Restaurant Corporation of America v. National Labor Relations Board, 801 F.2d 1390

Restaurant Corporation of America v. National Labor Relations Board

801 F.2d 1390

D.C. Cir.

1986

Check Treatment

*2 SCALIA, Before BORK and Circuit Judges, MacKINNON, and Senior Circuit Judge.

Opinion for the Court filed Circuit Judge BORK.

Opinion dissenting part in concurring and part filed by Senior Judge MacKINNON. BORK, Judge: Circuit Corporation Restaurant (“pe- of America “RCA”) petitions titioner” or review a decision and order of the National Labor (“NLRB” Relations Board “Board”). or The Board found that RCA violated section 8(a)(1) (3) of the National Labor Rela- (“NLRA” “Act”), tions Act 29 U.S.C. (3) (1982), by its facially enforcement of a valid no-solicita- tion rule and consequent discharge of two employees. The Board cross-petitions for enforcement of its order. Because we con- Generally, say I would to them is what misconstrues the Board’s elude that, January I a meet- had attended supported by substantial Act, Terrace explanation evidence, departs [Res- without And, Board, meeting. taurant], a several we Union decisions previous from employees there were interested review, deny petition grant the Yet, organizing. in order continue en- cross-petition for part the grant *3 peo- campaign, have to include we would the Board remand to forcement, and shops ple in the other restaurants this consistent with proceedings further Watergate. opinion. I you individual was And are —the I. you be interested speaking to—would food service facilities operates Petitioner getting a Union? pursuing Watergate complex in the District of at the Hearing (“Tr.”) Transcript at 32. Herbeki- the Les include These facilities Columbia. spoke an testified that she with twelve Restaurant, Lounge, Champs Peacock concerning people on work time the union Restaurant. Since and the Terrace campaign prior 1981. Tr. at to June following no-solicita- maintained the RCA 70-77. rule, on em- posted at entrances and tion ployee bulletin boards: Among those solicited Herbekian was KIND, Sherwood a waiter at the Les ANY IN- OF

SOLICITATION Herbekian, Dameron, Champs Restaurant. FOR CLUDING SOLICITATION ORGANIZATIONS, employees and six other attended a union- CLUBS, POLITI- 2, 1981, CHARITIES, meeting PARTIES, sponsored on June to dis- ETC. IS CAL prospect organizing employ- cuss the ON WORKING PERMITTED NOT Watergate complex. At ees of the IN AREAS. TIME OR CUSTOMER meeting person a list contain- each received OF LITERATURE OF DISTRIBUTION employees names of fellow to con- PERMITTED ON ANY KIND IS NOT signing tact union authorization about WORKING TIME OR IN WORKING cards. EMPLOYEES AREAS. OFF-SHIFT THE PREM-

ARE ALLOWED ON NOT subsequently ap- Herbekian contacted ISES. proximately ten time. work (“J.A.”) Appendix at 18 n. 6. Joint Herbekian testified that she met with employees following ten” the June “[a]bout sought Roxie Herbekian early 40, talking meeting, Tr. at with nine through organized work in an restaurant specific employees on and in work time Employees Un- the Hotel and Restaurant workplace. Tr. at 82-92. ion, being advised that Upon Local 25. learning such work was unavailable spoke employ- also with seven Dameron organizing underway effort was that an organizing the union effort. ees about applied Watergate complex, Herbekian Though five of these conversations did not as a for work and hired there RCA time, occur work two did. Dameron A months la- operator. room service few testified that these two solicitations lasted ter, began working also as a Herbekian to ten minutes. Tr. at 299. five Lounge. Herbeki- waitress at the Peacock 9, 1981, Manager spoke union about an On June General an then with the facilities, Flick, Watergate Gene sus- organizing effort the food service pending complex. pended the con- Herbekian and Dameron employees at the With union, alleged began May investigation of their violations of Herbekian sent of the Dameron called her co-workers at the Pea- the no-solicitation rule. 1981 to solicit inquire his adjacent day Flick the next Lounge physically cock and the about informed organizing employment status and was Restaurant about 15, Herbekian local he had been fired. On June union. She testified that her solicita- tion ran as was also fired. follows:

II. away gift for a housekeeper; (6) March 12, 1981, collected a On June total of the Union filed a to buy $12.00 charge birthday peti- the NLRB cake for alleging that a Les (8) tioner violated bartender. section found AU 26, 1981, August occurred, NLRA and on these the NLRB part, at least in complaint. General Counsel issued a on work time. 8(a) provides Section of the NLRB August 21, 1984, On adopted

part: the AU’s findings and perti- conclusions in It shall be practice an unfair labor nent RCA, and ordered among other employer— things, to cease and desist from disparately

(1) applying with, its restrain, rule, to interfere no-solicitation to offer coerce Herbekian and Dameron exercise of the reinstatement rights guaranteed positions, in section their former 157 of this and to remove from *4 title; any its files references to the unlawful

discharges.

