National Vendors, a Division of Umc Industries, Inc. v. National Labor Relations Board
630 F.2d 1265
8th Cir.
1980
Check Treatment

*2 ARNOLD, Before HEANEY and present. Circuit were Also was a contract Judges, SACHS,* Judge. District negotiating committee whose members * SACHS, Missouri, The Honorable sitting by designation. HOWARD F. United Judge States District for the Western District negotiating session Decem next contract union at elected each session, repeated this instruc Christopher ber Barutio At plant. Bagwell, spokesperson for all Nelke, com tion. James negotiating member unions, agreed Company’s posit the machinists’ union and four mittee elected early a union shift, meeting requested ion.3 steward on the second chief nine of the contract portions called and posting use the union’s bulletin board for *3 Eventually, on. of were discussed and voted progress negotiations. information on the negotiated approved and request by National Ven new contract was This was denied Personnel, membership. the union by Director Edwin J. Barut dors’ of io.1 January charge Nelke filed a On NLRB, contending the that National meeting the Nelke held a day, On same 8(a)(1) violated of the National Vendors Company during a ten-minute § the cafeteria Act, 158(a)(1), 29 § Labor Relations U.S.C. in the shift. The cafeteria is break second permit employees conduct by refusing to to ninety hun- fifty by or one approximately in the meetings on nonwork time vending and ma- dred feet size contains Judge The Administrative Law tables, cafeteria. total of twenty seating chines and 8(a)(1) violated National Vendors § people. Nelke stood behind a coun- eighty it be recommended that ordered to and spoke to a ter in front of the cafeteria and and desist cease from in- approximately eighty people, of holding cluding [prohibiting employees non-unit He stated meetings nonworking been the use of the bulletin time em- he had denied * * would by Company, board the that he in its Plant No. 3 ployee cafeteria negotiations holding purpose informing them employees inform for the of concerning out of meetings handing progress in the cafeteria or the course and Respon- literature. bargaining collective between the representing dent and Unions the held meeting A second Nelke employees and at production maintenance 13,1978, during a December in the cafeteria * * plant such *. meeting, At period. ten-minute break this Judge recom- The Administrative Law negotiat Nelke and another member the Company required the to mended that leaflet, signed ing committee distributed stating No. 3 that it post a notice Plant negotiat the by certain members of union longer employees from prohibit will no committee, ing entitled “What’s Goin’ On.” The holding meetings in its cafeteria. again Nelke behind meeting, At stood Board, slightly wording modifying only the explained the counter in the cafeteria and notice, adopted the recommended present. the handout The handout to those Judge. the Law order of Administrative contract then dis negotiations and were Again, personnel were cussed. non-unit II present.2 ANALYSIS day, Nelke was told following NLRA, to 7 the 29 U.S.C. Barutio that he was not hold more Section 157, meetings gives At the to discuss Company employees cafeteria. § complaint Bagwell hearing: charge regarding 1. There is no testified at the board. access bulletin agreed [Company’s] position not to ques- hold and was shift, nonbargaining six 2. On the second five or why why, explained tioned [the because employees unit have access the cafeteria. negotiating members of were committee] shift, During period about lunch first agreed anything new and all we hadn’t sixty-five office have access to the just proposals discussing We had all. bargaining cafeteria at time the unit something and when there was that was nec- ployees using cafeteria lunch. go membership essary back to the many is no There evidence the record of how something would call when we decided on we actually during use the cafeteria membership meeting the entire they plant dur- break time since leave the agreed we on. with what ing their breaks. R.B. 666 We think this is one union litera- and distribute union matters those circumstances. during nonwork- company premises ture on NLRB, Eastex, time. Inc. U.S. support in the rec We also find (1978); 98 S.Ct. conclusion that Barutio ord for the Board’s NLRB, Corp. v. Republic Aviation keep Bagwell attempting were n.10, 65 S.Ct. 803-804 & negotiations out of the hands contract n.10, (1945); McDonnell 89 L.Ed. 1372 & negotiation committee. the elected Douglas Corp. members were free to discuss committee employees’ on the Restrictions with fellow progress rights during authoriz- exercise of section Company premises on the nonwork areas are ed nonwork time or in Fur and after work. breaks and before invalid. American Cast Iron presumptively fact, ther, to, and, free did they F.2d Pipe Co. employees about the materials to distribute Corp. v. 1979); Douglas McDonnell free to dis *4 negotiations. They were also case, In this supra, 472 F.2d at 544. regular union meet negotiations cuss however, charge or evidence that there is no on the con ings meetings held to vote prohibited employee dis- National Vendors tract. at lunchroom tables or other non-

