Roadway Exp., Inc. v. N.L.R.B.

Citation831 F.2d 1285
Decision Date29 October 1987
Docket NumberNos. 84-6071,85-5140,s. 84-6071
Parties126 L.R.R.M. (BNA) 2881, 56 USLW 2307, 107 Lab.Cas. P 10,160 ROADWAY EXPRESS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Edward C. Kaminski, James D. Kurek (Lead) (argued) Buckingham, Doolittle & Burroughs, Akron, Ohio, for petitioner, cross-respondent.

Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Collis Suzanne Stocking, Fred L. Cornnell (argued), Washington, D.C., for respondent, cross-petitioner.

Before JONES, WELLFORD and GUY, Circuit Judges.

RALPH B. GUY, Jr., Circuit Judge.

Respondent Roadway Express appeals a supplemental decision and order of the National Labor Relations Board (NLRB or Board) finding that Roadway violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), by removing two company-provided general purpose bulletin boards from its employee break rooms. 1 The Board cross-petitions for enforcement of its order.

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 20 (Union), represents the hourly employees at the company's terminal in Toledo, Ohio. In accordance with its collective bargaining agreement with the Union, the company provides a glass-enclosed, locked bulletin board for the exclusive use of the Union. The company also maintains a similar glass-enclosed, locked bulletin board for its own official use. In addition, for approximately six years prior to April, 1981, the company maintained an unenclosed general purpose bulletin board in each of the two employee break rooms at its Toledo terminal.

The Company had no rules restricting the use of the two bulletin boards in the break rooms. It had no rules about what material could be posted on these boards and it did not require employees to request permission to post materials. Employees used the break room bulletin boards to post general news items, including notices of upcoming events, sales and meetings. They also posted notices of union business and events. Approximately once a month, beginning in March, 1980, employee Konstantine Petros posted on the break room bulletin boards literature advocating membership in Teamsters for a Democratic Union (TDU) and informing employees of their "legal rights and contractual rights."

In late 1979, Ivan Hofmann became the manager of the company's Toledo terminal. Thereafter, tension increased between management and the employees. Beginning in the fall of 1979 and continuing through April, 1981, the comment "Ivan sucks" and similar vulgarities began to appear frequently throughout the terminal, including on the walls, on freight cartons, and on documents posted on the break room bulletin boards.

On January 29, 1981, Petros posted notices on the break room bulletin boards regarding a January 25 resolution that was passed at the unit employees' meeting at the Union hall. The resolution expressed opposition to the company's use of production cards. It resolved that the Union expressly support a sister local in Pennsylvania in the latter's efforts to obtain a strike sanction from the International Union to stop the company's use of production cards and that the Union send a telegram to the International with "a copy to be posted at the company's terminal in Toledo, Ohio, supporting the call for a strike sanction at the company to stop the production cards." Terminal Operations Manager Paul Ray removed this notice from the outbound break room bulletin board later the same day, instructing Petros that the break room bulletin board "was to be for official company business." Petros pointed out that the other (inbound) break room bulletin board had nonofficial items posted on it, and Ray replied that the inbound break room bulletin board "was for us to use as we saw fit." Petros appealed Ray's removal of the notice to Assistant Terminal Manager Dean Schuler, who told Petros that "both bulletin boards were company bulletin boards and should be used only for official company business." The next day, Petros asked Ray if he could post any TDU material on the bulletin board. Ray said no, referring to Schuler's statement the day before.

On February 27, 1981, Petros filed an unfair labor practice charge alleging that the company violated section 8(a)(1) of the Act by its removal of the notice. Petros subsequently withdrew the charge in late April on the basis of what he testified was an agreement by the company that he could post TDU material as long as it was clearly identified as such. During the period between the company's removal of the notice from the bulletin board and Petros' late April withdrawal of the unfair labor practice charge, he posted no union or TDU material.

On April 23, 1981, Petros posted notices on the break room bulletin boards advocating defeat of a proposal to amend the Union's bylaws. He then informed Terminal Operations Manager Ray that he had posted these notices in accordance with what Petros understood to be the recent agreement permitting the posting of clearly marked TDU material on the break room bulletin boards. Ray told Petros that he was unaware of any such agreement.

On April 25, 1981, Terminal Manager Ivan Hofmann visited one of the break rooms. He testified that he saw a piece of newspaper clipping on the bulletin board, and stated: "That was a clipping about a homicide with a supervisor or an employer was shot and killed as a result of a labor dispute and under there it said 'Ivan you're next.' It infuriated me at the time. I took it and grabbed it and threw it down." (App. 157). After consulting with an attorney, Hofmann testified that he ordered the bulletin boards to be removed. When Petros noticed that the break room bulletin boards had been removed, he asked Hofmann why. According to Petros:

[H]e stated to me that he had to have free speech. Also, that he's a stockholder in the company and he's tired of seeing things that said bad things about the company and also he didn't want to see things calling for strikes against Roadway Express and this is just like putting these items in his house.... He also stated to the effect that he didn't like the idea of seeing things like "Ivan sucks" and "Ivan you're next."

(App. 120-121). Hofmann's own testimony was that:

I told [Petros] ... "We have to allow for freedom of speech. I am a stockholder in the company and I find it very objectionable when individuals post notices for unauthorized strikes against my company, when they write inflammatory remarks about myself, about the supervisors that work for the company. I feel it is no different than it would be if they walk into my home and post these same things in my house and since we can't restrict the content, the general content on the bulletin boards in that manner that I had no alternative but to remove it and I felt that was the last straw that broke the camel's back is when they posted the one making the statement that I was next to be shot and I found that very objectionable and it was after that time I had them removed."

(App. 165-166).

On these facts, the Board found, in agreement with the administrative law judge, that the company violated section 8(a)(1) of the Act by removing the break room bulletin boards because an employee had posted "TDU and general union material" on those boards. The company filed with this court a petition for review, and the Board filed a cross-petition for enforcement. Subsequently, the Board petitioned this court to remand the case to allow the Board to reconsider its decision in light of Lawson Co. v. NLRB, 753 F.2d 471 (6th Cir.1985) (where an employer's motive is relevant to whether it has violated section 8(a)(1) of the Act, the Board must apply the analysis set forth in Wright Line, 251 N.L.R.B. 1083 (1980), enf'd on other grounds, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982)). This court granted the motion for remand. On April 15, 1986, the Board issued the supplemental decision and order now under review.

Pursuant to our directive, the Board applied the Wright Line test for evaluating cases alleging violations of section 8(a)(1) turning on the motive of the employer. The Board noted that the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision to take the allegedly unlawful action. If the General Counsel makes such a prima facie showing, the burden of going forward with the evidence shifts to the employer to show that it would have taken the same action even in the absence of the protected conduct. 251 N.L.R.B. at 1085.

The Board first found that the General Counsel had made a prima facie showing that protected conduct--the posting of TDU and general union material on the break room bulletin boards--was a motivating factor in the company's decision to remove the bulletin boards. Specifically, the Board noted first that Petros' January 29 notice advocating a strike sanction in protest of the company's use of production cards was immediately removed from the break room bulletin boards by Terminal Operations Manager Ray, who told Petros, contrary to six years' past practice, that the break room bulletin boards were for official company business only. In addition, the next day, Ray specifically denied Petros permission to post TDU material on the break room bulletin boards. Moreover, the Board noted that the bulletin boards were removed almost immediately following Petros' resumption of his posting of union and TDU material. Finally, the Board indicated that Plant Manager Hofmann referred specifically to the January 29 notice in explaining to Petros why the bulletin boards had been taken down. Accordingly, the Board found that the General Counsel had established a...

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