UNITED SERVICES AUTOMOBILE ASSOCIATION, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT
No. 03-1371
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided November 9, 2004
Argued October 4, 2004; Consolidated with No. 04-1001
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Andrew M. Kramer argued the cause for petitioner. With him on the briefs was Michael D. Malfitano.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Before: ROGERS, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: When an employee anonymously distributed fliers after working hours expressing coworkers’ concerns about the company‘s layoffs of long-term employees, the company interrogated her about who was involved. Fearing retaliation, she was evasive in her responses. When she later admitted to the general manager of the company that she had distributed the fliers, she was discharged for lying during the interrogation. The National Labor Relations Board ruled that the company violated section 8(a)(1) of the National Labor Relations Act (“the Act“),
We deny the petition for review. The company fails to show that the Board erred in finding that the workplace rules were invalid because overly broad or not clearly disseminated to employees. The company also fails to show that the Board erred in finding, without relying on the Bourne factors,1 that the interrogation was coercive in view of the company‘s admissions and the questions asked. Finally, the company fails to show that the Board erred in not engaging in the
I.
The United Services Automobile Association, a non-union business, provides insurance and financial services to the military community. Headquartered in Texas, the company has a regional office in Tampa, Florida, consisting of a six-story gated compound with security guards and cameras monitoring the entrance. The company employs approximately 1600 employees who work various shifts, normally between 7:30 a.m. and 6:30 p.m. Because many employees keep claimants’ confidential information on their desks, it is common knowledge that employees may not look through the work files on each other‘s desks unless they have a business need to do so. The company‘s employee handbook, issued March 2001, contained a “Workplace Solicitation” policy that stated: “Advertising or distributing any non-[company] printed information including fliers, business cards, brochures, or catalogs is not permitted at any time in the work area and only during non-working hours in non-work areas.”
On July 31, 2001, Loretta Williams, an insurance adjuster at the company, anonymously distributed approximately 1300 fliers throughout the building between 8 p.m. and 11 p.m. after normal working hours. This followed several weeks of discussion with her coworkers regarding their dissatisfaction with the manner in which the company was laying off long-term employees pursuant to a reorganization plan. The fliers criticized the company‘s layoffs and requested employees wear a red ribbon in support of their former colleagues. Williams placed the fliers on employees’ desks, at the ends of hallways, and in employees’ mailboxes. The following day, August 1, the Senior Vice President and General Manager of
On August 9, Williams‘s supervisor, Eileen Hale, asked Williams to accompany her to the personnel office. There Williams was introduced to Sheila Christy-Martin, the director of the human resources advisory team, who proceeded to question Williams for the next hour about safety, overtime, and a possible breach of security with regard to distribution of the fliers. Christy-Martin told Williams that she had been clocked leaving the building at 11 p.m. and asked if she had been working during that time. Williams responded that she had been working on her files. When asked if she had seen anything unusual, Williams said no and that even if she had she would not say because she was afraid of retaliation. Upon further interrogation, Williams became upset and said that she was very uncomfortable with the line of questioning and did not think the questioning was valid. She also said that she did not want to answer any questions about the fliers because she thought she needed an attorney. Christy-Martin then told Williams that the company‘s only concern was that the distribution violated the company‘s no-solicitation policy, and that Williams had been seen on the security camera entering the building at 7 p.m. carrying a large box. When asked about the contents of the box, which held the fliers, Williams said it contained “papers.” Williams then stated that she did not want to answer any more questions, and she refused to give Hale her July 31 overtime hours as she had repeatedly explained during the interrogation that she was not claiming overtime.
Six days later, Williams told General Draude that she was responsible for distributing the fliers. Although Williams explained that she was purposefully evasive during the interrogation due to fear of retaliation, General Draude fired her,
The Board, adopting the findings and conclusions of the Administrative Law Judge (“ALJ“), concluded that the company violated section 8(a)(1) of the Act by unlawfully interrogating Williams and another employee, Andrew Snyder, regarding concerted activity that was protected under section 7, and by unlawfully discharging Williams for engaging in that activity. The Board also found that the company had maintained an unlawful no-solicitation policy that was overly broad. The Board ordered the company to, among other things, rescind the policy and to offer Williams full reinstatement. The company petitioned for review, and the Board filed a cross-application for enforcement of its order.
