Guardian Industries Corp. v. N.L.R.B.

• Decision Date: 28 February 1995
• Docket Number: 94-2664,Nos. 94-2388,s. 94-2388
• Citation: 49 F.3d 317
• Parties: 148 L.R.R.M. (BNA) 2665, 63 USLW 2555, 129 Lab.Cas. P 11,286 GUARDIAN INDUSTRIES CORP., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 317

49 F.3d 317

148 L.R.R.M. (BNA) 2665, 63 USLW 2555,

129 Lab.Cas. P 11,286

GUARDIAN INDUSTRIES CORP., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 94-2388, 94-2664.

United States Court of Appeals Seventh Circuit.

Argued Jan. 18, 1995.

Decided Feb. 28, 1995.

Todd M. Nierman (argued), Michael R. Maine, Baker & Daniels, Indianapolis, IN, for petitioner.

Charles P. Donnelly, Jr., Joseph Oertel (argued), N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Saudria Bordone, Joanne Krause, N.L.R.B., Region 25, Indianapolis, IN, for respondent.

Before COFFEY and EASTERBROOK, Circuit Judges, and McDADE, District Judge. ^*

EASTERBROOK, Circuit Judge.

During an organizational campaign, supporters of the union asked management to post notices of union meetings on the firm's bulletin board. The employer refused, and the NLRB held that this decision violated Sec. 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), because it interfered with self-organization and other concerted activities protected by Sec. 7 of the Act. According to the Administrative Law Judge, whose opinion the Board adopted, whenever the employer permits employees the slightest access to a bulletin board, it must permit the posting of union notices; anything else is forbidden "discrimination" against the employees' right to organize. Guardian Industries will post, on employees' behalf, anonymous 3 X 5 cards announcing items such as used cars for sale. Having extended employees this limited, indirect access to the bulletin board, the Board found, Guardian Industries necessarily committed itself to post notices of union meetings.

We start from the proposition that employers may control activities that occur in the workplace, both as a matter of property rights (the employer owns the building) and of contract (employees agree to abide by the employer's rules as a condition of employment). Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992); Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978). This has led the Supreme Court to state that the NLRA "does not command that labor organizations ... are entitled to use a medium [of communications in the workplace] simply because the employer is using it." NLRB v. Steelworkers Union, 357 U.S. 357, 364, 78 S.Ct. 1268, 1272, 2 L.Ed.2d 1383 (1958). Section 7 of the Act protects organizational rights--including the right to oppose the union's campaign--rather than particular means by which employees may seek to communicate. Just as the right of free speech and association in the political marketplace does not imply that the government must subsidize political parties by distributing their literature without charge or giving them billboards on public buildings, so the right of labor organization does not imply that the employer must promote unions by giving them special access to bulletin boards. NLRB v. Honeywell, Inc., 722 F.2d 405, 406 (8th Cir.1983); Container Corp. of America, 244 N.L.R.B. 318, 318 n. 2 (1979), enforced in relevant part, 649 F.2d 1213 (6th Cir.1981). What the employer (like the state in political matters) may not do is discriminate against speech and organizational efforts, making them more costly than they would be if the employer left the employees to their own devices. NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974); NLRB v. Methodist Hospital of Gary, Inc., 733 F.2d 43, 47 (7th Cir.1984); National By-Products, Inc. v. NLRB, 931 F.2d 445, 452- 53 (7th Cir.1991). This antidiscrimination principle is the basis of the Board's rule that giving the employees any access to a bulletin board requires the employer to accept notices relating to labor organization. Honeywell, 722 F.2d at 406; Union Carbide Corp. v. NLRB, 714 F.2d 657 (6th Cir.1983); St. Anthony's Hospital, 292 N.L.R.B. 1304, 1307 (1988).

