991 F.2d 278 (5th Cir. 1993), 92-4317, N.L.R.B. v. Motorola, Inc.

CourtUnited States Court of Appeals (5th Circuit)
Citation991 F.2d 278
Docket Number92-4317.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOTOROLA, INC., Respondent.

Page 278

991 F.2d 278 (5th Cir. 1993)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

MOTOROLA, INC., Respondent.

No. 92-4317.

United States Court of Appeals, Fifth Circuit

May 26, 1993

Page 279

David Seid, Aileen A. Armstrong, Deputy Associate Gen. Counsels, N.L.R.B., Office of the Gen. Counsel, Washington, DC, for petitioner.

Brian S. Greig, Gregory S. Baylor, Fulbright & Jaworski, Austin, TX, for respondent.

Michael Dunn, Director, Region 16, N.L.R.B., Ft. Worth, TX, for other interested parties.

Application for Enforcement of an Order of the National Labor Relations Board.

Before POLITZ, Chief Judge, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this case, we are faced with determining "how much is too much" on the job activism by employees. Some employees at a Motorola plant in Austin, Texas, opposed the company's mandatory drug testing program. In their fight against the company's program, they supported and promoted an outside organization. Some employee members of the organization wore T-shirts espousing their position. Others sought to distribute the organization's literature on company property. Motorola refused to allow the literature distribution, and one employee alleged that he was threatened with negative career consequences by management because of his opposition to the drug testing program. An administrative law judge held that Motorola had committed several unfair labor practices in its treatment of the employee activists; the National Labor Relations Board affirmed. The Board now petitions for an order enforcing its decision. After due consideration, we uphold the Board regarding the employee threats but deny the Board's petition in all other respects.

I

(A)

In August 1989, Texas Instruments (TI) employee Joseph Mota formed an organization of fellow TI employees for the purpose of opposing TI's plan to implement an employee drug testing program. He named

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the Austin-based organization Citizens Advocating the Protection of Privacy (CAPP). CAPP's by-laws describe the organization as a non-profit association formed to "oppose the use of drug testing without probable cause by any government or corporate entity." Although its original members were all employees of TI, membership was open to any individual who supported the policies and purposes of the organization. As of June 1, 1990, CAPP had 60 to 70 members, several of whom were employees of Motorola. 1 By January 1991, CAPP had approximately 100 members, about half of whom were Motorola employees.

CAPP's primary goal had shifted from its original purpose of elimination of drug testing at TI to the passage of a proposed municipal ordinance that would severely restrict, if not effectively prohibit, the practice of random drug testing by employers. To achieve this new and broader goal, CAPP members actively campaigned on behalf of city council candidates who supported the ordinance. CAPP and its members also held press conferences, participated in call-in radio programs, and contacted state legislators.

(B)

Motorola Incorporated is a Delaware corporation operating two plants in Austin, Texas, where it manufactures high technology products. Opened in 1986, Motorola's Oak Hill plant in Austin employs 2100 people in its design and manufacturing operation. The company began discussing the implementation of a mandatory random drug testing policy in early 1990, and the program began at Oak Hill in January 1991. As employees opposed to the idea learned that Motorola was considering implementing a drug testing program, they began conferring about how to mobilize their efforts. Complainant Paco Nathan, a software engineer, joined CAPP and served on its planning committee, as did fellow employee Bruce Loyer and supervisor James Nash.

In May 1990, approximately 100 Motorola employees conducted a work slowdown by meeting for a prolonged "coffee break" in the company cafeteria to protest the possible implementation of random drug testing. No action was taken against these employees by the company. In late May, members of Motorola's management met with certain employees who had expressed concern about drug testing, including Nash, to inform them that the company was indeed about to announce a company-wide policy of mandatory random drug testing. Nash asked personnel manager David Doolittle what Motorola planned to do if Austin adopted, as some other cities had, an ordinance prohibiting mandatory random drug testing. Doolittle said Motorola employees at sites in cities with prohibitive ordinances would not be tested, and that it would be fine if Austin employees who were opposed to the testing supported such an ordinance. The company's new mandatory drug testing program, scheduled to begin on January 1, 1991, was formally announced to all employees on June 1, 1990.

