*1 qualified immunity that he is entitled STORES, INC., WAL-MART
against unreasonably claim he created the need for force. Petitioner/Cross-
Respondent,
G. Failure to Intervene v. NATIONAL LABOR RELATIONS
The district court also denied BOARD, Respondent/Cross- Deputy summary judgment Shelnutt Petitioner, claim the Leafs’ that he failed to inter in Deputy vene Jacobs’ unlawful conduct. United Food and Commercial Workers Because we have determined that the offi Union, Local Intervenor on apartment cers’ actions inside the consti Appeal. tuted an illegal neither search nor an ille seizure, gal we must conclude that 03-3627, Nos. 03-3863. cognizable Leafs do not have a claim United States Appeals, Court of against Deputy failing Shelnutt to in Eighth Circuit. in Deputy tervene Jacobs’ actions. Submitted: Dec. 2004. only remaining conduct of which the Filed: March use complain Leafs is the of force him, Mr. Deputy Leaf when Shelnutt shot
causing above, his death. As we noted
claim for excessive force based on the Mr. shots fired at Leaf remains before However, Deputy district court. Shelnutt engaged shooting, Deputy the act of Therefore, Deputy Jacobs. Shelnutt correctly argues, there is no basis for the failure to intervene claim.
Conclusion For the reasons set forth in this opinion, the judgment of the district court is re- versed and the case is pro- remanded for
ceedings opinion. consistent with this Deputy may Shelnutt recover his costs in this court. And
RevbRSed RemaNded.
Thompson, brief), petition- er/cross-respondent.- Hostak,
Philip A. argued, Washington (Charles Donnelly DC and Michael H. Carlin, brief), on the NLRB for respon- *3 dent/cross-petitioner. Jr.,
D.P. argued, Jonesboro, Marshall AR, for Intervenor UFCW Local 1000. MELLOY, BRIGHT,
Before and BOWMAN, Judges. Circuit
MELLOY, Judge. Circuit Petitioner appeals the National Labor Relations finding Board’s order that it vio- 8(a)(1) 8(a)(3) lated Sections and Act, National Labor Relations 29 U.S.C. 158(a)(1) (3) (the “Act”), § and punish- ing employee Brian Shieldnight for union cross-appeals The Board and asks we enforce the order. affirm We part and in part reverse the finding of 8(a)(3) Section violations and enforce the Board’s order as modified.
I.
This case arises from efforts to unionize employees at the Wal-Mart store in Tah- store, lequah, Oklahoma. The like all stores, maintains and enforces a prohibits during em- time, ployees’ work regardless of the cause or organization. According to this policy, prohibits its associates en- gaging solicitation on behalf of cause or organization public areas of the during store at time which the store is open public. Shieldnight,
Brian .an Wal-Mart, Tahlequah contacted the Unit- Union, ed Food and Commercial Workers '(“Union”) possible Local 1000 about representation. He obtained authorization Hammett, Houston, organize employ- J. Richard cards from Union to argued, (Laurence Liquita TX E. Stuart and Tahlequah Lewis ees at the store. January on January Shieldnight en- the solicitation
On
wore a t-
his
off-duty.
soliciting
the store while
He
on the sales floor with
t-shirt
tered
Teamsters”
January
by verbally soliciting
read “Union
and on
“Sign a card ...
me how!”
front and
Ask
on-duty
while
and on
sales
Manager
on
back. Assistant Store
Shieldnight that it was
floor. Lamont told
Manag-
Night
John Lamont and Assistant
off
wrong
Shieldnight
to have sent
Wal-
Tammy
er
Flute saw
t-shirt
Lamont clari-
property completely.
Mart
him
Flute
speak
and saw
an associate.
Shieldnight
that while
could
solicit
fied
work, and
associate to
told the
return
floor,
so
he could do
in the
on the sales
Shieldnight
ordered
to leave asso-
Lamont
Hawkins,
duty.
while
parking lot
alone. Lamont
then consulted
ciates
Lamont,
also discussed
“union
The hotline
*4
Wal-Mart
hotline.”