II.
An employer violates section 8(a)(1) of the Act by coercively interrogating an employee about concerted activity that is protected under section 7 of the Act. See Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998); Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 296 (6th Cir. 1985), cert. denied, 476 U.S. 1159 (1986). In deciding whether an interrogation violates section 8(a)(1), the Board must make three determinations. First, the Board must determine whether the employee engaged in concerted activity protected under section 7 of the Act. Because such a determination “implicates [the Board‘s] expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference” by this court. NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 829 (1984). Second, the Board must determine whether, “under all the circumstances,” the employer‘s interrogation “reasonably ‘tends to restrain, coerce, or interfere with rights guaranteed by the Act.‘” Perdue Farms, 144 F.3d at 835 (quoting Rossmore House, 269 N.L.R.B. 1176, 1177 (1984), aff‘d sub nom. Hotel Employees & Rest. Employ-
The Board‘s factual findings, if supported by substantial evidence in the record as a whole, are conclusive even if a reviewing court on de novo review would reach a different result. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951); Perdue Farms, 144 F.3d at 834-35. The court will uphold the Board‘s adoption of an ALJ‘s credibility determinations unless “those determinations are ‘hopelessly incredible,’ ‘self-contradictory,’ or ‘patently unsupportable.‘” Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28 (D.C. Cir. 1998) (quoting Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998); and Elastic Stop Nut Div. of Harvard Indus., Inc. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990)).
As the Board states in its brief, “all the factors of a classic independent Section 8(a)(1) unlawful interrogation are present in this case.” Resp‘t‘s Br. at 30. Although the company admits in its reply brief that Williams engaged in concerted activity when she distributed the fliers, the company contends
A.
The Board‘s finding that Williams‘s anonymous distribution of the fliers was concerted activity protected under section 7 of the Act3 is supported by substantial evidence in the record. The fliers urged employees to show support for laid-off colleagues and criticized management‘s selection of employees for layoff. As this court has recognized, concerted activity includes “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Meyers Indus., 281 N.L.R.B. 882, 887 (1986). Similarly, “an individual who brings a group complaint to the attention of management is engaged in concerted activity.” Prill v. NLRB, 755 F.2d 941, 954 (D.C. Cir. 1985).
The company‘s contention that Williams‘s concerted activity was unprotected under section 7 because it violated the company‘s no-solicitation policy is unavailing. It is long settled that a rule prohibiting employee solicitation and distribution of materials during non-work time and in non-work
Rather than offer evidence of special business circumstances related to production, efficiency, or discipline to justify the management‘s interpretation of the no-solicitation policy, the company contends that the Board erred in finding the entire policy invalid, as the written policy has a valid component restricting solicitation and distribution in “work areas.”
The company‘s contention that Williams‘s activity lost section 7 protection because it violated the company‘s unwritten no-access policy also fails. The Board found that the company had not shown that its no-access policy was “clearly disseminated” to employees, and its finding is supported by substantial evidence in the record. Id. at 109 (quoting Tri-County Med. Ctr., Inc., 222 N.L.R.B. 1089, 1089 (1976)). The ALJ dismissed the company‘s evidence that its supervisors had met with and notified employees about restrictions on building access because the only supervisor at the hearing, Hale, could not explain how or when this policy had been disseminated to employees. The ALJ credited Williams‘s testimony, and that of another employee, Valerie Toloday, that they had previously accessed the work areas of other employees to distribute non-company materials and had never been questioned. Other evidence indicated that employees
B.
