Restaurant Corporation of America v. National Labor Relations Board

801 F.2d 1390, 255 U.S. App. D.C. 351

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 8, 1986
• Docket: 84-1475
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge BORK.

Opinion dissenting in part and concurring in part filed by Senior Judge MacKINNON.

BORK, Circuit Judge:

Restaurant Corporation of America (“petitioner” or “RCA”) petitions for review of a decision and order of the National Labor Relations Board (“NLRB” or “Board”). The Board found that RCA violated section 8(a)(1) and (3) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 158(a)(1) and (3) (1982), by its disparate enforcement of a facially valid no-solicitation rule and consequent discharge of two employees. The Board cross-petitions for enforcement of its order. Because we con-elude that the Board’s finding misconstrues the Act, is not supported by substantial evidence, and departs without explanation from previous decisions of the Board, we grant the petition for review, deny in part and grant in part the cross-petition for enforcement, and remand to the Board for further proceedings consistent with this opinion.

I.

Petitioner operates food service facilities at the Watergate complex in the District of Columbia. These facilities include the Les Champs Restaurant, the Peacock Lounge, and the Terrace Restaurant. Since 1975, RCA maintained the following no-solicitation rule, posted at entrances and on employee bulletin boards:

SOLICITATION OF ANY KIND, INCLUDING SOLICITATION FOR CLUBS, ORGANIZATIONS, POLITICAL PARTIES, CHARITIES, ETC. IS NOT PERMITTED ON WORKING TIME OR IN CUSTOMER AREAS. DISTRIBUTION OF LITERATURE OF ANY KIND IS NOT PERMITTED ON WORKING TIME OR IN WORKING AREAS. OFF-SHIFT EMPLOYEES ARE NOT ALLOWED ON THE PREMISES.

Joint Appendix (“J.A.”) at 18 n. 6.

In early 1981, Roxie Herbekian sought work in an organized restaurant through the Hotel and Restaurant Employees Union, Local 25. Upon being advised that such work was unavailable and learning that an organizing effort was underway at the Watergate complex, Herbekian applied for work and was hired there by RCA as a room service operator. A few months later, Herbekian also began working as a waitress at the Peacock Lounge. Herbeki-an then spoke with the union about an organizing effort among the food service employees at the complex. With the consent of the union, Herbekian began in May 1981 to solicit her co-workers at the Peacock Lounge and the physically adjacent Les Champs Restaurant about organizing a local union. She testified that her solicitation ran as follows:

Generally, what I would say to them is that, in January I had attended a meeting with employees of the Terrace [Restaurant], a Union meeting. And, several of the employees there were interested in organizing. Yet, in order to continue the campaign, we would have to include people in the other restaurants and shops of the Watergate.

And are you — the individual I was speaking to — would you be interested in pursuing getting a Union?

Hearing Transcript (“Tr.”) at 32. Herbeki-an testified that she spoke with twelve people on work time concerning the union campaign prior to June 2, 1981. Tr. at 70-77.

Among those solicited by Herbekian was Sherwood Dameron, a waiter at the Les Champs Restaurant. Herbekian, Dameron, and six other employees attended a union-sponsored meeting on June 2, 1981, to discuss the prospect of organizing the employees of the Watergate complex. At this meeting each person received a list containing the names of fellow employees to contact about signing union authorization cards.

Herbekian subsequently contacted approximately ten employees on work time. Herbekian testified that she met with “[a]bout ten” employees following the June 2 meeting, Tr. at 40, talking with nine specific employees on work time and in the workplace. Tr. at 82-92.

Dameron also spoke with seven employees about the union organizing effort. Though five of these conversations did not occur during work time, two did. Dameron testified that these two solicitations lasted five to ten minutes. Tr. at 299.

On June 9, 1981, the General Manager of the Watergate facilities, Gene Flick, suspended Herbekian and Dameron pending investigation of their alleged violations of the no-solicitation rule. Dameron called Flick the next day to inquire about his employment status and was informed that he had been fired. On June 15, Herbekian was also fired.

