Union Carbide Corp. v. N.L.R.B.

• Decision Date: 16 August 1983
• Docket Number: No. 82-1234,82-1234
• Citation: 714 F.2d 657
• Parties: 114 L.R.R.M. (BNA) 2129, 98 Lab.Cas. P 10,382 UNION CARBIDE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 657

714 F.2d 657

114 L.R.R.M. (BNA) 2129, 98 Lab.Cas. P 10,382

UNION CARBIDE CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 82-1234.

United States Court of Appeals Sixth Circuit.

Argued May 19, 1983.

Decided Aug. 16, 1983.

E.H. Rayson (argued), Kramer, Johnson, Rayson, McVeigh & Leake, Knoxville, Tenn., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Howard Perlstein (argued), National Labor Relations Board, Washington, D.C., for respondent.

Before EDWARDS, Chief Judge, and LIVELY and KRUPANSKY, Circuit Judges.

KRUPANSKY, Circuit Judge.

The Union Carbide Corporation has petitioned for review of an order entered against it by the National Labor Relations Board. 259 N.L.R.B. 130 (1982). 29 U.S.C. § 160(f). The Board has cross-petitioned for enforcement of that order. 29 U.S.C. §§ 160(e), (f).

Pursuant to contracts with a federal agency, the Union Carbide Corporation operates three substantial government-owned research and production facilities located in the Oak Ridge, Tennessee area. The three facilities are identified as "Y-12", which is comprised of 325 buildings on 500 acres, "K-25", which has 753 buildings on 1,740 acres, and the "ORNL" facility, with 176 units on a plot of nearly 3,000 acres. Each facility has unique purposes, functions and management; accordingly, collective bargaining is accomplished on a facility-inclusive basis and the hourly workers at these plants are represented by some twenty separate unions.

The Oak Ridge area facilities together employ approximately 11,000 salaried workers, none of whom are represented by a union. The record reflects that since at least 1968, these salaried employees have been the targets of successive unsuccessful organization campaigns. The within dispute results from a particularly aggressive representation campaign directed at the salaried group, launched by the charging party, the Office and Professional Employees International Union, AFL-CIO (OPEIU/Union), at a time when two other unions were also seeking to organize some or all of the same 11,000 Oak Ridge salaried workers. The Union charged, and the Board concluded, that during the course of the competition for representation, the Company committed six violations of the Labor Management Relations Act. 29 U.S.C. § 141 et seq. Specifically, the Board discerned violations of section 8, 29 U.S.C. section 158, and section 7, 29 U.S.C. section 157, in the following actions: ¹

1. Removal of an OPEIU notice from a Y-12 bulletin board;

2. Confiscation of OPEIU notices from an employee;

3. Alleged statements by management portending the loss of benefits should the Union be approved;

4. Confiscation of a "Taxpayer's Petition";

5. A memorandum offering employees "protection" from pressure to join the Union; and,

6. The allegedly retaliatory punishment of an employee active in the organizational drive.

The Board also determined that the Union Carbide Corporation's "no-solicitation" rule was overbroad and, because it tended to restrict employee union activity it was invalid. Union Carbide challenged the Board's disposition of each issue. These objections are accorded appropriate and seriate treatment.

The judicial review provisions of the Act, section 10(e), 29 U.S.C. section 160(e), are explicit and provide that the Board's factual determinations "shall be conclusive" if, upon the entire record they are supported by substantial evidence. Evidence is substantial if it is adequate, in a reasonable mind, to uphold the decision. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). Application of this standard requires the Court to consider the body of evidence which opposes the Board's decision, but prohibits the Court from conducting a de novo review of the record. Id. at 488, 71 S.Ct. at 465. The Court is further foreclosed from setting aside the agency's finding of fact if its findings were supported by substantial evidence, even though the Court may have reached a different conclusion had it originally decided the issue. Id.; McLean Trucking Co. v. National Labor Relations Board, 689 F.2d 605 (6th Cir.1982); Jim Causley Pontiac v. National Labor Relations Board, 620 F.2d 122 (6th Cir.1980). Finally, the assignment of credibility to witnesses is the prerogative of the Board. National Labor Relations Board v. Local 212, Int'l. Union, United Auto., Aerospace and Agricultural Implement Workers of Am. (U.A.W.), 690 F.2d 82 (6th Cir.1982).

