Brandeis Machinery v. NLRB , 412 F.3d 822 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3156 & 04-3537
BRANDEIS MACHINERY & SUPPLY COMPANY,
a wholly owned subsidiary of BRAMCO, LLC,
Petitioner,
Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
Cross-Petitioner,
and
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 150,
Intervening Respondent,
Cross-Petitioner.
____________
Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board.
No. 25-CA-28201
____________
ARGUED FEBRUARY 8, 2005—DECIDED JUNE 24, 2005
____________
Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. In this petition, Brandeis Machinery
& Supply Company (“Brandeis” or the “Company”) seeks
2 Nos. 04-3156 & 04-3537
review of an order of the National Labor Relations Board
(“NLRB” or the “Board”). The NLRB determined that
Brandeis had violated the National Labor Relations Act
(“NLRA” or the “Act”), 29 U.S.C. § 151 et seq., with respect
to actions taken in response to union-organizing activities at
its South Bend, Indiana facility. Brandeis timely petitioned
for review of the Board’s order, and the NLRB and the
intervener, International Union of Operating Engineers (the
“Union”), filed a cross-application for enforcement of the
order. For the reasons set forth in this opinion, we deny the
petition for review and grant enforcement of the Board’s
order.
I
BACKGROUND
A. Facts
Brandeis sells and services heavy construction and mining
equipment throughout Kentucky and Indiana. The Com-
pany is nonunion and explains its approach to “employee
relations” at length in its employee handbook:
We, as a Company, prefer to deal with people directly
rather than through a third party. This is a non-union
organization. It always has been and it is certainly our
desire that it always will be that way. . . .
....
You have a right to join and belong to a union and you
have an equal right NOT to join and belong to a union.
If any other employee should interfere or try to coerce
you into signing a union authorization card, please
report it to your Supervisor and we will see that the
harassment is stopped immediately.
A.R. Vol. III, General Counsel’s (“G.C.”) Ex.7 at 16.
Nos. 04-3156 & 04-3537 3
In early 2000, Brandeis took steps to open a small branch
office and service shop in South Bend, Indiana. Sam Free-
man was chosen to be the manager for the office. Freeman
hired Tom Muraski as the product support manager in
charge of parts and service. From mid-2001 through Febru-
ary 2002, Freeman and Muraski interviewed and hired
employees for the South Bend facility.
In December 2001, Muraski interviewed Bob Cook for the
1
position of shop mechanic. During the interview, Muraski
inquired what union represented the employees at Cook’s
former employer. Muraski then told Cook that Brandeis was
a nonunion company and that he could not foresee the
Company going union in the future. Additionally, Muraski
asked Cook how he felt about working for a nonunion
company.
Muraski also interviewed Steve Benefield for the position
of field service mechanic. Benefield was a long-time mem-
ber of the Union and, like Cook, had been informed of the
position at Brandeis through a Union organizer. Muraski
did not inquire about Benefield’s union membership during
the initial interview. However, when Benefield was called
back to interview with both Muraski and Freeman, Freeman
recounted the history of Brandeis and told Benefield that
Brandeis was nonunion and that Brandeis “would close the
doors before they went union.” A.R. Vol. II at 169. Benefield
subsequently was hired and began work in March 2002.
In April 2002, Phil Overmyer, an organizer for the Union,
told Cook to begin a campaign at the South Bend facility.
Cook first spoke to Brandeis employee Ken Lubinski, who,
after considering the matter overnight, informed Cook that
1
Cook apparently had learned of the position through Union
organizer David Fagan.
4 Nos. 04-3156 & 04-3537
he was not interested in joining a union. Lubinski did not
inform anyone at Brandeis about his conversation with
Cook.
Cook next approached fellow mechanic Mike Karre. Over
lunch on May 1, 2002, Cook informed Karre about union
wages and benefits. Karre asked to meet with the Union’s
organizer, and, the following day, Karre met with Cook,
Benefield and organizers Overmyer and Delbert Watson at
a local restaurant.
On May 3, Karre went to lunch with Freeman and
Muraski and informed them that Cook and Benefield had
inquired about his (Karre’s) interest in joining the Union.
Freeman was caught off guard by the news. After returning
to the office, Freeman called Benefield into his office to
inform him that he and Karre would not be attending a
scheduled training session in Atlanta, Georgia, but that they
would attend a class in July.
