United States Court of Appeals,
Fifth Circuit.
No. 92-4317.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MOTOROLA, INC., Respondent.
May 26, 1993.
Application for Enforcement of an Order of the National Labor Relations Board.
Before POLITZ, Chief Judge, JOLLY, and DAVIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this case, we are faced with determining "how much is too much" on the job activism by
employees. Some employees at a Motorola plant in Austin, Texas, opposed the company's mandatory
drug testing program. In their fight against the company's program, they supported and promoted
an outside organization. Some employee members of the organization wore T-shirts espousing their
position. Others sought to distribute the organization's literature on company property. Motorola
refused to allow the literature distribution, and one employee alleged that he was threatened with
negative career consequences by management because of his opposition to the drug testing program.
An administrative law judge held that Motorola had committed several unfair labor practices in its
treatment of the employee activists; the National Labor Relations Board affirmed. The Board now
petitions for an order enforcing its decision. After due consideration, we uphold the Board regarding
the employee threats but deny the Board's petition in all other respects.
I
(A)
In August 1989, Texas Instruments (TI) employee Joseph Mota formed an organization of
fellow TI employees for the purpose of opposing TI's plan to implement an employee drug testing
program. He named the Austin-based organization Citizens Advocating the Protection of Privacy
(CAPP). CAPP's by-laws describe the organization as a non-profit association formed to "oppose the use of drug testing without probable cause by any government or corporate entity." Although
its original members were all employees of TI, membership was open to any individual who supported
the policies and purposes of the organization. As of June 1, 1990, CAPP had 60 to 70 members,
several of whom were employees of Motorola.1 By January 1991, CAPP had approximately 100
members, about half of whom were Motorola employees.
CAPP's primary goal had shifted from its original purpose of elimination of drug testing at TI
to the passage of a proposed municipal ordinance that would severely restrict, if not effectively
prohibit, the practice of random drug testing by employers. To achieve this new and broader goal,
CAPP members actively campaigned on behalf of city council candidates who supported the
ordinance. CAPP and its members also held press conferences, participated in call-in radio programs,
and contacted state legislators.
(B)
Motorola Incorporated is a Delaware corporation operating two plants in Austin, Texas,
where it manufactures high technology products. Opened in 1986, Motorola's Oak Hill plant in
Austin employs 2100 peo ple in its design and manufacturing operation. The company began
discussing the implementation of a mandatory random drug testing policy in early 1990, and the
program began at Oak Hill in January 1991. As employees opposed to the idea learned that Motorola
was considering implementing a drug testing program, they began conferring about how to mobilize
their efforts. Complainant Paco Nathan, a software engineer, joined CAPP and served on its planning
committee, as did fellow employee Bruce Loyer and supervisor James Nash.
In May 1990, approximately 100 Motorola employees conducted a work slowdown by
meeting for a prolonged "coffee break" in the company cafeteria to protest the possible
implementation of random drug testing. No action was t aken against these employees by the
company. In late May, members of Motorola's management met with certain employees who had
expressed concern about drug testing, including Nash, to inform them that the company was indeed
1 Conflicting testimony was given about the number of Motorolans who were members of CAPP in June 1990; estimates ranged from 10 to 35. about to announce a company-wide policy of mandatory random drug testing. Nash asked personnel
manager David Doolittle what Motorola planned to do if Austin adopted, as some other cities had,
an ordinance prohibiting mandatory random drug testing. Doolittle said Motorola employees at sites
in cities with prohibitive ordinances would not be tested, and that it would be fine if Austin employees
who were opposed to the testing supported such an ordinance. The company's new mandatory drug
testing program, scheduled to begin on January 1, 1991, was formally announced to all employees
on June 1, 1990.
(C)
On May 29, 1990, Bruce Loyer met with Doolittle and Motorola's assistant personnel
manager, Ginger Byram, to seek permission to post notices on bulletin boards and distribute CAPP
materials on company property. Doolittle told him that he could distribute literature in non-work
areas at non-work times (e.g., in the cafeteria during lunch hour), but that the bulletin boards were
for company-related announcements only. Loyer volunteered to bring copies of the literature to
Doolittle to make sure it contained nothing objectionable.