II.

On June 12, 1981, the Union filed a charge with the NLRB alleging that petitioner violated section 8(a)(1) and (8) of the NLRA and on August 26, 1981, the NLRB General Counsel issued a complaint.

Section 8(a) of the NLRB provides in part:

It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....

29 U.S.C. § 158(a)(1), (3) (1982).

After conducting a hearing, the Administrative Law Judge concluded that RCA violated section 8(a)(1) and (3) of the Act by disparately enforcing its no-solicitation rule against Herbekian and Dameron. The ALJ based his conclusion on evidence that, during the year prior to the discharges, RCA permitted six nonunion “solicitations.” These consisted of the following: (1) sometime in 1980, a collection was taken up to buy a going-away cake for a Les Champs waiter; (2) in December 1980, Les Champs manager Renee Loustaunau helped collect contributions to buy a blazer as a going-away gift for the assistant manager; (3) in December 1980, after Loustaunau mentioned at a staff meeting that the chefs wife was expecting a baby, several employees contributed $1.00 each for the purchase of a spoon as a gift; (4) in December 1980, employees contributed toward the purchase of a birthday cake for a Les Champs waiter; (5) in February 1981, Loustaunau and four employees chipped in to buy a going-away gift for a housekeeper; and (6) in March 1981, employees collected a total of $12.00 to buy a birthday cake for a Les Champs bartender. The AU found that these solicitations occurred, at least in part, on work time.

On August 21, 1984, the Board adopted the AU’s findings and conclusions in pertinent part and ordered RCA, among other things, to cease and desist from disparately applying its no-solicitation rule, to offer Herbekian and Dameron reinstatement to their former positions, and to remove from its files any references to the unlawful discharges.

III.

It is not disputed that Herbekian and Dameron violated RCA’s no-solicitation rule by engaging in union solicitation during work time. Rather, the Union claimed and the Board found that RCA committed an unfair labor practice by enforcing its no-solicitation rule against Herbekian and Dameron while tolerating the six instances of social solicitation among its employees.¹ Though we recognize that we must accept the Board’s findings of fact if supported by substantial evidence, 29 U.S.C. § 160(e) (1982); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and that we owe deference to the Board’s interpretations of the NLRA, we think the Board’s decision in this case misconstrues the Act, is unsupported by substantial evidence, and departs without explanation from prior decisions of the Board.

It is well-settled that an employer does not violate section 8(a) simply by maintaining, and enforcing against union activity, a valid no-solicitation rule. See, e.g., The Seng Co., 210 N.L.R.B. 936 (1974); Atkins Pickle Co., 181 N.L.R.B. 935 (1970). Both the AU and the Board found that RCA’s no-solicitation rule was valid on its face, see J.A. at 6, 21, and we have no occasion to question that conclusion here.

The Board reasoned that RCA’s enforcement of its no-solicitation rule against union solicitations but not against social solicitations amounted to disparate application of the rule in violation of section 8(a). It should be noted, however, that the Board has never held, and does not now contend, that tolerance of any nonunion solicitation is sufficient to make out a violation of the Act. Rather, the Board’s decisions establish that a finding of disparate enforcement depends upon the nature and frequency of the nonunion solicitations permitted. See The Seng Co., 210 N.L.R.B. 936 (1974). Unless the nonunion solicitations have “a potential for interference with work substantially equivalent to that of union solicitations,” Central Freight Lines v. NLRB, 653 F.2d 1023, 1026 (5th Cir.1981) (emphasis added), a finding of disparate application is not warranted. Cf. Atkins Pickle Co., 181 N.L.R.B. at 935 (no-solicitation rule aimed only at union solicitation does not violate section 8(a)(1) where “nothing in the record [indicates] that the isolated instances of other permitted [nonunion] solicitations ... resulted in a corresponding interference with production”).