Shieldnight’s questions and concerns re-
representative told
that Shield-
Lamont
employment policies,
garding Wal-Mart
and
night’s
solicitation
shirt constituted
for
as health insurance
associates.
such
Shieldnight
that
should be removed
suggested Shieldnight
should
Lamont
sought out
Lamont and Flute
store.
meetings
matter
“grassroots”
raise the
in
They
jewel-
in
Shieldnight.
found him the
to identify
all
stores hold
that Wal-Mart
ry
talking
Mends who
department
to two
issues.
top
company-wide
three
informed
were not associates. Lamont
arranged a time to meet in the
three men
a
Shieldnight
that his
constituted
meeting
That
never occurred.
future.
and
would have
form of solicitation
that he
subsequently filed
unfair
The Union
immediately. Lamont
to leave the store
practice charge against
labor
Wal-Mart on
Shieldnight
front door of
escorted
to the
2, 2001,
February
charge
and an amended
and
him to leave the
store
instructed
27, 2001. The Union claimed
April
on
property.
store and Wal-Mart
8(a)(1) by deny-
Wal-Mart violated Section
January
The next incident occurred on
facility
Shieldnight
to its
ing
access
and
store,
duty
on
at the
2001. While
8(a)(3)
him
by disciplining
his
Section
for
Manager
Shieldnight
Department
invited
Regional
solicitation efforts.
Director
Patricia Scott
Starr and associates
Debra
the National Labor Relations Board for
for
Parsons,
also
and James
all of whom were
on
Region
complaint May
17 issued a
Shieldnight
on duty,
meeting.
to a union
An
law judge
administrative
meeting
come
and
asked Starr to
to the
(“ALJ”)
Shieldnight
ruled that
violated
would
to consider
stated
he
like her
solicitation
when he ver-
Wal-Mart’s
card.
signing
a union authorization
bally
employees,
solicited three
but did
and
Shieldnight separately asked Scott
violate
engage
solicitation or
Wal-
meeting
to attend’the
“the
Parsons
hear
'
he wore the
a
“Sign
Mart’s
when
story.”
other side
...
me
t-shirt. The
card
Ask
how!”
ALJ
incidents,
Based on these two
Co-Man-
concluded
Wal-Mart violated Section
ager
Manger
Rick Hawkins and Assistant
8(a)(1) by
Shieldnight from the
removing
“coaching
John Lamont held a written
ses-
wearing
for
the t-shirt and Sections
store
the no-
Shieldnight
violating
sion” with
for
8(a)(3)
him,
disciplining
and
“coaching
solicitation rule. A
session” is
on the t-shirt incident.
part,
part
discipline
progressive
of Wal-Mart’s
filed
exceptions
ALJ’s
process.
and written
coaching
Verbal
t-shirt
findings regarding the
solicitation.
in a four-
coaching
steps
are the first two
Board filed
ex- The Union
cross-ex-
step
Hawkins and Lamont
process.
plained
Shieldnight
had violated
the verbal solicitation.
ceptions regarding
that he
September
On
a divided Board
form of
NLRB v. W.W.
Inc.,
panel
Shieldnight
found
had not en- Grainger,
1)
gaged in
when he:
(1977),
wore the WL 8580
the Board held:
2)
duty;
t-shirt in the store
off
while
asked
“Solicitation” for a
usually
means
on-duty employees to attend a union meet-
asking
join
someone to
by
the union
3)
ing; or
asked a co-worker to
a
signing his name to an authorization
panel
union card. The
concluded that
card in
way
the same
that solicitation for
Wal-Mart violated the Act
asking
charity
a
asking
would mean
an employ-
store,
Shieldnight
to leave the
ee to contribute to a charitable organiza-
coaching
regarding
him
both incidents.
tion ... or in the commercial context
appeals
that decision.
asking an employee
buy product
exhibiting the product for him ....
II.
Ordinarily, employees may to
issues
this case are whether the
insignia
wear union
while on their employ
following three incidents constitute solici-
premises.
er’s
NLRB v.
Corp.,
Chem Fab
1)
tation:
when
a t-shirt
wore
(8th Cir.1982) (“Ab
691 F.2d
how;”
“Sign
which read
...
card
Ask me
special
sent
justify
circumstances which
2)
he had
when
conversations with co-
prohibition
wearing
insignia,
*5
attending
about
a union meeting;
workers
employer violates Section
if it inter
3)
sign
or when he asked a co-worker to
feres with
wearing
insignia
of union
by
union authorization card. The Board held
its
during
organizational
an
that none of these actions
solic-
constituted
campaign.”).
protection
This
includes the
itation.
right to
insignia
wear union
on shirts.
Id.
“Our standard of review affords An employer may not bar the wearing of
great deference to the Board’s affirmation
t-shirts,
insignia,
such
merely
as on
findings.”
the ALJ’s
Town & Country
it
“join,”
because
contains words such as
Elec.,
NLRB,
(8th
816,
Inc. v.
