656 F.2d 883 (D.C. Cir. 1981), 80-1467, Helton v. N.L.R.B.

Docket Nº:80-1467.
Citation:656 F.2d 883
Party Name:Charles E. HELTON, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:June 29, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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656 F.2d 883 (D.C. Cir. 1981)

Charles E. HELTON, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 80-1467.

United States Court of Appeals, District of Columbia Circuit

June 29, 1981

Argued March 31, 1981.

Michael J. Goldberg, Washington, D. C., with whom Arthur L. Fox, II, Washington, D. C., was on the brief, for petitioner.

Kenneth B. Hipp, Deputy Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., of the bar of the Supreme Court of North Carolina, pro hac vice, by special leave of court, with whom Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Christopher W. Katzenbach, Atty., N.L.R.B., Washington, D. C., were on the brief, for respondent.

Phyllis W. Curott, New York City, was on the brief for amicus curiae Association for Union Democracy, urging reversal.

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Before ROBINSON, Chief Judge, WRIGHT, Circuit Judge, and VAN PELT, [*] Senior District Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Petitioner Charles Helton seeks review of a National Labor Relations Board (NLRB) decision finding that his union, Teamsters Local 515, did not commit an unfair labor practice under Section 8(b)(1)(A) of the National Labor Relations Act (the Act) 1 when it refused to allow him to post materials critical of the union on the union's bulletin board, even though it would have permitted him to post any other materials. 2 We conclude that the union may not restrict employees' rights of expression in this manner.

I. BACKGROUND

Teamsters Local 515 represents employees at the Chattanooga, Tennessee terminal of Roadway Express, Inc. (the company). The union bulletin board was located in the employees' "breakroom" at the terminal. 3 It was maintained pursuant to the collective bargaining agreement in effect between the union and the company, which provided:

The Employer agrees to provide suitable space for the union bulletin board in each garage, terminal or place of work. Postings by the union on such boards are to be confined to official business of the union. ( 4

Although the collective bargaining agreement stated that the board was to be used only for official union business, this provision was not enforced. From at least 1967 until 1978 5 the union had permitted employees and nonemployees to post a wide variety of notices. Items posted on the board included for-sale notices, announcements of church revivals, nonunion political campaign materials, and even Playboy centerfolds. 6

Two other bulletin boards were also located in the employees' breakroom. The company kept its own bulletin board, which was glass-covered and locked, and which was used for posting work rules and safety notices. Occasionally, the company would also allow the union to place notices there. The

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third board, which was relatively small, was an all-purpose board used primarily to post notices regarding the employees' sick fund. This board was commonly referred to as the "sick fund board." 7

In late 1978 petitioner Helton, who was a company employee and a union member, joined the Professional Drivers' Council (PROD). PROD is an organization of rank-and-file Teamsters that promotes truck safety and seeks to expose union corruption and pension fund abuse. 8 Shortly after he became a member Helton received some literature from PROD, including a copy of a newspaper article describing Internal Revenue Service charges against a Las Vegas gambler to whom the Teamsters' pension fund had loaned large sums of money and a PROD editorial critical of the Teamsters' pension fund management. 9

On December 14, 1978 Helton posted the newspaper article and the PROD editorial on the union bulletin board. Later that day the union's job steward, acting pursuant to instructions of the union's business agent, removed this literature. 10 When Helton asked the business agent why the materials had been removed, the agent stated that "being a union official he had the legal right to add to or delete from that board, whatever he saw fit." 11 Several weeks later, on January 8, 1979, Helton posted new PROD material on the union board. This literature was also critical of the Teamsters and accused several union officials of improper and illegal conduct. Again, the job steward removed the literature. 12 The union did not take any other action against Helton, however. 13

Shortly after these incidents occurred the union board, the company board, and the sick fund board were removed from the breakroom so that the walls could be painted. When the painting was completed only the company board and the union board were returned. Both were placed under locked glass. 14 Thereafter Helton asked union officials for permission to post PROD literature on the union bulletin board. They refused to grant permission. However, they continued to allow employees to use the union bulletin board for nonunion business and for personal notices. 15

