Adtranz ABB Daimler-Benz Transp. v. Nat'l Labor Relations Bd.

• Citation: 253 F.3d 19
• Decision Date: 26 June 2001
• Docket Number: AFL-CI,I,No. 00-1282,No. 190,190,00-1282
• Parties: (D.C. Cir. 2001) Adtranz ABB Daimler-Benz Transportation, N.A., Inc., Petitioner v. National Labor Relations Board, Respondent Machinists Automotive Trades District Lodgeof Northern California, International Association of Machinists and Aerospace Workers,ntervenor
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 19

253 F.3d 19 (D.C. Cir. 2001)

Adtranz ABB Daimler-Benz Transportation, N.A., Inc., Petitioner v. National Labor Relations Board, Respondent

Machinists Automotive Trades District Lodge No. 190 of Northern California, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor

No. 00-1282

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2001

Decided June 26, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

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

Mark S. Ross argued the cause for petitioner. With him on the briefs was Christopher J. Pirrone.

Jeffrey L. Horowitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. Havard, Supervisory Attorney.

David A. Rosenfeld argued the cause for intervenor. With him on the brief was Eric Borgerson.

Before: Sentelle and Henderson, Circuit Judges, and Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Sentelle.

Separate Concurring Opinion filed by Senior Circuit Judge Silberman.

Sentelle, Circuit Judge:

Adtranz ABB Daimler-Benz Transportation N.A., Inc. ("Adtranz") petitions for review of a National Labor Relations Board ("NLRB") order calling for a new representation election. Specifically, Adtranz challenges the NLRB's conclusion that its policies barring abusive and threatening language and limiting solicitation in the workplace constitute unfair labor practices. We vacate the NLRB's unfair labor practice determinations as they are utterly without merit. We do not address the Board's order of a new election, however, as it is not a reviewable final order.

I. Background

A. Relevant Facts

Petitioner Adtranz refurbishes rail cars for the Bay Area Rapid Transit system in Pittsburg, California. In December 1997, Adtranz distributed a new employee handbook containing "Rules of Conduct" with which employees were expected to comply. Under these rules, "[u]sing abusive or threatening language to anyone on Company premises" is defined as "serious misconduct," punishable with suspension for a first offense and possible termination for a second offense. Adtranz Employee Handbook at 11. "Soliciting or distributing without authorization" is defined as "extremely serious misconduct" and can result in "immediate termination of employment." Id. at 10. Under a separate section entitled "Solicitation and/or Distribution" the handbook provided that:

The unauthorized sale of tickets, solicitation of contributions, or distribution of handbills can disrupt work. Therefore, such activities are not permitted on Company premises during working time except for specific Company-sponsored solicitations or distributions.

Unauthorized activities include, but are not limited to, distribution of any literature or any material in work areas and solicitation in either work or non-work areas where either the employee soliciting or the employee being solicited is scheduled to be working.

All solicitation requests must be approved in advance by Human Resources. Id. at 15. The solicitation and distribution rule makes no explicit mention of union activity. A prior version of the employee handbook, however, explicitly covered "efforts on behalf of a labor union."

Beginning in September 1998, Machinists Automotive Trade District Lodge No. 190 of Northern California ("Union") began efforts to unionize the employees at Adtranz's Pittsburg facility. Pursuant to election petitions filed by both Adtranz and the Union, the NLRB conducted a representation election on December 9, 1998. Seventy-nine employees voted in favor of unionization, 135 employees voted against. A non-outcome determinative number of ballots were challenged. Under Section 102.69(a) of the NLRB's rules, the Union had seven days from the tallying of ballots to file objections to the election, and an additional seven days from that filing to furnish evidence in support of the objections.

The Union filed two "Objections to Conduct of Election" on December 16, alleging that Adtranz "interfered with the election by threatening employees with loss of benefits and wages and offering increased benefits or wages to employees" and "provided increase [sic] benefits and wages to employees." The objections made no mention of the handbook provisions at issue in this case. One week later, on December 23, the Union filed an unfair labor practice charge against Adtranz, alleging that various provisions of the employee handbook were overly broad which "interfered with, restrained, and coerced employees in the exercise of the rights guaranteed" by the National Labor Relations Act ("NLRA").

