Labor Law (Spring 2024)

An introduction to U.S. private-sector labor law and policy

  • Amy L. Cocuzza

U.S. private-sector labor law is so dynamic that a printed casebook likely will be outdated shortly after the date of publication. Using an open-source online text allows me to keep the content current (while saving students from having to purchase an expensive and quickly obsolete text). 

I will continue to edit this casebook throughout the semester to add/edit cases. 

5 Employer Domination under Section 8(a)(2); Organizing a Union 5 Employer Domination under Section 8(a)(2); Organizing a Union

5.1 Employer Domination & Assistance 5.1 Employer Domination & Assistance

5.1.1 Electromation, Inc. 5.1.1 Electromation, Inc.

Electromation, Inc.

and

International Brotherhood Of Teamsters, Local Union No. 1049, AFL-CIO[1] 1  

 

and

 

“Action Committees,” Party Of Interest

 

Case 25-CA-19818

December 16, 1992

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH

On April 5, 1990, Administrative Law Judge George F. McInerny issued the attached decision. The Respondent filed exceptions and a supporting brief.

On May 14, 1991, the Board scheduled oral argument in this case because it raised important 8(a)(2) and (1) issues. On September 5, 1991, the Respondent, the General Counsel, and the Union, and as amici curiae, the American Federation of Labor and Congress of Industrial Associations, the Chamber of Commerce of the United States of America, the Council on Labor Law Equality, the Coalition of Management for Positive Employment, Training, and Education, Labor Policy Association, Manufacturers' Alliance for Productivity and Innovation, and Charles J. Morris, Professor Emeritus of Law, Southern Methodist University, presented oral argument before the Board. The parties and the amici curiae have filed statements of position and briefs.[2]

The Board has considered the decision and the record in light of the exceptions, briefs, and oral arguments and has decided to affirm the judge's rulings, findings, and conclusions as modified below.[3]

This case presents the issue of whether “Action Committees” composed, in part, of the Respondent's employees constitute a labor organization within the meaning of Section 2(5) of the Act and whether the Respondent's conduct vis a vis the “Action Committees” violated Section 8(a)(2) and (1) of the Act. In the notice of hearing of May 14, 1991, the Board framed the pertinent issues as follows:

(1) At what point does an employee committee lose its protection as a communication device and become a labor organization? (2) What conduct of an employer constitutes domination or interference with the employee committee?

For the reasons below, we find that the Action Committees were not simply “communication devices” but instead constituted a labor organization within the meaning of Section 2(5) of the Act and that the Respondent's conduct towards the Action Committees constituted domination and interference in violation of Section 8(a)(2) and (1). These findings rest on the totality of the record evidence, and they are not intended to suggest that employee committees formed under other circumstances for other purposes would necessarily be deemed “labor organizations” or that employer actions like some of those at issue here would necessarily be found, in isolation or in other contexts, to constitute unlawful support, interference, or domination.

I.

The Respondent is engaged in the manufacture of electrical components and related products. It employs approximately 200 employees. These employees were not represented by any labor organization at the time of the events described herein.

In late 1988 the Respondent concluded that it was experiencing unacceptable financial losses. It decided to cut expenses by altering the existing employee attendance bonus policy and, in lieu of a wage increase for 1989, distributed year-end lump- sum payments based on length of service. Shortly after these changes were announced, the Respondent became aware that employees were displeased with the reduction in benefits. In early January 1989,[4] the Respondent received a petition signed by 68 employees expressing displeasure with the new attendance policy. Upon receipt of this petition, the Respondent's president, John Howard, met with the Respondent's supervisors to discuss the petition and the employees' complaints. At this meeting, the Respondent decided to meet directly with employees to discuss their problems. Thereafter, on January 11, the Respondent met with a selected group of eight employees[5] and discussed with them a number of issues, including wages, bonuses, incentive pay, attendance programs, and leave policy.

After the January 11 meeting, President Howard again met with his supervisors and concluded that the Respondent had serious problems with its employees. Howard testified that it was decided at that time that “it was very unlikely that further unilateral management action to resolve these problems was going to come anywhere near making everybody happy ... and we thought that the best course of action would be to involve the employees in coming up with solutions to these issues.” Howard testified further that management came up with the idea of “action committees” as a method to involve employees.

The Respondent next met with the same group of eight employees on January 18. Howard explained to the assembled group that management had distilled the employees' complaints into five categories. Howard testified that he proposed the creation of Action Committees that “would meet and try to come up with ways to resolve these problems; and that if they came up with solutions that ... we believed were within budget concerns and they generally felt would be acceptable to the employees, that we would implement these suggestions or proposals.” Howard testified further that the reaction of the assembled employees to the concept of action committees was “not positive.” Howard explained to the employees that because “the business was in trouble financially ... we couldn't just put things back the way they were ... we don't have better ideas at this point other than to sit down and work with you on them.” According to Howard, as the meeting went on, the employees “began to understand that that was far better than leaving things as they were, and that we weren't going to just unilaterally make changes. And so they accepted it.” Howard agreed that employees would not be selected at random for the committees based on seniority and that, instead, sign-up sheets would be posted.

On January 19, the Respondent posted a memorandum directed to all employees announcing the formation of five Action Committees and posted sign-up sheets for each Action Committee. The memorandum explained that each Action Committee would consist of six employees and one or two members of management, as well as the Respondent's Employees Benefits Manager, Loretta Dickey, who would coordinate all the Action Committees. The sign-up sheets explained the responsibilities and goals of each Committee. No employees were involved in the drafting of the policy goals expressed in the sign-up sheets. The Respondent determined the number of employees permitted to sign-up for the Action Committees. The Respondent informed two employees who had signed up for more than one committee that each would be limited to participation on one committee. After the Action Committees were organized, the Respondent posted a notice to all employees announcing the members of each Committee and the dates of the initial Committee meetings. The Action Committees were designated as (1) Absenteeism/Infractions, (2) No Smoking Policy, (3) Communication Network, (4) Pay Progression for Premium Positions, and (5) Attendance Bonus Program.

The Action Committees began meeting in late January and early February.[6] The Respondent's coordinator of the Action Committees, Dickey, testified that management expected that employee members on the Committees would “kind of talk back and forth” with the other employees in the plant, get their ideas, and that, indeed, the purpose of the Respondent's postings was to ensure that “anyone [who] wanted to know what was going on, they could go to these people” on the Action Committees.[7] Other management representatives, as well as Dickey, participated in the Action Committees' meetings, which were scheduled to meet on a weekly basis in a conference room on the Respondent's premises. The Respondent paid employees for their time spent participating and supplied necessary materials. Dickey's role in the meetings was to facilitate the discussions.

On February 13, the Union made a demand to the Respondent for recognition. There is no evidence that the Respondent was aware of organizing efforts by the Union until this time. On about February 21, Howard informed Dickey of the recognition demand and, at the next scheduled meeting of each Action Committee, Dickey informed the members that the Respondent could no longer participate but that the employees could continue to meet if they so desired. The Absenteeism/Infraction and the Communication Network Committees each decided to continue their meetings on company premises; the Pay Progression Committee disbanded; and the Attendance Bonus Committee decided to write up a proposal they had discussed previously and not to meet again. The Attendance Bonus Committee's proposal was one of two proposals that the employees had developed concerning attendance bonuses. The first one, developed at the committee's second or third meeting, was pronounced unacceptable by the Respondent's controller, a member of that committee, because it was too costly. Thereafter the employees devised a second proposal, which the controller deemed fiscally sound. The proposal was not presented to President Howard because the Union's campaign to secure recognition had intervened.

On March 15, Howard informed employees that “due to the Union's campaign, the Company would be unable to participate in the committee meetings and could not continue to work with the committees until after the election,” which was to be held on March 31.

On the foregoing evidence, the judge found that the Action Committees constituted a labor organization within the meaning of Section 2(5). He noted that employees, supervisors, and managerial personnel served as committee members and that their discussions concerned conditions of employment. The judge found that the Respondent dominated and assisted the committees on the basis of evidence that the Respondent organized the committees, created their nature and structure, and determined their functions. The judge also noted that, although management did not dominate meeting discussions, meetings took place on company property, supplies and materials were provided by management, and members were paid for time spent on committee work.[8]

In its exceptions and brief, the Respondent contends that the Action Committees were not statutory labor organizations and did not interfere with employee free choice. It notes that no proposals from any committee were ever implemented, that the committees were formed in the absence of knowledge of any union activity, and that they followed a tradition of similar employer-employee meetings.

II.

Section 2(5) of the Act defines a “labor organization” as follows:

The term “labor organization” means any organization of any kind, or any agency or employee representation committee or plan, inwhich employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

Section 8(a)(2) provides that it shall be an unfair labor practice for an employer
to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.

Whenever we are attempting to determine the application of the statute to particular facts, we must first determine whether the statutory language standing alone answers the question. Here, we cannot properly limit our analysis to the statutory language because the terms are not all self-defining. For example, although the “Action Committees” are committees in which “employees participate,” the parties have raised questions about the meaning of “representation” in the phrase “employee representation committee.” We therefore seek guidance from the legislative history to discern what kind of activity Congress intended to prohibit when it made it an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization” or to contribute support to it.[9]

The legislative history reveals that the provisions outlawing company dominated labor organizations were a critical part of the Wagner Act's purpose of eliminating industrial strife through the encouragement of collective bargaining. Early in his opening remarks Senator Wagner stated:

Genuine collective bargaining is the only way to attain equality of bargaining power.... The greatest obstacles to collective bargaining are employer-dominated unions, which have multiplied with amazing rapidity since the enactment of [the National Industrial Recovery Act]. Such a union makes a sham of equal bargaining power.... (O)nly representatives who are not subservient to the employer with whom they deal can act freely in the interest of employees. For these reasons the very first step toward genuine collective bargaining is the abolition of the employer dominated union as an agency for dealing with grievances, labor disputes, wages, rates, or hours of employment.[10]

Because of the Wagner Act’s purpose to eliminate employer dominated unions, the term “labor organization” was defined broadly. Indeed, even though the original Senate Bill (S. 2976) broadly defined “labor organization” as “any organization, labor union, association, corporation, or society of any kind in which employees participate to any degree whatsoever and which exists for the purpose ... of dealing with employers concerning grievances, labor disputes, wages, rates of pay, or hours of employment, or conditions of work” [emphasis added], [11] the Wagner Act, as finally enacted, expanded the initial part of the definition in order to encompass common forms of company dominated unions that had arisen following passage of the National Industrial Recovery Act. Professor Edwin E. Witte was influential in securing the enacted broader definition of “labor organization.” Professor Witte expressed concern whether the legislation as introduced would include the most prevalent form of company-dominated union, the employee representation committee, which Professor Witte described as “the loose organization if you can call it an organization, that has no members, no dues, that is merely a method of electing representatives.”[12] Senator Wagner's explanation of the revised definition reveals that the revision's purpose was to include this form of dominated labor organization within the statutory definition:[13]

It has been argued frequently by employers as well as by protagonists of the bill last year that an employee representation plan or committee arrangement is not a labor organization or a union but simply a method of contact between employers and employees. But the act is entitled to prescribe its own definitions of labor organizations, for its own purposes, and it is clear that unless these plans, etc., are included in the definition, whether they merely “deal” or “adjust,” or exist for the purpose of collective bargaining, most of the activity of employers in connection therewith which we are seeking to outlaw would fall outside the scope of the act. The act would thus be entirely nullified. If, as employers insist, such “plans,” etc., are lawful representatives of employees, then employer activity relative to them should clearly be included.

With respect to employer conduct that was to come within the ambit of Section 8(a)(2) itself, it is noteworthy that the original Senate bill (S. 2926) made it an unfair labor practice for an employer to “initiate, participate in, supervise, or influence the formation, rules, and other policies of a labor organization.”[14] After considering testimony that certain unaffiliated employee organizations confined to representing employees on a single employer basis often operated in an amicable and cooperative atmosphere, the Senate sponsors modified Section 8(a)(2) specifically to permit employees to confer with their employer during working hours without loss of time or pay.[15] In this regard it is also noteworthy that the modified version contained in S. 1958 substituted the term “to dominate or interfere with the formation or administration” for the terms “initiate, participate in, supervise, or influence.” As Senator Wagner explained:[16]

The provision in S.1958 makes express that it is an unfair practice to dominate or interfere with the formation of a labor organization or to contribute support in some manner, equally destructive of self-organization, but other than “financial.” While possibly an employer should not be penalized for merely suggesting to his employees that they organize a union or a committee, i.e., for “initiating” a labor organization, it cannot be argued that an employer should be free to help form the labor organization by engaging actively in its sponsorship, and in the drafting of its bylaws, etc. As the testimony before the committee last year and this year amply demonstrates, it is at the stage of “formation” that employer activity is most effective and harmful.

Thus, Congress concluded that ridding collective bargaining of employer-dominated organizations, the formation and administration of which had been fatally tainted by employer “domination” or “interference,” would advance the Wagner Act's goal of eliminating industrial strife. That conclusion was based on the nation's experience under the NIRA, recounted by witnesses at the Senate hearings, that employer interference in setting up or running employee “representation” groups actually robbed employees of the freedom to choose their own representatives. Senator Wagner here made a distinction, important for this inquiry, between interference and minimal conduct—“merely suggesting to his employees that they organize a union or committee”—that the nation's experience had shown did not rob employees of their right to a representative of their own choosing. As Senator Wagner stated:[17]

The question is entirely one of fact and turns upon whether or not the employee organization is entirely the agency of the workers.... The organization itself should be independent of the employer-employee relationship.

In sum, Congress brought within its definition of “labor organization” a broad range of employee groups, and it sought to ensure that such groups were free to act independently of employers in representing employee interests.[18]

III.

Before a finding of unlawful domination can be made under Section 8(a)(2) a finding of “labor organization” status under Section 2(5) is required.[19] Under the statutory definition set forth in Section 2(5), the organization at issue is a labor organization if (1) employees participate, (2) the organization exists, at least in part, for the purpose of “dealing with” employers, and (3) these dealings concern “conditions of work” or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment. Further, if the organization has as a purpose the representation of employees, it meets the statutory definition of “employee representation committee or plan” under Section 2(5) and will constitute a labor organization if it also meets the criteria of employee participation and dealing with conditions of work or other statutory subjects.[20] Any group, including an employee representation committee, may meet the statutory definition of “labor organization” even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues. Fire Alert Co., 182 NLRB 910, 912 fn. 12 (1970), enfd. 77 LRRM 2895 (10th Cir. 1971); Armco, Inc., 271 NLRB 350 (1984). Thus, a group may be an “employee representation committee” within the meaning of Section 2(5) even if there is no formal framework for conducting meetings among the represented employees (i.e. those employees whose conditions of employment are the subject of committee dealings) or for otherwise eliciting the employees' views.

As noted in our discussion of the Wagner Act’s legislative history, Congress viewed the abolition of employer-dominated organizations as essential to the Act's purpose. After Congress passed the Act in 1935, a first order of business for the Board, backed by the Supreme Court, was to weed out employer-dominated organizations. Indeed, the very first unfair labor practice case decided by the Board raised the issues of whether an organization was a labor organization under Section 2(5) and whether the employer had dominated that organization in violation of Section 8(a)(2) and (1). Pennsylvania Greyhound Lines, 1 NLRB 1 (1935), enfd. denied in part 91 F.2d 178 (3d Cir. 1937), revd. 303 U.S. 261 (1938). In that case, the Board, as affirmed by the Supreme Court, found that the organization at issue was an employee representation plan under Section 2(5), that the organization was entirely the creation of management, which planned it, sponsored it, and foisted it on employees who had never requested it, and that the organization's functions were described and given to it by management. 1 NLRB at 13-14.

The Greyhound plan was entirely typical of the “employee representation plans or committees” perceived as so pernicious by Senator Wagner and ultimately by Congress. Greyhound management founded the association in 1933. The manager charged with establishing the association wrote that

it is to our interest to pick out employees to serve on the committee who will work for the interest of the company and will not be radical. This plan of representation should work out very well providing the proper men are selected, and considerable thought should be given to the men placed on this responsible Committee.

Thus, Greyhound usurped from the employees their protected right to a bargaining representative of their own choosing when it set up and accorded recognition to a “committee” that was in no way an agent of the employees or loyal to their interests— although Greyhound management certainly intended that the committee appear to possess both those attributes.

In considering the interplay between Section 2(5) and Section 8(a)(2), we are guided by the Supreme Court's opinion in NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). In Cabot Carbon the Court held that the term “dealing with” in Section 2(5) is broader than the term “collective bargaining” and applies to situations that do not contemplate the negotiation of a collective-bargaining agreement.[21] The Court also found that the 1947 amendment of Section 9(a),[22] and the defeat of a proposed amendment to the 1947 Taft-Hartley Act that would have permitted an employer to form or maintain a committee of employees to discuss with it conditions of employment in the absence of an established bargaining representative, demonstrated that there was nothing in the 1947 amendments indicating that Congress intended to eliminate dominated employee representation committees from the term “labor organization” as defined in Section 2(5) and as used in Section 8(a)(2).

As the Cabot Carbon Court explained in detail, Taft-Hartley House and Senate conferees rejected a proposed new Section 8(d)(3) passed by the House that would have expressly permitted “forming or maintaining by an employer of a committee of employees and discussing with it matters of mutual interest, including grievances, wages, hours of employment, and other working conditions” in the absence of a certified or recognized bargaining representative. The conference report as finally approved by the House and Senate did not contain the House's proposed new Section 8(d)(3) or any similar language. Instead, Section 9(a) was amended. Examining this legislative history, the Cabot Carbon Court noted that Section 8(a)(2) remained wholly unchanged and, with respect to Section 9(a), the Court found that there was nothing in the amendment of Section 9(a) that authorized an employer to engage in “dealing with” an employer-dominated “labor organization.”[23]

Notwithstanding that “dealing with” is broadly defined under Cabot Carbon, it is also true that an organization whose purpose is limited to performing essentially a managerial or adjudicative function is not a labor organization under Section 2(5). In those circumstances, it is irrelevant if the impetus behind the organization's creation emanates from the employer. See General Foods Corp., 231 NLRB 1232 (1977) (employer created job enrichment program composed of work crews of entire employee complement); Mercy-Memorial Hospital, 231 NLRB 1108 (1977) (committee decided validity of employees' complaints and did not discuss or deal with employer concerning the complaints); John Ascuaga's Nuggett, 230 NLRB 275, 276 (1977) (employees' organization resolved employees' grievances and did not interact with management).

Although Section 8(a)(2) does not define the specific acts that may constitute domination, a labor organization that is the creation of management, whose structure and function are essentially determined by management, as in Pennsylvania Greyhound Lines, supra, and whose continued existence depends on the fiat of management, is one whose formation or administration has been dominated under Section 8(a)(2). In such an instance, actual domination has been established by virtue of the employer's specific acts of creating the organization itself and determining its structure and function.[24] However, when the formulation and structure of the organization is determined by employees, domination is not established, even if the employer has the potential ability to influence the structure or effectiveness of the organization. See Duquesne University, 198 NLRB 891, 892-893 (1972). Thus, the Board's cases following Cabot Carbon reflect the view that when the impetus behind the formation of an organization of employees emanates from an employer and the organization has no effective existence independent of the employer's active involvement, a finding of domination is appropriate if the purpose of the organization is to deal with the employer concerning conditions of employment. See, e.g., Ambox, Inc., 146 NLRB 1520, 1530-1531 (1964); Grafton Boat Co., 173 NLRB 999, 1002-1003 (1968); Clapper's Mfg., 186 NLRB 324, 334 (1970), enfd. 458 F.2d 414 (3d Cir. 1972); Liberty Markets, 236 NLRB 1486, 1492 (1978); Ona Corp., 285 NLRB 400, 406-407 (1987).

The Board's analysis of Section 2(5) and Section 8(a)(2) generally has met with judicial approval. See, e.g., NLRB v. Pennsylvania Greyhound Lines, supra; NLRB v. Newport News Shipbuilding Co., supra; NLRB v. Cabot Carbon Co., supra; NLRB v. Clapper's Mfg., supra; NLRB v. Fremont Mfg. Co., 558 F.2d 889 (8th Cir. 1977); NLRB v. Walton Mfg. Co., 289 F.2d 177 (5th Cir. 1961); NLRB v. Stow Mfg. Co., 217 F.2d 900 (2d Cir. 1954); NLRB v. Standard Coil Products Co., 224 F.2d 465 (1st Cir. 1955).[25] The Board, however, has been less than successful in the Sixth Circuit. See, e.g., NLRB v. Scott & Fetzer Co., 691 F.2d 288 (6th Cir. 1982); Airstream, Inc. v. NLRB, 877 F.2d 1291 (6th Cir. 1989).

In Airstream, the employer had formed a “President's Advisory Council,” told employees to choose representatives, and discussed with these representatives an attendance bonus system. In Scott & Fetzer, the employer had established an in-plant committee, provided for representatives, and adjusted its vacation eligibility policy after a committee meeting. The Sixth Circuit found that neither of the organizations at issue was a labor organization under Section 2(5). In Scott & Fetzer, the court relied on the absence of antiunion animus or evidence that the employees viewed the Committee at issue as anything other than a communication device. In addition, the court relied on views expressed in two earlier cases from the circuit that had turned on the absence of evidence showing domination within the meaning of Section 8(a)(2). 691 F.2d at 293. In Airstream, the court held that the employee council was similar to the committee in Scott & Fetzer, and it also relied on its finding that the employer took no action regarding employee complaints during the course of a union campaign. 877 F.2d at 1297-1298.

As noted previously (fn. 24), Board precedent and decisions of the Supreme Court indicate that the presence of antiunion motive is not critical to finding an 8(a)(2) violation. We also see no basis in the statutory language, the legislative history, or decisions apart from Scott & Fetzer to require a finding that the employees believe their organization to be a labor union.[26] Instead, our inquiry is two-fold. First, we inquire whether the entity that is the object of the employer's allegedly unlawful conduct satisfies the definitional elements of Section 2(5) as to (1) employee participation, (2) a purpose to deal with employers, (3) concerning itself with conditions of employment or other statutory subjects, and (4) if an “employee representation committee or plan” is involved, evidence that the committee is in some way representing the employees. Second, if the organization satisfies those criteria, we consider whether the employer has engaged in any of the three forms of conduct proscribed by Section 8(a)(2).

Of course, Section 2(5) literally requires us to inquire into the “purpose” of the employee entity at issue because we must determine whether it exists “for the purpose of dealing” with conditions of employment. But “purpose” is different from motive; and the “purpose” to which the statute directs inquiry does not necessarily entail subjective hostility towards unions. Purpose is a matter of what the organization is set up to do, and that may be shown by what the organization actually does. If a purpose is to deal with an employer concerning conditions of employment, the Section 2(5) definition has been met regardless of whether the employer has created it, or fostered its creation, in order to avoid unionization or whether employees view that organization as equivalent to a union.[27]

IV.