We readily accept the Board’s findings of fact concerning both the union and nonunion solicitations that occurred on work time during the relevant one-year period. It does not follow from these facts, however, that RCA engaged in illegal discrimination. The Board must carry its “affirmative burden,” Midwest Stock Exchange v. NLRB, 635 F.2d 1255, 1259 (7th Cir.1980), of showing by substantial evidence that the permitted solicitations “had a potential for interference with work substantially equivalent to that of union solicitations.” Central Freight Lines, 653 F.2d at 1026. Though the AU characterized the nonunion solicitations in this case as “numerous and substantial,” J.A. at 23, and the Board stated that “the incidents of permitted nonunion solicitations were not isolated,” id. at 5 n. 3, these observations cannot substitute for the requisite finding that the union and nonunion solicitations had substantially equivalent potentials for disruption of work. Both the Board and the AU simply failed to consider the relevant potentials. This alone suffices to deny enforcement of the Board’s order.²

In addition, we believe that the particular examples of nonunion solicitation involved here could seldom, if ever, support such a finding of equivalent disruptive potential. All were instances of intra-employ-ee generosity designed to express appreciation of fellow employees on occasions such as birthdays or departures. Whatever minimal disruptive effect such solicitations may have is counter-balanced by an accompanying increase in employee morale and cohesion. It is indeed difficult to contemplate a pleasant workplace in which a reasonable number of such solicitations (if those social amenities which common humanity inspires can even be given that inappropriate term) did not occur. In these circumstances, we hold that the solicitations permitted in this case are not substantially equivalent to union solicitation and that, therefore, RCA’s failure to treat the two alike does not constitute “discrimination” within the meaning of section 8(a) of the Act. Any other holding would render maintenance of a no-solicitation rule practically impossible. For instance, under the Board’s approach, even a brief exchange between two employees about getting together after work could not be tolerated by employers without engaging in illegal discrimination. Unless employers were willing to enforce no-solicitation rules against such conduct, they would be forced to forgo enforcement of the rule to prevent other, more disruptive, forms of solicitation. The Act does not require that choice.

Our conclusion is bolstered by the fact that the Board has cited no case, and we are aware of none, in which the type of nonunion solicitation RCA permitted has been held sufficient by itself to support a finding of disparate enforcement. Instead, the prior cases suggest strongly that such a finding is not justified. Nowhere in its decision in this case did the Board attempt to explain its apparent departure from such cases.

The Seng Co., 210 N.L.R.B. 936 (1974), is analogous to the case at bar. There, the Board rejected an AU’s conclusion that an employer discriminatorily enforced its no-solicitation rule by permitting solicitations among its employees to collect funds for the needy family of a terminated employee, to buy a Christmas gift for their supervisor, and to purchase flowers to send to the funeral of a co-worker’s deceased mother. According to the Board, these “beneficent collections ... were too isolated to establish disparate application of the [employer’s] lawful rule.” Id. at 936. Though The Seng Co. involved three instances of intra-employee generosity and this case involves six, we think it is more the nature than the number of permitted nonunion solicitations that precludes a finding of disparate enforcement in both cases.

Regardless, other cases have refused to find unlawful discrimination even when incidents of permitted nonunion solicitation were both more numerous and of a somewhat different character than those permitted in The Seng Co. For example, in Serv-Air, Inc., 175 N.L.R.B. 801 (1969), the Board held that disparate enforcement was not established by an employer’s permission of at least three solicitations to pay for flowers to be sent to the widows of deceased employees and to the hospitalized wife of an employee as well as two solicitations regarding employee contributions to the Community Chest and the Red Cross. Likewise, in United Aircraft Corp. v. NLRB, 440 F.2d 85, 96-97 (2d Cir.1971), the Board found no disparate enforcement of a no-solicitation rule even though the employer permitted “isolated instances” of solicitation for charities and gifts.