Review of the administrative record evidenced that one Union Carbide supervisor, Paul R. Wilson (Wilson), persisted in removing OPEIU "open house" notices from a bulletin board in the Y-12 plant. While other testimony indicated that additional open house notices were removed by non-supervisory salaried personnel, there was no evidentiary support for Union Carbide's assertion that the salaried personnel who removed the OPEIU notices were partisans of the rival unions.

The Labor Management Relations Act does not afford employees a protectable interest in the use of an employer's bulletin board. National Labor Relations Board v. Container Corp. of Am., 649 F.2d 1213 (6th Cir.1981) (per curiam). See also Nugent Service, Inc., 207 N.L.R.B. 158 (1974). Nevertheless, where, by policy or practice, the company permits employee access to bulletin boards for any purpose, section 7 of the Act, 29 U.S.C. section 157, secures the employees' right to post union materials. National Labor Relations Board v. Challenge--Cook Bros. of Ohio, Inc., 374 F.2d 147 (6th Cir.1967). Cf. N.L.R.B. v. Container Corp., supra (enforcing N.L.R.B. decision which held that although there was no statutory right to use the bulletin board, once an employer permitted access to a company board, it could not thereafter remove notices or discriminate against an employee who posted union notices). The content of such notices is protected by the Act even if abusive and insulting. Old Dominion Branch No. 496, National Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); N.L.R.B. v. Container Corp., 649 F.2d at 1215. Notwithstanding the foregoing, however, is the employer's legitimate property interests and concern for the maintenance of order; accordingly, where the bulletin boards threaten to become a "battleground for competing groups", regulation of the posted materials is proper. See Nugent Services, Inc. To hold otherwise would "be unduly prejudicial to the company's property and management rights." Id.

Instantly, the record does not support Union Carbide's assertion that the bulletin boards were becoming "a battleground between rival employee factions". Moreover, the evidence demonstrated that Wilson was in no way concerned about the effects of the representation competition, but, rather, the notices were removed merely because OPEIU had not been recognized as the bargaining agent for the salaried workers. Wilson's premise was therefore an illegitimate one. "No restriction may be placed on the employees' right to discuss self-organization among themselves, unless the employer can demonstrate that a restriction is necessary to maintain production or discipline." National Labor Relations Board v. Babcock & Wilcox Co., 351 U.S. 105, 113, 76 S.Ct. 679, 685, 100 L.Ed. 975 (1956). The employee right to "discuss self-organization" extends to the posting of notices on company bulletin boards where, as here, the company had waived its right of exclusive control over the medium. See N.L.R.B. v. Container Corp., supra.

Accordingly, insofar as the within use of the bulletin boards to post notices of the campaigning union's open house events did not infringe on any legitimate company concern, the Board's order in this regard will be enforced.

The second issue in contention herein also involved supervisor Wilson. At the hearing, employee Jerry Peddicord (Peddicord) testified that he had placed a packet of approximately twenty-five OPEIU notices, of the type which Wilson had removed from the bulletin boards, in a desk drawer used by several employees. Subsequently, he discovered that within hours of his placing the packet in the drawer, it had been removed. Later that same day, Peddicord while retrieving a tool from Wilson's desk found the notices in Wilson's desk drawer. (The ALJ found that Peddicord identified the notices from the unique manner in which he had folded them.) Wilson later denied taking the notices, but admitted they were in his possession. Wilson did not testify at the administrative hearing and, while Peddicord's testimony was uncorroborated, it was also uncontradicted. The Board further found Peddicord's testimony to be credible. Accordingly, the ALJ concluded "that Wilson's confiscation of Peddicord's Union notices also violated Section 8(a)(1) of the Act inasmuch as it clearly interfered with his right to possess and distribute his materials in nonwork areas on nonwork time."

Union Carbide contends that "Peddicord's circumstantial evidence is insubstantial in the face of Wilson's denial and the other evidence. Moreover, Peddicord was clearly not a disinterested witness and his unsupported conclusions should not be sufficient evidence of an unfair labor practice." Thus, Union Carbide relies on the principle that "the uncorroborated testimony of an interested charging party does not amount to substantial evidence of an unfair labor practice." N.L.R.B. v. Container Corp., 649 F.2d at 1216; National Labor Relations Board v. Ostego Ski Club-Hidden Valley, Inc., 542 F.2d 18, 19 (6th Cir.1976) (per curiam); National Labor Relations Board v. Elias Bros. Big Boy, Inc., 327 F.2d 421 (6th Cir.1964).

The paradigmatic factual setting in which this principle has been invoked involves the testimony of an interested, charging party, who objectively has something to gain from a self-serving statement of the facts, which is directly contradicted by the...