Applying these principles to the facts of this case, we find, in agreement with the judge, that the Action Committees constitute a labor organization within the meaning of Section 2(5) of the Act; and that the Respondent dominated it, and assisted it, i.e., contributed support, within the meaning of Section 8(a)(2).

First, there is no dispute that employees participated in the Action Committees. Second, we find that the activities of the committees constituted dealing with an employer. Third, we find that the subject matter of that dealing—which included the treatment of employee absenteeism and employee remuneration in the form of bonuses and other monetary incentives— concerned conditions of employment. Fourth, we find that the employees acted in a representational capacity within the meaning of Section 2(5). Taken as a whole, the evidence underlying these findings shows that the Action Committees were created for, and actually served, the purpose of dealing with the Respondent about conditions of employment.

As discussed in section I, the Action Committees were created in direct response to the employees' disaffection concerning changes in conditions of employment that the Respondent unilaterally implemented in late 1988. These changes resulted in a petition that employees presented to the Respondent. President Howard testified that after a January 11 meeting with a group of employees selected by management, he realized that the Respondent had serious problems with the employees and that “it was very unlikely that further unilateral management action to resolve these problems” would succeed. (Emphasis supplied.) Accordingly, the Action Committees were created in order to achieve a bilateral solution to these problems. Employees on the Action Committees, according to Howard, were to meet with their management counterparts and, “try to come up with ways to resolve these problems.” Howard also explained what would happen to any solutions that came out of the Action Committees. Howard testified that if the Committee's solutions satisfied the Respondent's budgetary concerns, “we would implement those suggestions or proposals.”

Discussions that ensued in the Attendance Bonus Committee, for example, were fully consistent with the process that President Howard envisioned. Thus, an initial proposal formulated by employees was rejected by the Respondent's controller as too costly. A second proposal was presented and deemed fiscally sound by the controller. The proposal was to be reduced to writing, but because of the onset of the union campaign, its presentation to Howard for formal acceptance was sidetracked. The failure to implement any proposals, therefore, was not attributable to the manner in which the Action Committees were created or functioned but rather was due to the unanticipated onset of the union campaign.

The evidence thus overwhelmingly demonstrates that a purpose of the Action Committees, indeed their only purpose, was to address employees' disaffection concerning conditions of employment through the creation of a bilateral process involving employees and management in order to reach bilateral solutions on the basis of employee-initiated proposals. This is the essence of “dealing with” within the meaning of Section 2(5).[28]

It is also clear that the Respondent contemplated that employee-members of the Action Committees would act on behalf of other employees. Thus, after talking “back and forth” with their fellow employees, members were to get ideas from other employees regarding the subjects of their committees for the purpose of reaching solutions that would satisfy the employees as a whole. This could occur only if the proposals presented by the employee-members were in line with the desires of other employees. In these circumstances, we find that employee-members of the Action Committees acted in a representational capacity and that the Action Committees were an “employee representation committee or plan” as set forth in Section 2(5).[29]

There can also be no doubt that the Respondent's conduct vis a vis the Action Committees constituted “domination” in their formation and administration. It was the Respondent's idea to create the Action Committees. When it presented the idea to employees on January 18, the reaction, as the Respondent's President Howard admitted, was “not positive.” Howard then informed employees that management would not “just unilaterally make changes” to satisfy employees’ complaints. As a result, employees essentially were presented with the Hobson's choice of accepting the status quo, which they disliked, or undertaking a bilateral “exchange of ideas” within the framework of the Action Committees, as presented by the Respondent. The Respondent drafted the written purposes and goals of the Action Committees which defined and limited the subject matter to be covered by each Committee, determined how many members would compose a committee and that an employee could serve on only one committee, and appointed management representatives to the Committees to facilitate discussions.[30] Finally, much of the evidence supporting the domination finding also supports a finding of unlawful contribution of support. In particular, the Respondent permitted the employees to carry out the committee activities on paid time within a structure that the Respondent itself created.[31]

On these facts, we find that the Action Committees were the creation of the Respondent and that the impetus for their continued existence rested with the Respondent and not with the employees. Accordingly, the Respondent dominated the Action Committees in their formation and administration and unlawfully supported them.

We also agree with the judge that the Respondent did not effectively disestablish the Action Committees upon receipt of the union's bargaining demand. Thus, some of the Committees continued to meet and President Howard, in his speech to employees on March 15, implied that the Respondent would be involved with the Action Committees “after the election.”

In sum, this case presents a situation in which an employer alters conditions of employment and, as a result, is confronted with a work force that is discontented with its new employment environment. The employer responds to that discontent by devising and imposing on the employees an organized Committee mechanism composed of managers and employees instructed to “represent” fellow employees. The purpose of the Action Committees was, as the record demonstrates, not to enable management and employees to cooperate to improve “quality” or “efficiency,” but to create in employees the impression that their disagreements with management had been resolved bilaterally. By creating the Action Committees the Respondent imposed on employees its own unilateral form of bargaining or dealing and thereby violated Section 8(a)(2) and (1) as alleged.

 

ORDER

The National Labor Relations Board orders that the Respondent, Electromation, Inc., Elkhart, Indiana, its officers, agents, successors, and assigns, shall

  1. Cease and desist from
    (a) Dominating, assisting, or otherwise supporting the Action Committees created in January 1989 at its Elkhart plant.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

  1. Take the following affirmative action necessary to effectuate the policies of the Act.
    (a) Immediately disestablish and cease giving assistance or any other support to the Action Committees.

(b) Post at its facility in Elkhart, Indiana copies of the attached notice marked “Appendix.”[32] Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places were notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(c) Notify the Regional Director in writing within 20 days from the date of this order what steps the Respondent has taken to comply.

IT IS FURTHER ORDERED that all allegations contained in the complaint found not to constitute unfair labor practices are dismissed.

 

MEMBER DEVANEY, concurring.

I agree that the Respondent violated Section 8(a)(2) and (1) by “dominating or supporting” the Action Committees, which were “labor organizations” under Section 2(5). I write separately in response to concerns, raised by the parties and amici on both sides of the issue, over the lawfulness under Section 8(a)(2) of contemporary employee participation programs.

Like my colleagues, I acknowledge that a genuine “employee participation program” is not before the Board today, and, in agreeing that the Respondent violated Section 8(a)(2), I do not pass on the status of any other arrangement.[33] It is my position, however, notwithstanding the concerns of some amici, that legislative history, binding judicial precedent, and Board precedent provide significant latitude to employers seeking to involve employees in the workplace. In my view, Section 8(a)(2) prohibits a specific form of employer conduct. It is not a broad-based ban on employee/employer communications.[34] Thus, adjudication of the dealings between an employer and an employee organization must begin with an understanding of exactly what harms to Section 7 rights Section 8(a)(2) was intended to prevent and a targeting of Section 8(a)(2) enforcement at exactly those harms.

I base these conclusions on the following observations. First a “pure” employee participation plan was not before Congress in 1935 and has never been before the Supreme Court. Second, the legislative history of the Wagner Act, although replete with expressions of outright alarm over the development of employer-dominated sham “unions,” shows virtually no concern over employer-initiated programs concerned with efficiency, quality, productivity, or other essentially managerial issues. Third, Board law itself has also recognized that employer-supported “committees” may take forms that are lawful under Section 8(a) (2). Based on the above, I would answer the question, posed by one amicus, thus: Section 8(a)(2) should not create obstacles for employers wishing to implement employee involvement programs—as long as those programs do not impair the right of employees to free choice of a bargaining representative.

  1. Legislative history

Section 8(a)(2) originated in Congress' conviction that “company unions” interfered with free exercise of the right of organization for collective bargaining, recognized in Section 7(a) of the National Industrial Recovery Act (NIRA).[35] The 1934 and 1935 Wagner Act hearings of the Senate Labor and Education Committee, as well as the Committee report and the floor debate on the bill, evince three characteristics especially relevant to today's debate over employee participation. First, Wagner Act supporters roundly condemned employer-dominated company unions for undermining Section 7(a) rights by usurping the right of employees to choose their own collective-bargaining representative, if such were the will of the majority. This substitution of the employer's will for the employees', witnesses charged, resulted in two practical injuries relevant here: by creating the illusion of a bargaining representative without the reality, it denied employees wishing representation the service of a loyal and effective agent,

and it frustrated employees' impulses toward genuine self-organization and the securing of a representative of their own choosing. Second, critics of so-called “employee representation plans or committees,” as well as their defenders, understood by those terms a particular type of organization, discussed in detail during the hearings. Third, condemnation of the employer-dominated union was accompanied by assurances to critics of the bill that the Wagner Act would not outlaw all forms of employer-employee communications.

More than 75 separate “employee representation plans” were discussed during the 1935 hearing alone. See testimony of NLRB member Edwin S. Smith on the post-1933 development of the plans. Hearings before *1000 Senate Committee on Education and Labor on S. 2926, 73d Cong., 2d Sess., reprinted in I Legislative History of the National Labor Relations Act (Leg. Hist.), 1935, p. 1546.

With respect to employee committees or plans, the Senate committee heard that the creation of company unions, sometimes by force, accelerated dramatically after passage in 1933 of the NIRA. By 1934, “employee representation plans” covered over 1 million employees and, in some cases, purported to represent employees who had had no say in the matter at all. Testimony before the Committee refers repeatedly to “employee representation plans,” the phrase used as a term of art to describe scores of organizations, similar in structure, initiated by employers in response to Section 7(a). Employer organizations drafted and circulated documents entitled “employee representation plans.” The “plans” included in the record of the hearings are remarkably similar in structure and contain numerous paragraphs with virtually identical wording. For example, 6599 workers under a “plan of employee representation” at the Sparrows Point, Md. Bethlehem Steel plant elected 78 representatives in March 1933. The plan's aims, as stated by an employee representative, were

to adjust grievances and prevent injustice; to serve as a means for collective bargaining on wages, hours, and working conditions; to provide for the exchange of information and opinions between management and employees; to educate employees and executives to understand the viewpoint and problems of each other; to promote efficiency, economy, safety, and to strengthen morale.

Hearings, S. 2926, I Leg. Hist. 836 ff.

These employees were usually paid for representing their fellows; as a Bethlehem Steel representative testified, “[w]e are reimbursed for the time spent on committee work which we think is fair and it certainly does not bias us in any sense of the word.” Id. at 845.

Such assurances failed to convince Congress that “employee representation plans” adequately provided for—or left substantially unharmed—free exercise of employees' right to organize and bargain collectively through representatives of their own choosing. In wording the statute, therefore, the Senate followed the counsel of Edwin Witte, who criticized the proposed statutory definition of a labor organization, “[a]ny organization, labor union, association, corporation or society of any kind, in which employees participate to any degree whatsoever, which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, or hours of employment,” as unlikely to encompass the “employee representation plan”:

I am not certain that [the proposed language] includes what is known as the “employee representation” committee, which is the most prevalent form of company union. There are two forms of company unions, the employee association and the employee representation committee, a mere election of representatives, no organization whatsoever, and of course, no dues.... [M]y own preference would be to distinguish between labor organizations and employee representation committees.

Id. at 272.

Witte then assured the Committee chairman that his suggested language, which was ultimately adopted, embraced “practically all of the new company unions that have been started since the [NIRA] was passed, [which] are not unions in any proper sense of the term at all, they are loose plans for the election of representatives only.” The statutory language ultimately passed reflects Witte's caution that the law should cover, not just independent labor unions, but the “unions” employers were establishing for employees—the “employee representation committees.” It appears, then, that the definition of “labor organization” is intended to bring under the purview of Section 8(a)(2)'s strictures the phenomenon of the company-imposed sham bargaining agent, without reference to other types of employer-employee communication with purposes other than bargaining. Thus, it appears that Congress intended to outlaw a particular type of employer/employee dealing—that which involved unfair pressure on employees in their choice of a bargaining representative through the substitution, in full or in part, of the will of the employer for the will of a majority of employees.[36]

Yet the company union was not viewed as an evil in every incarnation; as the Committee reported to the Senate, “these abuses do not seem ... so general that the Government should forbid employers to indulge in the normal relations and innocent communications which are part of all friendly relations between employer and employee.... The object ... is to remove from the industrial scene unfair pressure, not fair discussion.” Senate Report No. 1184, 73rd Cong., 2d Sess., 1 Leg. Hist. 1104. The Report makes the point that other forms of employer-dominated employee organizations, e.g., benefit funds, would not be affected.

In light of this history, I read the statutory definition of “labor organization” in Section 2(5) as encompassing two general types of organizations: first, an external organization or agency (reflecting the focus of the prior proposed definition) and second, an “employee representation committee or plan” (representing Witte's additions), the nature of which, as discussed above, is to act as an in-house representative of employees, but which may have no other purpose, and indeed, no other existence. There is no indication that Congress intended to outlaw all forms of communication, and in fact, there is very strong evidence to the contrary. As the Committee explicitly stated, “normal relations and innocent communications” are not prohibited.

  1. Supreme Court interpretation

Although the Supreme Court has noted the breadth of the statutory language of Section 8(a)(2), its construction of the statute provides no basis for concluding that Section 8(a)(2) outlaws broad areas of employer/employee communication. In NLRB v. Cabot Carbon Corp.,[37] the Court faced an organization markedly similar to the “employee representation plan.”[38] Cabot established employee committees, drafted bylaws for them, submitted the bylaws to employees for approval, and, in describing the committees in its employee handbook, in essence accorded them limited recognition. The bylaws charged the committees with considering employee ideas and areas of mutual interest, including grievances.[39] In finding the committees to be labor organizations, the Court relied on their grievance handling: “these Committees existed, at least in part, for the purpose of 'dealing with employers concerning grievances....' This alone brings the Committees squarely within the statutory definition of 'labor organizations.' ”[40] The Court did not reach the issue, critical to contemporary employee participation programs, of whether the committee's discussion of other “problems of mutual interest” such as “safety; increased efficiency and production; conservation of supplies, materials and equipment; encouragement of ingenuity and initiative” would have resulted in a finding that the committees were labor organizations.[41]

Thus, the early history of Section 8(a)(2) is replete with condemnations of sham unions, in whatever form they might take, that purport to represent employees in bargaining. This same early history, however, is devoid of condemnation or criticism of organizations wherein employees provide input with respect to issues such as “safety; increased efficiency and production; conservation of supplies, materials and equipment; encouragement of ingenuity and initiative.”

  1. Board law

As I suggested above, the Board has recognized that the role, the areas of concern, and the composition of employee committees, among other factors, affect their status under Section 8(a)(2) and that committees of employees can and do function in ways that are not unlawful. Although these cases are few in number, their results should be encouraging to those who would foster genuine employee empowerment and participation. In these cases, a surprisingly broad range of employer/employee communications have been found compatible with Section 8(a)(2).

a. Employee goal-setting and self-regulation

In General Foods,[42] the Board upheld the finding that employee “teams,” implemented as part of a job enrichment plan, were not labor organizations. Each team “acting by a consensus of its members, [made] job assignments to individual team members, assign[ed] job rotations, and schedule [d] overtime among team members.”[43] In finding these “committees of the whole” not to be labor organizations, the judge, adopted by the Board, found that “the essence of a labor organization ... is a group or a person which stands in an agency relationship to a larger body on whose behalf it is called upon to act.”[44] The judge found that the teams' authority to regulate themselves resulted not from “dealings” between the teams and the company, but from unilaterally delegated authority; thus, the powers constituted simple job duties, albeit rather unusual ones.[45]

b. Delegated managerial functions: grievance resolution

In John Ascuaga's Nugget,[46] the Board reversed findings that an “Employees Council” initiated by the employer to resolve employee grievances and consisting of both managers and rank-and-file employees was a statutory labor organization. The Board found that the council did not “deal with” the employer by acting “in some sense as the employees' advocates.”[47] Instead, the Board found, the council performed the managerial function of adjudicating employee grievances.

In Mercy-Memorial Hospital,[48] a similar grievance committee involving employee and managers was found not to be labor organization where “the committee was created simply to give employees a voice in resolving the grievances of their fellow employees ... not by presenting to or discussing or negotiating with management but by itself deciding the validity of the employees' complaints....”[49]

c. Communication as a management tool

In Sears, Roebuck & Co.,[50] the Board upheld a judge’s finding that the employer’s “communications committee” was not a labor organization. The committees were composed of one employee from each department, selected by a rotation system. Although the judge credited testimony that employees raised matters relating to wages and benefits, the purpose of the committee was to be a management tool intended to increase company efficiency, rather than an employee representative or advocate.[51]

I am in wholehearted agreement with the thrust of these cases, and I find in them guidelines for consideration of future cases involving alleged violations of Section 8(a)(2). Most importantly, contrary to my colleagues, I would not be inclined to find that an employee group constituted a statutory labor organization unless the group acted as a representative of other employees. General Foods, supra.[52] My reading of the legislative history fully supports the judge's conclusion in General Foods that a “labor organization” purports to be, first and foremost, an agent or advocate for employees, and should be a loyal and exclusive agent. Where an employee committee does not act as the agent or advocate of other employees, an employer's dealings with the committee will not cause the harm Section 8(a)(2) is intended to correct: the usurpation by the employer of the employees' right to choose their own bargaining representative and the concomitant frustration of their fundamental freedom of choice and action guaranteed by Section 7. In determining whether an employee organization functioned as a representative of employees, I would look to the organization's authority: have the employees, the employer, or both empowered this group to speak for other employees? Thus, contrary to the arguments of some amici, I can envision that an organization would have a representation function even where employees themselves did not view it as such; I note that part of the harm Section 8(a)(2) was intended to correct arose out of the attempt to create in employees the perception that they were enjoying the benefits of bargaining representation when in fact they were not.

Further, I would not be inclined to find that an employer's mere solicitation of ideas or suggestions from an employee group constitutes “dealing with” that group. Sears, Roebuck, & Co., supra. I note that Cabot Carbon's rejection of the notion that “dealing with” is synonymous with collective bargaining failed to delineate the lower limits of the conduct: if “dealing with” is less than bargaining, what is it more than?[53] The legislative history indicates that the term “bargaining” was viewed as too narrow in light of the fact that many “employee representation plans” never culminated in collective-bargaining agreements or even in the alteration of a single term or condition of employment, regardless of the frequency of meetings or the ostensible authority of the employee committees.[54] There is, however, no basis for concluding that Congress intended to include under “dealing with” communication of information or ideas. Further, as in Sears, I would be reluctant to find that the occasional discussion of mandatory subjects of bargaining by a “communication committee,” the purpose of which was clearly communication or brainstorming, meant that the committee “dealt with” employers concerning those subjects. In keeping with Sears, then, I would be inclined to interpret “dealing with” as involving a process more bilateral in nature than soliciting and/ or accepting employee suggestions or ideas.

  1. The Action Committees

The record here indicates overwhelmingly that the Action Committees are not “normal relations and innocent communications” between employer and employee that Congress intended to leave undisturbed. Instead, the facts demonstrate why Congress couched the prohibition of company unions in broad terms. The Action Committees do not correspond to the historical “employee representation plans.” Yet the Action Committees' effect on Section 7 rights is precisely the harm Congress sought to avert in Section 8(a)(2). In this regard, the Respondent, in spite of the expressed reluctance of employees and with no assurance of majority support, established the Action Committees for the purpose of “bargaining” with them over terms and conditions of employment. The Respondent itself chose the Action Committee members and charged them with representing their fellows, overriding employee preferences as to how the representatives would be chosen. By these acts, the Respondent substituted its will for that of a majority of employees and usurped their right to choose their own representative. In addition, the Action Committees effectively put the Respondent on both sides of the bargaining table; the company excluded the subject of wages from the committees' agenda, in spite of employee preference that it be discussed, and the controller “pre-screened” employee proposals so that the Respondent would have only palatable proposals to consider. Thus, the Action Committees gave employees the illusion of a bargaining representative without the reality of one. Further, the subject matter of the Action Committees, as set out by the Respondent, did not consist of concerns about productivity, efficiency, materials conservation, safety, and the like: instead, the Committees were set up to bargain over terms and conditions of employment. Nor did they constitute employee participation or empowerment committees: they were intended to give the impression that decisions resulting from their activities were “bilateral,” yet the Respondent was in control of their subject matter and of the content of their proposals. By establishing committees that purported to act as the agent of employees in the bilateral consideration of problems, but in reality acted as its own agent, the Respondent unlawfully “dominated and supported” a labor organization in violation of Section 8(a)(2).

The Respondent, joined by some amici, maintains that the Action Committees were not formed with knowledge of a union campaign or to avoid unionization. Several amici urge that the Board require a showing under Section 8(a)(2), as it does under Section 8(a)(3), that an employer's actions were motivated by antiunion animus. Without passing on whether a lack of antiunion animus can never be a factor in a successful Section 8(a)(2) defense,[55] I would find the issue of the Respondent's motivation irrelevant, in light of the clear evidence that the Respondent actually bargained with the committees. In essence, the Respondent recognized for purposes of collective bargaining a labor organization that did not represent a majority of its employees. In such cases, unlawful motive is immaterial.[56]

This discussion of current law under Section 7 is certainly not exhaustive—it is not meant to be and cannot be. It is meant to indicate that current binding precedent under Section 8(a)(2) requires an approach sensitive to the damage to employee Section 7 rights that sham bargaining agents inflict and to the realization, present both in Congressional deliberations and in Board law itself, that genuine employee involvement is in no way inimical to the free exercise of the right of employees to choose a bargaining representative, if one is desired.

 

MEMBER OVIATT, concurring.

American companies, their employees, and labor unions representing those employees are at present confronted with diverse competitive forces requiring an array of different responses if those companies are to remain competitive in the world economy.To the extent present laws are interpreted to apply restrictions and road blocks to companies’ ability to perform more efficiently and to respond promptly to competitive conditions, the more difficult will be the common task of achieving or retaining equality. This is a time of testing for the American and world economies and we must proceed with caution when we address the legality of innovative employee involvement programs directed to improving efficiency and productivity. I view the violations found here as clear cut, however. Accordingly, I join in the majority opinion, but I do so as much for what the opinion does not condemn as an unfair labor practice as for what it does find to be a violation of Section 8(a)(2) and (1). Thus, I write separately to stress the wide range of lawful activities which I view as untouched by this decision.