(C)

On May 29, 1990, Bruce Loyer met with Doolittle and Motorola's assistant personnel manager, Ginger Byram, to seek permission to post notices on bulletin boards and distribute CAPP materials on company property. Doolittle told him that he could distribute literature in non-work areas at non-work times (e.g., in the cafeteria during lunch hour), but that the bulletin boards were for company-related announcements only. Loyer volunteered to bring copies of the literature to Doolittle to make sure it contained nothing objectionable.

On June 1, Motorola formally announced that it would commence mandatory random drug testing of all employees beginning January 1, 1991. Any employee who refused to be tested was subject to discharge. On June 5, Loyer submitted five documents to Doolittle for approval before distribution. The documents were:

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(1) a CAPP membership application (which included a request for a $15 membership fee), with a CAPP position statement on the reverse side;

(2) a three-page drug testing "fact sheet" containing information about problems associated with drug testing;

(3) a document with nine suggested postcard messages (e.g., "I am asking for your vote against random drug testing"), which employees could send to the city council;

(4) a copy of a two-page magazine article published in Scientific American questioning the value and accuracy of drug testing; and

(5) a handwritten request to company employees asking them to "join us" and write to the city council.

Doolittle told Loyer that he wanted to fax the documents to his superiors before granting final approval for distribution. When Loyer approached Doolittle in the cafeteria at lunchtime later that day, Doolittle told Loyer that he could not distribute any of the literature, and agreed to meet with him that afternoon.

At the meeting, Doolittle informed Loyer that Motorola would not allow any organization to distribute literature on the premises. Doolittle compared CAPP to a political party, and stated that if Motorola allowed CAPP to distribute literature on the premises, it would have to allow other political organizations to distribute literature as well. Thus, Loyer was not allowed to distribute any of the materials that he presented to Doolittle for approval.

(D)

On May 30, employee Paco Nathan wore a T-shirt to work that was emblazoned with the slogan "Just Say No to Drug Testing." Sometime that afternoon, a security guard at the plant's main entrance told Nathan that he could not wear the T-shirt in the building, per Doolittle's instructions. The guard suggested that Nathan bring the T-shirt in a briefcase the next day and discuss the permissibility of wearing it with the personnel department. Nathan did so, and showed the T-shirt to assistant personnel manager Ginger Byram. Byram affirmed the guard's previous statement that the T-shirt would not be allowed on company premises because it might offend customers who frequented the Austin plant.

Also on May 31, the security guard saw Bruce Loyer wearing a T-shirt bearing the same anti-drug testing message. The guard referred Loyer to the chief of security, who told Loyer that Doolittle had instructed him to prohibit the entry of anyone wearing this type of T-shirt. He showed Loyer an entry in his log to that effect, and ordered Loyer to leave the premises. Loyer returned to his automobile, put on a different shirt, and re-entered the plant with no problem.

Later that afternoon, Doolittle called Loyer into his office, told him that the security personnel had misunderstood the T-shirt prohibition (they were instructed to report to the personnel department the names of employees wearing T-shirts imprinted with the message "Just Say No to Management," which could be misinterpreted by customers as a call for insubordination), and apologized for the incident. Doolittle also spoke with Nathan, informing him of the mistake and telling him that he could wear the T-shirt. Both Loyer and Nathan subsequently wore the T-shirt to work without incident.

(E)

On June 1, Nathan's supervisor, Jack Davis, asked Nathan if he understood that his refusal to submit to a drug test would lead to his dismissal from the company. Nathan responded that he did. Nathan testified that Davis then told him that his open opposition to corporate policy would negatively affect his career. On June 6, according to Nathan's testimony, Davis told him that he was being disruptive and suggested that he stop discussing the drug testing issue because other employees were tired of hearing about it. Nathan also testified that on June 5, personnel manager Doolittle called Nathan to his office and told Nathan he had heard that a CAPP meeting was scheduled to take place during that afternoon's coffee break. Doolittle

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told Nathan that his behavior was disruptive and that his open opposition to Motorola policy would have negative consequences, including the possible loss of his job.