106 F.3d
“vote,” or “support.” NLRB v. The DeVil
Cir.1997). “We will enforce the Board’s
Co.,
(1953) (“the
biss
correctly
order
the Board has
applied
‘join’
words
or
‘support’
‘vote’ or
do not
findings
law and its factual
sup
are
destroy
essentially
protected character
ported by substantial evidence on the rec
insignia
insignia
and convert such
ord as a whole.” Id. Substantial evidence
into the kind of solicitation which is other
exists when “a
might
‘reasonable mind
ac
rules”).
wise amenable to proper
Union
cept’
particular evidentiary
record as
propaganda must involve more than mere
”
‘adequate
support
to
a conclusion.’ Dick
ly
type
language
to
permis
convert
Zurko,
150, 162,
inson v.
527 U.S.
insignia
impermissible
sible union
into
so
(1999)
S.Ct.
A. The T-shirt specific individual ... it did not call for an response, immediate as would an The Union that Shieldnight’s contends t- oral solicitation, person-to-person accept invitation did not constitute to but sign rather was a or insignia.” “union authorization card.” Wal-Mart Wal-Mart Stores, Inc., argues by encouraging people ap- 340 NLRB No. 2003 WL him, (2003). proach Shieldnight’s t-shirt was a *4 22273588 at The Board found buttons”). mag- Fabri-Tek manufactured evidence that “no claim or there was computers memory in furtherance of devices anything netic Shieldnight did merely This message equipment. .... He Id. at 579. digital other the T-shirt ... socialized about around and “there is no doubt walked stated that Court Anyone, including Id. matters.” product nonunion is extraor- finished [Fabri-Tek’s] who saw Shield- undisputed dinarily complex .... It is also ignore was free to January night, on ... step in the fabrication that each message on the t- Shieldnight and the both high degree requires hand and done contrast, a solicitation shirt. rig- (noting also the concentration.” Id. requires more interac- card authorization quality regarding the requirements orous tion, yes or no answer. likely a direct Fabri-Tek had product). finished of each inquiry of direct evidence Absent further minimize distrac- efforts to great taken was the Board’s conclusion by Shieldnight, at 580. The workplace. in the Id. tions evidence. supported substantial circumstances, particular special con- alleges panel’s that the eliminating distractions importance of “the ignores because it is not reasonable clusion in- to a substantial ... which could lead long- Shieldnight’s purpose and both [items],” produced Id. poorly crease employer may implement rule that an held “wearing justified prohibition work time during rules usual union insignia or of unusual produc- with work interference prevent way.” Id. at insignia in an unusual Fabri-Tek, NLRB, Inc. v. 352 F.2d tivity. distinguishable from Fabri-Tek is (8th Cir.1965) (“[A]n employer can unique dis- present case because wearing of union regulate prohibit justified imposition of re- ruption that where, him- as the Trial Examiner insignia present in Fabri-Tek are not strictions states, ‘special consider- *6 there are self here. efficiency and relating employee ations may employer that an Fabri-Tek holds ”) right to restrict plant discipline.’ that wearing insignia of union prohibit the wearing activity, such as organizational there are otherwise be would insignia of union the restrictions circumstances and special activities to the restriction of is limited spe narrowly tailored to address are disrupt, pro- disrupt, or tend to which of es burden “[T]he cial circumstances. down duction and to break circumstances tablishing [special] rest[s] restric- and does not include discipline, by sub employer,” inoffensive advertisement who must show passive tion of interests, i.e., organizational aims and that those circumstances stantial evidence advertising insignia and wearing of Employees, 278 Am. Fed’n Gov’t exist. buttons, in with way (1986). which no interferes Wal-Mart did not NLRB 385 production. discipline or efficient circum special evidence of put forth in Fabri-Tek present akin to those Fabri-Tek, stances F.2d at 585. 352 justify prohibition would Shield- that in Fabri-Tek lost the Although Shieldnight’s night’s t-shirt. and “ordi- right to wear oversized buttons than the may have been more visible extraordinary way,” nary insignia in an Fabri-Tek, failed to in Wal-Mart buttons complex pro- a disrupted because it from in how the t-shirt interfered demonstrate “concentration process duction operation of the manner with the (stating Id. at necessity.” was a 586 evidence Accordingly, substantial store. right to wear employees “never lost their Board’s conclusion customary supports form of insignia union 1099 Shieldnight’s t-shirt did not constitute so- statement of fact that put his co-workers licitation. on notice that there was to be a union meeting that night and that they were
B. The Co-Worker Conversations
welcome to
Nothing
attend.
in the rec-
earlier,
ord suggests
As stated
employer may
the environment at
implement
rules
during
Shieldnight’s
made
actions
prevent
uniquely
work hours to
disruptive.
interference with
Accordingly,
productivity.
work
Republic
panel’s conclusion regarding
Aviation
NLRB,
Corp.
v.
n.