Benefield believed the Company knew that a union cam-
paign was afoot and contacted Overmyer shortly after his
discussion with Freeman. Overmyer faxed Freeman notice
that Cook and Benefield were Union members and were
launching a union campaign at Brandeis’ South Bend fa-
cility. Freeman then contacted Brandeis President Gene
Snowden and Vice President of Operations Larry Shuck
concerning the events that were taking place. Snowden and
Shuck informed Freeman that they would contact legal
counsel and instructed Freeman not to make any major per-
sonnel decisions without first consulting them.
On May 7, Cook and Benefield were working near
Lubinski when Benefield commented that nobody was talk-
ing to Cook or to Benefield except for Lubinski. Lubinski—
who had been approached by Overmyer at his home about
the Union and had informed Overmyer repeatedly that he
Nos. 04-3156 & 04-3537 5
was not interested in joining the Union—became upset and
yelled at Benefield to stop talking to him and stop sending
union organizers to his home. Another employee, Kevin
Hardy, intervened and told Benefield to leave Lubinski
alone or he (Hardy) might do something he would regret.
The following day, Lubinski complained to Freeman that
Benefield was talking to him about the Union. Lubinski told
Freeman that he wanted to avoid contact with Cook and
Benefield unless such contact was related to work. In
response, Freeman met with Benefield to discuss Lubinski’s
complaint. During that discussion, Benefield informed
Freeman that Lubinski was the person who had escalated
the discussion into a shouting match and that Hardy had
threatened him (Benefield); Freeman instructed Benefield to
stay away from Lubinski and stated that he would look into
the matter of Hardy’s threat. Later, Freeman informed
Benefield that Hardy had not meant to threaten him; Hardy
only meant “that he would quit his job” if the Union
solicitations persisted. A.R. Vol. II at 180. Freeman then told
2
Benefield that if he or Cook needed to speak with either
Lubinski or Hardy, they would have to do so through
Muraski.
Snowden and Shuck arrived in South Bend and met with
facility employees on the morning of May 8, 2002. During
the meeting, they explained the Company’s position with
respect to the Union. Although Snowden had a written
speech that he worked from, he did not follow his script
verbatim. Cook secretly taped the meeting, which included
the following comments by Snowden:
Well they have the right to talk to you. If they want to
2
Cook was present during these discussions as Benefield’s
Union representative.
6 Nos. 04-3156 & 04-3537
talk to you they can. But again you have the right not to
listen. If they follow you on your property you have a
right to tell them to leave the property. They don’t have
any right on your property if you don’t want them on it.
So, once again, if the union gets so aggressive that you
feel you’re being harassed, then we need to know about
it because we will do everything within our legal means
to keep you from being harassed.
A.R. Vol. III, G.C. Ex.12a at 2.
While Snowden and Shuck were visiting, a customer ex-
perienced transmission problems with a truck leased from
Brandeis. All of the mechanics were at lunch at the time;
consequently, Muraski attempted to assist the customer.
Only a few minutes later, Karre returned from lunch and
took over for Muraski. In light of these events, Shuck “sug-
gested to [Freeman] that he consider staggering lunches so
that these kinds of situations did not occur.” A.R. Vol. II
at 441. Freeman took Shuck’s suggestion. On May 9,
Freeman implemented a staggered and shortened lunch
policy; according to the new policy, only one employee
could be off for lunch at a given time, and the time allotted
for lunch was shortened from one hour down to one-half
3
hour.
Also on May 9, Freeman observed that Benefield was
wearing a union button on his uniform that covered the
Brandeis logo. Freeman told Benefield that he did not ap-
preciate Benefield wearing the button at work and asked
4
him to remove the button from the Brandeis logo. The fol
3
This arrangement apparently is the policy at the other Brandeis
facilities.
4
Prior to this event, Freeman had made a comment to Cook
(continued...)
Nos. 04-3156 & 04-3537 7
lowing week, on May 14, Muraski observed Cook wearing
a union hat. Muraski, who was carrying a Brandeis hat,
handed Cook the hat and told Cook that he might want to
wear the Brandeis hat instead of a union hat. There were no
repercussions for the employee for either incident.
Around this same time, Benefield had approached Karen
Bailey, the office secretary, to gauge her interest in the
Union. Bailey stated that she was not interested. Benefield
then suggested that the Union could send a representative
to speak to Bailey’s husband, who owned his own excava-
tion business, at their home. Bailey became upset and told
Benefield: “I have to put up with you here. It is not coming
to my house . . . . Don’t send those people to my house, so
help me God.” A.R. Vol. II at 184.
