Belcher Towing Co. v. N.L.R.B., No. 78-3343
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before GODBOLD, GEE and RUBIN; GODBOLD |
| Citation | 614 F.2d 88 |
| Docket Number | No. 78-3343 |
| Decision Date | 21 March 1980 |
| 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. |
Page 88
v.
NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
Fifth Circuit.
Page 89
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.
GODBOLD, Circuit Judge:
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.
Page 90
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.
I. The no-solicitation rule
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...
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