cussions request by a The Board also found that nor during work areas nonwork time is meetings at the machinists’ Nelke to hold that the distribution of there evidence here by Bagwell so as to limit hall was denied during in the cafeteria nonwork literature input to the ne- employee participation Thus, sup- we find no prohibited. time was gotiations. validity We not doubt the for the Administrative port in the record its relevance finding question of this but we Law that Judge’s conclusion labor to this case since no unfair concurrence, Barutio, Bagwell’s with im- been filed. charge against the union has employee discussion of posefd] gag a National Vendors also contends that part any any union affairs at time union, waived through Bagwell, premises. [National Vendors’] may have had to hold rights employees Rather, Compa it is clear that agree We with meetings in the cafeteria. ny’s prohibition narrowly was directed at Bagwell that could not waive the Board large the practice holding rights structured to discuss contract meetings negotiations employers’ premises on the group during company breaks Magnavox during nonwork time. NLRB open employees, cafeteria that to all in Co., 1099, 39 L.Ed.2d 415 94 S.Ct. cluding U.S. supervisory and non-unit However, (1974). accept even if we 358 meetings We think it clear that such attempted that the union to waive certain disruptive, when the cafeteria particularly rights imposed by the rule employees, simultaneously by used other not restrict the National Vendors does As the including supervisory employees.4 on the em negotiations to discuss contract Air acknowledged Board A.M.C. Condi ployer’s during nonwork time. premises Co., (1977), tioning 232 N.L.R.B. solely to semi-formal meet goes The rule there be “certain limited circumstances during short ings held in the cafeteria lawfully prohib can employer [in which] negoti breaks a member of the contract it during the use of a lunchroom mealtimes ating committee. ac disrupting for various loud or otherwise including normally protected reasons, tivities certain For these we find that National (Footnote omitted.) 8(a)(1) concerted activities.” of the Act Vendors did not violate § Co., Manufacturing deny of the Board’s order. See also Farah N.L. enforcement While there is no 4. We note that a National Vendors’ foreman allegation activity, in this of such addition- was in the lunchroom one of Nelke’s case supervisory meetings. Employer surveillance of union ac- al in the cafeteria questions tivity unlawfully employee personnel present of un- can inhibit exercise could raise employee rights. rights. Corp., of section 7 NLRB v. Aero lawful interference See anti-speech judge company’s law ARNOLD, Judge, dissenting. Circuit it, but the Board upheld rule reasonable order. enforce the Board’s I would or visitors used No customers reversed. general princi- quarrel have no with the said,1 lunchroom, was no evi it and there opinion, summarized in Court’s ples had been dis any employees dence that ante, There is doubt at 1267-1268. No rule speech-making. ban turbed the discussion of contract that force. ning speeches previously engage wished to Christopher Nelke required posting order The Board’s protected under Section activity announcing, alia inter : notice kind restrictions Company-imposed our prohibit WE NOT WILL areas on the activity non-working speeches or giving union-related presumed employees’ own time have been concerning protected con- speeches other Corp. Aviation Republic invalid ever since non-work areas includ- certed activities in 65 S.Ct. U.S. free time. ing the lunchroom on their restrictions “are L.Ed. 1372 Such at 287. 232 N.L.R.B. 8(a)(1) violative of unless § showing special cir- justifies them Co., (1973), N.L.R.B. 666 Mfg. Farah the rule cumstances which make Court, both by the illustrates also cited Beth discipline.” or production to maintain coin. An addressed sides 483, 492-93, NLRB, 437 Israel cafeteria. The company’s (1978) 98 S.Ct. clap their hands and to group “began omitted). balancing of inter- (footnote noises,” id. 701. Visitors and cus- make *5 is, test in the ests that this makes room, used the id. at 707. tomers also instance, Board, not the first business circumstances, against company a rule these “It is the Board on which Con- the courts. upheld. in the cafeteria was speechmaking develop to gress authority conferred the an hand, to be other it was held On labor policy fundamental national apply discharge an em- unfair labor judicial role narrow: The . . The of about 100 ployee speaking to a crowd judicially adopts rule which Board very “in a loud tone” in the Act, consistency with the reviewable for plant . dur- hallway “main . . if those rationality, and for it satisfies lunchbreak,” though even ing the “some rule, criteria, application of the the Board’s hallway” was created. Id. congestion in the supported by if substantial evidence on incident, Board, to the latter at 666. As whole, enforced.” Id. record as a must be examiner, reversing trial said: a (footnote at 98 S.Ct. at omit- employee] was discharged Alvarez [the also, ted). cited See addition to cases protected activity a concerted engaged in Court, May this NLRB v. point Respondent . had . [Farah] Co., Dept. Stores 154 F.2d 533 showing right to limit it absent that some creating prob- was Alvarez’ loud tone ap- Both the Board and courts have management any proper area of lem strictly in of this doctrine rather favor plied demonstrably were concern. [There no] Air rights employees. of AMC Condi- business or disturbing effects Co., (1977), tioning 232 N.L.R.B. 283 cited distracting employ- operations such as Court, ante, good is a at by the ees.” There, employee addressed example. an Douglas Corp. v. Compare McDonnell Ibid. lunch- group of 75 co-workers 1973), in loud A was eat- room a voice. foreman that an which this Court found promptly time and the room at the operations, highly sophisticated management. engaged in reported the incident militarily of were sensitive An administrative some which was fired. nonworking supra, time was held un- cafeteria But cf. Beth Israel though only employ- an cafeteria’s at where lawful even 77% sup- forbidding patrons employees. rule solicitation of union were er port in a of union literature and the distribution disturbances, potential found, secret, shown but the ALJ “spe- classified had sufficient to take view, cial itself out of the permissibly they circumstances” that my general Aviation. Republic rule of without The mere potentiality substance. not be disruption should sufficient has, to a

