591 F.3d 540 (7th Cir. 2009), 09-2187, Loparex LLC v. National Labor Relations Board

Docket Nº:09-2187, 09-2289.
Citation:591 F.3d 540
Opinion Judge:WOOD, Circuit Judge.
Party Name:LOPAREX LLC, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Attorney:Richard L. Marcus, Attorney (argued), Tobias E. Schlueter, Attorney, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Respondent. Robert W. Chester, National Labor Relations Board, Minneapolis, MN, Heather S. Beard, Attorney (argued), Linda J. Dreeben, Attorney, National Labor Relations Board, Wa...
Judge Panel:Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.
Case Date:December 31, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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591 F.3d 540 (7th Cir. 2009)

LOPAREX LLC, Petitioner/Cross-Respondent,


NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 09-2187, 09-2289.

United States Court of Appeals, Seventh Circuit.

December 31, 2009

Argued Nov. 3, 2009.

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Richard L. Marcus, Attorney (argued), Tobias E. Schlueter, Attorney, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Respondent.

Robert W. Chester, National Labor Relations Board, Minneapolis, MN, Heather S. Beard, Attorney (argued), Linda J. Dreeben, Attorney, National Labor Relations Board, Washington, DC, for Petitioner.

Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.

WOOD, Circuit Judge.

Loparex LLC owns and operates a small manufacturing plant in Hammond, Wisconsin. When a handful of the 200 employees working at the plant began to drum up interest in unionizing the workforce, Loparex pushed back by placing a number of restrictions on organizing activity at the workplace. Loparex's actions were soon brought to the attention of the National

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Labor Relations Board, which concluded that Loparex had engaged in a number of unfair labor practices in violation of the National Labor Relations Act, § 8(a)(1), 29 U.S.C. § 158(a)(1) (" the Act," or " the NLRA" ). The Board ordered Loparex to cease and desist and to take several affirmative steps to remedy its past violations. Guided by the deferential standard of review applicable to the Board's decisions, we conclude that its order should be enforced.


Loparex owns multiple production facilities scattered across the country; at these plants, it manufactures polycoated and silicone-coated papers and films. In June 2006, Loparex acquired the Hammond plant from the Douglas-Hanson Company. Though the employees in that location had attempted to form a union when the plant was under the ownership of Douglas-Hanson, these efforts had died off by the time Loparex took over. With Loparex at the helm, employees' prounion sentiment lay dormant until early 2007, when the company announced several controversial employment policies. Spurred in part by their disagreement with the company's recent actions, a small group of employees renewed their efforts to unionize the plant. This campaign was not warmly received by Loparex officials.

In the back-and-forth that followed, Loparex imposed several limitations on union organizing at work. After union supporters posted material on company bulletin boards in March 2007, Loparex issued a policy statement that required employees to obtain approval before placing any material on the boards. A few months later, several employees attempted to distribute prounion flyers in Loparex's parking lot, but they were stopped by company officials. Around the same time, employees passed out union buttons in the plant and left some of them near a time clock for other employees to pick up. When company officials learned of this activity, they quickly called a meeting and told the union advocates that they had violated company policy. Management also discouraged employees from talking about the union during working hours. Then, in June or July 2007, Loparex informed all of the shift leaders working at the Hammond plant that they qualified as supervisors under the NLRA and were thus prohibited from participating in union activities.

Following these events, Teamsters Local 662 filed three separate unfair labor practice charges. After a hearing in May 2008, Administrative Law Judge (" ALJ" ) Paul Bogus issued a decision in November 2008 finding that Loparex had violated the Act in several ways: by promulgating its bulletin board policy because of antiunion animus; by announcing unlawfully broad constraints on employee communications relating to unionization; and by treating shift leaders as though they were supervisors under the Act. Loparex filed exceptions to all but one of the ALJ's findings. (The ALJ also found that Production Manager Todd Dennison violated section 8(a)(1) of the Act in June 2007 when he informed a group of employees that they were prohibited from speaking about union organizing at work. Since Loparex did not contest this conclusion before the Board, we summarily enforce the ALJ's order on this issue. See NLRB v. Alwin Mfg. Co., 78 F.3d 1159, 1162 (7th Cir.1996)). The Board affirmed the ALJ's findings of fact and conclusions of law for the most part, but it wrote separately on the issue of shift leaders' status as statutory supervisors. Loparex now petitions this court requesting that we set aside the Board's decision, and the Board cross-petitions

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to obtain an order enforcing its decision.


