Belcher Towing Co. v. N.L.R.B.
| Decision Date | 21 March 1980 |
| Docket Number | No. 78-3343,78-3343 |
| Citation | 614 F.2d 88 |
| Parties | 103 L.R.R.M. (BNA) 2939, 88 Lab.Cas. P 11,953 BELCHER TOWING COMPANY, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fisher & Phillips, Erle Phillips, John M. Capron, Atlanta, Ga., for Belcher Towing Co.
John P. Campbell, G. Paris Sykes, Jr., Atlanta, Ga., for amicus curiae Southern Towing Co.
Frank J. Dantone, Greenville, Miss., for amicus curiae American Barge Co., Inc., et al.
Jefferson D. Kirby, Atlanta, Ga., Horace A. Thompson, III, New Orleans, La., for amicus curiae Canal Barge Co., Inc.
James B. Kemp, Jr., New Orleans, La., for amicus curiae Chotin Barges, Inc.
Elliott Moore, Deputy Associate Gen. Counsel, Charles P. Donnelly, Atty., N.L.R.B., Washington, D. C., for N.L.R.B.
Joel C. Glanstein, New York City, for intervenor Dist. 2 Marine Engineers Beneficial Assn. Associated Maritime Officers, AFL-CIO.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before GODBOLD, GEE and RUBIN, Circuit Judges.
Belcher Towing operates 15 tugboats and 19 barges in the transportation of petroleum products along the coasts of Florida. It also provides docking and bunkering services to commercial vessels in the Port of Miami. It employs approximately 100 seamen.
In considering Belcher's conduct during an organizational campaign by two unions, the Board found numerous violations of the National Labor Relations Act. The Board found that Belcher had:
(1) Violated § 8(a)(1) by promulgating a no-solicitation rule that denied non-employee union organizers access to its vessels;
(2) Violated § 8(a)(3) by discharging seamen John George and John Hill for their union activities;
(3) Violated § 8(a)(1) by interrogating and threatening employees, instructing supervisors to maintain logs of union activity and to report such activity to the company, promising redress of employee grievances if employees did not seek union representation, and requesting, under coercive circumstances, that employees report any contacts they had with the unions;
(4) Violated § 8(a)(1) by discharging supervisor Frank Mosso for his refusal to commit unfair labor practices.
Belcher petitions for review and the Board cross-petitions for enforcement.
In 1972 the company promulgated a no-solicitation rule stating that the only visitors permitted on board its tugs would be persons with bona fide business on board or those authorized by the tug's captain. In 1975 this rule was reiterated, with special instructions to the captains not to allow any union organizers on board and to report all union attempts to board. The Board found both that the union organizers did not have reasonable alternative means of access to the employees and that the no-solicitation rule was discriminatorily applied to unions. Thus it found a violation of § 8(a)(1) and ordered Belcher to discontinue the rule.
The validity of an employer's no-solicitation rule turns on the balance of interests between the property rights of the employer and the organizational rights of the employees. A rule that prohibits solicitation, on company premises, by non-employee union organizers is ordinarily presumed valid and will be overturned only on a showing either that the rule discriminates against unions by allowing other solicitation or that no reasonable alternative means of access to the employees exist. NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956). The Board based its order in this case on the dual grounds of discrimination and lack of alternative means of access.
The Board erred in its interpretation of what constitutes a discriminatory no-solicitation rule. The ALJ, whose findings and conclusions were adopted by the Board, found that because the company had allowed individuals other than union organizers Access to the tugboats, the rule was discriminatory. However, a no-solicitation rule is discriminatory only if the employer allows non-union Solicitation (for example, solicitation by charitable organizations). See Central Hardware Co. v. NLRB, 468 F.2d 252, 256 (8th Cir. 1972). There is no evidence that the company allowed solicitation by anyone; the Board's finding of discrimination is therefore unsupported by substantial evidence and the order cannot be based on such a finding.
The second ground for invalidating a no-solicitation rule is that the union lacks alternative means of access to the employees. Lack of alternative means has been found in such situations as a remote lumber camp, NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948), and a resort hotel, NLRB v. S & H Grossinger's, Inc., 372 F.2d 26 (2d Cir. 1967). 1 While at least one circuit has held that in order to sustain its burden of proving lack of alternative means, a union must demonstrate that it unsuccessfully attempted to utilize other means, See NLRB v. New Pines, Inc. 468 F.2d 427, 429 (2d Cir. 1972), we interpret the Supreme Court's language in Sears, Roebuck & Co. v. San Diego District Council of Carpenters, 436 U.S. 180, 205, 98 S.Ct. 1745, 1761, 56 L.Ed.2d 209, 230 (1978), and Babcock & Wilcox, supra, 351 U.S. at 113, 76 S.Ct. at 684, 100 L.Ed. at 983, to require only a showing that such attempts would be unsuccessful under the circumstances; a union need not have actually attempted to communicate with the employees outside of the employer's premises. In this case an adequate showing of lack of alternative means was not made because the Board incorrectly placed the burden of proving the existence of alternative means on the employer. 2 Sabine Towing & Transportation Co. v. NLRB, 599 F.2d 663 (5th Cir. 1979), makes it clear that the union, represented by the General Counsel, bears the burden of proving that it has no other reasonable means of access. See Sears, Roebuck & Co. v. Carpenters, supra. The case must therefore be remanded to the Board for a reconsideration of the issue of alternative means under a correct allocation of the burden of proof. See NLRB v. Gulf States Canners, Inc., 585 F.2d 757 (5th Cir. 1978). 3
The Board's finding that John George and John Hill were discharged for their union activity is supported by substantial evidence on the record as a whole, and this part of the Board's ruling must therefore be enforced. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We reach the same conclusion with respect to the Board's finding that Belcher had unlawfully interrogated and threatened employees, required supervisors to maintain unlawful surveillance of union activities, 4 promised benefits if employees rejected union representation, and coercively requested employees to...
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