Because the company interrogated Williams to identify the employees involved in section 7 concerted activity, the Board reasonably concluded that the interrogation was unlawful. Cf. TRW-United Greenfield Div. v. NLRB, 637 F.2d 410, 418 (5th Cir. 1981); NLRB v. Solboro Knitting Mills, Inc., 572 F.2d 936, 939-40 (2d Cir. 1978). The unlawful nature of the interrogation is evidenced by General Draude‘s testimony that the company had already concluded that an employee had written the fliers, and that Williams was the “strongest candidate” for having distributed the fliers because the July 31 security records showed Williams entering the building with a large box and leaving after authorized work hours. General Draude admitted that Williams was questioned because the company wanted to know who else was involved in distributing the fliers. Christy-Martin, the director of human resources who conducted the interrogation, testified similarly that, because the fliers were in the work area, the company wanted to know who had handed them out. There is, then, substantial evidence in the record to support the Board‘s finding that the employees could reasonably believe that the company had only one objective in questioning Williams and the other employee:4 to identify, with certainty,
Contrary to the company‘s contention, the Board did not err by failing to apply the five-factor test set forth in Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964), in evaluating whether the interrogation of Williams was coercive. As the court has stated, the “flexibility and deliberately broad focus of this test make clear that the Bourne criteria are not prerequisites to a finding of coercive questioning, but rather useful indicia that serve as a starting point for assessing the ‘totality of the circumstance.‘” Perdue Farms, 144 F.3d at 835 (quoting Timsco Inc. v. NLRB, 819 F.2d 1173, 1178 (D.C. Cir. 1987)). Requiring the Board to address each of the Bourne factors where the employer has admitted an unlawful motive for the interrogation would transform a flexible tool for organizing section 8(a)(1) analysis into a rigid hurdle divorced from its purpose of ensuring that non-threatening interrogation is not deemed an unfair labor practice. See Bourne, 332 F.2d at 48; see also NLRB v. Milco, Inc., 388 F.2d 133, 137 (2d Cir. 1968).
The company‘s admission of its unlawful motive for inquiring into its employees’ concerted activity belies its contention that it interrogated Williams for legitimate business reasons. See NLRB v. Hale Container Line, Inc., 943 F.2d 394, 401 & n.50 (4th Cir. 1991) (citing L‘Eggs Prod., Inc. v. NLRB, 619 F.2d 1337, 1343 (9th Cir. 1980)). The Board did not fail, as the company contends, to strike an appropriate balance between the company‘s asserted business justifications and its
C.
The company‘s contention that it could lawfully terminate Williams for lying during the interrogation, even if her discharge was also motivated by retaliation against her for distributing the fliers, is without merit. See Spartan Plastics, 269 N.L.R.B. 546, 552 (1984). There was substantial evidence in the record to support the Board‘s finding that Williams had responded evasively during the interrogation because she feared retaliation against her for engaging in protected concerted activity. The Board was thus warranted in concluding that Williams had no obligation to respond to the questions in any particular manner and that her dishonesty about her protected concerted activity did not constitute a lawful reason to discharge her. See id.; Jay Foods, Inc. v. NLRB, 573 F.2d 438, 444 (7th Cir.), cert. denied, 439 U.S. 859 (1978). The cases on which the company relies—Aroostook County Regional Ophthalmology Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), and Earle Industries, Inc. v. NLRB, 75 F.3d 400 (8th Cir. 1996)—are inapplicable because they involved employees who violated their employers’ lawful poli-
Further, the Board reasonably rejected the company‘s contention that it would have discharged Williams even if she had not distributed the fliers, because of its core value of honesty. Although the company had previously terminated employees for falsifying time and attendance records and for petty theft, none of those employees were engaged in protected activity, and their outright dishonesty was not comparable to Williams‘s failure to volunteer information during an unlawful interrogation. The ALJ credited evidence, moreover, that the company‘s core value was malleable, including a former manager‘s testimony that the company had urged him to turn a blind eye to charges of sexual harassment. The ALJ therefore concluded that the company‘s asserted business justifications for discharging Williams were pretextual. As the Board explained, quoting Spartan Plastics, 269 N.L.R.B. at 552, “it can be no defense to [the company] to recite a wrong [by Williams] in responding to an action of [the company] which itself constituted a violation of law.”
Accordingly, we deny the petition for review and grant the Board‘s cross-application for enforcement of its order.