National Labor Relations Board v. Triangle Electric Co. , 78 F. App'x 469 ( 2003 )

OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner National Labor Relations Board seeks enforcement of its August 27, 2001 order requiring respondents Triangle Electric Company (“Triangle”) and General Motors Corporation (“GM”) to provide compensation and reinstatement to employment to former Triangle employee Lucinda Darrah and requiring GM to revise its anti-solicitation policy based on the Board’s finding of unfair labor practices under the National Labor Relations Act. Triangle and GM challenge portions of the order; they do not challenge the requirement that GM revise its anti-solicitation policy. This court has jurisdiction under 29 U.S.C. § 160(e). Because we find that the Board’s decision was not supported by substantial evidence, we REVERSE the challenged portions of the Board’s order.

Facts

On April 1, 1996, Lucinda Darrah was hired as an electrician by Triangle, a GM subcontractor. While employed at GM’s Hamtramck, Michigan factory, Darrah distributed, sold and solicited subscriptions for the Detroit Sunday Journal, a newspaper written and published by workers on strike against the Detroit News and the Detroit Free Press. Darrah’s activities were performed on GM property during the plant’s hours of operation. Darrah gave proceeds of the sales to the striking workers.

The Detroit Sunday Journal covered the same news stories and contained the same features as one would expect in a typical commercial newspaper. Its masthead included the assertion “A Publication By Striking Detroit Newspaper Workers.”

On April 22, 1996, a Pinkerton security guard, an agent of GM, filed a “Security Incident Report,” recording an event that day involving Darrah:

At above date & location this writer received call stating, Ms. Darrah was soliciting the strikers newspapers to GM employees & other contractors entering plant. When this writer informed her she could not distribute papers she asked why? I informed her that contractors or any other outside company is not allowed to sell, distribute or solicit on G.M. property. She continued to asked [sic] why? but returned papers to her bag and proceeded toward her job site.

Despite having been warned not to sell the newspaper, Darrah again attempted to sell and distribute copies on May 20. A Pinkerton guard prepared a security report that day which recorded a second confrontation:

Details of incident: At above date and location, Ms. Darrah was in west entrance] corridor soliciting strike papers. This contractor employee] has been repeatedly instructed not to sell or distribute or solicit names for home delivery---- When this writer spoke with Ms. Darrah, she refuse[d] to give her name and just pack[ed] up [the] papers and return[ed] them to her car.

Later the same day, Darrah’s supervisor informed her that GM personnel were disturbed by her sales of the newspaper in the plant. The next day Darrah was informed that GM had ordered Triangle to remove her from the plant. She received her termination paycheck and departed.

Darrah challenged her termination with the National Labor Relations Board. On May 11, 1999, an administrative law judge (“ALJ”) ruled that Darrah was not entitled to compensatory relief or to reinstatement because GM had not received notice that Darrah was engaged in a concerted activity with other workers, as required under Section 8(a)(1) of the Act. Decision and Order, May 11,1999 at 12. Darrah sought review with the Board.

On August 27, 2001, the Board reversed the ALJ’s ruling regarding Darrah’s entitlement to relief. It reasoned that the description of the newspapers as “strike papers” in the Pinkerton guards’ reports was sufficient to put GM on notice that Darrah was involved in a concerted activity. Decision and Order, Aug. 27, 2001 at 3. One member of the Board dissented, stating that the guards’ reports did not inform GM that Darrah was acting in concert with other workers. Decision and Order, Aug. 27, 2001 at 6.

Discussion

This court reviews determinations by the Board under three different standards. Findings of fact and applications of law to fact are reviewed for substantial evidence, interpretations of the Act are reviewed under the deferential standard articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and all matters of law outside the Act are reviewed de novo. FiveCAP, Inc. v. N.L.R.B., 294 F.3d 768, 776 (6th Cir.2002). The question of whether GM had notice of the fact that Darrah was acting in concert with striking newspaper workers is a question of fact, and this court will affirm unless no substantial evidence exists in the record to support the Board’s conclusion. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

Section 8(a)(1) of the Act makes it unlawful “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). To conclude that GM violated Section 8(a)(1), the Board was required to find that GM knew about the activity, knew that it was concerted, and was motivated by the protected nature of the activity to terminate the employee in question. Vemco, Inc. v. N.L.R.B., 79 F.3d 526, 530 (6th Cir.1996). GM challenges the Board’s finding that it knew that Darrah’s newspaper sales were performed as part of a concerted activity.

The Board determined that the Pinkerton guards’ reports alone were sufficient to notify GM that Darrah was involved in a concerted activity with the striking newspaper workers. Its decision reads:

[T]he record does clearly show that [GM] was aware of the concerted nature of Darrah’s activity.... [T]he GM security reports themselves referred to Darrah’s conduct as “distributfing]” and “soliciting” “strikers’ newspapers” or “strike papers.” Soliciting and distributing to other employees are quintessential group activities under the Act; as, of course, are strikes. Contrary to our dissenting colleague, we think this description alone would therefore reasonably tend to put [GM] on notice that there was, or could be, a correlation between Darrah’s activities and “mutual aid or protection” activities associated with the “strike,” notwithstanding [GM]’s lack of knowledge concerning the precise contents of the strike newspaper or Darrah’s motivation in distributing it.

Decision and Order, Aug. 27, 2001 at 3.

The Board’s determination that the guards’ reports notified GM that Darrah was engaged in a concerted activity is faulty. The reports in question merely identified the newspapers that Darrah was selling to be “strikers’ newspapers” or “strike papers.” They nowhere implied that Darrah’s sale of those newspapers was performed in concert with the striking newspaper employees. The guards’ reports do not show that GM knew anything other than the fact that Darrah was engaged on GM property in a commercial activity: the sale of ordinary newspapers. The Board conceded that GM did not know the precise contents of the newspaper. Nor did GM know of Darrah’s motivation in distributing the newspaper—to obtain money to donate to the strikers’ cause.

The Board stated that it relied upon the guards’ reports alone in finding that GM had notice of Darrah’s acting in concert with the striking newspaper workers. Because substantial evidence does not exist to support that conclusion, the Board’s order is reversed.¹

Darrah’s Request for Remand

At oral argument, Darrah’s attorney requested that in the event of a ruling in favor of GM, we remand the case for a ruling on GM’s anti-solicitation policy. The Board as well as the ALJ had found GM’s policy to be overbroad and ordered GM to revise it. GM did not appeal this part of the Board’s order, and there is no indication that GM has failed to revise its policy under that portion of the order. Because we find that GM did not act unlawfully in terminating Darrah’s employment, Darrah is not entitled to monetary compensation for loss of income or to a reinstatement to employment. As a result, there is nothing to remand, and Darrah’s request is denied.

Conclusion

The challenged portions of the Board’s order are hereby REVERSED.

1 . Because we reverse the Board’s order on the grounds that GM lacked notice, we need not address GM’s other arguments.