Muraski had witnessed the end of the conversation be-
tween Bailey, who had begun her working day, and
Benefield, who had not. Muraski approached Benefield and
told him that it was his understanding that Benefield could
not solicit other employees during their work time.
Benefield then asked whether the rule prohibited him from
discussing any subject with a fellow employee when the em-
ployee was working. Muraski replied, “No, about soliciting
your stuff.” A.R. Vol. III, G.C. Exs.18 & 19. When Benefield
asked “what kind of stuff” Muraski was referring to,
Muraski responded: “Your union.” Id.On May 10, Lubinski, Hardy and Bailey approached
Freeman and indicated that they were angry with
Benefield’s and Cook’s efforts to organize and preferred to
be left alone. Freeman then had a discussion with Benefield.
Freeman told Benefield that if he needed to talk to these
4
(...continued)
about wearing a union hat.
8 Nos. 04-3156 & 04-3537
people, Benefield would have to talk with either Muraski or
himself. Freeman also stated that he “was just basically
looking for a cooling down period. [He] didn’t want to fight
them right now.” A.R. Vol. II at 316.
Bailey had another confrontation with Cook with respect
to his union activities on May 31. Cook approached Bailey
and asked her how things were going. Bailey ignored Cook,
and Cook repeated his question. Bailey then informed Cook
that she did not want to speak with him because the
employees of Brandeis were not interested in joining a
union. Bailey told Cook that it was ridiculous that he and
Benefield did not respect the other employees’ wishes.
When Cook replied that the Union would be good for the
employees and that Bailey was taking things too personally,
Bailey directed a “few choice words” at Cook and left the
room. A.R. Vol. II at 351. Bailey was reprimanded for using
profanity and acting in an unprofessional manner.
B. Administrative Proceedings
5
Based on these and other events, the Union brought an
unfair labor practice charge against Brandeis. On the basis
of this charge, the NLRB’s General Counsel issued a com-
plaint against Brandeis in which it alleged violations of
§ 8(a)(1) and (3) of the NLRA. 29 U.S.C. § 158(a)(1) & (3).
After a hearing, the Administrative Law Judge (“ALJ”) con-
5
The initial unfair labor charge brought against Brandeis in-
cluded allegations that Brandeis had treated Benefield unfairly
and, eventually, had terminated his employment as a result of his
union affiliation. The Administrative Law Judge dismissed these
allegations, and those allegations are not before this court.
Consequently, those charges, and their factual bases, are not dis-
cussed in this opinion.
Nos. 04-3156 & 04-3537 9
cluded that Brandeis engaged in several violations of the
Act. Specifically, the ALJ held that Brandeis had violated
§ 8(a)(1) of the Act by engaging in the following conduct: (1)
“[q]uestioning job applicants about their union membership
and affiliation”; (2) “promulgating . . . a written policy that
encourages employees to report to management any
employees who solicit support for a union”; (3)
“[t]hreatening job applicants with plant closure if employees
chose to be represented by a union”; (4) “[v]erbally encour-
aging employees to report to management any employees
who solicit support for a union and stating that [the Com-
pany] would put a stop to such union solicitation”; (5)
“[p]rohibiting employees from wearing union buttons and
union hats on the job during working hours”; and (5)
“[v]erbally promulgating, maintaining and enforcing a rule
that prohibits employees from discussing the Union during
work time, while allowing non-union and non-work discus-
sions during the same time.” A.R. Vol. I, ALJ Dec. at 22. The
ALJ also concluded that Brandeis had violated § 8(a)(3) of
the Act by staggering lunch hours and shortening the lunch
period in response to the Union’s campaign efforts. The ALJ
recommended that the Company cease and desist the
violations and take affirmative steps to correct the viola-
tions.
Brandeis filed exceptions to the ALJ’s decision with the
NLRB. However, the NLRB adopted the decision of the ALJ
6
and ordered the relief recommended by the ALJ. Brandeis
6
The NLRB adopted the ALJ’s decision with only minor modi-
fications. For instance, the NLRB affirmed the ALJ’s determ-
ination that the incident involving the union hat constituted a
violation of the NLRA. However, the NLRB explained that, “[b]e-
cause it would be cumulative of this violation to consider and
(continued...)
10 Nos. 04-3156 & 04-3537
then petitioned this court for review of the NLRB’s
7
decision; the NLRB filed a cross-application for enforce-
ment of the order, and the Union intervened in support of
the NLRB’s application.