(3) by regard discrimination in hire or employment tenure of any or III. term or employment condition of It is not disputed that Herbekian and encourage discourage or membership Dameron violated RCA’s no-solicitation any organization.... labor by engaging in union solicitation dur- 158(a)(1),(3) (1982). 29 U.S.C. § ing Rather, work time. the Union claimed conducting hearing, After the Adminis- and the Board found that RCA committed Judge Law trative concluded that RCA vio- practice an unfair by labor enforcing its (3) section lated and by the Act against no-solicitation rule Herbekian and disparately enforcing its no-solicitation rule Dameron while tolerating the six instances against Herbekian and Dameron. The ALJ of social its employees.1 his that, based conclusion on evidence dur- Though recognize we that we accept must year prior discharges, RCA findings the Board’s supported fact if by permitted six nonunion “solicitations.” evidence, substantial 160(e) 29 U.S.C. § (1) These consisted following: some- (1982); see Corp. Universal Camera 1980, time a collection was up taken to NLRB, 474, 340 456, 71 U.S. 95 L.Ed. buy a going-away cake for a Les Champs and that we owe deference to waiter; (2) 1980, in December interpretations NLRA, the Board’s manager Renee helped Loustaunau collect think we the Board’s decision in this case buy contributions to going- blazer aas Act, misconstrues unsupported away gift (3) for manager; the assistant evidence, departs substantial without 1980, December after men- Loustaunau explanation prior from decisions of the meeting tioned at a staff that the chefs Board. expecting wife was baby, employ- several It is well-settled that