In my view, the critical question in most cases of alleged violations of Section 8(a)(2) through domination or support of an entity that includes employees among its membership is whether the entity is created with any purpose[57] to deal with “grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work” as set forth in the Section 2(5) definition of “labor organization.” In this case, I have no doubt that the subject matter of the Action Committees falls comfortably within the definition. The Committee's purpose was to address and find solutions for issues related to absenteeism, pay progression, attendance bonuses, and no-smoking policies. These are plainly among the subject matters about which labor organizations traditionally bargain since they involve “wages” or “conditions of work.”[58]

There is, however, an important area of industrial relations where committees and groups of employees and managerial personnel act together with the purpose of communicating, addressing and solving problems in the workplace that do not implicate the matters identified in Section 2(5).[59] Among the employee-participation groups that may be established by management are so- called “quality circles” whose purpose is to use employee expertise by having the group examine certain operational problems such as labor efficiency and material waste. See, Beaver, Are Worker Participation Plans “Labor Organizations” Within the Meaning of Section 2(5)? A Proposed Framework of Analysis, Lab. L. J. 226 (1985). Other such committees have been dubbed “quality-of work-life programs.” These involve management's attempt to draw on the creativity of its employees by including them in decisions that affect their work lives. These decisions may go beyond improvements in productivity and efficiency to include issues involving worker self-fulfillment and self-enhancement. See, Fulmer and Coleman, Do Quality-of Work-Life Programs Violate Section 8(a)(2)?, 35 Lab. L. J. 675 (1984). Others of these programs stress joint problem-solving structures that engage management and employees in finding ways of improving operating functions. See, Lee, Collective Bargaining and Employee Participation: An Anomalous Interpretation of the National Labor Relations Act, 38 Lab. L. J. 206, 207 (1987). And then there are employee-management committees that are established by a company with the purpose of creating better communications between employer and employee by exploring employee attitudes, communicating certain information to employees, and making management more aware of employee problems. See, Beaver, supra.

Where there is a labor union on the scene, these employee-management cooperative programs may act as a complement to the union. They can not, however, lawfully usurp the traditional role of the Union in representing the employees in collective bargaining about grievances, wages, hours, and terms and conditions of work. Where no labor union represents the employees, these programs are often established to open lines of communication so that the operation may take advantage of employee technical knowledge and expertise. See, Note, New Standards For Domination and Support Under 8(a)(2), 82 Yale Law Journal 510, 511 (1973).[60]

Certainly, I find nothing in today's decision that should be read as a condemnation of cooperative programs and committees of the type I have outlined above. The statute does not forbid direct communication between the employer and its employees to address and solve significant productivity and efficiency problems in the workplace. In my view, committees and groups dealing with these subjects alone plainly fall outside the Section 2(5) definition of “labor organization” since they are not concerned with grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. Indeed, in this age of increased global competition I consider it of critical importance that management and employees be able, indeed, are encouraged, to engage in cooperative endeavors to improve production methods and product quality.

It is with this understanding of the scope of the majority decision that I join in its reasoning and result.[61]

 

 MEMBER RAUDABAUGH, concurring.

I. INTRODUCTION

My colleagues find a violation of Section 8(a)(2) in this case. I concur. However, because I believe that this case genuinely raises the broader issue of whether Section 8(a)(2) should be reinterpreted and because of the significance of this issue as applied to employee participation programs, I write this separate concurrence.[62]

The Respondent set up the employee committees as a means of resolving disputes with its employees. The committees were designed to function as a communications device between management and the employees. The Respondent's employees were not represented by a union. The Respondent was not motivated by antiunion reasons. The complaint alleges that this conduct was unlawful under Section 8(a)(2). The case therefore raises the question whether Section 8(a)(2) should be reinterpreted in light of the growing importance of cooperative labor-management efforts.

Cooperative programs are seen by many as a necessary response to competition in a global economy. That is the reason this case was selected for oral argument. That is the reason so much attention has been focused on it. And that is the reason I expressly address the issues of law and policy that have been raised by the parties and the amici concerning employee participation programs in situations like that of the instant case where employees are not represented by an exclusive collective-bargaining representative.

In writing separately, I suggest an analytical approach for reinterpreting Section 8(a)(2), and I offer practical guidance to employees, unions, employers, and the public concerning what may be permitted and what is forbidden by Section 8(a)(2) in situations where employees are not organized. There are also many EPPs in organized settings.[63] My analysis, however, is limited to the factual context of the instant case and I do not, therefore, address the questions raised by EPPs in the context of collective-bargaining relationships. A different set of questions, including the application of Section 8(a)(5), arises when EPPs are considered in a setting where the employees have selected an exclusive collective-bargaining representative.

II. THE EMERGENCE OF EMPLOYEE PARTICIPATION PROGRAMS

Employee participation in decision-making in the workplace and cooperative efforts between employers and employees began to emerge as significant phenomena in the late 1970s.[64] Although a wide variety of factors may have converged to create the conditions for these phenomena, some stand out more clearly than others. The preeminence of the United States in world markets began to face a serious and growing international challenge, productivity of our domestic industry began to decline, and the composition and nature of work underwent enormous changes.[65] Partly because of the use of cooperative methods by the Japanese, U.S. firms began to consider such methods for their own workplaces.[66]

The interest in EPPs has generated much discussion in the legal community about the potential conflict between labor- management cooperation and the National Labor Relations Act.[67] The central concern of the parties and amici in this case is whether EPPs are compatible with the Act. That is the focus of my separate opinion.

III. LEGAL ANALYSIS

The Board's Power to Interpret the Act

The Board is the body established by Congress to interpret the Act. The Board's power is broad but it is not without limits. The Supreme Court has stated:
[It] is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy.... The function of striking [the balance between competing interests] to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the [Board], subject to limited judicial review.[68]

The Board has been given the “special function of applying the general provisions of the Act to the complexities of industrial life.”[69] However, in construing the statute the Board must determine whether Congress has clearly spoken to the issue and whether the Board's construction of the Act is consistent with prior interpretations of the statute by the Supreme Court.[70] The Supreme Court made this aspect of the Board's duty very clear in Lechmere Inc. v. NLRB:

Once we have determined a statute's clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency's later interpretation of the statute against our prior determination of the statute's meaning.[71]

Under this standard, the Board lacks the authority to reinterpret Section 8(a)(2) of the Act in light of changed circumstances (e.g., the advent of modern EPPs) if that reinterpretation is inconsistent with a prior Supreme Court interpretation of Section 8(a)(2).

In light of the above, the threshold question for any analysis of Section 8(a)(2), in the context of modern EPPs, is whether the Supreme Court has determined a clear meaning of the Act which precludes accommodation of EPPs within the statutory scheme. If it has, then the Board is barred from reinterpreting the Act to accommodate EPPs, and those seeking a lawful place for EPPs must seek new legislation. If the Court has not made such a determination, then the Board is free to reinterpret the Act in light of changed circumstances.

For the reasons set forth below, I believe that the Supreme Court's decision in NLRB v. Cabot Carbon Co.,[72] precludes a reinterpretation of the definition of labor organization set forth in Section 2(5) of the Act. However, I believe that the Supreme Court's decision in NLRB v. Newport News Shipbuilding Co.,[73] does not bar a reinterpretation of the proscriptions of Section 8(a)(2).

IV. THE 2(5) DEFINITION OF “LABOR ORGANIZATION”

Section 2(5) defines “labor organization” as: “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

There are three critical elements in this definition of a labor organization: (1) employees must participate in it; (2) it must exist for the purpose, in whole or in part, of “dealing” with an employer; and (3) the subject of the “dealing” must be “grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”[74]

The first element is almost always present in EPPs and has not been the subject of litigation. By definition and by practice, employees participate in these programs.

The most important decision interpreting the second element is the Supreme Court's opinion in NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959). The Court held that the term “dealing” in Section 2(5) is broader than the term “collective-bargaining” and includes such activities as presenting grievances and making recommendations. That holding set the parameters for an analysis of whether EPPs are labor organizations.

The committees at issue in Cabot Carbon were established by the employer pursuant to a suggestion of the War Production Board in 1943. The committee bylaws, as summarized by the Court, stated: “The purpose of the Committees is to provide a procedure for considering employees’ ideas and problems of mutual interest to employees and management.”(Footnote omitted.).[75] It was undisputed that the committees met regularly with representatives of management, handled grievances, and made proposals and requests to management on a wide range of subjects including seniority, working schedules, and improvement of working facilities and conditions.

In construing the term “dealing” in Section 2(5), the Court rejected the contention that the phrase was synonymous with the phrase “bargaining.” Reviewing the legislative history of the Wagner Act, the Court concluded: “It is therefore quite clear that Congress, by adopting the broad term 'dealing' and rejecting the more limited term 'bargaining collectively,' did not intend that the broad term 'dealing with' should mean only 'bargaining with.' ”[76] The Court then noted that, under the terms of the committees' bylaws, the committees had the responsibility to handle grievances at nonunion plants and departments, and in fact had done so. The Court concluded that the committees therefore existed, at least in part, for the purpose of dealing with employers concerning grievances and that this, alone, brought them within the statutory definition of a labor organization.

The Court then set forth an additional basis for the finding of labor organization status. It noted that the committees regularly made proposals and requests to management on many matters involving the employment relationship. The employer argued that these activities did not constitute “dealing” because the proposals were only recommendations, with the final decision left to the employers' discretion. The Court rejected the argument, noting that the power to accept or reject is inherent in all “dealing.”

The Court's construction of the term “dealing” is very broad. Consistent with the breadth of the Court's holding, the Board's exceptions to the Cabot Carbon standard have been narrow. For example, the Board has found that if the employee committee can itself resolve grievances, with no need to go to the employer, there is no “dealing.”[77] Similarly, the Board has determined that if employees are divided into work crews which have the power to resolve employment-related problems, there is no “dealing” between those crews and the employer.[78]

It would appear that most EPPs would fit within the broad Cabot Carbon standard of “dealing with.” Most EPPs involve the presentation of proposals or ideas to management, and a management response to those proposals or ideas. Further, a review of the literature on EPPs suggests that the facts of the above-described exceptions are atypical. As noted, most EPPs involve some interaction between the committee and management.[79] It is rare for full grievance-handling authority to be delegated to a committee without any further interaction with management. To date, it is uncommon for production teams to have managerial functions fully delegated to them without interaction with management.

For these reasons, I believe the Cabot Carbon standard of “dealing” will be met by most EPPs. It is likely that the exceptions to the standard will cover only a small number of such programs.[80]

The third element of “labor organization” status concerns the subject matters with which the committee deals. As noted above, the list of subjects in Section 2(5) is a lengthy one. It includes such broad terms as “conditions of work” and “labor disputes.” It is hard to imagine an employee committee that would be able to avoid these matters completely. Even if the committee's stated purpose is to deal only with such entrepreneurial concerns as product quality or workplace efficiency, it seems clear that the committee, in order to achieve its purpose, would have to consider one or more of the subjects listed in Section 2(5). As one commentator has observed:

A “discussion of work problems” may include almost anything, including, for example, poor lighting or inadequate ventilation in work areas. When employees present to management “specific solutions and improvement recommendations” regarding such matters, the “dealing with” standard of Cabot Carbon will always be satisfied. Moreover, the subject matter of such “dealings” will usually include matters which clearly fit within the examples enumerated in Section 2(5), such as “grievances” or “conditions of work,” if these terms are construed broadly.[81]

For these reasons, it seems to me that the subject listings in Section 2(5) are sufficiently numerous and broad to cover most EPPs.[82]

In sum, I believe that most EPPs will possess the three elements of the Section 2(5) definition of “labor organization.” This conclusion is consistent with clear legislative history. As my colleagues have observed in the principal opinion, Congress deliberately abandoned a narrow definition of “labor organization” and chose a broader one that expressly covered employee representation committees and plans.[83] Accordingly, in my opinion, any reinterpretation of Section 8(a)(2) which relies on excluding EPPs from Section 2(5) would be beyond the Board's authority.

This conclusion is also based on sound policy. For the reasons stated earlier, many EPPs address conditions of work and embody, at least to some degree, a form of labor relations. Placing them under the Board's jurisdiction protects the interest of all parties involved. Employees, and unions seeking to represent them, will be assured that the EPPs are subject to Board review and cannot be used to circumvent statutorily protected rights. At the same time, employers will be assured that they are not being prevented from using methods which might improve their competitive status. In this regard, a finding that an EPP is a labor organization does nothing more than raise the issue of whether the employer's conduct is proscribed under the interpretation of Section 8(a)(2) set forth below.

In sum, if EPPs are to be lawful, Section 2(5) will have to be changed legislatively unless Section 8(a)(2) can be reinterpreted so as to accommodate such programs. I now turn to that 8(a)(2) issue.

V. SECTION 8(A)(2)

Section 8(a)(2) makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” The legislative history of the Wagner Act of 1935 shows that employer conduct with regard to employee committees was placed in the same category as creating “company unions” and was one of the evils that Section 8(a)(2) was designed to combat.[84]

The only Supreme Court decision interpreting this aspect of Section 8(a)(2) is NLRB v. Newport News Shipbuilding Co., 308 U.S. 241 (1939). Any analysis of Section 8(a)(2), in the context of EPPs, must come to grips with the Supreme Court's construction of the Act in that case.

The employee committee at issue in Newport News was set up by the employer in cooperation with its employees for the purpose of giving employees a voice concerning their working conditions and to provide a means for preventing and adjusting differences. The employees elected representatives, and the representation plan was administered by joint committees consisting of equal numbers of employee and management representatives. The plan could be amended only with the agreement of the employer. It was uncontradicted that labor disputes were settled under the plan. The employer never forbade its employees to join independent unions and did not discriminate against them because of membership in such unions. A majority of employees had indicated by secret ballot their desire for the representation plan to continue.

The Board found that the employer's involvement in the plan violated Section 8(a)(2) and ordered, inter alia, that the employer disestablish the plan. The only issue before the Court was the propriety of the disestablishment order. However, to resolve that issue, the Court discussed the Board's ultimate conclusion of domination and interference by the employer.[85] In this regard, the Court focused on the requirement that any amendment to the plan would be subject to the employer's approval. The Court stated: “Such control of the form and structure of an employee organization deprives the employees of the complete freedom of action guaranteed to them by the Act, and justifies an order such as was here entered.”[86] The Court further concluded that a disestablishment order would be appropriate even if the plan had been recently altered to delete the requirement of employer approval of all changes to the plan. The Court found that the existence and continuation of a plan which had once been unlawfully dominated might hinder employees' freedom to choose any form of representation they desired. On this remedial issue the Court stated:

The law provides that an employee organization shall be free from interference or dominance by the employer.... In applying the statutory test of independence it is immaterial that the plan had in fact not engendered, or indeed had obviated, serious labor disputes in the past, or that any company interference in the administration of the plan had been incidental rather than fundamental and with good motives. It was for Congress to determine whether, as a matter of policy, such a plan should be permitted to continue in force. We think the statute plainly evinces a contrary purpose, and that the Board's conclusions are in accord with that purpose.[87]

It is not surprising that courts advocating a change in the interpretation of Section 8(a)(2) make no reference to Newport News.[88] The Court's decision appears to leave little room for contemporary EPPs. The Court set forth a requirement that the employee committee be independent of the employer. Since the employer had controlled the committee, it was irrelevant, for remedial purposes, that: (1) the employer had a lawful motive in establishing and working with the committees, (2) the plan had obviated serious labor disputes, and (3) employees approved of the committees.

Contemporary EPPs are often set up by employers with the lawful motives of enhancing morale, communication, product quality, and increasing productivity. To achieve these goals, the employers usually retain some degree of control over the EPPs. The plans often obviate serious labor disputes. Further, because they are generally designed to be in the interest of employees and the employer, they are acceptable to both.[89] Newport News suggests that such EPPs are unlawful under Section 8(a)(2). The question, then, is whether Newport News retains its vitality. Because of legislative changes occurring after the issuance of the decision, I have concluded that it does not.

I believe that Newport News is to be understood in the context of the Wagner Act of 1935, the legislation upon which the decision is based. The theory underlying the Wagner Act was that employees and employers were locked in an adversarial struggle. In this struggle, the economic power of the employer completely overmatched the power of the individual employee. However, if employees were permitted to combine their strength and form a labor organization, they could more effectively confront the economic power of the employer. Accordingly, Section 7 of the Act gave employees the right to form and join labor organizations, and Section 8(a)(5) required employers to bargain collectively with a labor organization chosen by a majority of unit employees.

Section 8(a)(2) was an important part of the Wagner Act. If employees, acting through labor organizations, were to wage an adversarial battle against the employer, it was essential that the labor organization be wholly independent of employer control. Otherwise, the bargaining between the two would be a sham and true collective bargaining could not exist. As Senator Wagner explained:

The greatest obstacles to collective bargaining are employer dominated unions.... [T]he very first step toward genuine collective bargaining is the abolition of the employer dominated union as an agency for dealing with grievances, labor disputes, wages, rules, or hours of employment.[90]

The adversarial model, upon which the Wagner Act was based, is at odds with a cooperative model of labor relations. In the adversarial model, there is an inherent conflict between management and labor which may lead to industrial strife and unrest. Collective bargaining is the means by which this conflict can be constructively contained. In that collective-bargaining struggle, each side has different interests, and each faces the other across a wide divide. As one commentator has phrased it:

The term “adversarial model” is used to describe a system in which management and labor maintain a strict separation, and approach collective bargaining as competing entities with opposing interests, involved in a struggle over limited resources.[91]

The Wagner Act signified a choice of the adversarial over the cooperative model.[92] Thomas C. Kohler observes that the cooperative approach to labor relations was fully argued to the Congress in the hearings preceding the Wagner Act. He particularly points to the remarks to the Senate's Committee of Education and Labor of Henry Dennison, whose firm initiated an employee representation plan as early as 1919:


“Employee representation,” Dennison stated, “is an essential supplementary and a necessary competing type of unionism,” through which “a sound system of joint and mutual participation in management has developed or is developing.” Wagner's bill, Dennison warned, would cause these schemes “for a wholesome mutual business relationship between management and workers” to be “dug up with the tares” instead of permitting them “to be cultivated as seeding ground or laboratories from which we may learn.” Out of the “slowly freeing competition and the gradual comparison of the two forms,” stated Dennison, “we shall be able to develop modifications of each” that will permit the “realization ... of the truth that any business organization that can knit itself into a single organism will prove superior as an institution of broad social value, to one which must exist in two somewhat stiffly cooperating and sometimes actively conflicting segments.” [Footnotes omitted.][93]

Dennison’s view was rejected. As Kohler concludes, Congress was confronted with a clear choice between two competing models of labor relations and chose the adversarial model.

By 1947, the labor-management world had undergone major change. The Taft-Hartley amendments of that year were enacted not to further strengthen unions but in response to legislative concern that unions had become too strong. The focus of Taft- Hartley was to assure employees of their right to make a free choice for or against unionization. The Federal government was no longer necessarily in favor of unions as a means of countering the economic strength of employers. The Federal government was now neutral on the question. The government simply wanted to insure employee free choice on the question.

[T]he enactment of the Taft-Hartley Act ushered in a period of marked change in the government's attitude towards unionization. The amendments represent an abandonment of the policy of affirmatively encouraging the spread of union organization and collective bargaining. This appears most strikingly in Section 7, which now places the right to refrain from such activities on an equal footing with the rights originally guaranteed, and in the provisions subjecting the organizational activities of labor unions to restrictions similar to those imposed on the activities of employers. The remnants of the earlier approach may still be found in the declaration of policy and in the compulsion placed upon employers to recognize and bargain with representatives designated by their employees; but even in this respect a new balance was achieved by imposing corresponding obligations on labor organizations. The government, instead of aiding one side, now stands in the center.[94]

In addition, the economic warfare of strikes and lockouts was no longer seen as a prudent means of settling disputes. Although these weapons were still available, Congress sought to limit them through the use of notice and waiting provisions (Sec. 8(d)), and the encouragement of mediation and conciliation through the Federal Mediation and Conciliation Service (Sec. 203).

In short, Taft-Hartley emphasized (1) employee free choice rather than governmental encouragement of unionism; and (2) the encouragement of peaceful methods for resolving labor-management disputes, rather than strikes and lockouts. There was a concomitant deemphasis of the concept that employees and employers are forever locked in an adversarial struggle and there was a rejection of the notion that the government's role was to assure that employees have power through unionism.[95]

In light of the Taft-Hartley Act and the socio-economic changes on which it was based, I believe that there is a substantial doubt that the Supreme Court would now decide Newport News exactly as the Court decided it in 1938. That decision could not take into account the substantial changes wrought by the enactment of Taft-Hartley in 1947. Today, if employees freely choose to participate in an EPP, that would seem consistent with their Taft-Hartley right to refrain from choosing traditional union representation. Similarly, if employers and employees can amicably resolve their differences through cooperation, that would seem consistent with Taft-Hartley's encouragement of peaceful methods of resolving disputes. Finally, since EPPs are based on a recognition that employers and employees have mutual interests and need not always be adversaries, that would seem to reflect the shift away from the philosophy underlying the Wagner Act.

In short, Taft-Hartley recognizes that adversarial labor relations and collective bargaining through unions are not the only approaches to workplace relations. In this regard, Judge Wisdom has criticized the Board for having an inflexible attitude toward EPPs. He observed:

[A]n inflexible attitude of hostility toward employee committees defeats the Act. It erects an iron curtain between employer and employees, penetrable only by the bargaining agent of a certified union, if there is one, preventing the development of a decent, honest, constructive relationship between management and labor. The Act encourages collective bargaining, as it should, in accordance with national policy. The Act does not encourage compulsory membership in a labor organization. The effect of the Board's policy here is to force employees to form a labor organization, regardless of the wishes of the employees in the particular plant, if there is so much as an intention by an employer to allow employees to confer with management on any matter that can be said to touch, however slightly, their “general welfare.” [NLRB v. Walton Mfg. Co., 289 F.2d 177, 182 (5th Cir. 1961) (Wisdom, J., dissenting in part.]

I recognize that there are counter-arguments.[96] Most particularly, I am keenly aware that Senator Taft specifically pointed out that the conferees rejected all attempts to “amend ... the provision of 8(2) relating to company-dominated unions” and had left its prohibitions “unchanged.”[97] Thus, it can be argued that Newport News, being the Supreme Court's gloss on Section 8(2) of the Wagner Act, was unchanged in 1947. I do not believe that the argument is a valid one. In the first place, the attempts to amend Section 8(a)(2) were principally addressed to the Board's alleged disparate treatment of affiliated and unaffiliated unions.[98] Congress dealt with this problem in Section 10(c) and left Section 8(a)(2) “unchanged.” Further, I do not believe that this piece of legislative history, standing alone, is sufficient to outweigh all of the countervailing considerations set forth above. In sum, I believe that the Board is free to take into account all of the changes that have occurred since the Wagner Act of 1935, including particularly the passage of Taft-Hartley in 1947 and the growing recognition that labor-management cooperation is a valid approach to industrial disputes. In short, Newport News is not a straightjacket, and the NLRB, as the agency charged with interpreting the Act to reflect industrial reality, can and should interpret the Act to reflect the changes described herein.

This view of legislative intent is further supported by more recent legislative developments. In 1975, Congress passed the National Productivity and Quality of Working Life Act which emphasizes the importance of such cooperative efforts to improving the productivity of U.S. industry. That Act states that the “laws, rules, regulations and policies of the U.S. shall be interpreted as to give full force and effect to this policy.”[99] In 1978,[100] Congress passed the Labor-Management Cooperation Act which recognizes labor-management cooperation as a means of achieving organizational effectiveness. This statute established a grant program to be administered by the Federal Mediation and Conciliation Service for organizations that develop labor-management committees at the plant level and on an area and industry basis.

