Nat'l Labor Relations Bd. v. Labor Ready, 00-2064

• Decision Date: 05 April 2001
• Docket Number: No. 00-2064,00-2064
• Parties: (4th Cir. 2001) NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LABOR READY, INCORPORATED, Respondent. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 195

253 F.3d 195 (4th Cir. 2001)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LABOR READY, INCORPORATED, Respondent.

No. 00-2064

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 5, 2001

Decided: June 1, 2001

On Application for Enforcement of an Order of the National Labor Relations Board.

(9-CA-34950)

COUNSEL ARGUED: Kevin L. Carr, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West Virginia, for Petitioner. Anne Marie Lofaso, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board. ON BRIEF: Niall Anthony Paul, Charles I. Woody, SPILMAN, THOMAS & BATTLE, P.L.L.C., Charleston, West Vir- ginia, for Petitioner. Leonard R. Page, General Counsel, John H. Fer- guson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Margaret A. Gaines, Supervisory Attor- ney, Sonya Spielberg, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board.

Before WILKINS, KING, and GREGORY, Circuit Judges.

Enforcement granted by published opinion. Judge Wilkins wrote the opinion, in which Judge King and Judge Gregory joined.

OPINION

WILKINS, Circuit Judge:

The National Labor Relations Board (NLRB) seeks enforcement of an order that, inter alia, bars Labor Ready, Incorporated from treating certain workers as non-employees for purposes of the company's no- solicitation policy. Labor Ready asks us to deny enforcement and to overturn the NLRB's finding that it engaged in unfair labor practices. We affirm the decision of the NLRB and grant its petition for enforce- ment.

I.

A.

Labor Ready is a temporary employment agency with over 200 offices nationwide. Workers seeking placement through Labor Ready must fill out an application and complete certain orientation proce- dures, including safety training. Applications are kept on file, and workers who have submitted applications ("incumbent workers") return to the office whenever they desire an assignment. An incum- bent worker who does not want an assignment on any given day is not obligated to request or accept one.

Assignments ordinarily last one day. Labor Ready branches observe either of two policies regarding the manner by which assign- ments are distributed; one policy allows workers to receive assign- ments by telephone, while the other requires workers to go to the Labor Ready office every morning and wait for assignments.¹ Those who receive assignments return to the office at the end of the day for their paychecks. At the end of each day, the worker is contractually "deemed to have quit." J.A. 463.

While in the waiting room, incumbent workers and new applicants are not permitted to engage in any form of solicitation. The following policy applies in Labor Ready offices:

NO SOLICITATION POLICY

It is our objective to provide a comfortable work environ- ment which allows employees to complete their tasks with the least amount of interruptions or disruptions. Thus Labor Ready has established the following policy:

- Nonemployees (including job applicants) are not allowed at any time to come upon Com- pany premises for the purpose of any form of solicitation or literature distribution. This pol- icy prohibits third parties or strangers from soliciting or handing out materials for any rea- son, including but not limited to, political, union, charitable, or similar activities. For the purposes of this policy, applicants for employ- ment, including but not limited to those waiting for a job assignment or referral, are considered nonemployees, strangers or third parties.

- Employees are prohibited from distributing any form of literature or other materials in work areas. Employees are also prohibited from soliciting or distributing literature of any kind or for any cause during their assigned working time or soliciting an employee during that employee's working time at our site or a cus- tomer's site.

Id. at 485 (emphasis added).²

B.

Donald Huff is a heavy equipment operator and an employee of the Affiliated Construction Trades Foundation, a union-affiliated organi- zation. In 1996, Huff became involved in a unionization drive directed at Labor Ready and the businesses to which Labor Ready supplied temporary workers. As part of this effort, Huff submitted an application at the Labor Ready office in South Charleston, West Virginia. One week later, he brought in a busload of union members to file applications.

Huff received an assignment lasting several days in December 1996. Initially, Huff was paid at the end of each day, and then the assignment was renewed by telephone the next day. After a few days, however, he was issued a weekly time ticket; a few days after that, he received a paycheck for several days of work.