ees contributed purchase each for $1.00 spoon gift; (4) of a 1980, 8(a) simply as a does section violate December maintaining, enforcing purchase against contributed toward the union birthday of a activity, cake for a Les See, wait- a valid no-solicitation rule. er; (5) in February Co., e.g., Seng The (1974); Loustaunau 210 N.L.R.B. 936 employees chipped four buy going- Co., (1970). Atkins Pickle 181 N.L.R.B. 935 accept purposes 1. We for against activity discussion the union is no better than one assumption Board's that the collections for so- lawfully discriminatorily applied. but crafted purposes employ- cial violated terms NLRB, Compare Freight Lines v. Central though er’s no-solicitation strikes that us (5th Cir.1981), rule— F.2d with United Air not, inevitably as not true. Whether did it or (2d Corp. v. Cir. craft legal same, analysis would be the since a 1971). no-solicitation rule crafted to discriminate Though the Board found at 1026. AU and the AU characterized Both the solicitations in this rule was valid on its nonunion case as RCA’s no-solicitation substantial,” 6, 21, “numerous and J.A. at and we face, have no see J.A. and the Board stated that “the incidents of that conclusion here. question occasion to permitted nonunion solicitations were not reasoned en The Board that RCA’s isolated,” these id. at n. observations against of its no-solicitation rule forcement requisite finding cannot substitute for against but not social solicitations the union and nonunion solicitations disparate applica amounted to potentials substantially equivalent had 8(a). in violation of section of the rule tion disruption of Both the work. Board and noted, however, should be that the Board It simply AU failed consider the rele- held, contend, does never not now has potentials. vant This alone suffices to nonunion solicitation that tolerance deny enforcement of the Board’s order.2 to make out a violation of the is sufficient addition, par we believe that the Rather, the Board’s decisions estab Act. examples ticular of nonunion solicitation finding lish that a seldom, ever, if support involved here could depends upon frequency the nature and equivalent disruptive po such a permitted. nonunion solicitations See intra-employ- tential. All were instances of Co., Seng 210 N.L.R.B. 936 generosity designed express apprecia ee Unless the nonunion solicitations have “a tion of fellow occasions such potential interference with work sub birthdays departures. min as Whatever that of stantially equivalent to union solic *5 disruptive imal such effect solicitations NLRB, itations,” Freight Lines v. Central by have is counter-balanced accom (5th Cir.1981)(empha 653 F.2d panying increase in morale and added), finding disparate applica sis a cohesion. It is indeed difficult to contem tion is not warranted. Atkins Pickle Cf. pleasant plate workplace a in which a rea (no-solicitation Co., N.L.R.B. at 935 (if sonable number of such solicitations only at union rule aimed solicitation does those social amenities which common hu “nothing not violate section where in given manity inspires can even be that in the that the in record isolated [indicates] term) appropriate did not occur. In these permitted stances of other solic [nonunion] circumstances, hold the we solicita in in corresponding itations ... resulted a permitted tions in this case are not substan production”). terference with tially equivalent to union solicitation and readily accept We Board’s find that, therefore, RCA’s failure to treat the concerning ings of fact both the union and two alike does not constitute “discrimina nonunion solicitations that occurred on 8(a) meaning tion” of section within the one-year pe work time the relevant holding Any the Act. other would render facts, riod. It does not follow from these prac maintenance of a no-solicitation rule however, engaged illegal in dis RCA instance, tically impossible. For under the carry crimination. The Board must its “af exchange approach, Board’s even a brief burden,” firmative Midwest Ex Stock getting to between two about NLRB, (7th change 635 F.2d v. gether by be tolerated after work could not Cir.1980), showing by substantial evi engaging illegal dis employers without permitted employers dence that the solicitations “had crimination. were will Unless potential against interference with work sub enforce no-solicitation rules equivalent conduct, stantially they to that of solici be forced to for such would Lines, prevent Freight go tations.” enforcement of the rule to oth- Central F.2d Thus, today upon finding 2. Our Dissent's assertion that we decision is based supported by important policymaking that the Board's decision is not have “trenche[d] finding clearly Board, substantial evidence—a prerogatives" which is see Dissent at prerogative upon within our review of a deci- misperception of our decision. reflects 160(e) by sion the Board. See 29 V.S.C. § er, disruptive, Community forms of more solicitation. Chest and the Red Cross. Likewise, require The Act does not that choice. in United Corp. v. Aircraft NLRB, (2d Cir.1971), 96-97 by is bolstered the fact Our conclusion disparate Board found no enforcement of a case, that the Board has cited no and we no-solicitation rule though employ- even none, type are aware of which permitted er “isolated instances” of solici- permitted nonunion solicitation RCA has tation for gifts. charities and by support itself to been held sufficient Instead, finding disparate Though enforcement. permitted the solicitations prior suggest strongly cases that such Serv-Air United were limited Aircraft acts,” finding justified. is not they Nowhere its to “beneficent differ from the attempt permitted decision in this case did the Board solicitations in this case because explain apparent departure its from such solicitations on behalf of charities involve organizations. cases. respect, outside In this charitable solicitations are more like union Co., Seng 210 N.L.R.B. 936 The solicitations rep- than are solicitations that There, analogous to the case at bar. employees’ generosity resent to one anoth- rejected an AU’s conclusion that an Thus, significant er. it is that the Board employer discriminatorily enforced its no- basing has identified no case by permitting solicitation rule solely employ- on an its to collect funds for permission er’s of charitable solicitations.3 needy family employee, of a terminated buy gift supervi- a Christmas for their The cases cited the Board and sor, purchase support and to flowers to send to the Dissent do not the Board’s decision example, funeral of a co-worker’s deceased mother. this case. For in Midwest Board, According Exchange these “beneficent 635 F.2d 1255 Stock (7th Cir.1980), collections ... were too isolated to estab- the court found that an em- disparate application [employ- ployer discriminatorily lish enforced its no-solic- Though by strictly enforcing rule.” Id. at 936. itation rule the rule lawful er’s] against permitting Seng Co. involved three instances of intra- union activities but employee generosity Mercy, and this case involves drives as Crusade “[s]uch *6 six, think it is more the collection of in a we nature than blood bloodmobile ... [on selling permitted employers’] premises, number of nonunion solicitations precludes disparate products, Tupperware, en- boat cruise Avon cookies, tickets, tickets, in forcement both cases. raffle Girl Scout Id. at 1270. and a number of other items.” Regardless, other cases have refused to course, and varied Of these numerous solic- find unlawful discrimination even when in- employ- limited acts of itations were not to permitted cidents of nonunion solicitation even generosity employees to fellow ee were both more numerous and of a some- Rather, they in- solicitations. to charitable permit- what different character than those personal profit as solicitations for volved example, in in Seng ted The Co. For Serv- highly organized campaigns on be- well as Air, Inc., 175 N.L.R.B. 801 organizations and of outside business half disparate Board held that enforcement was posed greater potential much for thus employer’s permis- not established solicita- with work than the interference pay sion of at least three solicitations permitted here. tions RCA flowers to be sent to the widows of de- remaining by the Board employees hospitalized cases cited ceased Though in- simply inapposite. some of an as as are wife well two solicita- employ- generosity acts of between regarding employee tions to volved contributions substantially equivalent to union Depending tions to be on the number and intrusiveness solicitations, permis- potential interference we assume that such in terms of its sion could amount to enforcement if work. the Board found the relevant charitable solicita- less than five minutes of union solicitation ees, pro-compa anti-union or permitted all solicitation, unques is ny permitting solicitation that while non-union solicitation of “substantially equivalent” tionably magnitude to un more substantial would See, e.g., Region Midwest ion solicitation. favor that solicitation which constituted a NLRB, 564 F.2d al Board v. Joint more substantial actual interference (D.C.Cir.1977) (disparate work. my opinion majority refuse “Company found countenanced dis where follow the settled law on these issues. I ..., pro-Company literature tribution uphold would thus cross-peti- the Board’s enforcing re strictly while the rule with tion to enforce its order as to Dameron and pro-Union spect activi to the distribution deny My reasoning it as to Hebekian. on Management ty”); Ridgewood Co. v. entire case follows: NLRB, 410 F.2d (5th Cir.) (no-solic discriminatory employer itation rule where I. ranging candy permitted solicitations from Corporation America, The Restaurant as well as solici sales to church donations (the “Company”) operates Inc. owns persuade designed tations not food in Watergate service facilities denied, unionize), cert. 396 U.S. complex Columbia, in the District of includ- (1969); NLRB v. 24 L.Ed.2d 83 Restaurant, the Peacock Fabrics, Electro Plastic Lounge, Restaurant, the Terrace (4th Cir.1967) (no-solicitation rule found dis Cafe, Espresso pastry shop, and a delica- permitted criminatory col where Approximately persons, tessen. four- gifts employees, lections for sales of supervisory teen of employees, whom are merchandise, cosmetics and other and anti- employed by are in the afore- solicitations). The em fact that the enterprises. mentioned The Company’s

ployer pro-company permitted anti-union or represented food service are not all of these cases conclusive thirty a union. Approximately food ser- ly distinguishes present case. supervisory vice and three em- ployees work in Les Restaurant petition For these reasons the for review Lounge. and the Peacock In 1975 the granted, cross-petition Com- for enforce- pany adopted following granted part,4 no-solicitation part is denied ment applicable employees: to all to the Board for case is remanded and the kind, consistent with proceedings further any including Solicitation of solici- opinion. clubs, organizations, political tation for charities, etc. is not parties, permitted on