Though the solicitations permitted in Serv-Air and United Aircraft were limited to “beneficent acts,” they differ from the solicitations permitted in this case because solicitations on behalf of charities involve outside organizations. In this respect, charitable solicitations are more like union solicitations than are solicitations that represent employees’ generosity to one another. Thus, it is significant that the Board has identified no case basing a finding of disparate enforcement solely on an employer’s permission of charitable solicitations.³

The cases cited by the Board and by the Dissent do not support the Board’s decision in this case. For example, in Midwest Stock Exchange v. NLRB, 635 F.2d 1255 (7th Cir.1980), the court found that an employer discriminatorily enforced its no-solicitation rule by strictly enforcing the rule against union activities but permitting “[s]uch drives as the Crusade of Mercy, collection of blood in a bloodmobile ... [on the employers’] premises, the selling of Avon products, Tupperware, boat cruise tickets, raffle tickets, Girl Scout cookies, and a number of other items.” Id. at 1270. Of course, these numerous and varied solicitations were not limited to acts of employee generosity to fellow employees or even to charitable solicitations. Rather, they involved solicitations for personal profit as well as highly organized campaigns on behalf of outside business organizations and thus posed a much greater potential for interference with work than the solicitations RCA permitted here.

The remaining cases cited by the Board are simply inapposite. Though some involved acts of generosity between employees, all permitted anti-union or pro-company solicitation, solicitation that is unquestionably “substantially equivalent” to union solicitation. See, e.g., Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C.Cir.1977) (disparate enforcement found where “Company countenanced distribution of pro-Company literature ..., while strictly enforcing the rule with respect to the distribution of pro-Union activity”); Ridgewood Management Co. v. NLRB, 410 F.2d 738, 740 (5th Cir.) (no-solicitation rule discriminatory where employer permitted solicitations ranging from candy sales to church donations as well as solicitations designed to persuade employees not to unionize), cert. denied, 396 U.S. 832, 90 S.Ct. 87, 24 L.Ed.2d 83 (1969); NLRB v. Electro Plastic Fabrics, 381 F.2d 374, 376 (4th Cir.1967) (no-solicitation rule found discriminatory where employer permitted collections for gifts for employees, sales of cosmetics and other merchandise, and anti-union solicitations). The fact that the employer permitted anti-union or pro-company solicitations in all of these cases conclusively distinguishes the present case.

For these reasons the petition for review is granted, the cross-petition for enforcement is denied in part and granted in part,⁴ and the case is remanded to the Board for further proceedings consistent with this opinion.

It is so ordered.

1 . We accept for purposes of discussion the Board's assumption that the collections for social purposes violated the terms of the employer’s no-solicitation rule — though that strikes us as not inevitably true. Whether it did or not, the legal analysis would be the same, since a no-solicitation rule crafted to discriminate against union activity is no better than one lawfully crafted but discriminatorily applied. Compare Central Freight Lines v. NLRB, 653 F.2d 1023, 1026 (5th Cir.1981), with United Aircraft Corp. v. NLRB, 440 F.2d 85, 96 (2d Cir.1971).

2 . Our decision today is based upon the finding that the Board's decision is not supported by substantial evidence — a finding which is clearly within our prerogative upon review of a decision by the Board. See 29 V.S.C. § 160(e) (1982). Thus, the Dissent's assertion that we have “trenche[d] on important policymaking prerogatives" of the Board, see Dissent at 1403, reflects a misperception of our decision.

3 . Depending on the number and intrusiveness of the solicitations, we assume that such permission could amount to disparate enforcement if the Board found the relevant charitable solicitations to be substantially equivalent to union solicitation in terms of its potential interference with work.

4 . Because the petitioner does not challenge the Board’s finding that the petitioner violated § 8(a)(1) of the Act by coercively interrogating employees about union activities, we grant the Board’s petition to enforce this part of its order.