuasive to me. The first is that when the first notice supporting a strike was placed on the disputed board by a leader in a dissident group, it was removed by Roadway Express and given to a Teamsters local business agent to be placed on the union bulletin board. It was not identified as TDU material and appeared to be union material. This was, then, not an effort to prevent posting of what appeared to be union related or union sponsored material. Also, two days before the bulletin boards in question were taken down, a second posting, dealing with union bylaws, was placed on the boards in question by a dissident TDU leader. The boards were not, nor was this notice, however, removed until several days later when threatening material appeared on the bulletin board.
These facts, among others, demonstrate to me that Roadway Express was not engaged in any malevolent effort to keep TDU or Teamsters material from being posted in its terminal. It is being found guilty of an unfair labor practice because it tried to keep insulting, derogatory, or threatening material from continuing to be put in its terminal. There is no real dispute but that the explanation given by the terminal manager for removing the boards was that, while he recognized a right to free speech, he was tired of seeing, and found it very objectionable to see the general purpose bulletin boards being used to foment an unauthorized strike and to inflame workers by use of insulting and threatening materials.
With the background at the time of discharging employees for firing into company supervisors’ cars, it seems clear that the reason given by the terminal manager for removing the boards was not pretextual anti-union conduct but a reasonable and immediate response to an abuse that really had nothing to do with preventing a union and its members from posting union material at Roadway Express. There was no showing the Teamster’s Local 20 had prevented non-threatening TDU material from being posted on its board. Nothing was ever removed from the union board. I accordingly dissent, because I would deny enforcement under these circumstances.