Itt Indus. v. Nat'l Labor Relations Bd.

• Decision Date: 05 June 2001
• Docket Number: No. 00-1296,00-1296
• Citation: 251 F.3d 995
• Parties: (D.C. Cir. 2001) ITT Industries, Inc., Petitioner v. National Labor Relations Board, Respondent International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 995

251 F.3d 995 (D.C. Cir. 2001)

ITT Industries, Inc., Petitioner v. National Labor Relations Board, Respondent

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Intervenor

No. 00-1296

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 23, 2001

Decided June 5, 2001

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Richard B. Hankins argued the cause for petitioner. With him on the brief were Curtis L. Mack and Robert D. Harris.

Anna L. Francis, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick L. Cornnell, Jr., Attorney.

Lynn K. Rhinehart argued the cause for intervenor International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. With her on the brief were James B. Coppess and Blair Kay Simmons. Merrill J. Whitman entered an appearance.

Before: Edwards, Chief Judge, Williams and Sentelle, Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

Petitioner ITT Automotive manufactures automotive parts at ten different plants across the Midwest, Arkansas, and New York. The present action involves the so-called "Northern Plants," three facilities located within a twenty-mile radius of one another in northeast Michigan. The Oscoda plant is the largest, with nearly 650 employees, while the Tawas and East Tawas plants each employ roughly 180 workers. During the relevant times at issue in this case, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America ("UAW" or "Union"), was seeking to organize the employees at the Northern Plants. ITT and the UAW stipulated that the three plant facilities, together, constituted a single, appropriate bargaining unit for purpose of the representation election.

The unfair labor practice charges at issue arose in the midst of the Union's organization campaign. On two different occasions, employees from the Oscoda plant attempted to handbill in the East Tawas parking lot. Both times, East Tawas supervisors ordered them to leave under threat of arrest for trespass. The National Labor Relations Board ("NLRB" or "Board") found that management's enforcement of a no-access policy to union organizing by off-site employees constituted a violation of 8(a)(1) of the National Labor Relations Act ("NRLA").

ITT argues that the Board overstepped its authority by extending greater access rights to off-site employees than those afforded nonemployee union organizers. Specifically, petitioner contends that the Supreme Court's access cases make clear that "trespassers," whether nonemployee union organizers or off-site employees, possess only limited derivative 7 access rights, i.e., that any such rights derive entirely from on-site employees' 7 organizational right to receive union-related information.

It is not clear that the Supreme Court's access cases foreclose the Board's interpretation that 7 confers upon offsite employees some measure of free-standing, nonderivative organizational access rights. The Court's cases do make clear, however, that the Board must take account of an offsite employee's trespasser status. In the present case, the Board utterly failed to bring that consideration to bear, first, in its decision that 7 extended any nonderivative access rights to off-site employees and, second, in its determination that the scope of those rights be defined by the same balancing test used to assess the scope of on-site employee access rights. We therefore vacate the Board's decision and remand for further consideration.

In a separate incident, East Tawas management reprimanded long time employee and union member Karen Richardson for harassing fellow workers with union solicitations during worktime. The Board found that management had violated 8(a)(1) by discriminatorily applying the plant's facially neutral no-solicitation policy to union-related activity. The Board's decision on this point is supported by substantial evidence.

I. Background

In early 1998, the UAW, intervenor in this case, commenced an organizing campaign to unionize the nonsupervisory employees at the Northern Plants. The Union subsequently filed an election petition in June, and the Board scheduled a representation election for July 30, 1998. ITT and the UAW stipulated to an election covering a unit consisting of nonsupervisory employees from all three plants. With less than a week to go before the election, the UAW withdrew the petition. By that point in time, the unfair labor practice charges at the heart of this case had already been filed.

A. Restrictions on Oscoda Employee Handbilling in the East Tawas Parking Lot

On April 28, 1998 and again on May 14, 1998, employees from the Oscoda plant entered the East Tawas parking lot in order to distribute Union literature and solicit signatures for the Union organizing petition. Despite the fact that the handbillers identified themselves as ITT employees from the Oscoda plant, supervisors from the East Tawas plant requested them to leave the premises because they were trespassing on private property. The handbilling employees left without incident. Shortly thereafter the UAW filed unfair labor practice charges with the Board, alleging that management's application of the no-access policy to off-site employees violated 8(a)(1) of the NLRA.