Petitioner filed unfair labor practice charges against Teamsters Local 515 with the NLRB on February 6, 1979. The General Counsel issued a complaint, and a hearing was held before an Administrative Law Judge (ALJ) in June 1979. 16 At the hearing the union's business agent testified that he had removed the PROD material from the bulletin board because:

It was derogatory, it was adverse toward our local union and the Teamsters in general. And, I felt it shouldn't be there because it created controversy among the members ... I felt it should not go on the board.... ( 17

In his decision the ALJ ruled that the union had committed an unfair labor practice under Section 8(b)(1)(A), which makes it an unfair labor practice for a union to "restrain or coerce * * * employees" in the exercise of their rights under Section 7 of

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the Act. 18 He began by stating that Helton's activities were clearly encompassed by Section 7. 19 He then observed that according to well settled precedent an employer would commit an unfair labor practice under Section 8(a)(1) if it prevented its employees from posting union literature on company bulletin boards but allowed them to post other noncompany materials. 20 The ALJ reasoned that unions should be held to the same standard of conduct with respect to their own bulletin boards. 21 In reaching this conclusion the ALJ found that the availability of alternative means of communication, for example, leaving the material on tables in the breakroom, was immaterial. He further found that there was no danger that employees would mistake PROD literature for official union literature and that, although the PROD literature was extremely critical of the union, it was not so offensive that it did not deserve protection. Finally, the ALJ rejected as "mere conjecture" the business agent's contention that the literature might lead to altercations among employees. 22

The union filed exceptions to the ALJ's decision in September 1979. A three-member panel of the NLRB reversed by a vote of 2-1. The majority did not overturn any of the ALJ's findings of fact. It also conceded that Helton's activities were encompassed by Section 7. It ruled, however, that unions should not be held to the same standard of conduct as employers. 23 Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section (7)" (emphasis added). 24 Section 8(b)(1)(A), on the other hand, only makes it an unfair labor practice for a labor organization or its agents "to restrain or coerce" employees in the exercise of the rights guaranteed by Section 7. 25 According to the majority, there was no restraint or coercion here; the union did not discipline or threaten Helton, and its actions were "completely devoid of any implications of retribution * * *." 26 The majority also noted that "Helton had ready access to other, equally effective, means of distribution." 27

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The dissenting member of the panel would have found a violation of Section 8(b)(1)(A). He argued that "it is difficult to conceive of a greater restraint or coercive impact on Section 7 rights than that which suppresses freedom of expression concerning matters inherent in that section." 28 The absence of a threat of reprisal did not "legitimize the action." 29 He agreed with the ALJ that the availability of alternate channels of communication was immaterial. 30

II. THE NLRB's INTERPRETATION OF SECTION 8(b)(1)(A)

As we have seen, the NLRB concedes that Helton's activities on behalf of PROD are encompassed by Section 7 of the Act. 31 It further concedes that under Section 8(a)(1) an employer may not prohibit employees from posting union materials on its bulletin board when it allows them access to the board for other purposes. 32 The NLRB reasons, however, that Section 8(b)(1)(A) is far more narrow than Section 8(a)(1); it only proscribes union conduct that involves threats of violence, economic reprisal, or discipline. To support this position it points out that Section 8(b)(1)(A) does not contain the words "interfere with."

We find that Section 8(b)(1)(A)'s prohibition against restraint or coercion does apply to the union conduct at issue here; its range of application is not limited to union conduct involving threats of violence or economic coercion. 33 The NLRB's narrow interpretation is inconsistent with

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the plain meaning of the statute and with the legislative history, is not supported by Supreme Court decisions or the NLRB's own precedent, and is fraught with practical difficulties.

A. The Statutory Language and the Legislative History

As a preliminary matter, the meaning of a statute should be sought in...

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