The Board has an obligation to take such legislation into account when construing the Act. The Supreme Court stated in Southern Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942):

[T]he Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task.

For the reasons stated above, I believe that the Act can be interpreted to accommodate at least some EPPs. I recognize that others, including particularly the courts, may have a different view. If so, those who favor EPPs will have to resort to the legislative process. My view is not a rejection of collective bargaining and the underlying adversarial model but a recognition of changed statutory language making room for a variety of choices for shaping workplace relations with employee free choice charting the course.

VI. THE TEST FOR EVALUATING EPPS UNDER SECTION 8(A)(2)

I conclude that Newport News does not foreclose a fresh interpretation of Section 8(a)(2), at least with respect to EPPs. Of course, this is not to say that all EPPs are lawful. As discussed above, they are labor organizations and hence an employer may not “dominate, interfere with, or support them.”[101] The question before me is how to interpret these words in a way that will accommodate labor-management cooperation and the Section 7 rights of employees. In my view, the answer to the question turns on the following factors: (1) the extent of the employer's involvement in the structure and operation of the committees; (2) whether the employees, from an objective standpoint, reasonably perceive the EPP as a substitute for full collective bargaining through a traditional union; (3) whether employees have been assured of their Section 7 right to choose to be represented by a traditional union under a system of full collective bargaining, and (4) the employer's motives in establishing the EPP. I would consider all four factors in any given case. No single factor would necessarily be dispositive.

With respect to the first factor, the fact that an employer initiates the idea of an EPP is not sufficient to condemn it. Under Section 8(c) of the Act, an employer is free to voice an opinion on labor-management matters. Thus, for example, an employer can tell its employees that it favors or disfavors traditional union representation. By the same token, an employer should be able to tell its employees that it favors an EPP. I also note that the original version of the Wagner Act made it unlawful for an employer to “initiate” or “influence the function of” a labor organization. The provision was rejected.[102] Thus, even under the Wagner Act, it would appear that such conduct was lawful.

However, the employer cannot coerce an employee into becoming part of an EPP. Consistent with Taft-Hartley, the choice must be that of the employee. Similarly, if the employees on a committee are to be the representatives of other employees, they must be selected by the employees, not by the employer.

In addition, although the employer can set forth the broad purpose of the committee, the committee must be free to consider any and all matters that are germane to that purpose. Thus, for example, the employer may say that the purpose of the committee is to enhance product quality or improve production efficiency. However, the committee must be free to consider any and all matters which are germane to those broad goals.

Further, managers and supervisors can be on the committee. In this regard, I note that the original version of the Wagner Act made it unlawful for the employer to “participate in” the labor organization. The provision was rejected.[103] Thus, even under the Wagner Act, such conduct was lawful. However, managers and supervisors cannot be given a dominant role.

In addition, the employer can give support to the committee by providing it with meeting rooms, writing materials, secretarial assistance, etc., and it would be permissible to allow the committee to meet on company time.[104]

Finally, the mere fact that the employer may suggest the rules and policies of the labor organization is not sufficient to condemn the EPP. In this regard, I note that the original version of the Wagner Act made it unlawful for an employer to “influence ... the rules and other policies of a labor organization.” The provision was rejected.[105]

The second factor seeks to accommodate the Section 7 right of employees to choose traditional unions to represent them in resolving their disputes with their employer. If the committee is set up in response to employee grievances and complaints, and if it functions as a vehicle for presenting those matters to the employer, it can reasonably be viewed as a substitute for traditional union representation. However, if the committee is set up by the employer to accomplish its own entrepreneurial interests, e.g., enhanced product quality and improved production efficiency, it can reasonably be viewed as a vehicle for addressing employer interests, rather than as a substitute for traditional union representation. Similarly, to the extent that employees reasonably perceive the committee as their representative concerning employment related matters, the committee may be viewed as a substitute for collective bargaining. Conversely, to the extent that the employees do not view the committee in this way, the committee would not be viewed as a substitute for collective bargaining.[106]

The third factor also seeks to accommodate Section 7 rights. I would consider it significant that the employer expressly assures its employees that, notwithstanding the EPP, they are free to select traditional union representation and full collective bargaining.

As to the fourth factor, if the employer establishes the EPP for a purpose of stifling an ongoing union campaign, the impact on Section 7 rights is obvious. Conversely, if the employer's motive in establishing the committee is solely to enhance lawful entrepreneurial goals, there would be no impact, under this factor, on Section 7 rights.[107]  

I believe that these four factors properly balance interests in labor-management cooperation and employee Section 7 rights. In addition, they reflect the Taft-Hartley goals of (1) insuring employee free choice and (2) promoting harmony and cooperation in the sphere of labor-management relations. Finally, they reflect the national interest in taking steps to insure that American firms successfully compete in a global economy.[108]

VII. THE INSTANT CASE

I now apply the foregoing analysis to the instant case.

Based on my analysis of Section 2(5), and on the facts recited by my colleagues, it is clear that the committees are labor organizations.

With respect to the 8(a)(2) question, I apply the four factors set forth above and conclude that the Respondent's conduct was unlawful.

As to the first factor, the evidence recited by my colleagues establishes that the Respondent completely dictated the structure of the committees and controlled their operations. Indeed, the employees had very little, if any, voice in the structural design and operation of the committees.

As to the second factor, the Respondent set up these committees as a mechanism to respond to and address employee complaints and grievances. The Respondent acted because the employees had voiced complaints about employment-related matters. Further, the employees on the committees were perceived as representatives by their fellow employees. In these circumstances, the employees could reasonably view these committees as a substitute for collective bargaining through traditional union representation.

As to the third factor, the employees were never given assurances of their right to choose collective bargaining through traditional union representation.

As to the fourth factor, antiunion motive was not established.

Weighing all of these factors, I believe that the impact of Respondent's conduct on Section 7 rights outweighs the Employer's lawful motives. Accordingly, I would find a violation in this case.

APPENDIX

NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

WE WILL NOT dominate, assist, or otherwise support the organizations known as Action Committees created in January 1989.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL immediately disestablish and cease giving any assistance or support to the Action Committee.

ELECTROMATION, INC.

 

DECISION AND REPORT ON OBJECTIONS

GEORGE F. MCINERNY, Administrative Law Judge.

Based on a charge filed on March 13, 1989, by Local Union No. 1049, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) the Regional Director for Region 25 of the National Labor Relations Board (respectively, the Regional Director and the Board) issued a complaint on April 24, 1989, alleging that Electromation, Inc. (the Company or Respondent) had violated provisions of Section 8(a)(1) and (2) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to this complaint denying the commission of any unfair labor practices.

Concurrently, on February 15, 1989, the Union filed a petition with the Regional Director for an election among certain employees of the Company, Case 25-RC-8676. Under the provisions of Section 9 of the Act, the parties, and the Regional Director joined in an agreement for an election, and an election was conducted under the Regional Director's auspices on March 31, 1989. The results of the election showed that 82 employees cast their votes for the Union-Petitioner, and 95 voted against the Union.

Thereafter, the Union filed objections to conduct affecting the results of the election, claiming that the same conduct alleged as unfair in Case 25-CA-19818 unlawfully interfered with the election. On May 1, 1989, the Regional Director issued a report on objections, finding that the Union's objections to the election were based on the same conduct alleged to be unfair in the complaint issued on April 24, 1989, in Case 25-CA-19818. Accordingly, the Regional Director ordered that Cases 25-CA-19818 and 25-RC-8676 be consolidated and that they be set down for hearing before an administrative law judge for determinations of fact and credibility.

Pursuant to a notice dated August 9, 1989, a hearing was held before me at Elkhart, Indiana, on October 2 and 3, 1989, at which all parties were represented, and all had the opportunity to present testimony and documentary evidence, to examine and cross- examine witnesses, and to argue orally. Following the conclusion of the hearing the General Counsel and the Respondent filed briefs, which have been carefully considered.

Based on the entire record, including my observations of the witnesses and their demeanor, I make the following

FINDINGS OF FACT

  1. JURISDICTION

There is no dispute over the jurisdiction of the Board in this matter. The Company is an Indiana corporation having its usual place of business in the City of Elkhart, where it is engaged in the manufacture of electrical components and related products. During the calendar year ending on March 31, 1989, the Company sold and shipped from its Elkhart location manufactured products valued at more than $50,000 directly to points outside the State of Indiana. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

  1. THE LABOR ORGANIZATIONS INVOLVED
  2. The complaint alleges that the Union (Teamsters Local Union No. 1049) is a labor organization within the meaning of Section 2(5) of the Act.

The Company's answer alleges that the “respondent is without sufficient information to either admit or deny” this allegation. I find it difficult to understand how counsel can say this where there has been a petition filed by Local 1049, a stipulation for an election entered into, an election campaign conducted, and an election held, all involving the same Local 1049, the same Respondent, and, presumably, the same counsel. The quoted portion of the answer does not even rise to the level of casuistry. I find it frivolous and it is hereby stricken from, the answer.[109]

There being no valid answer to the allegation that Local 1049 is a labor organization within the meaning of Section 2(5), I so find.

  1. The complaint further alleges that certain “Action Committees” formed early in 1989 are, collectively, a labor organization within the meaning of Section 2(5) of the Act. The Respondent, with more validity this time, denies the allegation. The facts are not in dispute, and will be discussed at greater length below. Those undisputed facts show that the committees were established early in 1989; that employees as well as supervisory and managerial people served as members of the committees, and that discussions were held about conditions of employment at the Company. On these bases I find that the Action Committees were, and may still be, a labor organization (or labor organizations, depending on whether they are considered a single unit or separate and distinct entities), within the meaning of Section 2(5).
  2. THE ALLEGED UNFAIR LABOR PRACTICES
  3. Background

Electromation has been in business for some years in Elkhart, manufacturing small electrical and electronic items such as seatbelt restraint solenoids, solenoids for outboard engines, and chainsaws, switches, and harnesses, primarily for the automobile industry and for power equipment manufacturers. It has about 200 employees engaged in production divided up into five or six departments. The Company is one of several subsidiaries of American Electronic Components, a privately held corporation formed in 1985.[110]

The chairman and chief executive officer of American Electronic Components is David Webster, and its president and chief operating officer is John Howard. Howard is also president of Electromation, and as such he figures largely in the facts of this case. Webster was not mentioned at all, other than to identify him as chairman.

Electromation was acquired by Durakool in 1986, and both were then brought into American Electronic Components late in 1987. A new president, Keith Dixon, was hired at Electromation, and he instituted a more personal and open style to management with the Company's employees. During late 1977 and continuing through 1988, a number of ad hoc committees were established by management in which employees participated, and which discussed matters of mutual interest. Loretta Dickey, at that time the personnel manager of Electromation, acted as the coordinator and liaison in this endeavor.[111]

As 1988 drew to a close, the management of American Electronics Components became increasingly more disturbed by unacceptable financial losses at Electromation. In November, Keith Dixon left the president's job and Howard took over. He continued the formal and informal meetings with employees, but decisions were made to cut expenses where possible. One area chosen to cut costs was a plan which Dixon had set up to combat absenteeism by means of financial rewards for faithful attendance. It was also decided that there would be no general wage increase in 1989.

These changes in benefits were announced at an employee Christmas party on December 23, 1988. Notices of the changes were distributed to the employees, together with checks representing length of service bonuses, designed to take the place of wage increases. The employees seemed happy, and the plant closed until January 2, 1989.[112]

  1. The Action Committees

Over the shutdown week, the employees, recognizing the impact of the changes in the attendance policy, and the lack of a pay increase, had second thoughts and, on their return, indicated to management their unhappiness with these new policies. Sometime between January 2 and 10 the Company received a handwritten request signed by 68 employees for reconsideration of the attendance policy. Howard was given a copy of this petition by Company Vice President Charles Vickerman. Howard then called a meeting of supervisors on January 10, at which they discussed the petition and also the complaints being voiced by employees in the plant. It was decided to hold an employee information meeting to hear from the employees directly and find out what they saw as problems and what the Company should do about the problems.

So, on the January 11, a meeting took place in the plant between Howard, Vickerman, and Loretta Dickey, representing management, and a selected group of eight employees.[113] A number of issues were discussed, including overtime, tardiness, wages, bonuses, attendance, bereavement leave, sick leave, and incentive pay.

After this meeting, management and supervisors met again and concluded according to Howard, that these were substantive, serious, issues; that management had “possibly made a mistake in judgment in December in deciding what we ought to do,” and that “the best course of action would be to involve the employees in coming up with solutions to these issues.” It was decided to do this by means of ad hoc committees to study separate problems, as the Company had done under the Dixon administration.

Accordingly, another meeting was scheduled for January 18 between the same people who attended the January 11 meeting. Before the meeting, management had “distilled” the areas of employees discontent down to five specific areas. Then, at the meeting, the management people present proposed that for each of the five areas of concern an “Action Committee” with membership composed of employees be established. These committees would meet and consider the problems and come up with recommendations for management. The Company would then analyze these recommendations in the eight budgetary considerations as well as to the employees, and, if acceptable, they would be implemented.

The employees at this January 18 meeting were not receptive to the idea of Action Committees. They just wanted action and did not want any more committees. But eventually they accepted the idea and the meeting concluded.

Having decided what issues would be studied by the Action Committee, the Company then decided how the members of the committees would be chosen. On January 19, a memorandum from Vice President Chuck Vickerman was posted, for all employees, describing what had happened at the meeting the day before and announcing that five Action Committees would be formed. The committees were named:

Absenteeism/Infractions
No smoking policy
Communication Network
Pay Progression for Premium Positions Attendance Bonus Program

The committees were described as being made up of “up to six hourly employees and one or two management personnel along with Loretta Dickey who will coordinate all the Action Committees.” Employees interested were instructed to sign up on “volunteer sign-up sheets” located in the plant, by January 24. Selection of the members of the committee would be made by management from the names of those who signed up.

As it turned out, there were no long waiting lines to sign up for the committees, and some who did sign up later crossed out their names. The signup sheets submitted in evidence show that six people signified an interest in the absenteeism/infractions committee; three for no smoking policy; five for communication network; five for pay progression for premium positions; and six for attendance bonus program. One employee, Barb Church, signed up for four committees and was chosen for only one, communication network. Another, Gayle Barker (later Gayle Bango) who testified here, signed up for three, and was limited to one, attendance bonus program.[114]

As the notice of the establishment of the Action Committees stated, Loretta Dickey was put “in charge of the action committee program.” Howard testified that he had no direct contact with the Action Committee program after their initial establishment. Loretta Dickey testified that she was involved in the preliminary meetings and in the preparation of the signup sheets. She also stated that nonbargaining unit people, salaried employees, and supervisors, volunteered and were permitted to serve on the committees. The Company's controller, Dan Mazur, was invited by Dickey to act as financial and technical adviser to the attendance bonus committee. A senior engineer, Bill Roberts, served on the communication network committee; Line Supervisor Charlie Graves on the absenteeism group, and Line Supervisor Sandy Grier on the pay progression for premium, pay committee.

Meetings were scheduled to begin on January 31 for the absenteeism/infractions group, February 1 for communication network, February 1 for pay progression, and February 2 for the attendance bonus committee.[115] The committees were scheduled to meet on a weekly basis in a company conference room. Employees were paid for their time in attendance and were supplied with writing materials and a calculator in situations where they might be discussing costs.

Dickey attended all the meetings of all the committees. She said that she did not really direct the meetings,[116] and there is no testimony by the employee witnesses which contradicts that.

From what testimony we have about the actual functioning of the committees it seems that the management representatives did not run the meetings exclusively. There was a lot of discussion, everyone joined in, and there were no complaints even from the employee witnesses in this case about the conduct of the meetings. At the attendance bonus committee, Mazur, the controller, did tell the committee members, at one meeting, that a proposal would not be acceptable to management because of the costs, but later he costed out another proposal and pronounced it fiscally sound.

The committees continued the meetings until about February 21, when Dickey was informed by Howard that the Union had asked for recognition. Dickey waited until the next scheduled meeting of each committee and informed the members that the Company had been advised by its attorneys that they could no longer meet with the committee. Dickey added that the committees could continue to meet if the members wished. The absenteeism/infraction and the communications network committees decided to continue to meet, the pay progression group disbanded, and the attendance bonus committee members told Dickey that they could write up a proposal they had discussed and did not need to meet any more. With respect to those committees which continued to meet, they used the Company's facilities and were paid for time spent in committee meetings.

The union demand for recognition mentioned by Dickey in her testimony, and referred to above, was dated February 13. A petition for an election was filed in the Board's Regional Office on February 15. Notification of the petition and the Union's letter must have been received at the Company within a few days. A stipulation for an election was executed by the parties on March 3 and an election was conducted on March 31.

The activity leading up to the mailing of the demand for recognition and the petition must have begun sometime earlier. Ellen Calender testified that she called Jimmy Skipper, the Union's president, during the middle of January. She said she signed a card at the union hall (in Elkhart) on January 12, then attended a meeting at another employee's house on the next Sunday, January 15 where several cards were passed out. In the following week more cards were passed out and an organizing committee was appointed. Lori Schiltz testified that she signed a card around January 12 or 21, and that she passed out a card to another employee while at work.

There is some question in my mind about the timing of the union campaign relative to the Company's meetings and appointment of the Action Committees. No cards were introduced and Jimmy Skipper, who made an appearance on the record here, and was present throughout, did not testify. However, the times mentioned by these two witnesses are logically consistent with the preliminaries necessary to the filing of the petition on February 15.

Whatever the time when the union campaign started, there is no evidence in the record that the Company knew of this activity before receiving the demand for recognition, or the petition, sometime in the week of February 13-17, and there is no indication here that the Company's actions in holding employee meetings and establishing the Action Committees between January 11 and 24 was taken in response to, or even with knowledge, that union activities were going on.[117]

The fact of whether or not the Company knew of its employees' union activities does not, however, alter the legal effects of Company's actions. I have found that the Action Committees are labor organizations within the meaning of Section 2(5) of the Act. Section 8(a)(2) of the Act provides in pertinent part that it is an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”

The Board has found domination by an employer where the employer organized the functions, nature and structure of employee committees, supervisors conducted committee meetings, meetings took place on company premises, supplies and materials used were donated by the company, and committee members were paid for time spent conducting committee business.[118]

The facts as set out above show that all but one of these factors were present in the formation and operations of the Action Committees. I do not think there is any question that, after the two informational sessions on January 11 and 18, the Company organized the committees. Their functions, nature and structure were purely the creation of management. The meetings took place on company property. Supplies and materials were supplied by management. Committee members were paid for their time spent at committee meetings. The only missing factor is the supervisor domination of the discussions at the meetings. Camvac International, 288 NLRB 816 (1988); Comet Corp., 261 NLRB 1414 (1982). This criterion is not controlling, and I find that the Company dominated these (or this) labor organizations from their inception. Wahlgreen Magnetics, supra.

The Company argues, first, that the intention of its management was to draw its employees, on a cooperative basis, into the decision-making process, to afford employees a responsible as well as responsive forum at which their grievances could be considered, to repair what Howard admitted were mistakes in the Company's unilateral reduction of benefits; and, second, that as soon as it found out about the Union's petition, it withdrew its participation on the Action Committees.

I accept the fact that both of these arguments accurately reflect what actually happened. As to the first, I do not, as I have already stated, agree with the General Counsel that the employee meetings and the establishment of the Action Committees were designed to interfere with its employees' union activities. However, experience had shown, whether in wage boards set up during the first and second world wars, or in the industry committees established under the National Industrial Recovery Act of 1933, that the maintenance of employer-sponsored employee unions, committees, or whatever, tend to induce the adherence of employees “in the mistaken belief that” this kind of organization “was truly representative and afforded an agency for collective bargaining.” Federal-Mogul Corp. v. NLRB, 394 F.2d 915 (6th Cir. 1968). The harm which Section 8(a)(2) is intended to remedy thus does not depend solely on motive, but on the inherent injury to the rights of employes to bargain collectively through representatives of their own choosing.[119]

As to the second argument, the Company did withdraw its managers and supervisors from participation in the meetings of the Action Committees. But the Company did not go far enough. I have already found that the supervisors and managers did not control or dominate the deliberations of the committees. The committees remained in existence. They were encouraged by Dickey to continue to meet, on company time, on company premises, and with materials and supplies supplied by the Company. One committee disbanded, one continued to have meetings, one did not have more meetings, but it had already developed a proposal, approved by the Company's controller and by Dickey, to amend the attendance bonus policy of the Company. Only one committee remained which remained in existence without having completed its task or continuing to meet. Finally, I note that Howard, in his speech to employees of March 15, implied very plainly that the Company would again participate on the committees “after the election.”

As the General Counsel has pointed out, the Company should have disestablished these committees on learning of the filing of the petition and so informed its employees, Passavant Memorial Area Hospital, 237 NLRB 138 (1978).

Accordingly, I find that by maintaining its support and its domination of the Action Committees after February 15, 1989, the Company has violated Section 8(a)(2) and (1) of the Act.

  1. The Plant Closure Threat

The Company conducted a series of meetings with employees. At one of these meetings, that of March 15, the complaint alleges, President John Howard threatened that the Company would move and the plant would be closed if the Union came in. Three employees, Ellen Callander, Linda Smith, and Linda Elliot, testified about this alleged threat. Callander and Smith testified that at some meeting, they were not sure, Howard said either that he could move the plant or that he could close the plant down, and there was nothing anybody could do about it. These witnesses were confused and imprecise, and at no point do their versions of the incident corroborate each other. Elliot, presented as a witness by Respondent, did not remember what Howard had said. Howard denied that he had threatened that the plant would close.

I found Howard to be a credible and candid witness. He testified that on March 15, he had prepared remarks from which he read. Those remarks are included in the record. I think that the problem came up when, as a tactical device, Howard used as a prop a poster, a placard, with a drawing of a graveyard and a series of tombstones bearing the names of deceased employers in the Elkhart area. Howard referred to this poster in his prepared remarks, and spoke the name from each tombstone, adding the word “dead.” He added with reference to two of the names “represented by Jimmy Skipper's Local 1049, dead.” He concluded this sequence of his speech by saying “Again, and this is very important, we are not saying that the Teamsters caused these companies to go out of business, but we are saying that the unions just can't provide job security.”

It is easy to understand how employees, particularly a large number gathered together, some not paying much attention, faced with this tombstone poster, could think that they heard Howard make the threats they later attributed to him. I do not believe that he said what they said he did, and I find no violation of Section 8(a)(1) in Howard's presentations, either on the March 15, or an other occasions, Blue Grass Industries, 287 NLRB 274 (1987).

  1. The Interrogation of Employees

In respect to these incidents, I have carefully evaluated the testimony of Lorena Clark and Lori Schiltz concerning incidents when Supervisor Don Gonsoski, allegedly interrogated employees and I do not credit their version of events. Gonsoski was

apparently a friendly, humorous type of supervisor who enjoyed kidding with the employees under his supervision.[120] It is entirely possible that he may have engaged in some light conversation about the Union during the course of the campaign, but, based on his demeanor during his testimony, I credit his denials that he questioned employees about who they supported, or how they were going to vote.