Our review of the Board's decision is deferential. We accept its factual findings if they are supported by substantial evidence, and its legal conclusions " unless they are irrational or inconsistent with the [Act]." Ryder Truck Rental v. NLRB, 401 F.3d 815, 825 (7th Cir.2005); see also Brandeis Machinery & Supply Co. v. NLRB, 412 F.3d 822, 829 (7th Cir.2005); 29 U.S.C. § 160(e). Our focus is on the Board's decision; as a practical matter, we look to the ALJ's opinion on issues where the Board affirmed without additional comment.

A. Loparex's Bulletin Board Policy

The Board adopted the ALJ's conclusion that Loparex violated section 8(a)(1) when, against a backdrop of a corporate policy that permitted employees to use the bulletin boards for a variety of non-work purposes, it shut off access in response to union organizing activity. As support for his finding that the purpose of the new policy was to inhibit the organization campaign, the ALJ pointed to a confrontational meeting between management and a union supporter that took place a few months before Loparex issued the policy. The evidence of an upsurge in prounion activity following that meeting, in the ALJ's view, supported an inference of Loparex's knowledge and distaste for the employees' organizing efforts. This aversion played a key role in the formulation of the bulletin board policy. Loparex objects that there is only a weak temporal connection between the earlier confrontation and the eventual issuance of the new bulletin board policy. Loparex adds that the evidence does not establish that the company was even aware that prounion materials had been posted on company bulletin boards.

Section 8(a)(1) offers employees broad protection from employers' attempts " to interfere with, restrain, or coerce employees in the exercise" of their statutory rights to organize under section 7. 29 U.S.C. § 158(a)(1); 29 U.S.C. § 157. Yet this statutory entitlement does not give employees an unfettered right to use a company's bulletin boards to stir up interest in unionization. See Fleming Companies, Inc. v. NLRB, 349 F.3d 968, 975 (7th Cir.2003); Guardian Indus. Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir.1995). The critical question is whether the employer is discriminating against union messages, or if it has a neutral policy of permitting only certain kinds of postings (for example, those related directly to work rules). Discriminatory interference with union organizers' access to bulletin boards is forbidden. Fleming, 349 F.3d at 975; J.C. Penney Co., Inc. v. NLRB, 123 F.3d 988, 997 (7th Cir.1997). Though it is undisputed that Loparex's new bulletin board policy was facially neutral and nondiscriminatory applied, an employer may violate the Act if its motivation for a new policy is its hostility toward prounion activity. See NLRB v. Village IX, Inc., 723 F.2d 1360, 1365-66 (7th Cir.1983) (finding the employer's adoption of a rule was motivated by an antiunion position and thus violated the Act); Brandeis Machinery & Supply Co. v. NLRB, 412 F.3d 822, 834-35 (7th Cir.2005) (explaining that under section 8(a)(1), facially nondiscriminatory " policies may not target, either through design or enforcement, activity protected by the Act" ) (emphasis added); see also NLRB v. Wolfe Electric Co., 314 F.3d 325, 328 (8th Cir.2002); Four B Corp. v. NLRB, 163 F.3d 1177, 1184 (10th Cir.1998); Roadway Exp., Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir.1987).

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If an employer is alleged to have acted with an antiunion purpose, we apply the analytical framework set forth by the Board in Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). See FedEx Freight East, Inc. v. NLRB, 431 F.3d 1019, 1027-28 (7th Cir.2005); Roadway Exp., 831 F.2d at 1290. Under Wright Line, the Board must make a prima facie showing that " antiunion animus was a substantial or motivating factor in the employer's decision." NLRB v. Joy Recovery Technology Corp., 134 F.3d 1307, 1314 (7th Cir.1998). Once the Board does so, the burden shifts to the employer to prove that it had a legitimate business reason for making its decision. Id. Since Loparex did not offer any explanation for why it adopted the new bulletin board policy, the case hinges on whether the Board adequately proved its prima facie case.

In determining whether an employer acted improperly, the Board is entitled to rely upon circumstantial evidence. See SCA Tissue North America LLC v. NLRB, 371 F.3d 983, 988-89 (7th Cir.2004). In concluding that Loparex was opposed to the unionization campaign, the ALJ focused on a series of events that took place during the months leading up to Loparex's announcement of the bulletin board policy. In January or February of 2007, Schillinger, a production operator at the plant, spoke with Randy Risler, who worked in human resources, about the employees' dissatisfaction with newly enacted attendance and pay policies. Id. at 104. Schillinger was someone Risler knew. In 2006, Schillinger had been fired by Douglas-Hanson, the previous owner of the plant, for his union organizing activity, but he had recently been reinstated pursuant to the settlement of an unfair labor practices...

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