On June 1, Motorola formally announced that it would commence mandatory random drug
testing of all employees beginning January 1, 1991. Any employee who refused to be tested was
subject to discharge. On June 5, Loyer submitted five documents to Doolittle for approval before
distribution. The documents were:
(1) a CAPP membership application (which included a request for a $15 membership fee), with a CAPP position statement on the reverse side;
(2) a three-page drug testing "fact sheet" containing information about problems associated with drug testing;
(3) a document with nine suggested postcard messages (e.g., "I am asking for your vote against random drug testing"), which employees could send to the city council;
(4) a copy of a two-page magazine article published in Scientific American questioning the value and accuracy of drug testing; and
(5) a handwritten request to company employees asking them to "join us" and write to the city council.
Doolittle told Loyer that he wanted to fax the documents to his superiors before granting final
approval for distribution. When Loyer approached Doolittle in the cafeteria at lunchtime later that day, Doolittle told Loyer that he could not distribute any of the literature, and agreed to meet with
him that afternoon.
At the meeting, Doolittle informed Loyer that Motorola would not allow any organization to
distribute literature on the premises. Doolittle compared CAPP to a political party, and stated that
if Motorola allowed CAPP to distribute literature on the premises, it would have to allow other
political organizations to distribute literature as well. Thus, Loyer was not allowed to distribute any
of the materials that he presented to Doolittle for approval.
(D)
On May 30, employee Paco Nathan wore a T-shirt to work that was emblazoned with the
slogan "Just Say No to Drug Testing." Sometime that afternoon, a security guard at the plant's main
entrance told Nathan that he could not wear the T-shirt in the building, per Doolittle's instructions.
The guard suggested that Nathan bring the T-shirt in a briefcase the next day and discuss the
permissibility of wearing it with the personnel department. Nathan did so, and showed the T-shirt
to assistant personnel manager Ginger Byram. Byram affirmed the guard's previous statement that
the T-shirt would not be allowed on company premises because it might offend customers who
frequented the Austin plant.
Also on May 31, the security guard saw Bruce Loyer wearing a T-shirt bearing the same
anti-drug testing message. The guard referred Loyer to the chief of security, who told Loyer that
Doolittle had instructed him to prohibit the entry of anyone wearing this type of T-shirt. He showed
Loyer an entry in his log to that effect, and ordered Loyer to leave the premises. Loyer returned to
his automobile, put on a different shirt, and re-entered the plant with no problem.
Later that afternoon, Doolittle called Loyer into his office, told him that the security personnel
had misunderstood the T-shirt prohibition (they were instructed to report to the personnel department
the names of employees wearing T-shirts imprinted with the message "Just Say No to Management,"
which could be misinterpreted by customers as a call for insubordination), and apologized for the
incident. Doolittle also spoke with Nathan, informing him of the mistake and telling him that he could
wear the T-shirt. Both Loyer and Nathan subsequently wore the T-shirt to work without incident. (E)
On June 1, Nathan's supervisor, Jack Davis, asked Nathan if he understood that his refusal
to submit to a drug test would lead to his dismissal from the company. Nathan responded that he did.
Nathan testified that Davis then told him that his open opposition to corporate policy would
negatively affect his career. On June 6, according to Nathan's testimony, Davis told him that he was
being disruptive and suggested that he stop discussing the drug testing issue because other employees
were tired of hearing about it. Nathan also testified that on June 5, personnel manager Doolittle
called Nathan to his office and told Nathan he had heard that a CAPP meeting was scheduled to take
place during that afternoon's coffee break. Doolittle told Nathan that his behavior was disruptive and
that his open opposition to Motorola policy would have negative consequences, including the possible
loss of his job.
(F)
CAPP filed a charge against Motorola with the National Labor Relations Board on July 13,
1990, alleging that its actions toward CAPP members constituted unfair labor practices. On August
2, 1990, Paco Nathan filed a related charge against Motorola with the Board. A hearing was held
in January 1991 before an administrative law judge. The ALJ concluded that four of Motorola's acts
constituted unfair labor practices, specifically (1) its refusal to allow employee members of CAPP to
distribute literature on company property; (2) its temporary prohibition of the "Just Say No to Drug
Testing" T-shirts; (3) Jack Davis's threat to Paco Nathan; and (4) David Doolittle's threat to Nathan.