At a hearing before an Administrative Law Judge ("ALJ"), petitioner presented evidence that its no-access policy was both neutral and justified. East Tawas supervisor Jeff Minnick testified that management had instigated the zerotolerance, no-access policy in March 1998 following installation of a six-foot high cyclone fence around the parking lot. The new zero-tolerance policy limited parking lot access at all times solely to East Tawas employees. There was one exception: relatives or friends of employees could enter the parking lot to pick up/drop off East Tawas employees as long as they did not exit their vehicles. Minnick cited a number of precipitating events as grounds for the stricter policy, including several acts of automobile vandalism, youths driving through the parking lot at night, nonemployees engaging employees in fights after work, and one incident in which an estranged husband of an East Tawas employee threatened to bring a gun to the plant in search of his wife.

The ALJ was unpersuaded by ITT's evidence. Quoting Tri-County Medical Center, Inc., 222 N.L.R.B. 1089 (1976), the ALJ noted that, " 'except where justified by business reasons, a rule which denies off-duty employees entry to parking lots, gates, and other outside nonworking areas will be found invalid.' " ITT Industries, Inc., 331 N.L.R.B. No. 7, at 4 (May 10, 2000) ("Board Decision") (quoting Tri-County, 222 N.L.R.B. at 1089). The ALJ was not impressed by the fact that the handbillers were not only off-duty, but also offsite, employees, remarking that "employees of the employer who work at one plant are still considered employees of the employer if they handbill at another of the employer's plants." Board Decision, at 4 (citing S. Cal. Gas Co., 321 N.L.R.B. 551 (1996), and U.S. Postal Serv., 318 N.L.R.B. 466 (1995)). Moreover, Oscoda and East Tawas employees belonged to the same representational unit. Board Decision, at 4.

Having found that the Tri-County test applied, the ALJ refused to consider ITT's evidence of reasonable alternative means available to the Oscoda handbillers for communicating with East Tawas employees. Id. As to the proffered justifications for applying the policy to off-site employees, the ALJ found ITT's reasons to be "woefully inadequate," and belied by the policy of permitting entry to friends and spouses to pick up or drop off East Tawas employees. Id. The Board affirmed the ALJ's decision, and ordered management at the Northern Plants to grant parking-lot access to off-site employees for the purpose of distributing union materials.

B. Reprimanding Karen Richardson for Union Solicitation during Worktime

On May 7, 1998, East Tawas plant manager Rod Kaschner and supervisor Jeff Binder called ten-year East Tawas employee and active union member Karen Richardson into Kaschner's office. Richardson memorialized the exchange in a letter to Kaschner of same date:

Rod asked me to sit down. He then said he has had a few people on the floor complaining to him about me talking about union related activities and union informa tion to them and they were offended. He told me then that any more conversations about the union were to be kept outside, in the lunch room and on my off time. He said I wasn't to be talking about the union on the floor any more to anyone.

Letter from Karen Richardson to Rod Kaschner (May 7, 1998) (emphasis added). Kaschner responded with his own letter the following day, in which he agreed with Richardson's description. He added only that "[t]he point again of the whole meeting was if an individual is not interested in talking with you about union activities, you should respect their wishes and avoid such discussions." Letter from Rod Kaschner to Karen Richardson (May 8, 1998). The Union filed an unfair labor practice charge with the Board alleging that East Tawas management had discriminatorily applied the plant's worktime no-solicitation policy to union solicitations in violation of Section 8(a)(1) of the NLRA.

Relying on the above letters as well as testimony from Richardson that she suffered no punishment and had resumed union solicitation on the floor after a mere seven days, the ALJ found that "the Act was [not] violated because management was essentially telling Richardson not to bother her fellow employees ... and I see at most a de minimus or insignificant infringement on ...