The testimony of Clark, like that of Callander and Smith, was vague and imprecise and reflected a poor memory of what had occurred. Schiltz' testimony was plan enough, but her actions, while this case was pending, in going to her supervisor Juanita Bussard, to Vice President Vickerman, and to company counsel Kathleen K. Brickley, with a story about wanting to change her story, indelibly stamp her as an unreliable witness.

Based on the credibility of Gonsoski, and the lack of credibility of Clark and Schiltz, I find no violation of Section 8(a)(1) in the alleged interrogation of employees by Gonsoski.

  1. The Objections

Since I have found merit in the complaint allegation that the Respondent has violated Section 8(a)(1) and (2) of the Act by dominating and assisting the Action Committees during the period from and after February 15, 1989, I find merit to the portion of the objections which reflects these actions. This type of conduct, violative of Section 8(a)(1) and (2) is a fortiori interference with a representation election. I, therefore, recommend that objection be sustained, De Paul Community Health Center, 221 NLRB 839 (1975).

Answering the Respondent's argument that its conduct in discontuining some support for the Action Committees after February 15 rendered any violation as trivial and de minimis, I take note of the following facts: The committees continued, or three of them did, after Loretta Dickey informed the members that management would no longer participate in their deliberations. At least one committee continued to meet to discuss the Company's agenda for that group, on companytime and premises, and with company-supplied materials; another committee had a plan for changing the attendance bonus plan as a substitute for the plan which had been canceled by management in December 1988. The six members of this committee, and, inevitably, other employees, must have known of this revision; Howard had announced on March 15 that the Company would in effect, revive the committees after the election. The Union lost the election on March 31 by a vote of 95 to 82; by my calculations, a switch of 7 votes would have altered the outcome.

In the light of these facts I do not believe the objectionable conduct I have found here is de minimis, and I recommend that these election be set aside. Video Tape Co., 288 NLRB 646 (1988).

  1. THE REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act.

I shall recommend that the Respondent immediately disestablish and cease all support to the Action Committees created in January 1989.

I shall further recommend that the election held on March 31, 1989, be set aside and that Case 25-RC-8676 be remanded to the Regional Director for Region 25 for the purpose of conducting a new election at such time as he deems that circumstances permit a free choice of bargaining representatives.

CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

  1. The Union and the Action Committees are labor organizations within the meaning of Section 2(5) of the Act.
  2. TheRespondent has engaged in an unfair labor practice in violation of Section 8(a)(1) and (2) of the Act by dominating and assisting the Action Committees from February 15, 1989, to the present time.
  3. The above-described unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not otherwise violated the act.
    [Recommended Order omitted from publication.]

 

[1] On November 1, 1987, the Teamsters International Union was readmitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change.

[2] The American Federation of Labor and Congress of Industrial Organizations did not file a brief. The American Postal Union, AFL-CIO, filed an amicus brief but did not participate in the oral argument. An amicus brief was filed by U.S. Representatives Steve Gunderson, Newt Gingrich, William Goodling, Don Ritter, Paul B. Henry, Richard K. Armey, John A. Boehner, Mickey Edwards, Scott L. Klug, and Cass Ballenger. Additional amicus briefs and submissions were filed after oral argument by Labor Education and Research Project, Labor Policy Association, The Coalition of Management for Positive Employment, Training, and Education, the National Association of Manufacturers, and The American Iron and Steel Institute, Professor Morris, and the Charging Party.

[3] On August 1, 1990, the Board granted the Charging Party's Motion to Sever Cases and to Withdraw Objections to the Election in Case 25-RC-8676, which had been consolidated for hearing with this unfair labor practice case. Because the judge's recommended Order contains a disposition of the representation case, now severed, we shall issue a new Order.

[4] All dates are in 1989 unless noted otherwise.

[5] The January 11 meeting was similar in structure to meetings the Respondent had held with employees the previous year. Three employees were chosen at random by the Respondent from each of two groups: one consisted of employees with high seniority and the other consisted of employees with low seniority. Two additional employees who had asked to attend the January 11 meeting were permitted to do so. There is no contention that either the January 11 meeting, or the January 18 meeting, described below, violated the Act.

[6] The no-smoking committee was never organized and held no meetings.

[7] Dickey's testimony in this regard is confirmed by the testimony of employee Gayle Bango, a member of the Attendance Bonus Committee. Bango testified that at the first meeting of the committee, employees were informed that “we were supposed to go out amongst the other employees and find out what kind of ideas they had concerning a good attendance program because they [the employees] weren't happy with the one we got.”

[8] The judge found no merit to allegations that the Respondent had threatened and interrogated employees in violation of Sec. 8(a)(1). No exceptions were filed to these findings.

[9] A number of the amici have suggested that, even if the language and legislative history of the provisions at issue show a clear congressional intent to impose a broad prohibition extending to activities like those of the Respondent and the employee committees at issue in this case, and even if that understanding of congressional intent was expressed in an opinion of the Supreme Court, the Board is free to adjust the breadth of the prohibition in light of changing economic realities. In particular, the amici argue that, for the sake of American competitiveness in world markets, it is desirable to allow employers to create and support employee/management committees in the manner that the Respondent did with respect to the Action Committees here. While we agree that when the Board has the latitude to change a particular construction of the statute we may appropriately take into account changing industrial realities, we do not agree that we are free so to act either when congressional intent to the contrary is absolutely clear or the Supreme Court has decreed that a particular reading of the statute is required to reflect such an intent, or both. See, e.g., Lechmere, Inc. v. NLRB, 139 LRRM 2225 (1992); First National Maintenance Corp. v. NLRB, 452 U.S. 666, 675-676 (1981) (holding that, in requiring bargaining over an economically motivated decision to close down part of a business, the Board transgressed absolute congressional limits in construing broad language that Board is empowered to define “in light of specific industrial practices” (footnote omitted)).

[10] I Legislative History of the National Labor Relations Act of 1935, 15-16 (GPO 1949) (hereafter cited Leg. Hist.).

[11] I Leg. Hist. 32.

[12] I Leg. Hist. 271.

[13] Comparison of S. 2926 (1934) and S. 1958 (1935), I Leg. Hist. 1347.

[14] I Leg. Hist. 3.

[15] See II Leg. Hist. at 2309-2310.

[16] I Leg. Hist. 1352.

[17] Testimony of Senator Wagner on H.R. 6288, II Leg. Hist. 2489.

[18] In his concurrence, Member Devaney interprets the legislative history differently. He sees Congress as proscribing a narrower range of conduct, more closely tied to the historical experience recounted to the Senate, than is stated above, and would not agree that Congress defined “labor organization” broadly so as to prohibit a wide range of employer conduct. But the majority agrees that, whatever weight is attached to the wording of the definition of labor organization, Congress' goal was to preserve for employees the right to choose their bargaining representative free of employer interference or coercion, even where that interference or coercion took the form of appearing to anticipate and provide an outlet for the impulse of employees to organize for collective bargaining. Thus, despite differences in the respective readings of the language and legislative history, the majority agrees that analysis of an employee committee's status under the Act must center on the group's purpose and function in light of NLRA's goal of protecting the right of self-organization from the specific abuse of employer-dominated organizations set up by employers.

[19] Sec. 8(a)(2) refers to domination of “any labor organization.”

[20] Because we find, as explained below, that employee-members of the Respondent's Action Committees acted in a representational capacity, it is unnecessary to the disposition of this case to determine whether an employee group could ever be found to constitute a labor organization in the absence of a finding that it acted as a representative of the other employees. As set forth in his separate concurrence, Member Devaney would reach this issue, and he concludes that such a finding is essential to a determination that a group is a labor organization within the meaning of Sec. 2(5).

[21] As Member Devaney notes, witnesses cautioned the Senate committee that limiting “labor organization” to groups that engage in collective bargaining with an employer might fail to capture employer-dominated organizations, many of which never wrested a single concession, let alone a bargaining agreement, from the employer. Referring again to the abuses Congress meant to proscribe in enacting the Wagner Act, we view “dealing with” as a bilateral mechanism involving proposals from the employee committee concerning the subjects listed in Sec. 2(5), coupled with real or apparent consideration of those proposals by management. A unilateral mechanism, such as a “suggestion box,” or “brainstorming” groups or meetings, or analogous information exchanges, does not constitute “dealing with.”

[22] The proviso to Sec. 9(a) was modified by the addition of the right to have grievances adjusted “without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.”

[23] In view of this legislative history, we do not agree with Member Raudabaugh that the Taft-Hartley amendments fundamentally altered the import of Sec. 8(a)(2) or the collective-bargaining model of the Wagner Act. Even with
the safeguards proposed by Member Raudabaugh, the legislative history lends no support to the notion that an employer permissibly may now deal with a dominated Sec. 2(5) labor organization concerning terms and conditions of employment.

[24] Sec. 8(a)(2) does not require a finding of antiunion animus or a specific motive to interfere with Sec. 7 rights. In NLRB v. Newport News Shipbuilding Co., 308 U.S. 241 (1939), the Supreme Court found that an employer had dominated a statutory labor organization even though the “Committee” in question operated to the apparent satisfaction of the employees who had signified their desire for its continuance. The Court also noted that there was no evidence that the employer objected to its employees joining labor unions and that there had been no discrimination against them because of membership in outside unions. See also Garment Workers' Union (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961) (good-faith belief in union's majority status is no defense under Sec. 8(a)(2) to the grant of exclusive recognition to a union that does not have support of the majority of employees). We respectfully disagree with Member Raudabaugh's view that Newport News is no longer viable law. In Newport News, the Court held that, even if a concededly employer-dominated organization were altered to remove the elements of unlawful domination, the Board had not erred in ordering the organization disestablished. In our view, Newport News is not a barrier to the resolution of mutual problems between employees and employers through cooperation and other peaceful methods, as our colleague believes. It is, however, a frank and practical acknowledgement that 10 years of recognition and bargaining with an organization owing its very existence to the whim of the employer and whose every alteration was subject to employer veto cannot simply vanish—when it suddenly appears to be in the employer's interest that it should. Thus, the Court acknowledged that the employee organization in Newport News was incapable of instantaneous transformation into an organization not violative of the Act. Its history was simply too strong and its functioning too clearly imprinted with the will of the employer. To us, disestablishment of dominated labor organizations remains a useful remedy today, where necessary. Member Devaney believes that Member Raudabaugh's approach would be most helpful if the Board were a legislative body not bound by prior precedent and Supreme Court direction. Such sweeping changes in interpretation of the Nation's labor policy are a task for Congress or the courts and not a function for an administrative agency of limited powers.

[25] In NLRB v. Northeastern University, 601 F.2d 1208 (1st Cir. 1979); Hertzka & Knowles v. NLRB, 503 F.2d 625 (9th Cir. 1974); and Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165 (7th Cir. 1955), the courts denied enforcement in circumstances where the impetus behind the organizations emanated from the employees themselves. Without passing on the merits of the underlying Board decisions in those cases, we find those cases distinguishable from the cases cited in our discussion herein, and from the instant case.

[26] We also agree with the General Counsel that in both Scott & Fetzer and Airstream, the Sixth Circuit appeared to equate indicia of employer control—relevant only to the domination issue—with the indicia used to identify a Sec. 2(5) “labor organization.”

[27] In this we differ from Member Raudabaugh's view that employee perception of an employee committee is a significant element in evaluating its lawfulness. Much of the harm implicit in employer-dominated organizations is that, when they are successful, they appear to employees to be the result of an exercise of statutory freedoms, when in fact they are coercive by their very nature. Thus, we cannot agree that employee perceptions of the nature of an employee committee are significant indicators of their lawfulness.

[28] We find no basis in this record to conclude that the purpose of the Action Committees was limited to achieving “quality” or “efficiency” or that they were designed to be a “communication device” to promote generally the interests of quality or efficiency. We, therefore, do not reach the question of whether any employer initiated programs that may exist for such purposes, as described by amici in this proceeding, may constitute labor organizations under Sec. 2(5). Cf. General Foods Corp., supra.

[29] Because the Action Committees dealt with the Respondent concerning conditions of employment and were established for the specific purpose of reaching acceptable solutions to identified problems, the Action Committees were distinguishable in pertinent respects from the employee communication meetings that the Respondent previously had conducted with employees. The Action Committees were not a continuation of those earlier meetings.

[30] As Member Devaney notes in his concurrence, the “bargaining” going on through the Action Committees was not between the employees and management. Rather, each committee contained supervisors or managers and the committee charged with compensation issues had its proposals evaluated by the Respondent's controller before they were presented to the Respondent. Thus, the situation here put the Respondent in the position of sitting on both sides of the bargaining table with an “employee committee” that it could dissolve as soon as its usefulness ended and to which it owed no duty to bargain in good faith.

[31] We do not hold that paying employee members of a committee for their meeting time and giving that committee space to meet and supplies is per se a violation of Sec. 8(a)(2). Here, however, the Respondent's assistance was in furtherance of its unlawful domination of the Action Committees and cannot be separated from that domination. Because the Respondent's conduct in supplying materials and furnishing space to the Action Committees occurred in the context of the Respondent's domination of these groups, this case is distinguishable from instances where an employer confers such benefits in the context of an amicable, arm's-length relationship with a legitimate representative organization. See Duquesne University, 198 NLRB at 891. (Certain employer benefits resulting from “friendly cooperation” with a lawfully recognized labor organization do not constitute an 8(a)(2) violation (dictum).)

[32] If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”

[33] Indeed, given the diversity of employee involvement programs, no one plan—or corresponding analysis—could be said to be typical. In discussing employee involvement programs, I have drawn on the descriptions of such programs in the arguments and briefs of the parties and the amici as well as the efforts and experiences of other branches of the Federal government to promote employee participation in areas such as safety, quality control, and productivity.


I am in agreement with much of what my colleagues have to say. My differences with the majority are, in general, ones of emphasis. On the few points where our differences are substantial, my concurrence will so indicate.


With respect to Member Raudabaugh's concurrence, I applaud his careful examination of the scholarship in the area of employee empowerment programs and his thoughtful analysis of some of the most demanding issues facing the American workplace today. I read the case law and legislative history differently than he does, but I find his views both challenging and instructive.

[34] As the Supreme Court noted,

 
Respondents argue that to hold these employee committees to be labor organizations would prevent employers and employees from discussing matters of mutual interest concerning the employment relationship, and would thus abridge freedom of speech in violation of the First Amendment of the Constitution. But the Board's order does not impose any such bar; it merely precludes the employers from dominating, interfering with or supporting such employee committees which Congress has defined to be labor organizations. [NLRB v. Cabot Carbon Co., 360 U.S. 203, 218 (1959).]

[35] Sec. 7(a), the precursor of the National Labor Relations Act, provided in pertinent part that:

 

Every code of fair competition ... shall contain the following conditions: (1) that employees shall have the right to organize and bargain collectively through representatives of their own choosing, and shall be free from the interference, restraint, or coercion of employers or labor, or their agents, in the designation of such representatives or in self- organization or in other concerted activities ... (2) that no employee and no one seeking employment shall be required as a condition of employment to join any company union or to refrain from joining, organizing, or assisting a labor organization of his own choosing....

Sec. 7(a) was the quid pro quo for NIRA provisions permitting employers to join together and set industry “codes” fixing prices and production in violation of the antitrust laws.

[36] For similar reasons, the Wagner Act defined a “labor organization” as an entity “dealing with” employers rather than “bargaining” or “negotiating with” them. As William Green, president of the American Federation of Labor, testified to the Senate Committee, “Show me a company union through which a wage agreement, signed and sealed by the representatives of the union and management, has ever been consummated. Never one.” To create a National Labor Board: Senate Hearings, 73d Congress (1934), p. 72.

[37] 360 U.S. 303 (1959).

[38] The administrative law judge commented on the similarity between the Cabot “committees” and the earlier plans. 117 NLRB 1633, 1648 (1957).

[39] In practice the committees also discussed and made proposals on wages, overtime, and paid time off.

[40] 360 U.S. 203, 213. Thus, I respectfully disagree with the many commentators who have described Cabot Carbon as a “broad” interpretation of Sec. 8(a)(2). Its holding is of a piece with the numerous early Board cases in which “employee representation plans” were, one after another, found unlawful. It is worth repeating here that Cabot Carbon involved employer recognition and bargaining with committees whose existence had nothing to do with the will of a majority of employees. In my view, Cabot Carbon is not a borderline case, and does not stand for a sweeping prohibition of employer/employee communications.

[41] Id. at fn. 2. In fact, no Supreme Court case construing Sec. 8(a)(2) deals with an employee organization oriented to the discussion of subjects such as these “other areas of mutual interest” mentioned by the Court. NLRB v. Greyhound Lines, 306 U.S. 261 (1937), involved a classic “employee representation plan.” In Greyhound, the respondent in 1933 “decided, after discussions with ... employers in other industries, that the employees should be organized into some form of employee association” and announced its decision to set up a plan, telling employees that “[b]efore the plan can be set up the Management must be requested by the employees to do so,” circulating a sample petition, and suggesting that employees refrain from voting for anyone “radical.” 1 NLRB 303, 307 (1937). In NLRB v. Newport News Co., 308 U.S. 241 (1939), the respondent decided in 1927 to effectuate an employee representation plan, charged with providing “effective” collective-bargaining representation to employees. The plan could be amended only with the consent of the management. Garment Workers v. NLRB, 366 U.S. 730 (1961) (Recognition and bargaining with union chosen by minority of employees is unfair labor practice, even where employer had good faith but mistaken belief that recognized union had majority support), is a further step away from the employee participation program, involving two conventional outside labor unions.

[42]  232 NLRB 1232 (1977).

[43] Id. at 1233.

[44] Id. at 1234 (emphasis added).

[45] Id. at 1235.

[46] 230 NLRB 275 (1977).

[47] Id. at 276.

[48] 231 NLRB 1108 (1977).

[49] Id. at 1121.

[50] 274 NLRB 230 (1985).

[51] Id. at 244.

[52] In cases in which an employee committee's function as a representative of employees is an issue, I suggest that consideration of the issue of the committee's agency status could be helpful. I note that the amici favoring finding a violation of Sec. 8(a)(2) here have stressed that employer-dominated committees injure employee rights because employees have the right to representation by a bargaining agent with allegiance to their interests alone, and that such loyalty cannot arise when the committee's existence is dependent on the whim or will of the employer. In my view, the confusion over the relation of a committee to the employees—and the injury to employee rights— arises when the employer usurps the authority, vested by the Act in a majority of employees, to appoint an agent to represent their interests. Thus, I would consider evidence that a committee was established and unambiguously served as an agent of the employer to be evidence that the committee lacked a representational purpose. Such situations might arise where an employer made use of communication conduits, brainstorming groups, and groups dealing with production, efficiency, or other employer problems. In my view, committees or groups acting unambiguously as employer agents would be less likely to appear to provide employees with representation and therefore less likely to cause the harm to their rights contemplated by Sec. 8(a)(2).

[53] NLRB v. Scott & Fetzer Co., 691 F.2d 288, 291-292 (6th Cir. 1982).

[54] See also Cabot Carbon, supra, 360 U.S. at 213-214.

[55] For example, I would be inclined to accept an employer's assurances to employees that an employee committee was not intended as a substitute for a bargaining representative and that employees were free, under the law, to select a bargaining representative as evidence of a lack of unlawful motivation that would affect the nature of the committee's purpose. Contrast Ampex Corp., 168 NLRB 742 (1967), enfd. 442 F.2d 82 (7th Cir. 1971), cert. denied 404 U.S. 939 (1971), in which the Board, in finding that employee committees were statutory labor organizations where the employer argued that they functioned as personalized suggestion boxes, the Board emphasized that the respondent had told employees that the committees were substitutes for union representation and were better than unions.

[56] Garment Workers v. NLRB, 366 U.S. 730 (1961).

[57] As noted in the opinion, purpose, which is different from motive, may be shown by what management intends the organization to accomplish as well as for what it actually does, and that purpose may change over time.

[58] In my view, this case presents little more than garden variety 8(a)(2) conduct. For that reason, it is difficult to extrapolate and to speculate about the knotty problems that may arise in connection with the benign kinds of cooperative programs I outline below. Not in this case, for example, is the question of how to treat a situation where a legitimately established committee, whose purpose is to improve productivity, recommends changes whose implementation results in job loss. It was thus only with the greatest reluctance that I agreed to the decision to single out this case for oral argument. Nonetheless, now that expectations have been raised, I consider it necessary at the least to emphasize how narrow and unremarkable is today's holding.

[59] I do not agree with Member Raudabaugh that “most” committees of this sort will necessarily address in a significant way Sec. 2(5) subjects. In my experience, one can carefully structure an employee participation committee with a clearly articulated purpose to cover those matters that do not implicate Sec. 2(5) topics and scrupulously operate the committee so that it remains true to that purpose.

[60] I see no reason to distinguish between the situation where a cooperative program or committee is established by an employer, and a labor organization already represents the employees, and the situation where no labor organization has been recognized, so long as the program or committee does not deal with the employer on those subjects that Sec. 2(5) identifies as being within the province of a “labor organization.”

[61] Like the majority, I reject Member Raudabaugh's efforts to rewrite Sec. 8(a)(2). In my view his 4-part test significantly erodes Congressional intent as understood by the Supreme Court. Thus, Member Raudabaugh would be guided in part by the extent to which the “employees do not view the committee” as a substitute for collective bargaining. Under Member Raudabaugh's approach the employees' perception must be “reasonable.” This, however, simply encourages a separate contest over “reasonableness,” a factor not contemplated by Congress or the statute.


Member Raudabaugh also would give persuasive weight to the fact that an employer expressly assures employees that, notwithstanding the existence of an employee participatory program, they are free to “select traditional union representation....” No authority is cited for giving weight to this kind of a statement when the Board is adjudicating an 8(a)(2) case. Such an assurance would be hollow indeed if the employees have already been unlawfully influenced not to choose an outside organization by the establishment of an in-house committee in violation of 8(a)(2). Further, exactly what the Employer said, how he said it, and to whom and when it was said, could well be disputed, creating the potential for additional trial issues. Thus, Member Raudabaugh's test, however well-intentioned provides a road map for increased litigation, not cooperation. In my view, today's Employer does not need to be confronted with the possibility of more litigation and the costs associated therewith, but should be free, within the limits of our Statute, to encourage problem solving though cooperation so as to better compete in the world marketplace.


Finally, as the majority opinion shows, Newport News Shipbuilding, supra, is still good law. That case, and Garment Workers Union (Bernhard Altmann), supra, wisely reject the employer good-faith-motive principle embraced by Member Raudabaugh. The employer's subjective intent in no way dissipates the impact on the employees of the presence of an employer-dominated, in-house committee that substitutes for a legitimate labor organization's collective bargaining function. Sec. 8(a)(2) addresses that impact, not the employer's intentions.