It is so ordered. working time or in customer areas. Dis- (dis- Judge MacKINNON, Circuit Senior kind is tribution of literature of concurring part): senting permitted working working time or I disparity dissent because of the evident *7 are not al- employees areas. Off-shift in upholding discharge of RCA's Dameron premises. lowed on the (Tr. than minutes ...” “[i]ess five (J.A. 5). 287, 289) clock,” spent, he “off the while only early union of cashier em- inquired two In 1981 Roxie Herbekian actually were not ployees time, who at one the Employees of Hotel and Restaurant working, Union, justifying 25, AFL-CIO, possi- while those more nu- Local as to the bility finding merous occasions there was “inter- of when work a restaurant with great many organized ference with work” of a more union. When told that such employees purposes available, for non-union six work was Herkekian asked general disparity might solicitations. The obvi- whether she find work in a restau- absolute, ous employer’s since the Rule is prospect being orga- rant that had the of kind, prohibiting orga- “solicitation of in- nized. The union advised her that an charities, (J.A. 18). cluding nizing campaign underway ... etc. ...” in the Wa- Thus, uphold firing tergate Company, the operated by of Dameron for facilities the activities, petitioner challenge ployees grant Because the about does not the union we petitioner petition Board’s violated Board’s to enforce this of its order. by coercively interrogating of the Act em- was hired Herbekian in All of the meetings apparently occurred on January 1981 to work half-time as morn- a work time. Herbekian testified that she ing operator. orga- room-service The union with met people ten” following “[a]bout nizing campaign, however, did (Tr. not reach 2 meeting 40), June talking with nine fruition. mid-March took specific Herbekian on employees on work time and in the additional work days two or workplace (Tr. three a week 82-92). Herbekian de- as a cocktail waitress in the Peacock scribed these meetings as follows: lounge. spoke Herbekian then with the spoke I to employees, and I asked em- organizing about an effort ployees sign And, cards. I took those service employees Compa- food cards. I sign them, asked them to ny. approval of With the union Herbe- they gave then them back And, to me. I began speaking kian to her co-workers reported to a number people who organizing about beginning union local asked me meeting, about the what had sometime in May point 1981. At happened meeting. at the speaking Herbekian was only employ- with (Tr. 40). As a solicitations, result these ees in the physically adjacent Herbekian signed received seven authoriza- Lounge. Restaurant Peacock Herbeki- (Tr. 42). tion cards an testified that her solicitation ran as fol- Meanwhile, spoke Sherwood Dameron lows: seven employees with about the union or- Generally, say what I would to them is ganizing effort. Five of the conversations that, January I had attended meet- place took entirely outside work time ing employees of the Terrace [Res- (Tr. 297-300). spoke Dameron with Tiep taurant], meeting. And, a Union several Bui and Maneepanth, Charatsri cashiers there interested in were Espresso Cafe, while Dameron was off organizing. Yet, in order continue the clock, but while Bui Maneepanth campaign, we peo- would have to include sitting together were down behind the ple in the other shops restaurants and counter, working actually but Watergate. (Tr. 287, 299). time gave work Dameron And, you are individual I was —the Maneepanth Bui and union authorization speaking you to—would be interested in cards. He testified Maneep- that Bui and pursuing getting a Union? busy, were not anth that the solicita- (Hearing (Tr.) 32). Transcript At this time Maneepanth tion Bui and lasted “[l]ess Herbekian had neither union authorization (Tr. 287, 299). than five minutes” total cards nor union literature. Herbekian tes- One of Dameron’s non-work time conver- tified spoke that she people twelve Sangster, sations was with Victor a chef’s concerning work time campaign the union helper Sultoni, at Les Champs. Richard prior (Tr. 70-77). June at Les chef with manage- affiliated Among those solicited Herbekian was ment, Sangster thereafter asked whether Sherwood a waiter at Les approached he had been recently by anyone Champs. Dameron, Herbekian, and six concerning Sangster replied union. nega- other union-spon- attended tively. Sangster Sultoni asked what he meeting sored on June 1981 to discuss unions; thought Sangster replied that he prospect organizing unions, not know much did but that about Watergate complex. At this meet- he would inform if he Sultoni were to be person containing each received list *8 approached (Tr. 248-49). regarding a union the names of employees fellow to contact Bui, Tiep Espresso Cafe, cashier signing about union authorization cards. questioned by also was Sultoni. Bui told names, Herbekian’s list five contained given Sultoni Dameron had her a un- 81, (Tr. 297). Dameron’s contained six card, authorization but that she had ion left (Tr. 109). met with approximately

Herbekian ten at Maneepanth it home Charatsri people 2, following meeting. the June questioned by day was Sultoni the after charging

