DHL Express, Inc. v. Nat'l Labor Relations Bd., s. 12–1072
| Citation | 813 F.3d 365 |
| Decision Date | 21 January 2016 |
| Docket Number | Nos. 12–1072,12–1143.,s. 12–1072 |
| Parties | DHL EXPRESS, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
David A. Kadela argued the cause and filed the briefs for petitioner.
Barbara Sheehy, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha Dheenan, Supervisory Attorney, and Nicole Lancia, Attorney.
Anton G. Hajjar and James B. Coppess were on the brief for movant-intervenor American Postal Workers Union, AFL–CIO in support of respondent.
Before: ROGERS, BROWN and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN
.
BROWN
, Circuit Judge:
DHL Express, Inc. (the Company) petitions for review of the December 22, 2011, decision and order by the National Labor Relations Board (NLRB or Board) finding the Company violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by prohibiting nonworking employees from distributing union literature in the hallway of its facility. The Board seeks this court's enforcement of its order requiring the Company to cease and desist. We deny the Company's petition and grant the Board's cross-application for enforcement.
This case is governed by Section 7 of the NLRA, 29 U.S.C. § 157
, which dictates that "[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." It is a violation of the Act for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157...." Id. § 158(a)(1).
DHL Express, Inc. is an express delivery service that moves mail and freight throughout the United States and in many foreign countries. DHL's only U.S. hub is located on the grounds of the Cincinnati Airport in Erlanger, Kentucky (CVG). Jetliners arriving from domestic and international destinations taxi directly to the sort facility where a sophisticated system for unloading and reloading freight and package containers ensures items reach their final destinations. Over 1,200 workers are employed at the CVG facility which handles between 560,000 and 630,000 packages each week. Most of this loading and unloading activity occurs on the first floor and mezzanine level of the main sort building. The facility operates 24 hours a day with a part-time morning shift, part-time night shift, and a full-time day shift. In 2011, fourteen of DHL's employees were represented by the International Brotherhood of Teamsters. The American Postal Workers Union, AFL–CIO (APWU) had been attempting to organize the Company's remaining employees.
Because the facility is on the grounds of the Cincinnati airport, DHL must comply with the safety and security regulations of the U.S. Customs Service, the Federal Aviation Administration, and the Transportation Security Administration. To comply with these security requirements, ingress and egress to the hallway are controlled, with a security checkpoint located at the far end. The vast majority of DHL employees enter and exit through this main hallway of the administration building. The hallway is used by the company for a variety of purposes. It contains bulletin boards and wall-mounted television screens which display upcoming company events, weather reports, and production statistics. And there are computer stations employees can use during non-work time to view benefit and payroll information and to check personal email.
The Company has also used the hallway for company-sponsored events, scheduled and supervised by management. DHL organized and hosted a Wellness Fair, Financial Fair, Education Fair, Autism
Speaks fundraiser, and a promotion of the DHL-sponsored IndyCar, complete with free t-shirts and hats. These events were scheduled in advance with notice provided to employees, and they were held at the end of the overnight shift. Similarly, the collective bargaining agreement with the Teamsters provided for union access. Per that agreement, the Company permitted distribution of union literature provided the union gave advance notice and allowed DHL to specify the location and timing of the distribution. And the ALJ credited testimony that a fitness company was permitted to offer gym memberships, some employees sold Super Bowl Raffle tickets in the hallway, and off-duty employees talked on cell phones and had other social interactions while transiting the hallway.
However, certain work-related activities do occur in the hallway. Members of DHL's quality control team occasionally use the hallway to move damaged or misdirected packages to the front entrance. And company representatives frequently conduct tours for new employees and visitors, which stop in the hallway.
DHL's Employee Handbook includes a Solicitation and Distribution policy which prohibits "interference from persons who are pursuing a purpose not related to DHL's normal business" and forbids any solicitation by non-employees at any time unless "specifically authorized or sponsored by DHL." JA 56. Solicitation between employees is prohibited during work time or in work areas. See id. DHL also purports to have an "unwritten" policy which requires security staff to prevent employees from loitering or congregating in the hallway, except during company-sponsored or approved events. DHL admits its employees have never been officially notified of this security policy.
In December 2010 and February 2011, four different employees handed out union literature in the hallway. In December when Vida Manuel distributed flyers she was told by security staff that she could not handbill in the hallway. Manuel responded that "she had seen the Teamsters in the hallway doing it before at the tables and she thought she was able to do it also." JA 89, 353. Later that month, Manuel and fellow employees Bob Woodyard and James Hamilton handed out APWU's holiday newsletter, standing by the televisions. They were informed by Jennifer Miller, Captain of Security, that they could not loiter in the hallway but could handbill in the cafeteria or break room. When the employees complained that the Teamsters had been allowed to distribute literature, Miller reiterated that no employees were permitted to loiter in the hallway. Miller notified the Human Resources Manager who repeated the admonition. On February 25, 2011, Manuel, Woodyard, and Charles Teeters stood in the hallway handing out literature and displaying posters. They were again told it was against company policy to loiter and asked to move to the cafeteria, a break room, or an outside area. Each time the off-duty employees distributed literature for about 20 minutes. They left—sometimes reluctantly—when instructed to do so.
The APWU brought two unfair labor practice charges against DHL, alleging that the Company violated Section 8(a)(1) by prohibiting employees from distributing union literature during non-work time in a non-work area of its facility on two occasions in December 2010 and once in February 2011. The Regional Director issued a Complaint on the charges on March 25, 2011.
On May 16 and 17, 2011, during a hearing before an Administrative Law Judge, the parties stipulated that, on three occasions, off-duty DHL employees who were distributing APWU literature in the hallway were told they could not loiter there, informed they could distribute the literature outside or in the cafeteria or breakroom, and were asked to leave the hallway.
The General Counsel claimed the hallway is a non-work area and thus DHL could not prohibit the distribution of union literature there. DHL countered that the hallway is a work area and that it had the right under its distribution policy, the legality of which is not at issue, to prohibit employees from leafletting there and to limit their leafletting to the facility's parking lot, cafeteria, and other non-work areas.
The General Counsel also argued that even if the hallway was a work area, union distribution could not be prohibited because DHL had permitted other types of distribution in that area. DHL contended the other distributions were distinguishable and did not compromise the Company's right to enforce its distribution policy, especially because security-related considerations justified the prohibition.
On July 21, 2011, the ALJ found DHL violated Section 8(a)(1) by preventing off-duty employees from distributing union literature in the hallway—which he described as a "mixed-use" area of the facility. Specifically, the ALJ found DHL "compromised the hallway area by permitting non-work use of it." JA 26–29. DHL raised several exceptions to the decision and the Board issued its own decision and order on December 21, 2011. Two Board members agreed with the ALJ that the hallway constituted a "mixed-use" area in which DHL could not prohibit distribution during non-work time. The third, Member Hayes, concluded the hallway was a work area but would have found a violation because, in his view, the Company's policy discriminated against the union. The Board ordered DHL to cease and desist from enforcing its no-distribution rule and to notify employees that the rule will not be enforced in the hallway.
On January 31, 2012, DHL petitioned for review in this court; the Board filed a cross-application for enforcement.
This court's "role in reviewing an NLRB decision is limited." Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C.Cir.2011)
. "[A] decision of the NLRB will be overturned only if the Board's factual findings are not supported by substantial evidence, or the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." Pirlott v. NLRB, 522 F.3d 423, 432 (D.C.Cir.2008). Substantial evidence is...
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