324 U.S.
803
65 conversations was supported by substan-
(1945).
S.Ct.
L.Ed. 1372
89
tial
Furthermore,
“[Solici
evidence.
panel
tation for a union is not
thing
the same
as
acted reasonably when it concluded that
talking about a union
meeting
“simply informing another employee of an
or whether a union
good
is
or bad.” W.W. upcoming meeting
brief,
or asking a
un-
Inc.,
Grainger,
NLRB
at 166. The
ion-related question does
occupy
not, therefore,
employer may
prevent con
enough time to be treated as a
in-
work
versations about unions that do not inter
terruption in
settings.”
most
productivity.
fere with work
Although not Stores, Inc., 2003 WL
at
*4.
court,
binding on this
the Board has con
Asking
C.
Sign
Co-Worker to
a Card
sistently concluded that an employee does
engage
solicitation when he makes
Board concluded that
it was
pro-union
during
statements
working
not solicitation
Shieldnight
when
asked a
union,”
“support
hours such as
“there
co-worker
a union authorization
is a meeting tonight,” or
meeting
“the
card. This conclusion
supported by
is not
2, 166;
cancelled.” Id. at 161 n.
see also
Dickinson,
substantial evidence.
527 U.S.
Inc.,
NLRB v.
Mfg.,
Yamaha Music
Solicitation,
night did not
as to
to Starr.
It is silent
spoke
dissenting
part.
time he
and
in
part
person.
a card on his
The
he had
whether
majority’s
with
decision in
agree
I
the
directly
place a
in
he did not
card
fact that
2(A)
2(B)
opinion
and
of its
that
sections
at the
of his statement
of
time
front
Starr
it
Board’s order must be enforced as
the
to
regard
in
the
makes little difference
to the
incident and to
pertains
t-shirt
Further,
of his conversation.
nature
Shieldnight’s
about a union meet-
remarks
in
instance are
Shieldnight’s actions
this
ing.
to a
solicitation than
analogous
direct
more
agree
majority’s
I do not
with the
rever-
his
to attend
he asked
co-workers
when
2(C)
order, in
of
the Board’s
section
sal of
meeting. Asking someone to
majority opinion,
Shieldnight’s
as to
card
that
individual
a union
offers
to
represented
the choice
be
a
card.
person
about union
remarks
a un-
Informing
union.
co-workers about
majority
in requiring
errs
merely puts
meeting
fellow
ion
interpret
of
concept
to
“solicita-
Board
going
to
meeting
that
is
take
notice
interprets
majority
ap-
tion” as the
and
place.
this
concept.
reaching
deci-
plies
there
insufficient evi-
Accordingly,
believe,
has,
majority
I
in
sion the
erred
conclusion
support
the Board’s
dence
(1.)
ways:
three
It has misconstrued
not solicita-
actions were
(2.)
fact;
of law as an
it has
issue
issue
tion,
we
the Board re-
and thus
reverse
misapprehended
concept
the role of the
the authorization card issue.
garding
(3.)
law;
in
it has
“solicitation”
labor
granted
deference
Board
III.
Supreme
has
Court
held we
asking
Board
appeals
cross
I
grant.
points briefly
these
must
discuss
or
that we enforce
Board’s remedial
turn,
stating
after first
what the Board
to re
Board ordered
der. The
in this
decided
case.
Shieldnight’s personnel
from Mr.
file
move
concerning
The Board’s decision
“solici-
disciplinary
reference to
action
First,
aspects:
tation”
has two
case
allegedly illegal
him for the
8(a)(1)
legal conclusion that
post
also
Sections
The Board
ordered Wal-Mart
8(a)(3)
prescribed
concerning em
protect
employee’s
certain
notices
of the Act
rights.
ALJ had recom
ployee union
activity
workplace
union-related
so
sanction
limited" the ex-
mended this
but
not have
long
activity
signifi-
.does
personnel
file to
pungement
those
potential
disrupt
workplace.
cant
the ALJ determined to be
items
Second,
empirical judgment
the Board’s
thus a
activity and
violation
Sections
talk about union cards which does not
and(3).
essentially
The Board
some
active
require
response
immediate
*8
with the ex
adopted
recommendation
not,
general
the listener
as a
by
does
pansion
to include all
expungement
matter,
significant
have
potential
dis-
pro
the
found to be
the activities
Board
ruption
thus cannot be barred as
—and
with
enforce the Board order
tected. We
under a lawful “non-solicita-
“solicitation”
not re
exception
the
Wal-Mart,
policy.
tion”
See In re
quired
to delete
Mr.
