National Labor Relations Board v. Clinton Electronics Corporation

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 §§ 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 736. 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, 65 S.Ct. 982 , 89 L.Ed. 1372 (1945), Lee’s solicitation of Walsh at his *740 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 738. 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 739.

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 *741 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 uncontested evidence 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 antiunion) solicitations. Id. at 780 (“[S]o-licitations 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.”).

*742 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.