II
DISCUSSION
This court will enforce the NLRB’s order “if its factual
findings are supported by substantial evidence and its
conclusions have a reasonable basis in law.” Bloomington-
Normal Seating Co. v. NLRB, 357 F.3d 692, 694 (7th Cir. 2004).
“Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support’ the
Board’s conclusion.” NLRB v. Clinton Elecs. Corp., 284 F.3d
731, 737 (7th Cir. 2002) (quoting Nat’l By-Products, Inc. v.
NLRB, 931 F.2d 445, 451 (7th Cir. 1991)). We also “owe
deference to the Board’s inferences and conclusions drawn
from the facts.” Id. This deferential standard, however, is
6
(...continued)
affirm the judge’s finding that the Respondent additionally vio-
lated Sec. 8(a)(1) by prohibiting Benefield from wearing union
insignia (a button) on his hat, and it would not affect the remedy,
we find it unnecessary to pass on this latter allegation.” A.R.
Vol. I, NLRB Dec. at 1 n.7.
One member of the Board dissented from the Board’s affirm-
ance of the same issue. That member did not believe that the
request to substitute the Brandeis hat for a union hat constituted
a violation of the Act and believed it equally insupportable that
the button incident constituted a violation.
7
Brandeis’ petition for review does not contest the Board’s con-
clusion that the inquiries and statements concerning union in-
volvement that occurred during the interviews conducted by
Freeman and Muraski violated the Act.
Nos. 04-3156 & 04-3537 11
not a rubber stamp; in conducting our review, “[w]e must
‘examine all of the evidence in context to ensure the Board’s
findings fairly and accurately represent the picture painted
by the record.’ ” Id. (quoting NLRB v. Harvstone Mfg. Corp.,
785 F.2d 570, 575 (7th Cir. 1986)). With this standard in
mind, we turn to the issues raised by Brandeis in its peti-
tion.
A. Handbook Language
Brandeis first maintains that the NLRB incorrectly con-
cluded that its handbook section, which protects its em-
ployees from harassment by union organizers, violated
§ 8(a)(1) of the NLRA. The NLRB concluded that Brandeis’
“policy statement invites the employees to report ‘harass-
ment’ by union organizers attempting to get employees to
sign authorization cards” and that “[i]t reasonably could be
construed to mean that the conduct would be punished.”
A.R. Vol. I, NLRB Dec. at 4. According to Brandeis, how-
ever, the policy forwards the Company’s legitimate goal
of maintaining discipline in its facilities. Furthermore,
Brandeis asserts, the provision is not so vague as to invite
complaints of activities protected by the Act.
Section 8(a)(1) provides that “[i]t shall be an unfair labor
practice for any employer . . . to interfere with, restrain, or
coerce employees in the exercise of the right[]” to organize
collectively under the Act. 29 U.S.C. § 158(a)(1). In order
to establish a violation of this provision, “[n]o proof of coer-
cive intent or effect is necessary . . . the test being whether
the employer engaged in conduct, which, it may reasonably
be said, tends to interfere with the free exercise of employee
rights under the Act.” NLRB v. Gen. Thermodynamics, Inc.,
670 F.2d 719, 721 (7th Cir. 1981) (internal quotation marks
and citations omitted).
12 Nos. 04-3156 & 04-3537
One of the rights secured to employees under the Act is
the right to solicit on behalf of a union organizing campaign.
See, e.g., Clinton Elecs. Corp., 284 F.3d at 739. Indeed, pro-
ponents of unions may “engage in persistent union solici-
tation even when it annoys or disturbs the employees who
are being solicited.” Ryder Truck Rental, Inc., 341 N.L.R.B.
109, 2004 WL 963370, at *1 (N.L.R.B. April 30, 2004), order
enforced, Ryder Truck Rental v. NLRB, 401 F.3d 815 (7th Cir.
2005). According to the Board, employers “interfere” with
these rights, and therefore “violate Section 8(a)(1) of the Act,
when they invite their employees to report instances of fel-
low employees’ bothering, pressuring, abusing, or harassing
them with union solicitations and imply that such conduct
will be punished.” Greenfield Die & Mfg. Corp., 327 N.L.R.B.
237, 238 (1998). The rationale behind this rule is that “such
announcements from the employer are calculated to chill
even legitimate union solicitations, which do not lose their
protection simply because a solicited employee rejects them
and feels ‘bothered’ or ‘harassed’ or ‘abused’ when fellow
workers seek to persuade him or her about the benefits of
8
unionization.” Id.This court, however, has rejected the type of “per se”
approach adopted by the Board. “[O]ur cases demonstrate
that a fact-based, contextual inquiry is required to deter-
mine whether a company has violated the NLRA.”