[62] I have used the term “employee participation programs” (EPPs) to refer to labor-management cooperative efforts. Although such programs cover a broad gamut, they all involve the concept of employee participation. See Eaton and Voos, “Unions and Contemporary Innovations in Work Organization, Compensation, and Employee Participation,” Unions and Economic Competitiveness (M.E. Sharpe, Inc., 1992) at 208-210 for a description of the different forms of EPPs.

[63] See, e.g., The New Work System Network: A Compendium of Work Innovation Cases (Bureau of Labor-Management Relations and Cooperative Programs, U.S. Dept. of Labor, Pub. No. BLMR 136 (1990).

[64] “The New Industrial Relations,” Business Week, (May 11, 1981), p. 85. The current surge in cooperation, however, is not the first time that worker participation has occurred in the United States. Significant cooperative efforts also occurred in the unionized sector at a much earlier period in the history of labor relations. See, e.g., Golden and Ruttenberg, The Dynamics of Industrial Democracy (New York: Harper & Brothers Publishers, 1942). See also Hogler, Worker

[65] Kochan, Katz, and McKersie, The Transformation of American Industrial Relations (New York: Basic Books, 1987).

[66] Hale, The New Industrial Relations in a Global Economy, 37 Lab. L.J. 539 (1986); Kochan, McKersie, & Katz, “U.S. Industrial Relations in Transition: A Summary Report,” Proceedings of the Thirty-Seventh Annual Meeting of the Industrial Relations Research Association, 261, 264-268 (B. Dennis ed. 1984).


The advent of contemporary employee participation programs has generated a large body of interest and research from the disciplines of law, human relations and personnel management, economics, business, and organizational behavior. A small cross-section of this literature includes “America's Best Plants: IW's Third Annual Salute,” Industry Week, October 19, 1992; Unions and Economic Competitiveness, supra note 1; McCleod, Labor-Management Cooperation: Competing Visions and Labor's Challenge, 12 Indus. Rel. L.J. 233 (1990); Hoerr, “The Payoff from Teamwork,” Business Week, July 10, 1989; Klare, Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform, 38 Cath. U.L. Rev. 1 (1989); Stone, Labor and the Corporate Structure: Changing Conceptions and Emerging Possibilities, 55 U. Chi. L. Rev. 73 (1988); Review Symposium, The Transformation of American Industrial Relations, 41 Indus. & Lab. Rel. Rev. 439 (1988); Kochan, Katz, and McKersie, The Transformation of American Industrial Relations (New York: Basic Books, 1987); Advances in the Economic Analysis of Participatory and Labor-managed Firms: A Research Annual, Vol. 1 (Jones and Svejnar eds) (Greenich, Conn.: JAI Press, Inc., 1985); Human Resource Management and Industrial Relations: Text, Readings, and Cases (Kochan and Barocci, eds.) (Boston, Toronto: Little, Brown & Co., 1985); Siegel and Weinberg, Labor-Management Cooperation: The American Experience, The W.E. Upjohn Institute for Employment Research (1982); Stone, The Post-War Paradigm in American Labor Law, 90 Yale L.J. 1509 (1981); Participative Management: Concepts, Theory and Implementation (Ervin Williams, ed.), Pub. Ser. Div., Col. of Bus. Ad., Georgia State Un. (1976); Perspectives on Job Enrichment and Productivity (Waino W. Suojanen, W. William Suojanen, G.L. Swallow, and M. McDonald, eds.), Pub. Ser. Div., Col.of Bus. Ad., Georgia State Un., (1975); Hammer, New Developments in Profit Sharing, Gainsharing, and Employee Ownership, Cornell Un. ILR Reprint from John P. Campbell, Richard J. Campbell, and Associates, Productivity in Organizations: New Perspectives from Industrial and Organizational Psychology (San Francisco: Jossey-Bass, 1988); Brett and Hammer, Organizational Behavior and Industrial Relations, Cornell Un. ILR Reprint from Industrial Relations Research in the 1970s: Review and Appraisal (Madison, Wis.: IRRA, 1982); Hammer, Currall, and Stern, Worker Representation on Boards of Directors: A Study of Competing Roles, Cornell Un. ILR Reprint from Vol. 40 Indus. Lab. Rel. Rev. No. 4 (July 1991); Hammer and Stern, A Yo-Yo Model of Cooperation: Union Participation in Management at the Rath Packing Company, Cornell Un. ILR Reprint from Vol. 39 Indus. Lab. Rel. Rev. No. 3 (April 1986).

[67] See, e.g., Kafker, Exploring Saturn: An Examination of the Philosophy of “Total” Labor-Management Cooperation and the Limitations Presented by the NLRA, 5 Lab. Law. 703 (1989); Sockell, The Future of Labor Law: A Mismatch Between Statutory Interpretation and Industrial Reality, 30 B.C.L. Rev. 987 (1989); Note, Labor-Management Cooperative Programs: Do They Foster or Frustrate National Labor Policy? 7 Hofstra Lab. L.J. 219 (1989); Fetter & Reynolds, Labor-Management Cooperation and the Law: Perspectives from Year Two of the Laws Project, 23 Harv. C.R.-C.L. L. Rev. 3 (1988); Gardner, The National Labor Relations Act and Worker Participation Plans: Allies or Adversaries? 16 Pepperdine L. Rev. 1 (1988); Klare, The Labor-Management Cooperation Debate: A Workplace Democracy Perspective, 23 Harv. C.R.-C.L. L. Rev. 39 (1988); Note, The Future of Labor-Management Cooperative Efforts Under Section 8(a) (2) of the National Labor Relations Act, 41 Vand. L. Rev. 545 (1988); Special Project: Labor-Management Cooperation, 41 Vand. L. Rev. 539 (1988); Note, The Viability of Distinguishing Between Mandatory and Permissive Subjects of Bargaining in a Cooperative Setting: In Search of Industrial Peace, 41 Vand. L. Rev. 577 (1988); Deitsch, Participatory Management and Labor Law: A Collision Course, 38 Lab. L.J. 786 (1987); Note, Rethinking the Adversarial Model in Labor Relations: An Argument for the Repeal of Section 8(a)(2), 96 Yale L.J. 2021 (1987); U.S. Labor Law and the Future of Labor-Management Cooperation—First Interim Report (U.S. Dept. of Labor Publication No. BLMR 113, 1987); Kohler, Models of Worker Participation: The Uncertain Significance of Section 8(a)(2), 27 B.C.L.Rev. 499 (1986); Schlossberg and Fetter, U.S. Labor Law and the Future of Labor-Management Cooperation (U.S. Dept. of Labor Publication No. BLMR 104, 1986); Note, Participatory Management Under Sections 2(5) and 8(a)(2) of the National Labor Relations Act, 83 Mich. L. Rev. 1736 (1985); Note, Collective Bargaining as an Industrial System: An Argument Against Judicial Revision of Section 8(a)(2) of the National Labor Relations Act, 96 Harv. L. Rev. 1662 (1983); Jackson, An Alternative to Unionization and the Wholly Unorganized Shop: A Legal Basis for Sanctioning Joint Employer-Employee Committees and Increasing Employee Free Choice, 28 Syracuse L. Rev. 809 (1977); Note, New Standards for Domination and Support Under Section 8(a)(2), 82 Yale L.J. 510 (1973).

[68] Beth Israel Hospital v. NLRB, 437 U.S. 483, 500-501 (1978).

[69] NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963).

[70] Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-845 (1984).

[71] 139 LRRM 2225, 2229 quoting from Maislin Industries, U.S., v. Primary Steel, 110 S.Ct. 2759 (1990) (slip op. 13).

[72] 360 U.S. 203 (1959).

[73] 308 U.S. 241 (1939).

[74] The term “representation” also appears in Sec. 2(5). In enumerating the types of entities that may be labor organizations, Sec. 2(5) refers to an “employee representation committee or plan.” An argument can be made that the factor of representation is an additional defining characteristic and must be present before a finding of labor organization status can be made under Sec. 2(5). I do not find that argument persuasive. The term “representation” does not modify the other entities listed in the statutory definition and does not appear in the latter part of the definition along with “participation” and “dealing with.” I would, therefore, reject arguments that certain EPPs fall outside Sec. 2(5), to the extent that those arguments rely on the premise that representation is a necessary element in a labor organization.

[75] 360 U.S. at 205.

[76] Id. at 211.

[77] John Ascuaga's Nugget, 230 NLRB 275 (1977), and Mercy-Memorial Hospital, 231 NLRB 1108 (1977).

[78] General Foods, 232 NLRB 1232 (1977).

[79] See, e.g., The New Work System Network: A Compendium of Work Innovation Cases (Bureau of Labor-Management Relations and Cooperative Program, U.S. Dep't. of Labor, Pub. No. BLMR 136, 1990); Verman, “Exploring the Team Form of Work Organization in Human Resource,” Human Resource Management and Industrial Relations: Text, Readings, and Cases, supra, fn. 4 at 425-451; “Industrial Relations Systems at the Workplace.” Participative Management: Concepts, Theory and Implementation, supra, fn. 4 at 81-108.

[80] Although the Court's focus was on the term “dealing,” its analysis also sheds light on the related term “purpose” in the statutory definition. In order for an entity to constitute a labor organization, at least one of its purposes must be that of dealing with the employer. If, as in Cabot Carbon, the entity in fact “deals with” the employer, it would seem clear that a “purpose” of that entity is to deal with the employer.
The term “purpose” in Sec. 2(5) is to be distinguished from motive (which does not appear in the section). As discussed above, the term “purpose” concerns the aims of the entity involved. The aim or purpose must be to deal with the employer. By contrast, “motive” concerns the employer's reasons for establishing the entity. As discussed, infra, I believe that motive is relevant to the 8(a)(2) issues.

[81] Note, Participatory Management Under Section 2(5) and Section 8(a)(2) of the National Labor Relations Act, supra fn. 5 at 1747, fn. 65.

[82] An argument can be made that such subject matters as safety and increased efficiency do not fit within the Sec. 2(5) definition and that EPPs created to address such matters would fall outside the statutory definition of labor organization. The proponents of this argument point to the fact that the Supreme Court in Cabot Carbon did not address the question whether proposals to an employer concerning safety and increased efficiency would constitute “dealing with.” From this, they conclude that the Court intended to leave open the issue of whether a committee would be a labor organization if it confined itself to matters not expressly addressed by the Court.

For the reasons stated in the text above, I believe that this argument ultimately fails or has very limited applicability. An EPP addressing safety or increased efficiency is very likely to take up matters which were discussed by the Court or are expressly included in Sec. 2(5). If it does, then its purpose, at least in part, is to deal with the employer on these matters and it falls within the statutory definition.

[83] See supra at 993 of principal opinion.

[84] Thus, for example, Senator Wagner stated during the hearings and debates over the terms of the Act: “The development of the company-dominated union has been one of the great obstacles to genuine freedom of self-organization. It is extremely significant that these spurious unions have sprouted most prolifically in the form of various employee representation plans devised after the enactment of the law designed to insure that very freedom. Over 69 percent of the plans now in existence have been inaugurated since the passage of the Recovery Act. It is worthy of note also that these plans are most prevalent in the largest plants. This means that in the very instances where the bargaining power of the employer is strongest, the worker is least free to attempt to improve his position by unrestricted affiliation with others of his kind.” 1, NLRB, Legislative History of the National Labor Relations Act, 1935 (hereafter Leg. Hist.) 1416.

[85] There was no contention before the Court that the committee was not a labor organization.

[86] 308 U.S. at 249.

[87] Id. at 251.

[88] Various courts of appeals have posed new interpretations of Sec. 8(a)(2) in the context of labor management cooperation. These decisions, however, have failed adequately to address either the legislative history or the Supreme Court's ruling in this area and thus, provide insufficient guidance.


The first of these decisions was rendered by the Court of Appeals for the Seventh Circuit in Chicago Rawhide Mfg. Co. v. NLRB, 221 F.2d 165 (7th Cir. 1955). In that case, the company and a group of employees together created an association (Employee Committees) for handling grievances and other employment matters. The company permitted elections and committee meetings to be held on company property during work hours, and made financial contributions to the shop recreation committee. The Board found unlawful support by the company. The Seventh Circuit, however, refused to enforce the Board's order on the ground that the Board had failed to distinguish between unlawful support and lawful cooperation. The court stated:

 

Support, even though innocent, can be identified because it constitutes at least some degree of control or influence. Cooperation only assists the employees or their representatives in carrying out their independent intention. If this line between cooperation and support is not recognized, the employer's fear of accusations of domination may defeat the principal purpose of the Act, which is cooperation between management and labor. [221 F.2d at 167.]

The court cites no support for this rationale. The decision is silent with respect to the legislative history of the Act and the Newport News decision.

Several other courts of appeal have taken Seventh Circuit's approach with the same absence of discussion of legislative history and Supreme Court precedent. Indeed, these decisions take into account such factors as employee satisfaction with the committees and the employer's lack of antiunion sentiment which the Supreme Court expressly found immaterial in Newport News. See, e.g., Hertzka & Knowles v. NLRB, 503 F.2d 625 (9th Cir. 1974). Modern Plastic Corp. v. NLRB, 379 F.2d 201 (6th Cir. 1967); Coppus Engineering Corp. v. NLRB, 240 F.2d 564 (1st Cir. 1957).

Only one court of appeals decision in this area has expressly addressed Newport News. In NLRB v. Homemaker Shops, 724 F.2d 535 (6th Cir. 1984), the Sixth Circuit applied the “free choice” analysis and referred to Newport News as setting forth a “rigid rule” requiring a “per se prohibition on employer support of unions” which may have had value in early cases arising under the Act, but which “runs contrary to more recent trends” such as “the change in public policy from nurturing the nascent labor movement to regulating and limiting management and labor excesses alike.” 724 F.2d at 547 fn. 12 (citations omitted). Without any discussion of the legislative history of the Act, the Court's treatment of Newport News amounts to little more than a pronouncement that times have changed.

at 547 fn. 12 (citations omitted). Without any discussion of the legislative history of the Act, the Court's treatment of Newport News amounts to little more than a pronouncement that times have changed.

[89] My colleagues in the majority appear to read Newport News for the narrow proposition that disestablishment is an appropriate remedy for a labor organization that has been unlawfully dominated for 10 years. I believe that the case stands for more than that. The plan in that case was lawful from its inception in 1927 until the passage of the Wagner Act in 1935. In 1937, the employer sought to bring the plan into compliance with the Act. The Supreme Court held that this effort failed. The Court made it clear that, notwithstanding the 1937 amendments, the plan remained unlawful under the Act. In this regard, the Court pointed to the fact that the plan required the employer's approval for any changes. In view of the Court's declaration that this provision was unlawful, and in light of the broad language used by the Court in condemning the plan, I think it clear that many of today's EPPs would not pass muster under Newport News. For, as noted above, under these plans, the employer retains the power to make changes in the plan.

[90] 1 Leg. Hist. 16.

[91] Rethinking the Adversarial Model in Labor Relations: An Argument for Repeal of Section 8(a)(2), supra, fn. 5 at 2011 fn. 7 (1987).

[92] Kohler, Models of Worker Participation: The Uncertain Significance of Section 8(a)(2), supra, fn. 5 at 518-534. For a contrary view, see note, Participatory Management Under Section 2(5) and 8(a)(3) of the National Labor Relations Act, supra, fn. 5 at 1759-1765.

[93] Id. at 532, quoting from the remarks of Henry Dennison, 1 Leg. Hist. 435-438.

[94] A. Cox, D. Bok, R. Gorman, Cases on Labor Law 93-94 (1977), as quoted by Jackson, An Alternative to Unionization and the Wholly Unorganized Shop: A Legal Basis for Sanctioning Joint Employer-Employee Committees and Increasing Employee Free Choice, supra, fn. 5 at 835 (1977).

[95] This is not to say that Congress chose the cooperative model to the exclusion of the adversarial model, or vice versa. Rather, there can be elements of both in any relationship. Thus, for example, in the context of a collective-bargaining relationship, labor and management may have mutual interests as well as conflicting ones. Although the issue is not presented in this case, it would appear to me that the law does not forbid labor and management from engaging in cooperative efforts which have been arrived at through the process of collective bargaining. See, e.g., Golden and Ruttenberg, The Dynamics of Industrial Democracy, supra, fn. 2. See also Cooke, Product Quality Improvement Through Employee Participation: The Effects of Unionization and Joint Union-Management Administration, 46 Industrial and Labor Relations Review 119 (1992).

[96] See, e.g., Kohler, Models of Worker Participation: The Uncertain Significance of Section 8(a)(2), supra, fn. 5; note, Collective Bargaining as an Industrial System: An Argument Against the Judicial Revision of Section 8(a)(2) of the National Labor Relations Act, supra, fn. 5.

[97] See Cabot Carbon, supra at 281. With respect to the Supreme Court's discussion in Cabot Carbon of the legislative history of the Taft-Hartley amendments, I note that the Court was addressing the question whether the Taft-Hartley amendment to Sec. 9(a), permitting the presentation directly to the employer of individual or group grievances, effectively eliminated employee committees from the 2(5) definition of labor organization and thus removed employer conduct with respect to them from the proscriptions of Sec. 8(a)(2). The Court found that it did not. The Court's holding is confined to the interpretation of Sec. 2(5) which was the only issue before it. The Court did reach any other aspect of the interpretation of Sec. 8(a)(2).

[98] The proposed amendments are in H.R. 3020, 1 Leg. Hist. (1947) 50. The amendments are explained in House Report No. 245 on H.R. 3020, 1 Leg. Hist. (1947) 319-320.

[99] National Productivity and Quality of Work Life Act of 1975, 15 U.S.C. § 2401 et seq.

[100] The Labor-Management Cooperation Act of 1978, 29 U.S.C. §§ 173(e), 175(a), 175(b) (grants confined to employers with collective-bargaining relationships), 186(c).

[101] Contrary to the suggestion of my colleagues, I do not assert that “an employer permissibly may now deal with a dominated Section 2(5) labor organization.” Clearly, an employer cannot do so. The issue concerns the kinds of conduct that will constitute “domination” of the labor organization.

[102] 1 Leg. Hist. 3; 2 Leg. Hist. at 2309-2310. See also the remarks of Senator Wagner at 1 Leg. Hist. 352.

[103] Id.

[104] Under Board precedent, support of this sort has been found permissible, in certain circumstances, by application of a de minimis rule. See, e.g., S. W. Motor Lines, 236 NLRB 938 (1978); Monon Trailer, 217 NLRB 257 (1975); Coamo Knitting Mills, 150 NLRB 579 (1964).

[105] 1 Leg. Hist. 3.

[106] This factor is based on an objective standard: whether the EPP may reasonably be perceived by employees as a substitute for full collective bargaining through a traditional union. It is virtually the same standard the Board has long used to determine interference, restraint, and coercion in 8(a)(1) cases: “The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.” American Freightways Co., 124 NLRB 146, 147 (1959). This test does not allow for evidence concerning individual employees' subjective reactions to the conduct. Similarly, the objective standard in the test I have set out above does not allow for evidence concerning individual employees' subjective feelings about the EPP, and cannot, therefore, become mired in litigation over the reasonableness of each employee's view. Instead, the test requires a review of the facts concerning the function and operation of the EPP and a determination on the basis of those facts as to whether the EPP may reasonably be viewed by employees as a substitute for traditional collective bargaining.

[107] I do not believe that Newport News precludes an analysis that considers motive. As discussed above, I think that the case is no longer viable. Further, even if it is viable, the Court's conclusion that motives were irrelevant was in the context of an analysis of the propriety of the Board's dissolution order. In essence, the Court was saying that the dissolution order was appropriate in light of the fact that the plan had existed since 1927. The employer's benign motives did not preclude such an order. This is not to say that the issue of motive is irrelevant on the question of whether there is a violation in a case involving a relatively new plan. Finally, I do not think that Garment Workers Union (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731 (1961), precludes an inquiry into motive. If an employer recognizes a union as the exclusive bargaining representative of employees, and the union has not been selected by a majority of the employees, that conduct, in and of itself, has a significant impact on Sec. 7 rights. However, that situation is distinguishable from one in which an employer deals with an employee committee but does so in a way that leaves the employees free to choose or reject an exclusive bargaining representative.

[108] Member Oviatt has expressed concern that the test I propose would lead to increased litigation, and not cooperation. For reasons stated earlier, the test does not require litigation of as many matters as he suggests. Further, I think it is more likely that the majority position will result in increased litigation. The majority has decided this case on its narrow facts. The majority therefore offers virtually no guidance as to whether different plans in different circumstances would be lawful or unlawful under the Act. Employers wishing to know those answers must look to case by case litigation in the future. By contrast, I have at least provided a framework for analysis and I have listed the factors which should be considered in that analysis.

[109] See Fed.R.Civ.P. 11.

[110] The other subsidiaries of American Electronic Components are Alliance Plastics, Durakool, Hermaseal, Switch Systems, Inc., and Electronic Devices. These companies have no connection with the issues in this case, but it is noted that all of them are unionized and according to undenied testimony, enjoy good relations.

[111] In December 1988, Dickey became employee benefits manager at American Electronic Components. She was described as “Personnel Manager” of Electromation in the complaint, and the Respondent denied the allegation. At the hearing the parties stipulated that Dickey was, at all times material, a managerial employee and an agent of the Respondent.

[112] All dates hereafter are in 1989.

[113] Howard testified that during 1988, they had held several such meetings, selecting the rank-and-file employees by dividing their whole number in half, between high and low seniority people, and selecting three from each group. In the case of this January 11 meeting, Howard said that two other employees asked to attend, so the total number of hourly employees was eight.

[114] In order, as Howard testified, to give everybody a chance.

[115] The no-smoking committee was never organized and never met.

[116] I think she may have moved the meetings along if they strayed from the subject. See testimony of Gayle Bango and Lorinda Schiltz (also spelled Schultz or Schlitz).

[117] Despite the General Counsel's intimations in his brief and at the hearing. Cf. St. Vincent's Hospital, 244 NLRB 89 (1979).

[118] Wahlgreen Magnetics, 132 NLRB 1316 (1961); Memphis Truck & Trailer, 284 NLRB 900 (1987); Superior Container, 276 NLRB 521 (1985); North American Van Lines, 288 NLRB 38 (1987); Airstream, Inc., 288 NLRB 220 (1988).

[119] The fact that the Company in early 1989 was following a past practice of meetings and committee consideration of problems is not controlling. This is not an arbitration case, where unclear contractual provisions may be elucidated and explained by the parties' actions thereunder.

[120] In my experience, a sense of humor is a dubious asset in the field of labor-management relations. 309 NLRB No. 163 (N.L.R.B.), 309 NLRB 990, 142 L.R.R.M. (BNA) 1001, 1992-93 NLRB Dec. P 17609, 1992 WL 386692

5.1.2 T-Mobile USA, Inc. v. NLRB 5.1.2 T-Mobile USA, Inc. v. NLRB

90 F.4th 564

A divided panel of the D.C. Circuit enforced the Board's decision and order holding that T-Mobile's "T-Voice" organization was an unlawful company union in violation of Section 8(a)(2). The majority endorsed the Board's conclusion that individual employees acting in a representative capacity to share ideas with management are "dealing with" the Employer as proscribed by the Act. 