Motorola appealed to the Board, which affirmed the ALJ's decision. The Board subsequently applied
to this court for enforcement of its order. We grant its petition in part and deny it in part.
II
Motorola is charged with committing unfair labor practices under section 8(a)(1) of the
National Labor Relations Act. Section 8(a)(1) of the Act states that it shall be an unfair labor practice
for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights
guaranteed" by § 7 of the Act. 29 U.S.C. § 158(a)(1). Section 7 of the Act provides:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection....
29 U.S.C. § 157. The Board contends that Motorola interfered with or restrained its employees' right
to engage in concerted activities for mutual aid and protection when it committed the four acts
detailed above.
When considering the Board's application for enforcement, we must determine whether the
underlying findings of fact are supported by substantial evidence on the record considered as a whole.
29 U.S.C. § 160(e); NLRB v. Powell Electrical Mfg. Co., 906 F.2d 1007, 1011 (5th Cir.1990);
Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir.1988). The standard of review for a
question of law decided by the Board is de novo, but if the Board's construction of the statute is
"reasonably defensible," its orders are to be enforced. Standard Fittings Co., 845 F.2d at 1314;
Pattern Makers' League v. NLRB, 473 U.S. 95, 96, 105 S.Ct. 3064, 3066, 87 L.Ed.2d 68 (1985).
When a particular finding of fact rests upon a credibility issue, we have articulated a more
precise standard for reviewing a legal determination based upon that finding. The general rule is that
we are "bound by the credibility choices of an ALJ." NLRB v. Ryder/P.I.E. Nationwide, Inc., 810
F.2d 502, 507 (5th Cir.1987); Lord & Taylor, Div. of Associated Dry Goods Corp. v. NLRB, 703
F.2d 163, 165 (5th Cir.1983). We do not, however, merely rubberstamp such determinations;
indeed, we have delineated certain situations in which the court will not be bound by the ALJ's
credibility choices. When the choice is unreasonable or contradicts other findings of fact (see, e.g.,
NLRB v. Laredo Packing Co., 730 F.2d 405, 408 (5th Cir.1984); NLRB v. National Fixtures, Inc.,
574 F.2d 1305, 1306 (5th Cir.1978)), or if "the credibility choice is based on an inadequate reason,
or no reason at all, [this court is] not compelled to respect it, and shall not do so." NLRB v. Moore
Business Forms, Inc., 574 F.2d 835, 843 (5th Cir.1978). Where the ALJ has failed to justify his
credibility choice, the court is free to review the record and independently reach its own conclusion.
See, e.g., Lord & Taylor, 703 F.2d at 165.
III
Motorola concedes that the wearing of T-shirts bearing an anti-drug testing message constitutes protected activity. It denies, however, that the incidents in question amounted to unfair
labor practices. We agree. The degree of interference here with protected employee rights was too
insignificant to violate the Act.
Not every interference wit h employee rights rises to the level of an unfair labor practice;
federal courts have consistently held that marginal infringements do not violate the Act. See, e.g.,
Southern Maryland Hospital Center v. NLRB, 801 F.2d 666, 672 (4th Cir.1986) (refusing to enforce
the Board's unfair labor practice finding where the conduct in question was "at most a minimal
intrusion upon employees['] § 7 rights...."); NLRB v. Southwire Co., 801 F.2d 1252, 1255 (11th
Cir.1986) (security guard's mistaken instruction that employees could not hand out union literature,
corrected by a supervisor later the same day, did not rise to level of violation of Act); Graham Arch.