As this brief reference few cases clear, important rights override the Section 7 hope, key I made resolution of to keep kind of case is examination of the elected union official the mem- particular disputed each facts of situation. bership progress of negotia- informed of the Law Judge Administrative below tions for a collective-bargaining contract. (whose adopted) Board findings the made a Because I believe the Board’s find- thorough judicious review of the testi evidence, ings supported substantial are mony, say and I cannot that her findings and that it has struck balance between supported not substantial evidence. competing rights that accords with the na- found, things, other among She that Nelke policy by Congress, tional labor enacted separate meetings held four in the cafe respectfully dissent. teria, each without incident or complaint from any employee. All of the

were held during a ten-minute break in the

course of the second shift. The second-shift

foreman the first two meeti

ngs.2

After the meeting, fourth the company’s Personnel, Director of having previously UNITED America, Appellee, STATES told Nelke he not use the could union bulle- tin plant, board suddenly located PINTAR, Appellant. Michael A. any banned further meetings. The ALJ found, fact, as a matter that Edwin J. America, UNITED Appellee, STATES Barutio, official, the company told Nelke that he could not meet cafeteria, he but that could not talk PINTAR, Appellant. Barbara *6 people anywhere on company Nos. 79-2060. property. United States of Appeals, Court situation,

In this it espe does not seem Eighth cially Circuit. important whether Barutio and the league union’s business were in agent to cut 12, Submitted June 1980. off Nelke’s access his constituency, al Sept. 2, Decided 1980. though I have no reason to doubt the validi ty of the ALJ’s inference to this effect. 27, 1980. Rehearing Denied Oct. Nor is it for the necessary Board to show that Nelke could not have used the union

hall,3 although agent, the business say least, hospitable request. to this

The crux of the matter that the company

never showed that Nelke’s disruptive. or would be Barutio ex

pressed disruptive fears of tendencies and to, ante, SUPRA, 2. This . . what Court refers . .” Beth Israel 1267, says “non-unit when it 437 U.S. at 98 S.Ct. at 2476. I do not present.” super- any greater There were more than six understand this statement to intend visory personnel degree protection “organizational who worked the second shift. activi- ty” protected by than for other conduct Section Eastex, availability 7. Cf. Inc. 437 U.S. “[T]he alternative means of not, respect employ- communication organizational activity, inquiry ee