253 F.3d 19 (D.C. Cir. 2001), 00-1282, Adtranz ABB Daimler-Benz Transp. v. Nat'l Labor Relations Bd.

Docket Nº:00-1282
Citation:253 F.3d 19
Party Name: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
Case Date:June 26, 2001
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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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, District of Columbia Circuit

June 26, 2001

Argued April 9, 2001

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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.

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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.

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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...

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