receiving card from Dam- Herbekian and thus an authorization vi- Maneepanth Dameron olating statutorily protected right named as the eron. of the card. employees source to form a labor union. On Au- gust 1981 the NLRB General Counsel morning Tuesday, June On the complaint. issued a Roxie was summoned to the of- Herbekian Flick, general manager of fice Gene Following hearing the Administrative Watergate Company’s facilities. Flick Judge interroga- Law held that Sultoni’s Herbekian was aware of the asked whether tion, Bui, Company, Sangster, for the Company’s no-solicitation rule. Herbekian Maneepanth constituted an unfair la- was answered that she unaware of 8(a)(1) (J.A. practice 20-21). bor under § gave copy rule. Flick Herbekian discharges respect With to the of Herbeki- reminded her that the rule was an and Dameron the Administrative Law timeclock, prominently posted by the in the Judge Company’s held that the no-solicita- room, and on employee locker valid, facially tion rule was but that the Champs in Les and the Pea- bulletin board disparately no-solicitation rule had been en- Lounge. suspended cock Flick then Herbe- 8(a)(3)(J.A. 21-23). forced violation § days pending investigation for kian three The decision of the Administrative Law alleged of her violations of the no-solicita- Judge Company disparately that the had tion rule. When Herbekian returned to enforced the rule was based on evidence following Monday, she was fired work that, during year prior firings by Flick. Dameron, there Herbekian and had been Flick Dameron into his office the called unpenalized general among six of June afternoon likewise Champs of Les and Peacock gave three-day suspension Dameron a Lounge, approval some of which had the investigation alleged pending into the solic- participation management. itations. Dameron called Flick the next record indicates that these were social so- status, day inquire employment into his to purposes licitations beneficent that took whereupon Flick informed him that he had place least in on work time. fired. been point At some in 1980 a collection was up going-away buy taken to a cake as a II. present Sanjines, a Les Renee On June 1981 the Union filed a waiter. Sherwood Dameron was charge alleging with the NLRB that the those who contributed to- $1.00 8(a)(1) (3) Company had violated & of §§ 265). (Tr. the cake The cake ward the National Labor Relations im- Act.1 Of Sanjines presence presented to in the portance present appeal, in the the union Lounge employ- and Peacock alleged promulgated that the had 266). (Tr. ees rule, overly broad no-solicitation had engaged in several instances of unlawful Three collections occurred Decem- Loustaunau, interrogation employees, dispar- manager and had ber 1980. Renee ately Champs, helped enforced its no-solicitation rule in dis- of Les the collection of 8(a)(1) provides: purpose bargain- 1. Section activities for the of collective practice It shall be an unfair labor for an with, restrain, employer to ... interfere or 157(1982). § 29 U.S.C. rights coerce in the exercise of the 8(a)(3) provides: Section guaranteed in section 157 of this title [Nation- practice It shall be an unfair labor for an al Labor Relations Act § 7].... regard ... discrimination in 158(a)(1) (1982). 29 U.S.C. § employment any hire or tenure of or term or guarantees employees Section 7 employment encourage condition of or dis- form, right self-organization, join courage membership organiza- labor organizations, bargain assist labor collec- tion. ... tively through representatives own of their choosing, 29 U.S.C. engage and to in other concerted

1399 money in buy (J.A. order to Champs 23). Les The Administrative Judge Law manager assistant a going- blazer aas therefore recommended that the Company away gift. One employee testified that she ordered to cease and desist from dispar- gave (Tr. 162-63). $5.00 toward the blazer ately enforcing its no-solicitation rule. In meeting At a staff manager 1980 Lous- addition, he recommended that Herbekian taunau mentioned that the chef’s wife was and Dameron receive backpay and be of- expecting baby. a Several employees, in- fered reinstatement to their jobs former cluding Sherwood contributed substantially equivalent (J.A. employment apiece purchase $1.00 toward the of a 24-25). spoon gift (Tr. 232-34, 250, as a 266-68). The NLRB General Counsel and the In December 1980 a collection was taken in Company filed exceptions and supporting purchase order to birthday cake for a Les briefs with the NLRB. In a Board decision Champs waiter. Sherwood Dameron was August 21, dated 1984 the large NLRB in among the contributors and attended the measure affirmed the findings and conclu- presentation of the cake Les sions of the Administrative Judge, Law and couple people waiters adopted proposed his order without sub- (Tr. 260-61). from the Peacock Lounge stantial (J.A. 8-9). modification In February 1981 four employees and The Company subsequently petitioned manager Loustaunau money contributed this court for review. gift toward a housekeeper for a who was leaving (Tr. the Company’s 164-65, employ

315-16). III.

In We must March $12.00 1981 was determine whether collected to the decision buy birthday supported cake for a Board is substantial evidence, bartender. The cake presented was see by the Universal Corp. Camera v. NLRB, waiters of Les Champs manager 474, 488, 456, U.S. Lous- 71 S.Ct. (Tr. 157-58, (1951), taunau break time L.Ed. 456 261- in deciding that the 64). facially valid no-solicitation rule prohibiting solicitation “of any kind” applied was in a The Administrative Judge Law charac- fashion that against discriminated the stat- terized these solicitations as “numerous utorily protected right (J.A. 23). and substantial” opinion His form a union. The law is clear that a valid states: applied no-solicitation rule in a discrimina- record any [T]he disclose ad- not] [does tory manner or maintained for discrimina- Respondent verse reaction to tory reasons not be against enforced these nonunion Against situations. union solicitation. See Midwest Regional background of condoned NLRB, Joint v. supervisory solicitations, in violation of (D.C.Cir.1977); L. William Bonnell Co. v. rule, Dameron and began Herbekian NLRB, (5th Cir.1969). F.2d organize for the Union. Like non- solicitations, conducted, these were The statutorily protected organizing at least in part, rights substantial on work-time. may be only by limited However, unlike the legitimate nonunion solicita- interests of the tions, these were not Within discipline, workplace condoned. efficiency, proper- week after the union began, protection. ty Republic Corp. Aviation non-solicitation rule promptly 324 U.S. 65 and vigorously enforced with the dis- L.Ed. 1372 Supreme Court held charge of Herbekian and Dameron. It is that such require adjustment cases “an be- clear, as a matter of Board and Court undisputed right self-orga- tween precedent, dispar- selective and nization assured under the ate Wagner no-solicitation Act equally undisputed and the prevent union solicitation right is unlawful. employers discipline maintain