B. Proceedings Below

In response to the Union's unfair labor practice filing, on March 18, 1999, the NLRB Regional Director issued a complaint alleging, among other things, that the company's handbook policies were overly broad in violation of Section 8(a)(1) of the NLRA. 29 U.S.C. 158(a)(1). That same week the Regional Director consolidated the unfair labor practice complaint with one of the Union's election complaints. The other election complaint was dismissed for lack of evidence.

On May 21, 1999, Adtranz filed a motion in limine seeking to bar consideration of the handbook provisions in evaluating the Union's unfair election complaint. Adtranz claimed that consideration of the handbook in relation to the election was procedurally barred under Burns Int'l Security Servs., 256 NLRB 959 (1981), in that the Union did not identify the handbook as a basis for challenging the election within seven days of the election. On June 23, 1999, Associate Chief Administrative Law Judge ("ACALJ") Schmidt issued an order in which he found the handbook provisions to be "wholly unrelated to the conduct alleged in the Union's remaining election objection." The ACALJ nonetheless denied Adtranz's motion to exclude the handbook finding that, under NLRB precedent, the ALJ who would try the case had sufficient discretion to consider the handbook in his proceeding.

On January 2000, an Administrative Law Judge ("ALJ") found that the abusive language and solicitation/distribution provisions of Adtranz's employee handbook constituted unfair labor practices under Section 8(a)(1) of the NLRA and constituted a sufficient basis to overturn the December 1998 election. The ALJ rejected the Union's remaining complaints, including Adtranz's rule limiting employee use of e-mail and the Union's allegation that Adtranz manipulated employee benefits to discourage unionization. Adtranz ABB DaimlerBenz Transp. N.A., Inc., 331 NLRB No. 40, slip op. at 4 (May 31, 2000). The ALJ nonetheless called for a new election and ordered Adtranz to cease and desist from its unfair labor practices and post an appropriate notice at its Pittsburg facility.

On May 31, 2000, the NLRB summarily affirmed the ALJ's conclusions and call for a new election, and issued a revised order. Specifically, the NLRB ordered Adtranz to revise its employee handbook to rescind the "overly broad rules regarding solicitation, distribution, and abusive language" and required that Adtranz post appropriate notice at all Adtranz facilities nationwide. Id. at 1. One member of the Board dissented in part on the grounds that Adtranz's rule against abusive language did not constitute an unfair labor practice. Id. at 1 n.3.

II. Merits

Adtranz petitions for review of the NLRB's order, challenging both of the NLRB's unfair labor practice determinations and ordered remedies. The NLRB cross-petitions for enforcement of the order. The Union intervenes in support of the NLRB arguing, inter alia, that the use of abusive language, vulgar expletives, and racial epithets "is part and parcel of the vigorous exchange that often accompanies labor relations." Brief of Intervenor at 2.

A. Jurisdiction

As an initial matter, we must address our jurisdiction, or lack thereof, over petitioner Adtranz's claims. This Court has jurisdiction to review a "final order" of the NLRB pursuant to Sections 10(e) and (f) of the NLRA. 29 U.S.C. 160(e) and (f). An NLRB decision affirming an ALJ's findings of unfair labor practices by an employer is such an order. However, "the Board's direction of a new election is not a final order reviewable under either section 10(e) or section 10(f) of the NLRA." Gold Coast Restaurant v. NLRB, 995 F.2d 257, 267 (D.C. Cir. 1993) (citing American

Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940)). Should an employer seek "to challenge the new election, it can precipitate an unfair labor practice charge by refusing to recognize the union representation that could result from the election." Id. In the case at hand, this Court has no jurisdiction to consider petitioner's challenge to the NLRB's order of a new election or petitioner's claim that the NLRB improperly considered the employee manuals in its consideration of the Union's election objections. However, we have jurisdiction over petitioner's remaining claims against the Board, and the resolution of these claims will no doubt impact future proceedings concerning the election.

B. Standard of Review

Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise" of their rights to unionize and engage in related labor activities. 29 U.S.C. 158(a)(1). The NLRA delegates to the Board "the work of applying the Act's general prohibitory language in the light of the infinite combination of events which might be charged as violative of its terms." Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945). NLRB determinations as to what sort of employer conduct unlawfully restrains or interferes with protected labor activity are...