8
The Board has contrasted employer pronouncements against
“harassment”—which violate the Act—with employer pronounce-
ments against “threats”—which do not violate the Act. See Liberty
Nursing Homes, Inc., 245 N.L.R.B. 1194, 1197 (1979). Requesting
that employees report union-related “threats,” according to the
Board, is “not reasonably subject to an interpretation that would
violate the Act.” Battle Creek Health Sys., 341 N.L.R.B. 119, 2004
WL 1091058, at *24 (N.L.R.B. May 12, 2004).
Nos. 04-3156 & 04-3537 13
Bloomington-Normal, 357 F.3d at 696. Factors to consider
include: “the timing of the speech, the words used in the
speech, whether the speech targeted union supporters, and
whether the speech was directed toward employees who
were being threatened.” Id.After considering the factors set forth above, we con-
clude that the NLRB’s determination—that the Brandeis
handbook language violates § 8(a)(1)—is supported by
substantial evidence. First, the context of the Company’s
policy is important. The policy is located in a section of
the handbook entitled “Employee Relations Philosophy,”
which details Brandeis’ desire to remain union-free; it is not
part of a more general anti-harassment policy. Second, the
focus of the prohibition against “harassment” is union
activity; there is no acknowledgment that opponents of a
union may harass, interfere or coerce fellow employees into
rejecting union representation. Thus, the language employed
by Brandeis in its handbook stands in stark contrast to that
approved by the Board in S.E. Nichols, Inc., 284 N.L.R.B. 556(1987), which provided: “Remember, do not sign a card because
you are threatened, tell us and we will protect you. It is your
right to have a union. It is your right not to have a union.
Our Company will try to see to it that your rights are
preserved no matter how you choose. Tell us if someone is
trying to stop your freedom of choice.” Id. at 557 (emphasis
in original). The Board found that this language merely
advised all of its employees—whether pro-union, anti-union
or undecided—“that the Respondent would be available to
protect employees from conduct that might restrain or
coerce them in the exercise of their Section 7 rights.” Id. The
same “equal protection” guarantee does not appear in, and
cannot be gleaned from, the language employed by
Brandeis.
14 Nos. 04-3156 & 04-3537
Furthermore, Brandeis’ policy was not promulgated in
response to threats or incidents of violence. When employ-
ers use terms such as “harassment” after employees have
been threatened or encountered violence at the hands of
union proponents, employees are less likely to perceive the
term as referring to protected activity. Brandeis’ policy,
however, was part of its handbook, which was disseminated
to employees when they were hired. Thus, Brandeis em-
ployees were not able to discern any limiting principles
from the circumstances under which the policy was issued.
It is incumbent upon employers to use language that
“is not reasonably subject to an interpretation that would
unlawfully affect the exercise of Section 7 rights.” S.E.
Nichols, Inc., 284 N.L.R.B. at 557. In the present case, neither
the factual context nor the language employed by Brandeis
served to limit employees’ understanding of what consti-
tutes harassment under the policy; employees reasonably
could conclude that engaging in protected activity was
tantamount to “harassment” under the policy. In light of
these facts—that the policy was promulgated “without any
knowledge of threats or harassment from the union, and
targeted only union supporters”—“it was not unreasonable
for the NLRB to conclude that the [policy] encouraged
employees to report unionization efforts” in violation of
§ 8(a)(1). Bloomington-Normal, 357 F.3d at 697.
B. Snowden’s Speech
Brandeis also urges us to revisit the NLRB’s determination
that Snowden’s speech to the South Bend workforce on May
8, 2002, violated § 8(a)(1). During his speech, Snowden
remarked:
Well they have the right to talk to you. If they want to
talk to you they can. But again you have the right not to
Nos. 04-3156 & 04-3537 15
listen. If they follow you on your property you have a
right to tell them to leave the property. They don’t have
any right on your property if you don’t want them on it.
So, once again, if the union gets so aggressive that you
feel you’re being harassed, then we need to know about
it because we will do everything within our legal means
to keep you from being harassed.
A.R. Vol. III, G.C. Ex.12.
As noted above, although statements by management
encouraging employees to report “harassment” in connec-
tion with a union solicitation is not per se violative of the
Act, the context in which the statement is made must not be
“so vague as to invite employees generally to inform on
fellow workers who were engaged in union activity,” Liberty
Nursing Homes, Inc., 245 N.L.R.B. 1194, 1197 (1979), and thus
interfere with union proponents’ rights under the Act.