Products Corp. v. NLRB, 697 F.2d 534, 542 (3rd Cir.1983) (under circumstances, "slight
interference" with employee's distribution of union handbills was "innocuous and did not rise to the
level of a violation of the Act"); NLRB v. First National Bank of Pueblo, 623 F.2d 686, 692 (10th
Cir.1980) (court refused to find section 8(a)(1) violation where incident in question was only a "petty,
momentary squabble"). Loyer was mistakenly prevented from wearing the shirt for half a day until
Doolittle assured him the shirt was permitted. Nathan suffered even less inconvenience; he was told
he could not wear the shirt late in the afternoon, when he was contemplating leaving work for the day
anyway. Doolittle spoke with Nathan and corrected the mistake the following morning. Both Loyer
and Nathan later wore their anti-drug testing T-shirts with no adverse consequences. The Board's
conclusion that these relatively trivial events2 had a sufficiently serious overall impact on employees'
exercise of their rights to warrant the finding of a violation is simply unrealistic.
Viewed in context, the incidents here do not merit the imposition of penalties, nor do they
require any remedy. Thus, we decline to enforce the Board's order on this issue.
Nathan testified that both Jack Davis (his supervisor) and personnel manager David Doolittle
told him that his opposition to Motorola's drug testing policy could have a negative effect on his
2 Paco Nathan himself described the T-shirt incident as "trivial." Record Vol. I at 168. career. Motorola urges us to reject the ALJ's credibility choices because, it contends, he failed to
articulate reasons for them.
Motorola further argues that the record as a whole supports its view of what transpired: that
all Davis did was, first, suggest to Nathan that he hold anti-drug testing meetings in non-work areas
at non-working times and, second, make sure that Nathan understood that refusal to submit to a drug
test could result in dismissal, not that opposition to the policy could jeopardize his career; that
Doolittle similarly simply ascertained that Nathan understood the possible consequences of refusing
to take a drug test; that Nathan's assertion is incongruous with Motorola's goal of balancing
legitimate management prerogatives against its historical accommodation of diverse viewpoints; that
neither Nathan nor anyone else was ever disciplined for his views and, in fact, Nathan was
subsequently promoted; and that the misperception of the alleged threat was consistent with Nathan's
adversarial nature.
The ALJ's explanations for his credibility determinations were brief but clear. We are
reluctant to interpose our own judgment in these essentially factual matters. "Recognizing that the
ALJ is in a unique position to evaluate the credibility and the demeanor of the witnesses, we defer to
plausible inferences he drew from the evidence, even though we might reach a contrary result were
we deciding the case de novo." Cooper Tire & Rubber Co. v. NLRB, 957 F.2d 1245, 1255 (5th
Cir.1992). The judge in this case stated that based "on the entire record, including my observation
of the demeanor of the witnesses ...," he chose to place more credence in Nathan's testimony. He
specifically stated that he "disbeliev[ed] the denials of Davis ...," ALJ opinion, pg. 21, and that he
"credit[ed] Nathan who testified persuasively ..." in the dispute between Nathan and Doolittle. ALJ
opinion, pg. 22. Because these credibility determinations were neither "inherently unreasonable [n]or
self-contradictory," NLRB v. Proler International Corp., 635 F.2d 351, 355 (5th Cir.1981), as they
need to be to warrant our interference, we grant the petition to enforce this portion of the Board's
order.
The Board contends that Motorola's ban of literature distribution on its property by employee members of CAPP violated § 7 of the National Labor Relations Act. As we have earlier noted, § 7
guarantees employees the right to engage in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection." Section 8(a)(1) implements that guarantee by making
it an unfair labor practice for an employer to "interfere with, restrain, or coerce employees" in the
exercise of those rights. The Board argues that Motorola breached the Act when it refused to allow
the distribution of CAPP literature upon the request of employee Bruce Loyer on its premises.
The NLRB points to Eastex, Inc. v. NLRB3 for support. In Eastex, an affirmance of a
decision by this court, the Supreme Court held that management violated § 8(a)(1) of the Act when
it banned employee distribution of a newsletter criticizing a proposed "right-to-work" provision of
the state constitution and a Presidential veto of an increase in the federal minimum wage. The Court
held that "employees' appeals to legislators to protect their interests as employees are within the scope
of [the mutual aid or protection] clause." Eastex, 437 U.S. at 566, 98 S.Ct. at 2512-13. The
company's prohibition was thus deemed an unfair labor practice, although the Court noted that a
"point of attenuation" could be reached in this context.