Discrimination is a form of inequality, which poses the question: "equal with respect to what? ". A person making a claim of discrimination must identify another case that has been treated differently and explain why that case is "the same" in the respects the law deems relevant or permissible as grounds of action. See generally Peter Westen, Speaking of Equality: An Analysis of the Rhetorical Force of "Equality" in Moral and Legal Discourse (1990). The event comparable to the announcement of a union meeting, according to the Board, is the index card offering a fellow employee the opportunity to buy a newly born puppy. Yet in what respects are for-sale notices and bulletins of organizational meetings "the same"? It would be much easier to say that if the employer uses the bulletin board to call a meeting at which managers will denounce the union, then it is discriminatory not to let union adherents have equal space and equal time; yet an employer may announce assemblies to be held on company time, while requiring union supporters to meet on their own time. May Department Stores Co. v. NLRB, 316 F.2d 797 (6th Cir.1963). If that is so, then it is hard to see why allowing employees to tell each other about cribs that have been outgrown implies that the employer must dedicate space to the union's organizational notices.

At the time the union's supporters sought to put up announcements of meetings, the company did not allow any employee placards except what it calls swap-and-shop notices. Some years ago, it allowed two announcements of weddings and two of fund-raising events for employees stricken by illness. The Board does not contend that broad-sides for such events were still being posted by the time the organizational campaign began--and it does not say that the employer stopped allowing them in order to curtail claims by unions for access, which might imply a forbidden animus. Guardian Industries does not now, and apparently never did, allow general announcements of meetings. The Boy Scouts, the Kiwanis, the VFW, the Red Cross, the United Way, the employee credit union, local schools and churches--and meetings promoting and opposing unions--were and are uniformly excluded from its bulletin board. We therefore must ask in what sense it might be discriminatory to distinguish between for-sale notes and meeting announcements.

Labor law is only one of the many bodies of federal doctrine implementing an antidiscrimination principle. Let us try out the Board's understanding of "discrimination" on some of these other fields. Suppose the Postal Service, a public employer bound by the first amendment, allowed letter carriers to post baby pictures on bulletin boards in the workplace. Would it be "discriminatory" for the Postal Service to decline a request to post a notice of an anti-abortion rally? The schedule of worship services at the local Roman Catholic church? A solicitation by the NAACP seeking donations? Employers may not discriminate against older workers. Would it be age discrimination for Guardian Industries not to post a notice inviting employees to a meeting of the Grey Panthers or the American Association of Retired Persons?

None of these limitations would be "discrimination" in any intelligible sense. In the Postal Service case a court would call the bulletin board a nonpublic forum, which may be confined to particular purposes or kinds of notices without running afoul of the rule that the government may not discriminate against disfavored viewpoints and subject matters. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), holding that an employer may limit workplace channels of communication to specific kinds of messages without violating the constitutional prohibition against viewpoint discrimination. Cf. United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990); Lee v. International Society for Krishna Consciousness Inc., --- U.S. ----, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992). Indeed, the Court has held that a public employer may open its internal mail system to communications about civic and church meetings, while keeping it closed to communications on behalf of unions. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). A public body that adopts "a general policy of open access" for advertising display cases (a parallel to bulletin boards) may not exclude ads it finds unpalatable, Air Line Pilots Ass'n v. Department of Aviation, 45 F.3d 1144, 1154 (7th Cir.1995); see also Planned Parenthood Ass'n/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225 (7th Cir.1985), but it need not establish open access as its policy and therefore does not discriminate in an unacceptable way if it excludes particular subject-matter from its cases. Air Line Pilots Ass'n, 45 F.3d at 1158-60. And in the age case the court would shrug, pointing out that age discrimination means treating persons 40 and over differently from those who are younger; if the employer does not post notices for activities that attract young employees (say, the schedule of the employees' intramural football teams), it does not have to extend favors to older workers.

Courts evaluating claims of discrimination search for disparate treatment and sometimes for disparate impact. A rule distinguishing pro-union organization from anti-union organization would be disparate treatment. A rule banning all organizational notices (those of the Red Cross along with meetings pro and con unions) is impossible to understand as disparate treatment of unions. Perhaps one could see it that way if the employer adopted the rule because of, rather than in spite of, its effect on unions' ability to communicate, see Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979), but the Board did not accuse Guardian Industries of designing...