Although Snowden gave trespass as an example of behavior
that is not protected, this example failed to enlighten
Brandeis employees as to what did or did not constitute
“harassment” at work. Employees easily could have been
left with the impression that protected activity such as per-
sistent solicitations, offers of union literature or invitations
to organizational/informational meetings could constitute
9
harassment. In the absence of further guidance as to the
meaning of “harassment,” Brandeis employees were left
to draw their own conclusions about the definition of
“harassment”—a definition that well may have included
activity protected by the NLRA. Thus, we conclude that the
NLRB’s determination that Snowden’s statement was vio-
9
Indeed, although there is no evidence in the record that Cook
and Benefield were engaging in something other than protected
activity under the Act, their actions engendered a number of
complaints to management.
16 Nos. 04-3156 & 04-3537
lative of the Act is supported by substantial evidence.
C. Commentary on Union Insignia
Brandeis similarly contests the NLRB’s determination that
the actions of Freeman and Muraski in commenting upon
the union hat and buttons worn by Cook and Benefield
violated § 8(a)(1) of the Act. The NLRB maintains that, in
the absence of extenuating circumstances, i.e., a safety
reason why union items cannot be worn or displayed, com-
mentary of this sort by management violates § 8(a)(1).
This court has recognized that the Act guarantees em-
ployees the right “to wear union buttons or insignia as part
of concerted activity to assist the union.” NLRB v. Shelby
Mem’l Hosp., 1 F.3d 550, 565 (7th Cir. 1993). This right,
however, is not absolute and may be “abridged when the
employer demonstrates that special circumstances exist
which justifies [sic] the banning of union insignia.” Eastern
Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 424 (4th Cir.
1999). Countervailing interests such as employee safety,
production or discipline may justify an employer’s restric-
tions on such items. See Shelby Mem’l Hosp., 1 F.3d at 565
(citing Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 359 (7th
Cir. 1956)).
Brandeis does not attempt to justify the comments made
in the present case on the grounds of safety, discipline or
production. Instead, Brandeis maintains that the actions of
Freeman and Muraski did not dissuade Cook or Benefield
from touting the Union on their clothing, consequently, no
violation of the Act occurred.
As noted above, however, the test for a violation of
§ 8(a)(1) is not whether the employer actually interfered
with its employees’ rights under the NLRA, but whether the
employer’s actions had a tendency to interfere with those
Nos. 04-3156 & 04-3537 17
rights. Gen. Thermodynamics, Inc., 670 F.2d at 721. Although
Freeman’s and Muraski’s comments may not have discour-
aged Cook or Benefield from donning their union buttons
and hats, the effect on possible onlookers may not have been
so innocuous. These comments may have had a chilling
effect on employees who otherwise would have displayed
10
their support for the Union in some manner.
Given that a showing of actual interference is not neces-
sary to establish a § 8(a)(1) violation, we again conclude that
the NLRB’s determination is supported by substantial
evidence.
D. Prohibition of Discussion of Union
10
If there had been only one stray comment by a member of
management with respect to the display of union items, we may
have reached the same conclusion as did the Fourth Circuit in
Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 425 (4th Cir.
1999). In that case, the Fourth Circuit addressed a company ban
on union insignia placed on hardhats, but not other clothing
items; the court commented: “ ‘Somewhere, in the vast human ex-
perience, there must be an inconvenience so minimally dam-
aging, so utterly trivial, so profoundly petty, that it should not
give rise to a [§ 8(a)(1) violation]. If so this is it.’ ” Id. at 426
(alteration in original; quoting Beraho v. S. C. State Coll., 394 S.E.2d
28, 29 (1990) (Sanders, C.J., concurring)). In this case, however,
both Freeman and Muraski made comments to Cook— on May
9, Freeman commented on Cook’s button, and, on May 14,
Muraski commented on Cook’s hat. As well, Freeman com-
mented on Benefield’s pro-union button. Given that at least two
members of management noted and commented upon the
wearing of union attire and that the comments were directed to
two different employees, we cannot dismiss these incidents as “so
utterly trivial” as not to give rise to a § 8(a)(1) violation.
18 Nos. 04-3156 & 04-3537
Brandeis also asks us to review the Board’s determination
that Muraski’s oral prohibition of union discussions during
work time violated § 8(a)(1). Brandeis argues that it was
entitled to impose a rule that prohibits union solicitations in
order to maintain productivity and discipline. The NLRB
urges that the broad prohibition against union discussions
cannot be justified on these grounds.