1400 797-98, right engage solicitation], Id. at 65 so establishments.” their [in long pro- In NLRB v. Babcock & as there is no interference at 985-86. 105, 679, Co., Only 76 S.Ct. 100 duction. jus- 351 U.S. substantial business Wilcox (1956), pas- tification, genuine a case decided after such L.Ed. 975 as interference Act, Taft-Hartley work, the sage progress Court justifies Board, that the in an approvingly right any indicated restriction on this of solicita- case, “[rjecogniz[ed] that had earlier tion. A rule is presump- no-solicitation employees' union restrict tively, only presumptively, could if valid it plant necessary to maintain when prohibiting activities is limited to solicitation dur- 110, at 76 discipline production.” ing or Id. expected the time an is again breaktime, The Court stated: “No working S.Ct. at 683. be and not employees’ placed lunchtime, on restriction or the like.2 Such a rule is self-organization among right presumed to discuss valid because it is to be direct- themselves, employer can toward, of, unless the dem- ed and to have the effect necessary rstriction is onstrate that a preventing production. interference with discipline.” production or Id. at maintain 2Where it could be shown from the charac- 113, (citing Republic at 684 Avia- 76 S.Ct. teristics of the work that union solicitation dur- ing way 803, 987). would in no tion, worktime interfere with 65 S.Ct. at 324 U.S. work, performance example, Lil Ab- University v. Baylor Medical Center mattress-testingjob, ner's a no-solicitation rule (D.C.Cir.1978), F.2d 351 578 kind would be invalid. broadly worded no-solicita upheld court Inc., Division, Daylin Discount 198 prohibited “solicitation of em tion rule that 281, enf'd, NLRB 281 496 F.2d 484 ployees by other or distribu ... (6th Cir.1974). Co., See also Atkins Pickle tion of literature between dur 935, (1970); NLRB 181 937 Emerson Elec and/or in work areas.” work time Id. Co., 294, (1970); 187 NLRB 300 tric Hanes held, alia, at 352. This court inter that it Inc., 338, (1975); Hosiery, 219 NLRB 350 practice an unfair labor for the was not Co., Sunnyland Packing 227 NLRB solicitation in corridors employer to bar (1976) (no-solicitation permissi rule is center, which defined of the medical were “provided regulation that the rule or ble areas,” as “work because solicitation was promulgated good in faith and bears some probable potential “the most recurrent operation reasonable relation to efficient disruption in cause of the corridors.... merely device plant, and is Having worry employ to confront the (em self-organization.”) impede obstruct might ees reduce their standards of service added); phasis Washington George Uni part dispute as an unnec of a labor seems versity Hospital, 227 NLRB 1373-74 anxiety essary and undesirable source of (1977) (“The factual recital shows that the persons [patients already and visitors] prospective policy generally emotionally.” hard-taxed Id. at 356. It ignored practice respect in widely was disruption was therefore the the work nonunion which were neither more matters corridors, rationale, place extending to the disruptive essential to nor less of the effec that this court relied on. also id. at See functioning hospital than tive (Leventhal, J., concurring 360-61 rights statutory exercise of the here in- respect dissenting part). In this volved_”); Paceco, A Division ofFrue- Supreme court Court upheld (1978). Corp., 237 NLRB hauf University NLRB Medical Cen Baylor Kheel, generally T. Labor Law ch. See ter, 58 L.Ed.2d U.S. 99 S.Ct. (1984). 9A legal Carefully developed doctrine indi- accord, as Decisions the NLRB are cates that restrictions on union solicitation clearly stated in a 1972 decision: most justified by employer’s legit- must be workplace efficiency. concerns for Act es- imate Labor Relations] [National way to employee’s] only This is the sensible reconcile protects tablishes and [an Thus, the cases in this area. ban Dameron. solicitations, These however, working solicitation on time in working nothing were more than ordinary, ad *11 valid; presumptively areas is conversely, expressions hoc of friendship that natural- employer may generally prohibit an ly among occur small groups people. of union solicitation the or distribution of un Most of the solicitations involved individual by employees during ion literature requests non for contributions of $1.00 working times in nonworking or areas. group small of friends and co-workers. Wilcox, Inc., NLRB See v. Babcock & 351 These solicitations took only a few seconds. 112-13, 684-85; at 76 at Repub U.S. Herbekian’s solicitations behalf on NLRB, Corp. Aviation v. 324 lic U.S. at union stand in marked contrast to the con- 797-98, 65 Employees S.Ct. at may be doned non-union solicitations. Over scarce- distributing restricted to union literature ly more than a month spoke Herbekian on nonworking and materials to time non and twenty-two occasions with other working hours. may See id. Retail stores about the union. Each solicitation occurred areas, selling ban solicitation though from on work time in clear violation of the Com- nonselling during not from areas break pany’s Moreover, rule. Herbekian violated time waiting time. See Marshall Field the no-solicitation in systematic fash- Co., (1952), 98 NLRB enf'd, & 88 F.2d 200 quite ion spontaneous different from the (7th Cir.1953); Inc., 375 Daylin, 198 NLRB social collections that had occurred six (1972), enf'd, (6th 496 F.2d 484 Cir. occasions over past year. the equally It is 1974). employee Restaurants ban so obvious that Herbekian’s solicitations on during licitation nonworking time non- to behalf of the union were significantly more areas, Club, Inc., customer see Bankers than, involved say, simple request chip NLRB 22 hospitals as may ban in for a birthday According cake. patient solicitation from care areas. See testimony, Herbekian’s her solicitations on Hospital NLRB, Beth Israel v. 437 U.S. behalf of the union often expla- involved 483, 500-07, 2463, 2473-76, 98 S.Ct. comparative nation of the merits of the L.Ed.2d dental, hospitalization, union’s legal and Disparate enforcement re inherently (Tr. 97-98). plans conclude, I therefore quires finding the treated considering after comparative the disrup- differently. similar conduct Re Midwest workplace tion the that resulted from gional Joint supra, the by solicitations for the union Herbekian 442. This is a inquiry in fact-based which and the solicitations of some proceeds the Board case-by-case on a purely purposes, basis. social there is no See, e.g., Hammary Manufacturing Company evidence that the dis- substantial Corp., (1982); 265 NLRB 57 n. 4 parately Saint its enforced no-solicitation rule to Hospital, 38, 38-41, Vincent’s 265 NLRB prejudice the The object Herbekian. (11th Cir.1984). enf'd, 729 F.2d protect against the rule interference This court must therefore determine workplace, the and the by interference whether, in terms of actual very interference Herbekian substantial and con- workplace production discipline, centrated while the by interference caused by the union solicitations Herbekian and very social solicitations was minimal substantially equivalent Dameron were irregular. Since the degree of interfer- the condoned instances collec greatly sup- ence varied the facts do not tions for social purposes. port disparate ap- Board’s of a

