Groendyke Transport, Inc. v. N.L.R.B.
| Decision Date | 11 February 1976 |
| Docket Number | No. 74--1511,74--1511 |
| Citation | 530 F.2d 137 |
| Parties | 91 L.R.R.M. (BNA) 2405, 78 Lab.Cas. P 11,242 GROENDYKE TRANSPORT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Cliff W. Ratner, Wichita, Kan. (Payne H. Ratner, Jr., Wichita, Kan., on the brief), for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C. (Morton Namrow, Atty., Peter G. Nash, Gen. Counsel, John S. Irving, Jr., Deputy Gen. Counsel, and Patrick H. Hardin, Associate Gen. Counsel, N.L.R.B., Washington D.C., on the brief), for respondent.
Before HILL, HOLLOWAY and BARRETT, Circuit Judges.
Groendyke Transport, Inc., petitions for review of, and to set aside, a decision and order of the National Labor Relations Board and the Board cross-petitions for enforcement for its order entered in Groendyke Transportation, Inc., 211 NLRB No. 139. 1
The Board found that a no-distribution rule of Groendyke prohibiting employees from 'distributing, posting or otherwise circulating handbills or literature of any type on company property during working hours' violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1), and that the discharge of employee Bynum under the rule for offering union literature and an authorization card violated § 8(a)(3) and (1), 29 U.S.C.A. § 158(a)(3) and (1). The Board also found that the company violated § 8(a)(1) by interrogation of employees Bynum and Foster. The Board ordered Groendyke to cease and desist from the unlawful practices and to reinstate Bynum with back pay.
Groendyke argues that the no-distribution rule is valid and that the discharge of Bynum for violation of the rule did not contravene § 8(a)(3) and (1). The company also contends that the remote instances of interrogation were not a sufficient basis for finding a violation of § 8(a)(1). We disagree and decline to set aside the Board's order, and grant enforcement.
The unfair labor practice charges had initially been heard by an Administrative Law Judge who dismissed the entire complaint in two written decisions. 2 In combination these two decisions specifically found that Groendyke 'did not precipitously promulgate the (no-distribution) rule to thwart unionization'; that the no-distribution rule was reasonably enforced; that Bynum had engaged in the distribution of union literature on company time and in work areas; and that he could have been and was lawfully discharged for this reason. The Judge further found that Bynum's termination was not discriminatory (R. 361--62). As to the interrogation charge, the Judge found that there were only isolated acts of interrogation, two to four months before Bynum's discharge, which were too remote and technical to color the discharge with illegality.
As stated, the Board disagreed as to the ultimate findings to be made on the record. The Board essentially adopted the findings of subsidiary facts of the Administrative Law Judge, but made different ultimate findings and conclusions that violations of the Act had occurred. It is for the Board to make such final determinations on the charges. S. A. Healy Co. v. NLRB, 435 F.2d 314, 316 (10th Cir.). The issues before us concern the correctness of those determinations by the Board on the no-distribution rule and Bynum's discharge under it, and the interrogation issue.
In early April, 1972, a Teamsters Local 3 began an organizational campaign among Groendyke's 4 employees culminating in a Board conducted election held on August 31 and September 1, 1972, 5 which the union won. Bynum had been employed by Groendyke as a truck-driver for about fifteen months prior to his discharge on September 5. In April, Bynum learned of the organizational drive, executed a union authorization card, and solicited other drivers on behalf of the union. Bynum was appointed by the union to serve as an observer in the election.
On Saturday, September 2, Bynum went to Groendyke's Channelview terminal, where he was employed, to get his pay check. The Administrative Law Judge specifically found this was a nonwork day for Bynum. When Bynum arrived at the terminal at 10:00 a.m. he was informed that the paychecks would not be available until noon. During this interval Bynum spoke to several off-duty drivers in the driver's lounge and on the parking lot. During these discussions he distributed union bumper stickers and sample collective-bargaining agreements. In addition, he handed out union authorization cards.