GARCIA, Circuit Judge: The National Labor Relations Act protects employees’ rights to self-organize and choose representatives to bargain with their employer. To that end, the Act prohibits employers from dominating a “labor organization,” which the Act defines as an employee group that exists at least “in part” to deal with employers over working conditions. 29 U.S.C. §§ 152(5), 158(a)(2).

In 2015, T-Mobile established an organization it called T-Voice. The company picked employees—which it labeled “representatives”—to comprise the group and told other employees to use those T-Voice representatives to raise issues with management. When the National Labor Relations Board’s General Counsel charged T-Mobile with unlawfully dominating T-Voice, T-Mobile argued that T-Voice was not a labor organization because T-V oice representatives made proposals to management individually, not as a group, and that in any event most T-Voice proposals did not concern employee working conditions. Because the Board reasonably rejected those arguments as inconsistent with the Act and Board precedent, we deny T-Mobile’s petition for review and grant the Board’s cross-application for enforcement of its order.

I. A.

T-Mobile is a national wireless telecommunications carrier that operates 17 call centers across the country. At each center, T-Mobile employs customer service representatives— referred to as “CSRs” or “frontline” employees—to handle customer calls.

T-Mobile established T-Voice in January 2015. The organization’s charter stated that its mission was to “[e]nhance Customers[’] and Frontline experience by identifying, discussing, and communicating solutions for roadblocks for internal and external customers” and to “[p]rovide a vehicle for Frontline feedback and create a closed loop communication with [the] T-Mobile [Senior] Leadership Team.” A761.

In June 2015, when T-Mobile expanded T-Voice to cover all call centers nationally, an Executive Vice President at the company emailed the following to all CSRs:

T-Voice is your voice—it’s made up of Frontline Representatives from each call center . . . . Their job is to raise Frontline and customer pain points to ensure they are resolved and then results are communicated back to the Frontline . . . . You can raise issues by reaching out to your T-Voice representatives. Be vocal, let us know what you think.

A676. “Pain points” are perceived problems and complaints. Customer pain points indirectly affect CSRs because they result in service calls and customer irritation that CSRs are tasked with handling. Frontline pain points more directly concern terms and conditions of employment such as bonus compensation and work schedules.

T-Mobile filled T-Voice with CSRs selected from different shifts, call functions, and call centers and paid them to serve as T-Voice representatives. As indicated in the email above, T-Voice representatives primarily collected customer and frontline pain points from fellow CSRs and presented them to management.

T-Voice representatives collected pain points in several ways. During “table days,” they set up a table and talked to CSRs face-to-face. Representatives also arranged meetings with small teams of CSRs at which they solicited pain points. And CSRs could submit pain points via physical suggestion boxes or to designated email addresses.

After they received pain points, T-Voice representatives entered them into a database as conveyed by the submitter, subject to minor grammatical or clarifying edits. T-Voice representatives also submitted their own pain points. Once the pain points were in the database, customer experience managers evaluated them and entered a response, which the T-Voice representatives then relayed back to the affected CSRs.

T-Voice representatives also discussed pain points with management in a variety of other ways. Sometimes, T-Voice representatives emailed pain points directly to management. Managers in charge of the T-Voice program also met with T-Voice representatives during weekly, monthly, and annual meetings. Weekly local meetings involved discussions with site senior managers regarding the most significant or recurring pain points. Monthly regional meetings involved sharing best practices for gathering pain points.

During monthly national telephonic meetings, T-Voice representatives learned the resolution of the previous month’s top three pain points and could ask questions or make suggestions. For example, during the September 2015 meeting, a T-Voice representative suggested that the company provide CSRs with a script explaining how phone exchanges work. T-Mobile responded that it “will be” considering the proposal and added it “to the list of things to relook at to ensure [the company has] it properly covered.” A746. During the January 2016 meeting, after receiving an update on T-Mobile’s new device insurance plans, T-Voice representatives suggested edits to the corresponding CSR training materials. T-Mobile edited the materials accordingly. And during the March 2016 meeting, T-Voice representatives suggested that device emulators be provided to CSRs to help them troubleshoot problems with customers’ devices. The company promised to provide an update on the proposal by the next month’s call.

These national meetings often included focus groups run by a T-Mobile manager. During a January 2016 focus group on coverage and network issues, T-Voice representatives recommended on-site trainings for CSRs on coverage and device compatibility, and “network-specific talking points to help address customer questions/concerns.” A736. The manager emailed notes from that meeting to the broader T-Voice team and the company’s Customer Service Leadership Team.

T-Mobile also held two national, in-person T-Voice summits. All T-Voice representatives and many senior managers attended these two-day events. The 2015 summit included break-out sessions where focus groups of T-Voice representatives addressed topics including “Employee Engagement/T-Mobile Culture,” “Metrics,” “Systems/Tools,” and “Frontline Readiness.” Notes from the “Metrics” focus group indicate that T-Voice representatives made proposals for changes to calculations of CSR performance metrics—for instance, dropping the high and low scores on customer- satisfaction surveys and excluding calls lasting less than 45 seconds from the calculation of another metric. The T-Mobile Vice President who hosted the focus group and another senior manager circulated the minutes to other managers “[f]or our discussion.” A697.

Notably, T-Mobile sometimes announced to employees that it had implemented proposals solicited through T-Voice and credited T-Voice with those changes. In one illustrative episode, a T-Voice representative emailed a Senior Vice President to request 45 dual monitors for CSRs in a particular department. T-Mobile considered and granted the request. The company then credited the change to T-Voice, announcing in its newsletter that the “T-Voice team was instrumental in raising the need for dual monitors” and that “[s]olving this pain point should lead to a happier, more productive workplace.” A116, A683. T-Mobile also credited T-Voice with changes involving, for example, an employee loyalty program that gave CSRs milestone anniversary gifts, a charging station in the employee break room, and free Wi-Fi access.

B.

The Communications Workers of America (“CWA”) has attempted to organize CSRs at T-Mobile since 2009. In February 2016, CWA filed an unfair labor practice charge against the company. The Board’s General Counsel then filed a complaint alleging, in relevant part, that T-Voice was a labor organization under Section 2(5) of the Act and that T-Mobile dominated T-Voice in violation of Section 8(a)(2) of the Act. T-Mobile has never disputed that it dominated T-Voice. The only relevant dispute before the Board was whether T-Voice qualified as a statutory labor organization.

An Administrative Law Judge (“ALJ”) held a four-day trial and ruled that T-Voice was a labor organization. On September 30, 2019, the Board reversed the ALJ. T-Mobile USA, Inc. & CWA, AFL-CIO (“T-Mobile I”), 368 N.L.R.B. No. 81 (Sept. 30, 2019). The Board read its precedent to require that a labor organization deal with management through “group proposals,” and held that T-Voice did not satisfy that requirement because T-Voice representatives submitted their proposals individually rather than through a collective mechanism. Id. at 8–9. CWA then petitioned our court for review of the Board’s decision.

On April 16, 2021, we granted CWA’s petition for review and remanded the case to the Board for further consideration.CWA v. NLRB, 994 F.3d 653, 664 (D.C. Cir. 2021). Our decision focused on “dueling lines of Board precedent” about the “definitional requirement that a ‘labor organization’ must exist for the purpose, at least in part, of ‘dealing with’ the employer concerning conditions of work.” Id. at 659. We noted that the Board’s decision was premised on the “view that an organization does not engage in ‘dealing with’ an employer unless it makes ‘group proposals’ to the employer” and that “proposals from individual members of the group would not be sufficient.” Id. at 660.

We agreed that the precedents the Board cited are consistent with an interpretation of the “group proposals” requirement that would “require some process for adopting or advancing [proposals] as proposals of the organization.” See id. at 662–63 (discussing Polaroid Corp., 329 N.L.R.B. 424, 429 (1999); EFCO Corp., 327 N.L.R.B. 372 (1998), enforced, 215 F.3d 1318 (4th Cir. 2000); E.I. du Pont & Co., 311 N.L.R.B. 893 (1993); Electromation, Inc., 309 N.L.R.B. 990, 994 (1992), enforced, 35 F.3d 1148 (7th Cir. 1994)). But we also identified two other decisions the Board failed to consider: Dillon Stores, 319 N.L.R.B. 1245 (1995) and Reno Hilton Resorts Corp., 319 N.L.R.B. 1154 (1995). CWA, 994 F.3d at 662. In both cases, we explained, the Board found employee groups were labor organizations without examining whether proposals from members of the group had been “embraced by the group through any formal process.” Id. at 663. In Dillon Stores, the “dealing with” requirement was met even though proposals were “‘advanced collectively’” only in the sense “that the proposals were made ‘on a representational basis’” by members of the employee group at issue. Id. at 662 (quoting Dillon Stores, 319 N.L.R.B. at 1250, 1252). Similarly, we observed that in Reno Hilton the Board found labor- organization status where the employee groups “or their members made proposals.” Id. (quoting Reno Hilton, 319 N.L.R.B. at 1156).

We further noted that, even in cases fitting the Board’s new “group proposals” requirement, the Board had never “held that an organization in which employee representatives make proposals to management does not constitute a labor organization unless those proposals are adopted by the group.” Id. at 663. Such a requirement, we explained, would seem “in tension” not only with Dillon Stores and Reno Hilton, but also with precedent holding that a group “‘may meet the statutory definition of “labor organization” even if it lacks a formal structure.’” Id. (quoting Electromation, 309 N.L.R.B. at 994). Separately, we noted that such a requirement “might be easily circumvented and undermine the function of Section 8(a)(2),” which aims to broadly preclude employer domination of employee groups purporting to represent other employees. Id.

We therefore concluded that the Board’s formal “group proposals” requirement “broke new ground” and left uncertainty “about what the record must show for the Board to find that an organization made group proposals” and qualifies as a statutory labor organization. Id. We remanded the case to the Board to “reconcile” its precedent, id. at 655, directing it to “identify what standard [it] has adopted for separating ‘group proposals’ from proposals of employee representatives, like T-Voice representatives.” Id. at 664. In doing so, we noted that the Board’s precedent suggested two potential rules. First, consistent with Dillon Stores, it might suffice that “an employee representative makes a proposal while acting in a representative capacity.” Id. at 663; see id. at 661–62. Second, despite the possible difficulties we identified with such an approach, we noted that perhaps the Board meant to require something more, “such as a formal vote adopting the proposal.” Id. at 663.

On remand, the Board effectively endorsed the first option, finding that the “group proposals” requirement for dealing is satisfied if individual group members acting in a representative capacity make proposals to management. T-Mobile USA, Inc. & CWA, AFL-CIO (“T-Mobile II”), 372 N.L.R.B. No. 4, 4–5 (Nov. 18, 2022). Applying that rule, the Board determined that T-Voice was indeed a labor organization and that T-Mobile violated Section 8(a)(2) by dominating T-Voice. Id. at 8–9. As part of its remedy, the Board ordered T-Mobile to immediately disestablish T-Voice and post a remedial notice at facilities where T-Voice is or has been maintained. Id. at 9–10.

T-Mobile timely petitioned for review and the Board filed a cross-application for enforcement of its decision.

II.

Section 8(a)(2) of the Act makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” 29 U.S.C. § 158(a)(2). Section 2(5) of the Act defines a “labor organization” as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” Id. § 152(5). A group therefore qualifies as a labor organization if employees participate; the group exists, at least in part, for the purpose of “dealing with” the employer; and those dealings concern the subjects listed in Section 2(5). See Electromation, 309 N.L.R.B. at 995–96. If an “employee representation committee or plan” is involved, there must also be evidence that the committee “is in some way representing the employees.” Id. at 996.

The Board has held that the statutory phrase “dealing with” contemplates “a pattern or practice,” E.I. du Pont, 311 N.L.R.B. at 894, of bilateral conduct involving “proposals from the employee [group] concerning the subjects listed in Sec[tion] 2(5), coupled with real or apparent consideration of those proposals by management,” Electromation, 309 N.L.R.B. at 995 n.21.

III.

T-Mobile contests four aspects of the Board’s decision in T-Mobile II. The company argues that the Board’s revised approach to the “group proposals” requirement is unreasonable and inconsistent with Board precedent; that, even under that revised approach, substantial evidence does not support the Board’s determination that T-Voice is a labor organization; that the Board deviated from its findings in T-Mobile I without explanation; and that the Board failed to consider key facts before ordering the disestablishment remedy. None of these arguments warrants relief.

A.

We first address T-Mobile’s challenge to the Board’s clarification of its “group proposals” requirement. We will “abide [the Board’s] interpretation of the Act if it is reasonable and consistent with controlling precedent.” Enter. Leasing Co. v. NLRB, 831 F.3d 534, 543 (D.C. Cir. 2016) (alteration in original) (internal quotation marks omitted) (quoting Brockton Hosp. v. NLRB, 294 F.3d 100, 103 (D.C. Cir. 2002)).

T-Mobile’s argument concerns the Board’s interpretation of what it means for a group of representative employees to “deal with” an employer. The Board initially held that proposals from individual members of such a group to management are not sufficient to constitute “dealing” by the group. After we raised questions about that approach and remanded to the Board for clarification, the Board changed course. In the decision on review, the Board held that an employee group can “deal with” an employer where the group’s individual members make proposals to management while acting in a representative capacity, even if there is no additional indication that the full group endorses the individual member’s proposal. That conclusion fits comfortably with the Act’s text and purpose, and with relevant Board precedent.

As the Board explained, “nothing in the text of Section 2(5) or its legislative history supports the notion that the employee group must adopt proposals in any particular way before those proposals may be found to be group proposals.” T-Mobile II, 372 N.L.R.B. No. 4, at 6. Rather, the Act’s text places no limit on how a group may “deal with” an employer. In assessing the related question of what types of groups may constitute labor organizations, the Board has similarly noted Section 2(5)’s “broad” text and concluded that a group may qualify “even if it lacks a formal structure, has no elected officers, constitution or bylaws, does not meet regularly, and does not require the payment of initiation fees or dues.” Electromation, 309 N.L.R.B. at 993; see also NLRB v. Ampex Corp., 442 F.2d 82, 84 (7th Cir. 1971) (“The statute has been broadly construed, both with respect to absence of formal organization and the type of interchange between the parties which may be deemed ‘dealing.’”).

The Board’s approach also tracks the Act’s statement of purpose, which includes the goal of protecting workers’ “full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment.” 29 U.S.C. § 151. As the Board has explained, Congress defined the term “labor organization” “broadly” to achieve that goal, aiming to “rid[] collective bargaining of employer-dominated organizations” so that employees would retain “the freedom to choose their own representatives.” Electromation, 309 N.L.R.B. at 993.

By contrast, as we noted in CWA, T-Mobile’s proposed requirement that a group of representative employees must adopt proposals in some particular fashion before conveying them to management would seem an odd fit with the Act’s broad text and purpose. See CWA, 994 F.3d at 663. Accordingly, the Board was justified in choosing the contrary course we ourselves identified in that opinion. If a group of employee representatives otherwise satisfies Section 2(5)’s requirements, the fact that the group operates by allowing its individual members to make proposals to management rather than through a more formal collective mechanism does not make employer dominance of that group any less offensive to the Act’s objective of ensuring that employees retain “the freedom to choose their own representatives.” Electromation, 309 N.L.R.B. at 993. If the individuals are members of a group that represents other employees and make proposals in their capacity as members of that group, those proposals can reasonably be regarded as proposals of the group for purposes of the “dealing with” requirement.

As for precedent, the Board recognized that it had previously found statutory dealing regardless of whether the employee group formally adopted the proposals group members submitted to management. In particular, the Board explained—consistent with our analysis in CWA—that its decision in Dillon Stores directly supports its revised approach. T-Mobile II, 374 N.L.R.B. No. 4, at 6. There, members of an employee group acted in a representative capacity when presenting proposals to management during quarterly meetings. Dillon Stores, 319 N.L.R.B. at 1250. But the group did not collectively adopt the proposals beforehand. Id. at 1250–51. Still, the Board found statutory dealing because the “proposals and grievances had been advanced collectively, on a representational basis.” Id. at 1252 (emphasis added). As we explained in CWA, the phrase “advanced collectively” in Dillon Stores necessarily “means only that the proposals were made ‘on a representational basis,’” because there was no evidence that the group adopted individual representatives’ proposals. 994 F.3d at 662.1 As the Board also emphasized, there is no contrary precedent. That is, neither the Board nor T-Mobile has identified any case in which the Board “found that an employee group that acted in a representative capacity and made proposals to management was not ‘dealing with’ the employer” and therefore was not a labor organization. T-Mobile II, 374 N.L.R.B. No. 4, at 6; see also CWA, 994 F.3d at 663.

T-Mobile’s counterarguments lack merit. The company notably does not contend that the Act’s text or purpose supports its preferred requirement that the employee group take some formal action to endorse individual group members’ proposals before group dealing can be found.

Instead, T-Mobile submits that the Board’s approach conflicts with its precedent. T-Mobile describes several Board precedents as involving groups that not only conveyed proposals to management as representatives of other employees but also took some additional action to adopt the proposals as their own. T-Mobile Br. at 23–24 (discussing Grouse Mt. Assocs. II, 333 N.L.R.B. 1322 (2001), enforced, 56 F. App’x 811 (9th Cir. 2003); Aero Detroit, Inc., 321 N.L.R.B. 1101 (1996), aff’d in part and rev’d in part, 144 F.3d 995 (6th Cir. 1998); and Ryder Dist. Res., Inc., 311 N.L.R.B. 818 (1993)). T-Mobile’s description of those cases is accurate. But that fact is no stand-in for what T-Mobile really needs: a Board decision stating that such action is required for a group of representative employees to qualify as a statutory labor organization. As we have explained, there is no such case.

T-Mobile also argues that if an individual group member’s proposal made in a representative capacity can constitute a “group proposal,” then the Board’s approach improperly conflates two distinct Section 2(5) prerequisites: the “dealing with” requirement and the requirement that, “if an ‘employee representation committee or plan’ is involved,” there must be evidence that the committee or plan is in some way representing the employees, Electromation, 309 N.L.R.B. at 996. T-Mobile is incorrect. Although a group’s representative nature might matter for multiple Section 2(5) requirements, that does not somehow render the “dealing with” requirement a nullity. As T-Mobile acknowledges, statutory dealing requires more than a group or its members making proposals in a representative capacity—the group must also engage in a “pattern or practice” of bilateral conduct involving proposals on “the subjects listed in Sec[tion] 2(5) coupled with real or apparent consideration of those proposals by management.” Id. at 995 n.21.

Moreover, T-Mobile has no persuasive answer to Dillon Stores, which we already identified in CWA as affirmatively in conflict with any formal group-adoption requirement. T-Mobile instead submits that later Board precedents citing Dillon Stores have failed to follow its reasoning. The only case the company cites in support of that assertion is Simmons Industries, Inc., 321 N.L.R.B. 228 (1996). There, after finding that the employee committees at issue functioned in a representative capacity, the Board proceeded to conduct a separate inquiry into dealing and found the requirement satisfied because the committees made proposals to management by a “consensus process” or otherwise “discussed and made proposals.” Id. at 254; see id. at 253. According to T-Mobile, the Board’s approach in Simmons indicates that, even post-Dillon Stores, an individual member’s proposal is not “imputed to the group simply because of its representative structure.” T-Mobile Br. at 26. But like the other Board precedents on which T-Mobile relies, Simmons merely demonstrates that collective group action is one way of satisfying the “group proposals” requirement for statutory dealing. The decision does not state that such collective action is necessary, much less overturn Dillon Stores. Nor does it foreclose the view—which the Board has now explicitly adopted—that group members making proposals in a representative capacity is an alternative means to the same end.

B.

Next, we address T-Mobile’s challenge to the Board’s finding that T-Voice is a labor organization under the Board’s clarified approach to the “group proposals” requirement.

“We must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board’s findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case.” Int’l Union of Electronic, Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotations and citation omitted). Substantial evidence is enough “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Micro Pac. Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C. Cir. 1999) (internal quotation mark omitted) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Thus, we reverse the Board “only when the record is so compelling that no reasonable factfinder” could agree with the Board. Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011) (internal quotation mark omitted) (quoting United Steelworkers of Am. v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993)).

Recall that, to find labor-organization status, the Board needed to find that (1) T-Voice submitted group proposals (2) on statutory subjects, (3) those proposals received real or apparent management consideration, and (4) there was a pattern or practice of such bilateral dealing. See E.I. du Pont, 311 N.L.R.B. at 894; Electromation, 309 N.L.R.B. at 995 n.21. Substantial evidence supports the Board’s finding on each requirement.

The Board cited six characteristic examples of statutory dealing in support of its conclusion that T-Voice is a labor organization. T-Mobile II, 374 N.L.R.B. No. 4, at 7–8. They are: a September 2015 proposal regarding 45 dual monitors for CSRs in the Dedicated Care Department; October 2015 proposals concerning the metrics used to measure CSR performance; a March 2016 proposal for device emulators to help CSRs troubleshoot problems with customers’ devices; a September 2015 proposal that T-Mobile provide CSRs with a script to aid in explaining phone exchanges to customers; January 2016 proposals for trainings on coverage and device compatibility, and network-specific talking points to help CSRs address customer questions; and a January 2016 proposal on updating the language in materials for training CSRs on the company’s new device insurance plans. Id.

First, because the foregoing proposals “originated with [a] T-Voice representative acting as a representative of fellow employees,” the Board found that they all qualify as “group proposals” under its clarified approach. Id. at 7. T-Mobile does not dispute the Board’s finding that T-Voice members acted in a representative capacity. Nor could it. As the Board highlighted, the company calls employees serving in the T-Voice program “T-Voice representatives,” an apt title given that they are selected “from different shifts, call functions, and call centers.” Id. at 5. Moreover, T-Voice “expressly solicited ‘employee’ or ‘Frontline’ pain points” from CSRs outside the group. Id. at 8. In T-Mobile’s own words, T-Voice was “a direct line of Frontline feedback for senior leadership.” Id. at 5. Taken together, this evidence establishes that T-Voice and its representatives functioned in a representative capacity. And because T-Voice representatives acted in that capacity when making the six proposals the Board identified, those six proposals were group proposals.

Second, the Board reasonably found that the proposals addressed statutory subjects. As the Board explained, because the proposals “concerned metrics, training, and equipment for CSRs, they constituted proposals regarding conditions of work.” Id. at 8; see Reno Hilton, 319 N.L.R.B. at 1156–57 (describing “equipment needed by employees” and “training of new employees” as “employment conditions”); T-Mobile I, 368 N.L.R.B. No. 81, at 2 (acknowledging that “metrics” for measuring CSR performance “related to employees’ terms and conditions of employment”).