plication rule. IV. respect With to Sherwood he above, As mentioned had violated Company the no-solicitation rule in his con- general six Maneepanth. condoned instances of versation with solicita- Bui and Ac- purposes during year cording tions for social testimony, Dameron’s con- prior to discharge and versation Herbekian lasted a total of than five “[l]ess by permitted 299), lent. The social solicitations time he (Tr. which minutes” nominally disrup- only forming were merits of some

presented the same is workplace, true 286-88). tive of but (Tr. spoke Dameron of Bui Ma- union, regarding Dameron’s other five although the six instances neepanth. And place outside took conversations these but only lasted a few could not form the of condoned thus time of work seconds, apparently involved each instance Compa- for valid basis employees. three and twelve in the work- between interference rule. The ny’s solicitation, while he was joint was Dameron’s Dameron’s solicitation caused place clock,” employees who of the two “off substantially less than that caused very *12 working lasted than five were “[l]ess solicitations. Herbekian’s (Tr. 299), minutes,” was thus of lesser of that the “essence repeating It bears six solicitations than the condoned duration of section in violation discrimination substantially employees, more and Dam- of Mid- differently.” cases treating like is only involved eron’s violative solicitation Board v. su- Regional Joint west employees. two discharged be- pra, at 442. Dameron record the Administrative On the factual two of of his cause solicitation Judge’s of the con- characterization time, clearly the Law which violated on work course, as and sub- doned solicitations numerous rule.2 Of Company’s no-solicitation However, unsupported. in is engaged by the stantial the social solicitations disruption, workplace of Dameron’s admittedly terms were also Company’s employees the condoned so- prohibited solicitation and rule. We the no-solicitation of violation minimis, de were of the actu- whether, cial solicitations both terms must decide substantially equivalent. For workplace, respec- the thus disruption the al of then, inquiry, the purposes of our condoned substantially equiva- were solicitations tive unpunished instances of non-un- Company argues compared with appeal Damer- that 2. On the fashion, it is irrele- In the con- ion solicitation. same discharge be understood in the must on's five out- Dameron all 200 of vant that solicited intention to solicit text of the union’s See, of the no- complex. outside Watergate side of work time—and thus employees in the the However, the five rule in this case—because such e.g., Company Brief at 31. scheme, basis of a statutory could not form the valid solicitations reasoning the distorts discharge. dealing no-solicita- misinterprets the law additionally Company to miscon- seems tion rules. The enforcement, very disparate of the notion strue validity Assessing rules of no-solicitation the i.e., differently. treating things See like Midwest requires two to serve sometimes-con- the Board NLRB, supra, at Regional Joint Board v. first, imperative right precepts: of flicting the Company there exists some assumes that efficiency preserve the employer the the non-enforcement, under level threshold second, and, statutorily protect- workplace; the rule remains valid and the no-solicitation which right employees to form unions. labor ed applied rule is when over which the invalid rule, Thus, the broad no-solicitation such as Reply Company solicitations. See union labor case, may validly provide one in this unfortunately majority opinion 4. The Brief at general prohibition work time on solicitations. accepting such dangerously close to seems However, made solicitations are when ("no position. Maj.Op. case ... at 1395 which right statutorily protected pursuant to the permitted RCA type of nonunion solicitation unions, the ensure that form labor the must support by held sufficient has finding regard been without to the con- the rule enforced itself enforcement.’’). The dis- Moreover, solicitation. since tent not, however, inquiry does parate enforcement underlying premise of the rule no-solicitation make such distinc- give Board license workplace, preserving an efficient our lies in measure, must The Board instead disruption that tions. on the actual focus must be disruption workplace, of the actual terms of the rule. determin- occurs in the breach condoned, solicita- non-union discharge, it is instances validity of Dameron’s against of union solicitations the instances tions that Herbekian therefore irrelevant violated discharge. employee’s supra See that led to the on occasions or numerous Board, seq. Only p. can the 1399 et then designs organizing Company’s em- had ployees, on review, whether the on this court determine focus be on the Board’s must because differently." Mid- like cases "treatfed] were whether actions themselves Dameron’s Board, Regional supra. discharge west Joint when sufficient to a valid warrant solicitations and the solicitations of Damer- on occasions such birthdays as depar- prohibiting on both violated the rule tures. “[soli- Whatever disruptive minimal ef- citation kind ...” and were like fect such have is coun- differently by cases Company. treated terbalanced an accompanying increase I therefore find substantial evidence that in employee morale and cohesion. It is discharge in its of Dameron indeed difficult to contemplate pleasant disparately enforced its no-solicitation rule workplace in which a reasonable number 8(a)(3).3 in violation of § (if of such solicitations those social solici-