Brandeis does not dispute the general proposition that an
employer violates § 8(a)(1) of the NLRA when it discrim-
inatorily prohibits employees from discussing union-related
topics during work time while tolerating other subjects of
discussion. See, e.g., Atlas Metal Parts Co., Inc. v. NLRB, 660
F.2d 304, 311 (7th Cir. 1981). Brandeis, however, maintains
that, in the absence of some evidence that anti-union animus
motivated Muraski in prohibiting the discussions, the rule
should have been sustained. Brandeis relies upon Adtranz
ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253
F.3d 19 (D.C. Cir. 2001), in support of its position.
Brandeis’ reliance on Adtranz is misplaced. In Adtranz, the
company had a rule in its employee handbook against
“soliciting and distribution without authorization.” Id. at 28.
The District of Columbia Circuit first noted that the rule in
question only applied “to conduct during working time and
in the work place.” Id. The court continued: “ ‘Working time
is for work’ is a long accepted maxim of labor relations.
Therefore rules prohibiting solicitation during working time
are presumptively lawful because such rules imply that
solicitation is permitted during nonworking time, a term
that refers to the employees’ own time.” Id. (internal
quotation marks and citations omitted). Furthermore, the
court observed that Adtranz’s rule was an “across the
board” policy, and “there [wa]s no suggestion that anti-
union animus motivated the policy” or that the rule “dis-
criminate[d] against unionization efforts or other protected
Nos. 04-3156 & 04-3537 19
activity.” Id. at 29. Thus, among the court’s reasons for sus-
taining Adtranz’s “no solicitation” rule were that the rule
was not intended to, nor was it enforced in such a manner
as to, discriminate against speech or actions protected by the
Act.
The same cannot be said regarding Muraski’s instruction
to Benefield that he and Cook refrain from discussing
“union stuff.” There is evidence that the statement was mo-
tivated by Benefield’s and Cook’s prior solicitation efforts,
and there is no question that it targeted only future solici-
tations on behalf of the Union, as opposed to all speech
during work time.
Brandeis is free to adopt nondiscriminatory policies that
forward its legitimate objectives of maintaining plant prod-
uctivity and discipline. However, those policies may not
target, either through design or enforcement, activity pro-
tected by the Act. Because the oral rule promulgated by
Muraski was directed only at discussions concerning the
Union, the NLRB’s conclusion that the prohibition violated
the NLRA is supported by substantial evidence.
E. Alteration of Lunch Policy
Finally, Brandeis claims that its alteration of the lunch
policy was not a response to the Union’s organizing activ-
ities that took place during the lunch hour. It was, instead,
a legitimate response to the detrimental effect that an uni-
form lunch hour had on its ability to serve its customers’
needs. The General Counsel urges that both the breadth of
the policy, as well as the timing of its implementation,
support the NLRB’s conclusion that the change in policy
20 Nos. 04-3156 & 04-3537
11
was in response to legitimate, protected activity.
Section 8(a)(3) of the NLRA prohibits an employer from
discriminating “in regard to hire or tenure of employment
or any term or condition of employment to . . . discourage
11
Specifically, the NLRB adopted the ALJ’s determination with
respect to this issue; the ALJ stated:
A careful analysis of [the] situation, however, discloses that
the changes imposed by the Respondent were not necessary
to resolve the problem. According to Shuck, there was some-
one available to render assistance to the customer, i.e.,
Muraski. Only 5 minutes passed before he was relieved by
Karre, who quickly fixed the problem. Nor does the evidence
disclose that this was an on-going or repeated problem or
that similar situations were likely to occur in the future given
the nature of the Respondent’s business. For example, the
field service mechanic for the most part is out of the building
and most likely would not be available to render assistance,
regardless of whether lunches were staggered and shortened.
There are two in-house service mechanics, who normally do
not perform field service work, but who conceivably could
provide the type of coverage that Shuck envisioned if they,
and they alone, staggered their lunch hours. But the changes
imposed by Freeman went far beyond what was necessary to
remedy Shrock’s [sic] concern because the changes affected
all employees, like Ken Lubinski and Kevin Hardy, who
were not mechanics, and Benefield who was a field service
mechanic. Indeed, the changes restricted everyone from
taking lunch with anyone else and therefore stymied any
attempts to organize during lunch time, which is when Cook
and Benefield previously had spoken to employees
one-on-one about joining the Union. Thus, I find that the
Respondent has failed to persuasively show that in the
absence of a union organizing drive, the changes that it
imposed on lunch times would have been the same.