The Board argues that Eastex dictates affirmance in this case. As in Eastex, the literature here
urged employees to contact legislators about an issue (mandatory random drug testing) that affected
the Motorola workplace. The Board on appeal cites its own opinion, stating that "[t]he documents
were part of CAPP's efforts to pass a city ordinance banning mandatory drug testing in the workplace.
For this reason, the literature was directly related to the working conditions of [Motorola's]
employees, who faced the implementation of mandatory drug testing and the possibility of job loss
for refusing to be treated." Motorola, Inc., 305 N.L.R.B. 69 (1991). Because Motorola has not
suggested that distribution in non-work areas during non-work times would impair "production or
discipline," as employers have been required to show in order to prohibit this type of distribution since
the Supreme Court decided Republic Aviation Corp. v. NLRB4, the Board asserts that employees are
entitled to distribute the CAPP-related materials.
3 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978). 4 324 U.S. 793, 803 n. 10, 65 S.Ct. 982, 988 n. 10, 89 L.Ed. 1372 (1945). The Board argues that Motorola's characterization of the literature as discussing an
exclusively political matter is an insufficient reason to justify its removal from the Act's protection.
It insists that the clear purpose of the "mutual aid or protection" clause would be frustrated if the
mere characterization of conduct or speech removed it from protection of the Act. CAPP was not,
asserts the Board, using members who were company employees to advance its political objectives;
instead, employees were using CAPP as a mechanism to work against Motorola's drug testing plan.
Motorola contends that Eastex is fundamentally different from the instant case. It argues that
while Eastex allows employees to utilize politics to achieve workplace objectives through their unions
it does not allow outside political organizations to pursue their goals through the workplace. It
further argues that the mere inclusion of a workplace issue in an outside group's political agenda does
not qualify that group to distribute its literature at the workplace. In Eastex, the Court emphasized
the context of the union's activity and noted that its objective was to achieve specific workplace goals
by boosting the union's support and by improving its bargaining position in upcoming contract
negot iations. Here, CAPP, an outside political group, sought to use the workplace to bolster its
agenda; what is political is not necessarily the content of the literature, but the purpose for which it
was to be distributed—to advance CAPP's political agenda.
We agree with Motorola. CAPP members repeatedly stated that they did not represent
Motorola employees and had no direct goal of changing management policies. It is undisputed that
Loyer's attempted distribution of the literature was initiated and orchestrated by CAPP.5 Eastex
noted that at some point, "employees' interest in distributing literature that deals with matters
affecting them as employees, but not with self-organization or collective bargaining, [may be] so
5 The following exchange occurred during Loyer's testimony:
Q. Okay. My question is if somebody told you: You are an agent of CAPP and we want you to go in there and tell Motorola officially on behalf of CAPP that we want Motorola to do something.
A. Yes, because when I was asking to distribute literature the idea was presented at the CAPP planning meeting and it was decided to do that as an official CAPP organization [sic] and I was the one who was spearheading that campaign.
Record Vol. I at 99. removed from the central concerns of the Act as to justify application of a different rule than in
Republic Aviation." Eastex, 437 U.S. at 573, 98 S.Ct. at 2516.
The practical effect of the Board's order, as Motorola suggests, is to authorize any political
splinter group with employee members to disseminate literature at the workplace as long as the
group's agenda includes some issue relevant to that workplace. Many of the subjects of these single
issue organizations are highly controversial and could inject into the workplace a level of hostility and
animosity among employees that most employers work hard to eliminate. We believe that the facts
in this case reach that "point of attenuation" posited by the Supreme Court in Eastex. Employees
acting as members of outside political organizations cannot demand the same § 7 rights as employees
engaged in self-organization, collective bargaining, or in self-representation in disputes with
management simply because the organization focuses on a workplace issue. The Act is not intended
to protect entities so far removed from the normal employer-employee relationship. Thus, we deny
enforcement of the portion of the Board's order dealing with Motorola's ban of on-premises literature
distribution by employee members of CAPP, because they enjoyed no rights under § 7 to distribute
it.
IV
In sum, we grant the Board's petition for enforcement on the issue of management threats to
employee Paco Nathan. We deny it on the issues of the temporary T-shirt ban and the prohibition
of on-premises literature distribution by employee members of CAPP.
ENFORCED in part and DENIED in part.