(F)

CAPP filed a charge against Motorola with the National Labor Relations Board on July 13, 1990, alleging that its actions...

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6 practice notes
  • The unbundled union: politics without collective bargaining.
    • United States
    • Yale Law Journal Vol. 123 Nbr. 1, October - October 2013
    • October 1, 2013
    ...candidates, not to educate them on political issues relevant to their employment conditions"); see also NLRB v. Motorola, Inc., 991 F.2d 278, 285 (5th Cir. 1993) (holding that political activities in support of an "outside political organization" are not protected by the NLRA......
  • Edwards Painting Inc., (2014)
    • United States
    • September 26, 2014
    ...Cir. 2003); Talsol Corp., 317 NLRB 290, 316–317 (1995); Motorola, Inc., 305 NLRB 580 fn.1 (1991), enf. denied in part on other grounds 991 F.2d 278 (5th Cir. 1993); Johnson-Bateman Co, 295 NLRB 180, 182–-184 (1989). It is a violation of Section 8(a)(1)of the Act for an employer to threaten ......
  • Public Service Company of New Mexico, (2016)
    • United States
    • August 22, 2016
    ...coerced employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. See, e.g., NLRB v. Motorola, Inc., 991 F.2d 278, 283 (5th Cir. 1NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1979).1993) (in refusing to enforce Board’s order, noting that “federal courts h......
  • Albertson's, Inc., (2007)
    • United States
    • September 29, 2007
    ...1994), a case primarily relied on by the Re-spondent in support of its position. In that case, the 8See, e.g., NLRB v. Motorola, Inc., 991 F.2d 278, 283 (5th Cir. 1993), denying enf. in relevant part 305 NLRB 580 (1991) (“Not every interference with employee rights rises to the level of an ......
  • Request a trial to view additional results
26 cases
  • 5 F.3d 923 (5th Cir. 1993), 92-4459, N.L.R.B. v. McCullough Environmental Services, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • November 2, 1993
    ...to justify its credibility choices, we are free to review the record and independently reach our own conclusions. NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th The NLRB found that McCullough committed unfair labor practices under Sec. 8(a)(1) of the National Labor Relations Act. This secti......
  • 41 F.3d 203 (5th Cir. 1994), 93-4961, Blue Circle Cement Co., Inc. v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (5th Circuit)
    • December 14, 1994
    ...the underlying findings of fact are supported by substantial evidence on the record considered as a whole." NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.1993) (citing 29 U.S.C. Sec. 160(e); NLRB v. Powell Elec. Mfg. Co., 906 F.2d 1007, 1011 (5th Cir.1990); Standard Fittings Co. v......
  • Albertson's, Inc., 254 (2007)
    • United States
    • September 29, 2007
    ...agrees with the dissenting opinion of Member Liebman in Raley’s Supermarkets, supra, slip op. at 4–5. 8 See, e.g., NLRB v. Motorola, Inc., 991 F.2d 278, 283 (5th Cir. 1993), denying enf. in relevant part 305 NLRB 580 (1991) (“Not every interference with employee rights rises to the level of......
  • Albertson's, Inc., (2007)
    • United States
    • September 29, 2007
    ...agrees with the dissenting opinion of Member Liebman in Raley’s Supermarkets, supra, slip op. at 4–5. 8 See, e.g., NLRB v. Motorola, Inc., 991 F.2d 278, 283 (5th Cir. 1993), denying enf. in relevant part 305 NLRB 580 (1991) (“Not every interference with employee rights rises to the level of......
  • Request a trial to view additional results
1 books & journal articles
  • The unbundled union: politics without collective bargaining.
    • United States
    • Yale Law Journal Vol. 123 Nbr. 1, October - October 2013
    • October 1, 2013
    ...candidates, not to educate them on political issues relevant to their employment conditions"); see also NLRB v. Motorola, Inc., 991 F.2d 278, 285 (5th Cir. 1993) (holding that political activities in support of an "outside political organization" are not protected by the NLRA......

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