A.R. Vol. I, NLRB Dec. at 10.
Nos. 04-3156 & 04-3537 21
membership in any labor organization.” 29 U.S.C.
§ 158(a)(3). In order to establish a violation of § 8(a)(3), the
“General Counsel must establish that antiunion animus was
a motivating factor in the decision. If the General Counsel
succeeds, the employer—to escape a finding of an unfair
labor practice—must establish its affirmative defense— that
it would have taken the action regardless for nondiscrimina-
tory reasons.” NLRB v. Joy Recovery Tech. Corp., 134 F.3d
1307, 1314 (7th Cir. 1998) (citing Schaeff Inc. v. NLRB, 113
F.3d 264, 267 n. 5 (D.C. Cir. 1997)).
In this case, the NLRB found that anti-union animus was
a motivating factor behind the decision to change the lunch
policy. The record establishes that the Union was using the
lunch hour as a time to meet with potential members and
convince them of the merits of unionization. Furthermore,
the record shows that the Company became aware that
active union recruitment was taking place during the lunch
hour. The change in policy followed closely on the heels of
Cook’s and Benefield’s lunch meetings with Karre and,
according to the Board, made it “difficult for employees to
take their lunches at the same time, and thereby inhibit[ed]
the Union’s organizing efforts.” A.R. Vol. I, NLRB Dec. at 9.
Thus, the record supports the NLRB’s conclusion that union
activity was a motivating factor in the change of policy.
Brandeis does not argue that the General Counsel failed
to meet its initial burden of establishing that the union
campaign was a motivating factor in the decision to alter the
lunch policy. See Reply Br. at 15. Brandeis maintains,
however, that it established that its actions were non-pre-
textual. It contends that, even in the absence of the Union’s
organizing campaign, the change would have been imple-
mented because the uniform lunch hour deprived Brandeis
of the necessary personnel to service customers, as evi-
denced by the events of May 8, 2002.
22 Nos. 04-3156 & 04-3537
The NLRB counters that, if customer service was the driv-
ing force behind the change in policy, the policy should
have been restricted to mechanics. However, “the changes
restricted everyone from taking lunch with anyone else and
therefore stymied any attempts to organize during lunch
time, which is when Cook and Benefield previously had
spoken to employees one-on-one about joining the Union.”
A.R. Vol. I, NLRB Dec. at 10. Furthermore, the General
Counsel argues that “[q]uickly attending to repairs was not
an ongoing problem at the facility and similar situations
were not likely to occur.” Respondent’s Br. at 38.
Brandeis need not wait, however, until it has experienced
persistent lapses in customer service before it adopts a pol-
icy that allows it to serve its customers in a more efficient
and timely manner. Furthermore, we have no doubt that, at
some level, Brandeis’ lunch policy forwards that goal.
Brandeis’ burden, however, was not simply to establish that
there was another, legitimate reason that motivated its
action; Brandeis had to show that it would have taken the
same action in the absence of the illicit motive. See, e.g.,
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 400-03 (1983)
(upholding NLRB’s construction of the Act that, after a
showing that the employer’s adverse action was motivated
by anti-union animus, the burden was on the employer to
show that it would have reached the same decision “had the
forbidden motive not been present”), abrogated on other
grounds, Dir., Office of Workers’ Comp. Programs, Dep’t of Labor
v. Greenwich Collieries, 512 U.S. 267 (1994); Multi-Ad Servs.,
Inc. v. NLRB, 255 F.3d 363, 371 (7th Cir. 2001) (stating that,
if protected activity has motivated an adverse action, “a
violation has been established unless the employer dem-
onstrates that it would have taken the same action in the
absence of the employee’s protected activity”). The breadth
of Brandeis’ new lunch policy suggests that factors other
Nos. 04-3156 & 04-3537 23
than customer service motivated its adoption. The policy
applied to all employees, not just mechanics or service per-
sonnel. Furthermore, the policy not only staggered lunch
periods, it also shortened lunch periods, thus making it
more difficult for union organizers to meet with recruits
during day-time hours. Consequently, we believe that the
NLRB’s conclusion—that Brandeis would not have adopted
the same policy in the absence of union activity— is sup-
ported by substantial evidence.
Conclusion
For the foregoing reasons, we deny Brandeis’ petition for
review, and we grant the cross-application for enforcement
of the NLRB’s order.
PETITION DENIED;
APPLICATION FOR ENFORCEMENT GRANTED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-24-05