tations which common humanity inspires given can even name) did not V. occur. Despite clarity law, controlling Maj.Op. at 1394. attempt This to distin opinion ignores the majority it and trenches guish beneficient collections for fellow em important policymaking prerogatives ployees from other solicitations pure is a First, the National Labor Relations Board. policy. statement of Board decisions have the broad mandate of the National Labor consistently demonstrated that social solici Relations Act simply negate cannot tations should be along considered Board’s decision in this case. The Act *13 union solicitations in addressing claims of gives the Board authority to define the disparate treatment under an absolute no- rights. contours of Hudgens 7 See v. § solicitation rule such as is involved here. NLRB, 507, 522, 424 1029, U.S. 96 S.Ct. See, Co., e.g., Seng The 210 NLRB 936 1037, (1976). 47 L.Ed.2d 196 the stat “[I]f (1974); Inc., Daylin Division, Discount ambiguous ute is silent or respect (1972), 198 NLRB 281 enf'd, 496 F.2d 484 issue, specific question for the (6th Cir.1974); Inc., Hosiery, Hanes 219 court is agency’s whether the answer is (1975); NLRB 338 Sunnyland Packing permissible based on a construction of the Co., (1976); 227 NLRB 590 George statute.” Chevron Wash v. Natural Res. Def. Council, ington 837, 843, University Hospital, 2778, 467 U.S. 227 NLRB 104 S.Ct. 2782, (1977); (1984). 1362 Hospital, 81 L.Ed.2d 694 Saint Vincent’s United Cf. — Fulton, U.S. -, -, (11th States v. NLRB 38 enf'd, 729 F.2d 730 1422, 1426, (1986) Cir.1984); Lance, Inc., 89 L.Ed.2d 661 241 NLRB 655 (“We uphold agencies’] interpre (1979); must Co., Montgomery [the Ward & if yields tation up statute no definitive NLRB 104

contrary legislative command and if the Although majority insists that it is agencies’ approach one.”). is a reasonable merely holding that “the Board’s decision

Therefore, I accept majority’s supported by evidence,” cannot is not substantial accept long-stand- reluctance to Maj.Op. the Board’s at majority footnote ing treatment of social cases erroneously evaluates the evidence accord- present such as the majority one. The legal to a new standard —that a Board asserts: finding disparate application of a no-so- licitation rule will not be deemed to addition,

In particular we believe that the supported by substantial evidence absent a examples of in- nonunion solicitation finding that seldom, ever, “non-union solicitations have ‘a sup- volved here could if potential port for interference with equivalent disrup- such a work sub- potential. stantially equivalent tive All in- of union solic- were instances of ” itation.’ tra-employee Maj.Op. generosity designed to ex- (quoting Cen- press appreciation of fellow Freight tral Lines v. appeal Judge

3. The Board invites us on to link the Law nor the Board relied on Sultoni’s 8(a)(1) discharge § violations committed Sultoni with violation in the See, discharge. e.g., post Dameron's sup- NLRB Brief at and such hoc rationalization cannot However, port 15-16. neither the Administrative the Board’s decision. (5th Cir.1981)), “potential DARR, Petitioner, employed by standard for interference” Marie E. however, from a majority, derives not decision, dicta from in a Fifth but NATIONAL LABOR RELATIONS that denied decision Circuit BOARD, Respondent, majority’s the Board. The to a decision of hardly compelled by the thus is decision above, authority. As forth set

weight of Corporation, Cone Mills Intervenor. requires an evaluation the well-settled No. 85-1499. of the actual with the effi- interference See discipline workplace. ciency or Appeals, United States Court of supra at 1394-1396. Even if we were to District of Columbia Circuit. majority apply rule advocated it Argued 3,1986. June justify the treatment would not discharge of Dameron for involved in the Sept. Decided 1986. duty five minutes of off solicita- less than As Amended Oct. working. tion of two cashiers who were not

VI. conclusion, I would affirm the Board’s

holding Company’s discharge of that the for conduct in-

Sherwood Dameron only very minimal actual interfer-

volved workplace, *14 dis-

ence with the constituted 8(a)(3)

parate treatment violation of § Herbekian, respect Act. With Roxie

her union solicitations violation substantial,

no-solicitation rule were con- disrupted workplace

centrated and discharge

thus her was not treat- 8(a)(3). I

ment violation would § deny

therefore enforcement of the Board’s 8(a)(3) company

decision that the violated § discharge Herbekian. Dameron is backpay

entitled to receive and reinstate- job substantially

ment to his former employment.

similar It is noted that Dam- eligibility backpay

eron’s for an award of

subject mitigated by any money to be he earned

earned or could have between discharge

time of and the time our deci- challenge Company

sion. The does not that the violated

Board’s decision by interrogating of the Act em-

ployees union activities. I would about respect in this

therefore affirm the Board

and remand the case to the NLRB for

further action not inconsistent with

opinion.