Subsequently, Bynum entered a lobby area of the terminal where he happened to see a driver whom he did not recognize. The man was a driver from Groendyke's Beaumont terminal, named Hendrickson. Bynum testified that he didn't know Hendrickson and according to Bynum, Hendrickson 'was just standing in the reception room.' (R. 88). Hendrickson, like Bynum, was awaiting the final preparation of paychecks by the payroll clerk, Felps. However Hendrickson, unlike Bynum, had driven from Beaumont in a company truck and had been assigned the duty of picking up the paychecks for all the drivers out of the Beaumont terminal and returning to the terminal with the checks. Although it was not disputed that Hendrickson was merely 'standing around' when Bynum approached him, the Judge found that Hendrickson 'was engaged in normal work duties in the terminal when he appeared to pick up the paychecks for his fellow employees' (R. 361).
Bynum asked Hendrickson whether he was interested in joining the union. When Hendrickson responded affirmatively, Bynum offered him some union literature and an authorization card. Groendyke's terminal manager, Stinson, observed this exchange and immediately called Bynum into the office and asked whether he was aware of Groendyke's no-distribution rule. When Bynum replied that he was not aware of the rule, Stinson led Bynum to the driver's lounge where the no-distribution rule was posted. Stinson read Bynum the rule:
Employees are prohibited from distributing, posting or otherwise circulating handbills or literature of any type on company property during working hours. Employees violating this rule will be discharged.
Stinson testified that Bynum said he didn't think he was violating the rule; that he told Bynum he thought he was violating the rule; and that he asked Bynum to put the literature in his car until the question was determined. Bynum testified that Stinson told him 'that as long as it was a company policy he would not be allowed to solicit or hand out any literature on company property, and told me to put this literature in my car' (R. 90). Bynum engaged in no further distribution of literature, went to his car, and drove away.
The same afternoon Stinson began procedures to terminate Bynum's employment. After receiving authority from the home office, Stinson terminated Bynum on September 5. The Judge found that Bynum was apprised by Stinson that the Enid office had instructed Stinson to terminate Bynum 'for passing out union literature' (R. 360). It was on these facts that the Board's findings and order adverse to the company were entered.
The company argues, inter alia, that its no-distribution rule was valid on its face, citing Walton Manufacturing Co., 126 NLRB 697, enforced, 289 F.2d 177 (5th Cir.); International Union v. NLRB, 140 U.S.App.D.C. 199, 434 F.2d 473; and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372. It says the evidence showed Bynum was soliciting union membership and distributing union literature in a working area--the payroll clerk's office--while the payroll clerk was working; that the rule was not intended to apply to an employee soliciting a fellow employee, both being off-duty, in a non-working area such as the employees' lounge; that the rule is also presumptively valid as to its promulgation and enforcement; and that its validity may only be rebutted by proof of a discriminatory purpose in adoption or application of the rule (Petitioner's Brief, 10--11).
We start with recognition of the undisputed right of self-organization assured by the Act, and the equally undisputed right of the employers to maintain discipline in their establishments. Republic Aviation Corp. v. NLRB,324 U.S. 793, 797--98, 65 S.Ct. 982, 89 L.Ed. 1372. Republic upheld the Board's determination that 'promulgation and enforcement' of a rule against '(s) oliciting of any type . . . in the factory or offices,' id. at 795, 65 S.Ct. at 987, 988, violated § 8(a)(1) as an unlawful restraint of employees' § 7 rights, there being no showing of unusual circumstances by the company to outweigh the presumption against such rules. Id. at 803--04, 65 S.Ct. 982. Republic did involve both the promulgation and the enforcement of such a rule. Our court has said that adoption of a no-solicitation, no-distribution rule is not, of itself, a violation of § 8(a)(1). See NLRB v. American Coach Co., 379 F.2d 699, 701 (10th Cir.), citing NLRB v. Shawnee Industries, Inc., 333 F.2d 221, 225 (10th Cir.); see also NLRB v. United Steelworkers of America, 357 U.S. 357, 363--64, 78 S.Ct. 1268, 2 L.Ed.2d 1383; Serv-Air, Inc. v. NLRB, 395 F.2d 557, 560 (10th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112.
Shawnee Industries involved broad rules against solicitation and distribution on the premises, but with a provision for approval of distribution and solicitation by management. This court said it saw nothing in the record to sustain an inference that these rules had been or would be used in a forbidden manner. And it was held that the mere promulgation of the rules was not a per se violation of the Act. Shawnee Industries, supra at 225.
Here, however, we have both promulgation and enforcement of a broad rule prohibiting distribution 'on company property during working hours.' And unlike the rules in Shawnee Industries, Groendyke's rule has no provision...
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