(N.L.R.B.)
(op.below).
WL
*3
personnel
coaching
the
file reference to
1.
resulted from
session that
do not
here the Board’s find-
We
review
Starr
a union authorization
Debra
case,
of this
ings as
facts
card.
would be reviewed under the substantial
“Solicitation” is a term of art the Board
developed through
has
majority
evidence standard that the
decades of its case
states.
law, to determine
companies
what conduct
repeatedly emphasized,
Wal-Mart has
may lawfully proscribe through “non-solici
at
argument,
briefs and
oral
that it dis-
See,
tation”
policies.
e.g., Overnite
facts,
putes
only
not the
but
the Board’s
Co., Inc.,
Transp.
332NLRB
Appel-
definition
“solicitation.”1 See
(2000);
NLRB
"
“solicitation,”
general
policy
as to
judgment
Board’s
the Board defines
When
of
about
sorts
activities
therefore,
question
a term of
what
construing
it is neither
disrupt
to
significant potential
have
Act,
company’s
it
interpreting
nor is
-Rather, by
workplace
reasonable.
over-
deciding what
policy. It is
non-solicitation
turning the
of the non-
Board’s definition
by the Act. It is
activities are
“solicitation,”
statutory term
art,
defining
incorporates
of
of.art
term
no deference
majority granting
Act and the
construction of the
the Board’s
—
Board’s
Board —reverses the
construction
judgments
general
as to
policy
Board’s
judgment
empirical
Act and its
con-
of the
industrial
concerning
matters
empirical
cerning the actualities of industrial
life.
Id.
life. See
us, the
the record before
Board’s
On
definition
When we review the‘Board’s
Challeng-
reasonable.
determinations are
art,
are
non-statutory
we
term
reasonableness,
ing their
Wal-Mart as-
specific
reviewing a construction of a
judg-
the Board’s
serts that we allow
statutory
or a construction of a con-
term
will soon
stand,
ment
then we
have
con-
reviewing
are
the Board’s
tract. We
floor,
fistfights
Appellant’s
Br.
sales
Act
of the
a whole and
struction
as
22,
and union activists
sandwich
at
judgments as to matters
Board’s
strolling
through
kitchenware
boards
competénce.
area of its special
within the
stores,
of Wal-Mart
id. at 36.
aisles
3.
exaggerated
These
assertions do
over-
Supreme
long
Court has
held
judgment
the Board’s
come
reasonable
we
to the
construction
must defer
Board’s
appeal.
the issues raised on
Act,
reasonably
long
so
as it is
entirety.
I
enforce
order
its
would
NLRB v. Town & Coun
defensible.3 See
Inc.,
89-90,
Elec.,
try
516
116
U.S.
(1995);
450,
S.Ct. ron, U.S.A., Inc. v. Resources Natural Def.
Council, Inc., 837, 842-44, 467 104 U.S. (1984); NLRB L.Ed.2d S.Ct. 81 694 WILLIAMS, Appellant, Allen Richard v. No. 434 Local Union U.S. v. (1978). S.Ct. L.Ed.2d 586 SERVICES, has held that we must Supreme Court also NATIONAL MEDICAL INC.; Ballard, Appellees. Kevin reasonable defer Board’s concerning empirical judgments general No. 04-2665. NLRB v. matters of industrial life. See Appeals, United States Court of Corp., Erie Resistor 373 U.S. Eighth Circuit. (1963). 1139, 10L.Ed.2d 308 S.Ct. 18, 2005. Submitted: Feb. majority does whether not consider 16, 2005. Filed: March that the Act legal the Board’s conclusion protects non-disruptive activity is reason- it
able. Nor does consider whether ter, contrary binding Supreme point, 3. erred in Court On this Wal-Mart's counsel Healthcare, precedent. Evergreen asserting Compare Board’s "The. conclusions NLRB, (6th de Br. Inc. v. 104 F.3d Cir. Appellant's law are reviewed novo.” 14; 1997) (cited holding Reply Appellant's at Br. at 14 and in at Br. cited Counsel 2) holding Reply Packag v. that the Br. with NLRB Webcor from a Sixth Circuit case'—a Inc., (6th Cir.1997). repudiated only ing, la- Sixth Circuit six months F.3d