At some point, the South Charleston Labor Ready office changed its procedure for distributing assignments; whereas incumbent work- ers previously could receive assignments by telephone, the new policy required them to appear at the office early in the morning and remain there to await placement. In response, Huff and three other men began circulating a petition at the Labor Ready office on December 30, 1996, requesting that Labor Ready resume telephone placements. The manager of the South Charleston office, Michael Tucker, directed them to stop, and they complied. After consulting with the union, however, Huff resumed circulating the petition. Tucker repeatedly ordered him to stop, but Huff and his associates refused, asserting that their activity was protected under the National Labor Relations Act (NLRA), 29 U.S.C.A. SS 151-169 (West 1998).

The following week, there was a video camera set up on a tripod in the Labor Ready waiting room and pointed toward the table where Huff and his associates usually sat with their petition. Tucker told Huff the video camera was on but refused to explain why it was there. The next day, Huff found his regular table occupied and observed that the camera had been turned toward the only other available table in the waiting room.

Over the next several weeks, Huff continued organizing at the South Charleston Labor Ready office and extended his efforts to the office in Huntington, West Virginia. His activities culminated in a confrontation with Tucker on February 25, 1997. On that day, Tucker repeatedly told Huff to stop circulating his petition on Labor Ready premises, or Tucker would call the police. Huff refused, again claim- ing that his activities were protected under the NLRA. Initially, the video camera was not in the waiting room, but Tucker brought it out and set it up to record Huff's activities. Tucker then called the police. The police told Huff to leave the premises, and he did so.

As a result of this incident, Huff was removed from the roster of incumbent workers. When Huff subsequently returned his hard hat and boots to the South Charleston office, Tucker advised him that he was "permanently barred" from all Labor Ready offices nationwide. J.A. 351.

C.

In response to Huff's banishment, the union filed a charge with the NLRB alleging various unfair labor practices. An administrative law judge (ALJ) found that Labor Ready had violated the NLRA in sev- eral respects. In particular, the ALJ found, based on two alternative rationales, that Labor Ready improperly treated Huff as a non- employee. The ALJ's broader rationale construed Supreme Court pre- cedent to require that all job applicants be treated as employees for NLRA purposes. See id. at 4 (citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182-87 (1941) (holding that the NLRA prohibits employers from refusing to hire job applicants because they are union members)). The narrower rationale focused on the specific facts of this case: "[Huff] was . . . an employee, because he had actually been sent to work by [Labor Ready], his application for employment was on file, and he was waiting at [Labor Ready's] office for another assignment, as [Labor Ready's] rule required." Id. (footnote omitted). In connection with this fact-specific approach, the ALJ determined that the Labor Ready policy requiring its workers to quit at the end of each day "was a rule . . . only on paper and not in practice," because workers were sometimes assigned to jobs lasting several days or more and paid for multiple days of labor in a single paycheck. Id.

A three-member panel of the NLRB affirmed the decision of the ALJ. The panel generally relied on the ALJ's reasoning but added, "In adopting the [ALJ's] conclusion that[Labor Ready] violated [the NLRA] by its no-solicitation rules, we emphasize the particular facts of this case." Id. at 1. The panel further adopted the ALJ's order, which bars Labor Ready from restricting solicitation among incum- bent workers;³ prohibits video surveillance of employees; grants Huff reinstatement (at his election) and back pay; and mandates the posting of an announcement addressing these concerns. The NLRB now seeks enforcement of this order.

II.

The NLRA secures the right of employees "to engage in . . . con- certed activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C.A. S 157. Interference with this right constitutes an unfair labor practice. See id. S 158(a)(1). As inter- preted by the Supreme Court, these provisions create a presumption that prohibitions against solicitation among employees are invalid, while a countervailing presumption protects the right of employers to exclude non-employee solicitors. See Lechmere, Inc. v. NLRB, 502 U.S. 527, 532-33 (1992); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956). Thus, the validity of the restrictions enforced by Labor Ready depends on whether incumbent workers were "employ- ees" for purposes of the NLRA.⁴

The NLRA defines the word "employee" to include "any employee," subject to specified exceptions. 29 U.S.C.A. S 152(3). We extend considerable deference to the NLRB's interpretation of this provision and its application of the provision to a particular worker or class of workers. See NLRB...