T-Mobile offers no contrary authority. Instead, it contends that several of the proposals were intended to address customer issues as opposed to conditions of work. But in this specific context—where T-Mobile employs CSRs for the purpose of addressing customer issues—the distinction is hardly a clean one. As we explained in CWA, “[c]ustomer pain points indirectly affect CSRs because they generate service calls and customer irritation that the CSRs are responsible for handling.” 994 F.3d at 656. It makes sense, then, that proposals about CSRs’ ability to address customer pain points also relate to their conditions of work, particularly when CSRs’ performance in resolving those pain points directly impacts other terms of their employment, such as compensation and work schedules. See T-Mobile II, 372 N.L.R.B. No. 4, at 2; A711. Take, for example, the March 2016 device-emulator proposal. T-Mobile insists that the proposal concerned customers’ experience, not CSR working conditions. But requesting a device that would aid CSRs in performing their jobs—and, in turn, potentially improve their performance metrics—plainly concerns working conditions in addition to improving the customer experience.

Third, substantial evidence supports the Board’s determination that T-Mobile management gave real or apparent consideration to each of the six proposals. See T-Mobile II, 372 N.L.R.B. No. 4, at 7–8. In response to the dual-monitors proposal, T-Mobile “reviewed the costs of the monitors and then accepted [the] proposal by supplying dual monitors to CSRs in the Dedicated Care Department.” Id. at 7. The proposals regarding CSR metrics, trainings on coverage and device compatibility, and network-specific talking points were forwarded from senior management to other managers for discussion. Id. Indeed, T-Mobile eventually rejected one of the metrics proposals (dropping the high and low scores on customer-satisfaction surveys) via its response to a subsequent pain-point submission. As for the device-emulator proposal, T-Mobile “promised to provide an update” during the next T-Voice monthly meeting. Id. at 7–8. And after receiving the proposal for a script on phone exchanges, management added the suggestion to “the list of things to relook at to ensure [the company] ha[s] it properly covered.” A746; see T-Mobile II, 372 N.L.R.B. No. 4, at 8. Finally, in response to the proposal to update the training material language on device insurance plans, T-Mobile “edited the language accordingly.” T-Mobile II, 372 N.L.R.B. No. 4, at 8.

T-Mobile’s objections to these findings lack merit. As a threshold matter, the company takes issue with the Board’s view that management consideration of proposals is enough to satisfy the bilateral mechanism for dealing. Citing E.I. du Pont, T-Mobile argues that dealing requires an employer’s acceptance or rejection of a proposal by word or deed. But as the Board notes in its decision, see T-Mobile II, 372 N.L.R.B. No. 4, at 5, E.I. du Pont states only that a bilateral mechanism “ordinarily entails...acceptance or rejection by word or deed,” 311 N.L.R.B. at 894 (emphasis added). Such a response is not a prerequisite for dealing under Board precedent, and none of the authorities T-Mobile cites declares otherwise. See EFCO Corp. v. NLRB, 2000 WL 632468, at *5 (4th Cir. May 17, 2000) (per curiam); Simmons, 321 N.L.R.B. at 254; Grouse Mt. Assocs. II, 333 N.L.R.B. 1322, 1336 (2001); Reno Hilton, 319 N.L.R.B. at 1156; Dillon Stores, 319 N.L.R.B. at 1250. Real or apparent consideration of proposals by management is a reasonable bar for bilateralism and has support in Board precedent. See, e.g., Electromation, 309 N.L.R.B. at 995 n.21; Polaroid, 329 N.L.R.B. at 424–25.

T-Mobile next contends that, in any event, as to some of the six proposals, management exhibited “mere awareness” rather than real or apparent consideration. T-Mobile Reply at 17. We disagree. As the Board found, the record reflects that T-Mobile “either forwarded the[] proposals to other managers for their consideration, indicated that they would be considered, or simply accepted them.” T-Mobile II, 372 N.L.R.B. No. 4, at 8. All of that conduct goes beyond exhibiting awareness.

T-Mobile is correct that forwarding proposals for management follow-up or promising future review is not the same as direct evidence that management actually considered the proposals. But circumstantial evidence of consideration— real or apparent—is enough for the Board to reasonably draw the required inference. See, e.g., Inova Health Sys. v. NLRB, 795 F.3d 68, 82 (D.C. Cir. 2015) (“Thus, circumstantial, but substantial, evidence supports the Board’s finding . . . .”). The record here contains at least such evidence for each of the six proposals.

Fourth, substantial evidence supports the Board’s conclusion that the six proposals satisfy the pattern-or-practice requirement for dealing. An employee group is a labor organization under Section 2(5) if it exists even “in part” for the purpose of dealing with employers on statutory subjects. 29 U.S.C. § 152(5). So “if the evidence establishes . . . a pattern or practice [of statutory dealing] or that the group exists for a purpose of following such a pattern or practice, the element of dealing is present.” E.I. du Pont, 311 N.L.R.B. at 894. This requirement is assessed by looking to both “what the organization is set up to do and . . . what it actually does.” Polaroid, 329 N.L.R.B. at 424–25 (citing Keeler Brass Co., 317 N.L.R.B. 1110, 1113 (1995)).

Here, as the Board emphasized, T-Mobile’s own statements and actions go a long way towards satisfying that test. The T-Voice charter—written by T-Mobile—stated that the organization’s mission was to “[e]nhance Customer[] and Frontline...experience by identifying, discussing, and communicating solutions for roadblocks for internal and external customers,” and that its purpose was to “[p]rovide a vehicle for Frontline feedback and create a closed loop communication with [the] T-Mobile Sr. Leadership Team.” T-Mobile II, 372 N.L.R.B. No. 4, at 1 (alterations in original). To be clear: The terms “Frontline” and “internal customers” refer to the T-Mobile employees that T-Voice members were charged with representing. It would be difficult to imagine a more direct statement—in the organization’s founding document no less—that the group exists at least in part to deal with the employer on behalf of other employees. The Board identified subsequent communications between T-Mobile and its employees that were consistent with T-Voice’s charter. When T-Mobile announced the national roll-out of T-Voice to CSRs, T-Mobile stated that T-Voice comprises “Frontline Representatives”; that their “job is to raise Frontline and customer pain points to ensure they are resolved and then results are communicated back to the Frontline”; and that CSRs should “raise issues by reaching out to [their] T-Voice representatives.” T-Mobile II, 372 N.L.R.B. No. 4, at 1–2 (alteration in original). As the Board put it, T-Mobile “encouraged employees to raise any and all pain points to their T-Voice representatives.” Id. at 2.

And after the company-selected T-Voice representatives began their work, the company was sure to “announce[] to employees that it had implemented suggestions solicited through T-Voice and credit[] those changes to the T-Voice ‘team.’” Id. The starkest example stemmed from the dual- monitor proposal. After accepting that proposal, T-Mobile announced in its newsletter that the “T-Voice team was instrumental in raising the need for dual monitors” and that “[s]olving this pain point should lead to a happier, more productive workplace.” A116. The Board also found that T-Mobile credited T-Voice with, “for example, an employee loyalty program that gave CSRs milestone anniversary gifts, a charging station in the employee break room, and free Wi-Fi access.” T-Mobile II, 372 N.L.R.B. No. 4, at 2.

In short, T-Mobile explicitly described T-Voice to its employees as a representative organization for raising issues about work conditions and then repeatedly acknowledged T-Voice’s success in that intended role. Against that backdrop, the Board reasonably concluded that the six examples of dealing established a pattern or practice. T-Mobile’s arguments to the contrary are unconvincing. The company stresses that the six examples constitute a very small overall percentage of the pain points submitted through T-Voice. But it cites no Board precedent engaging in this type of ratio analysis. E.I. du Pont, on which T-Mobile primarily relies, acknowledges the distinction between a “pattern or practice” and “isolated instances” of dealing—it does not specify a test for differentiating between the two, let alone endorse T-Mobile’s approach. 311 N.L.R.B. at 894. The same is true for the other Board decisions T-Mobile cites. See Aero Detroit, Inc., 321 N.L.R.B. 1101, 1113–14 (1996); Ryder Distrib. Res., 311 N.L.R.B. 814, 818 (1993).

The Act’s text further justifies the Board’s refusal to indulge T-Mobile’s approach: It covers any organization that exists “in whole or in part” to deal with employers on statutory subjects. 29 U.S.C. § 152(5) (emphasis added). If T-Mobile’s argument prevailed, an employer could avoid the consequences of dominating a labor organization by simply adding a non- dealing element to the organization large enough to distort the ratio in its favor.

Comparing this case to the facts of Stoody Co., 320 N.L.R.B. 18 (1995), T-Mobile also argues that six examples of dealing should be insufficient as an absolute matter. In that case, the Board concluded that a single instance of statutory dealing that did not coincide with the employee group’s announced purpose was an “isolated error,” not a pattern or practice of dealing. Id. at 20–21. That situation bears no resemblance to this one. As the Board explained, far from one- off dealing that could be regarded as an “error,” “the T-Voice program expressly solicited ‘employee’ or ‘Frontline’ pain points over a period of roughly 6 months,” and T-Mobile repeatedly and explicitly announced that the purpose of T-Voice was in part to improve CSR working conditions.

T-Mobile II, 372 N.L.R.B. No. 4, at 1–2, 8.

We do not foreclose the possibility that in another case, with a different record, six instances of dealing might be insufficient to support a finding that an organization engaged in a pattern or practice of dealing within the meaning of the Board’s precedents. But the full record here—including T-Mobile’s own repeated statements—sufficiently supports the finding that T-Voice existed at least “in part” to engage in a pattern or practice of statutory dealing.

C.

T-Mobile separately asserts that the Board acted arbitrarily and capriciously because it reversed without explanation its conclusion in T-Mobile I that none of the six examples amounted to dealing, “either because they concerned purely customer issues (troubleshooting devices, a script about phone exchanges, setting up coverage, and talking points) or they prompted no response from management (changes to employee metrics).” T-Mobile Reply at 13. This argument mischaracterizes what the Board found in T-Mobile I. There, the Board stated that it was “unnecessary to pass on whether the pain points transmitted by T-Voice concerned Sec. 2(5) statutory subjects.” T-Mobile I, 368 N.L.R.B. No. 81, at 6 n.21. We recognized as much in our prior opinion: “Because the Board found T-Voice did not ‘deal with’ T-Mobile as required for it to be a ‘labor organization,’ the Board did not address whether any pain points submitted by T-Voice concerned conditions of work or other statutory subjects.” CWA, 994 F.3d at 657–58. And as for the proposal on changes to metrics, the Board simply noted in the facts section of the decision that one manager testified that no follow-up action took place—the Board did not make a finding as to that fact. T-Mobile I, 368 N.L.R.B. No. 81, at 5. Because T-Mobile I does not contain the findings the company claims were reversed in T-Mobile II, there is no inconsistency between the decisions, and T-Mobile’s argument that the Board neglected to explain the claimed inconsistency necessarily fails.

D.

Finally, T-Mobile contests the Board’s order requiring the disestablishment of T-Voice. T-Mobile offers two reasons why the disestablishment remedy is improper. First, it contends that the Board failed to consider that, in February 2016, the company “expressly limited” T-Voice to addressing customer issues and “has not engaged in any alleged dealing with management since.” T-Mobile Br. at 44. After that date, the argument goes, T-Voice ceased to function as a labor organization, so disestablishing T-Voice as currently constituted would not effectuate the purposes of the Act. Second, T-Mobile claims that the Board failed to account for the harm disestablishment would cause its business.

We lack jurisdiction to consider these arguments. Section 10(e) of the Act states that “[n]o objection that has not been urged before the Board . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” 29 U.S.C. § 160(e). This provision furthers “the salutary policy . . . of affording the Board opportunity to consider on the merits questions to be urged on review of its order.” Marshall Field & Co. v. NLRB, 318 U.S. 253, 256 (1943). The “critical question” in applying Section 10(e) is therefore “whether the Board received adequate notice of the basis for the objection.” Camelot Terrace, Inc. v. NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016) (quoting Alwin Mfg. Co. v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999)). Although we have not required that the ground for an objection be stated explicitly in a party’s written objections filed with the Board, we have required, at a minimum, that the ground be “evident by the context in which [the objection] is raised.” Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir. 1981).

T-Mobile did not put the Board on notice of the specific, fact-intensive arguments it now advances on appeal. Before the Board, T-Mobile took exception to the ALJ’s disestablishment remedy in only the broadest of terms, claiming the remedy had “no support in the record, statute or case law.” SA90–91. Similarly vague objections have been held to satisfy Section 10(e) only when additional context provided the Board adequate notice, such as where the party’s briefing to the Board or the nature of the disputed issues clarified the nature of its objection. See, e.g., NLRB v. Blake Constr., Co., 663 F.2d 272, 283 (D.C. Cir. 1981); Camelot Terrace, Inc., 824 F.3d at 1090; see also May Dep’t Stores Co. v. NLRB, 326 U.S. 376, 386 n.5 (1945). No such illuminating context is present here.

IV.

For the foregoing reasons, we deny T-Mobile’s petition for review and grant the Board’s cross-application for enforcement.

So ordered.

RANDOLPH, Senior Circuit Judge, dissenting: I respectfully dissent for the reasons stated by Board Member Ring in his dissent. See T-Mobile USA, Inc., 372 N.L.R.B. No. 4, slip op. at 10–13 (Nov. 18, 2022).

1 The Board explained that Reno Hilton, the other case we identified in CWA, had found groups to be labor organizations when the groups “or their members” made proposals to management. T-Mobile II, 372 N.L.R.B. No. 4, at 7 n.15. But the Board also observed that there was no explicit finding in Reno Hilton that the group acted in a representative capacity, and so it relied primarily on Dillon Stores. Id.

5.2 Organizing a Union 5.2 Organizing a Union

5.2.1 Republic Aviation Corp. v. National Labor Relations Board 5.2.1 Republic Aviation Corp. v. National Labor Relations Board

Supreme Court of the United States
324 U.S. 793, 89 L. Ed. 1372, 65 S. Ct. 982, SCDB 1944-117, 1945 U.S. LEXIS 2691
NO. 226
1945-04-23

REPUBLIC AVIATION CORP. v. NATIONAL LABOR RELATIONS BOARD.

NO. 226.

Argued January 10, 1945.

Decided April 23, 1945.

*794 Mr. J. Edward Lumbard, Jr., with whom Messrs. John J. Ryan, Frederick M. Davenport, Jr., Ralstone R. Irvine and Theodore S. Hope were on the brief, for petitioner in No. 226.

Miss Ruth Weyand, with whom Solicitor General Fahy' Messrs. Alvin J. Rockwell and Mozart G. Ratner were on the briefs, for the National Labor Relations Board. Mr. Robert L. Stern also was on the brief for the Board in No. 226.

Mr. A. C. Wheeler, with whom Mr. Clifton W. Brannon was on the brief, for respondent in No'. 452.

Mr. Justice Reed

delivered the opinion of the Court.

■ In the Republic Aviation Corporation case, the employer, a lárge and rapidly growing military aircraft manufacturer, adopted, well before any union activity at the plant, a general rule against soliciting .which read as follows:

*795“Soliciting of any type cannot be permitted in the factory or offices.”

The Republic plant was located in a built-up section of Suffolk County, New York. An employee persisted after being warned of the rule in soliciting union membership in the plant by passing out application cards to employees on his own time during lunch periods. The employee was discharged for infraction of the rule and, as the National Labor Relations Board found, without discrimination on the part of the employer toward union activity.

Three other employees were discharged for wearing UAW-CIO union steward buttons in the plant after being requested to remove the insignia. The union was at that time active in seeking to organize the plant. The reason which the employer gave for the request was that, as the union was not then the duly designated representative of-the employees, the wearing of the steward buttons in the plant indicated an acknowledgment by the management' of the authority of the stewards to represent the employees in dealing with the management and might impinge upon the employer’s policy of strict neutrality in union matters and might interfere with the existing grievance system of the corporation.

The Board was of the view that wearing union steward buttons by employees did not carry any implication of recognition of that union by the employer where, as here, there was no competing labor organization in the plant. The discharges of the stewards, however, were found not to be motivated by opposition to the particular union or, we deduce, to unionista.

The Board determined that the promulgation and enforcement of the “no solicitation” rule violated § 8 (1) of the National Labor Relations Act as it interfered with, restrained and coerced employees in their rights under § 7 and discriminated against the discharged employee *796under § 8 (3).1 It determined also that the discharge of the stewards violated § 8 (1) and 8 (3). As a consequence of its conclusions as to the solicitation and the. wearing of the insignia, the Board entered the usual cease and desist order and directed the reinstatement of the discharged employees with back pay and, also the rescission of “the rule against solicitation in so far as it prohibits union activity and solicitation on company property during the employees’ own time.” 51 N. L. R. B. 1186, 1189. The Circuit Court of Appeals for the Second Circuit affirmed, 142 F. 2d 193, and we granted certiorari, 323 U. S. 688, because of conflict with the decisions of other circuits.2

In the case of Le Tourneau Company of Georgia, two employees were suspended two days each for distributing union literature or circulars on the employees’ own time on company owned and policed parking lots, adjacent to the company’s fenced-in plant, in violation of a long standing and strictly enforced rule, adopted prior to union organization activity about the premises, which read as follows:

“In the future no Merchants, Concern, Company, or In*797dividual or Individuals will be permitted to distribute, post, or otherwise circulate handbills or posters, or any literature of any description, on Company property without first securing permission from the Personnel Department.”

The rule was adopted to control littering and petty pilfering from parked autos by distributors. The Board determined that there was no union bias or discrimination by the company in enforcing the rule.

The company’s plant for the manufacture of earth-moving machinery and other products for the war is in the country on a six thousand acre tract. The plant is bisected by one public road and built along another. There is one hundred feet of company-owned land for parking or other use between the highways and the employee entrances to the fenced enclosures where the work is done, so that contact on public ways or on non-company property with employees at or about the establishment is limited to those employees, less than 800 out of 2100, who are likely to walk across the public highway near the plant on their way to work, or to those employees who will stop their private automobiles, buses or other conveyances on the public roads for communications. The employees’ dwellings are widely scattered.

The Board found that the application of the rule to the distribution of union literature by the employees on company property which resulted in the lay-offs was an unfair labor practice under § 8 (1) and 8 (3). Cease and desist, and rule rescission orders, with directions to pay the employees for their lost time, followed. 54 N. L. R. B. 1253. The Circuit Court of Appeals for the Fifth Circuit reversed the Board, 143 F. 2d 67, and we granted certiorari because of conflict with the Republic case. 323 U. S. 698.

These cases bring here for review the action of the National Labor Relations Board in working out an adjustment between the undisputed right of self-organization *798assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Opportunity to organize and proper discipline are both essential elements in a balanced society.

The Wagner Act did not undertake the impossible task of specifying in precise and unmistakable language each incident which would constitute an unfair labor practice. On the contrary, that Act left to the Board the work of applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms. Thus a “rigid scheme of remedies” is avoided and administrative flexibility within appropriate statutory limitations obtained to accomplish the dominant purpose of the legislation. Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 194. So far as we are here concerned, that purpose is the right of employees to organize for mutual aid without employer interference. This is the principle of labor relations which the Board is to foster.

The gravamen of the objection of both Republic and Le Tourneau to the Board’s orders is that they rest on a policy formulated without due administrative procedure. To be more specific it is that the Board cannot substitute its knowledge of industrial relations for substantive evidence. The contention is that there must be evidence before the Board to show that the rules and orders of the employers .interfered with and discouraged union organization in the circumstances and situation of each company. Neither in the Republic nor the Le Tourneau cases can it properly be said that there was evidence or a finding that the plant’s physical location made solicitation away from company property ineffective to reach prospective union *799members. Neither of these is like a mining or lumber camp where the employees pass their rest as well as their work time on the employer’s premises, so that union organization must proceed upon the employer’s premises or be seriously handicapped.3

The National Labor Relations Act creates a system for the organization of labor with emphasis on collective bargaining by employees with employers in regard to labor relations which affect commerce. An essential part of that system is the provision for the prevention of unfair labor practices by the employer which might interfere with the guaranteed rights. The method for prevention of unfair labor practices is for the Board to hold a hearing on a complaint which has been duly served upon the employer who is charged with an unfair labor practice. At that hearing the employer has the right to file an answer and to give testimony. This testimony, together with that given in support of the complaint, must be reduced to writing and filed with the Board. The Board upon that testimony is directed to make findings of fact and dismiss the complaint or enter appropriate orders to prevent in whole or in part the unfair practices which have been charged. Upon the record so made as to testimony and issues, courts are empowered to enforce, modify or set aside the Board’s orders,4 subject to the limitation that the findings of the Board as to facts, if supported by evidence, are conclusive.

Plainly this statutory plan for an adversary proceeding requires that the Board’s orders on complaints of unfair *800labor practices be based upon evidence which is placed before the Board by witnesses who are subject to cross-examination by opposing parties.5 Such procedure strengthens assurance of fairness by requiring findings on known evidence. Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U. S. 292, 302; United States v. Abilene & Southern R. Co., 265 U. S. 274, 288. Such a requirement does not go beyond the necessity for the production of evidential facts, however, and compel evidence as to the results which may flow from such facts. Market Street R. Co. v. Railroad Comm’n, 324 U. S. 548, 559. An administrative agency with power after hearings to determine on the evidence in adversary proceedings whether violations of statutory commands have occurred may infer within the limits of the inquiry from the proven facts such conclusions as reasonably may be based upon the facts proven. One of the purposes which lead to the creation of such boards is to have decisions based upon evidential facts under the particular statute made by experienced officials with an adequate appreciation of the complexities of the subject which is entrusted to their administration. Labor Board v. Virginia Power Co., 314 U. S. 469, 479; Labor Board v. Hearst Publications, 322 U. S. 111, 130.

In the Republic Aviation Corporation case the evidence showed that the petitioner was in early 1943 a non-urban manufacturing establishment for military production which employed thousands. It was growing rapidly. Trains and automobiles gathered daily many employees for the plant from an area on Long Island, certainly larger than walking distance. The rule against solicitation was introduced in evidence and the circumstances of its violation by the dismissed employee after warning was detailed.

*801As to the employees who were discharged for wearing the buttons of a union steward, the evidence showed in addition the discussion in regard to their right to wear the insignia when the union had not been recognized by the petitioner as the representative of the employees. Petitioner looked upon a steward as a union representative for the adjustment of grievances with the management after employer recognition of the stewards’ union. Until such recognition petitioner felt that it would violate its neutrality in labor organization if it permitted the display of a steward button by an employee. Prom its point of view, such display represented to other employees that the union already was recognized.

No evidence was offered that any unusual conditions existed in labor relations, the plant location or otherwise to support any contention that conditions at this plant differed from those occurring normally at any other large establishment.

The Le Tourneau Company of Georgia case also is barren of special circumstances. The evidence which was introduced tends to prove the simple facts heretofore set out as to the circumstances surrounding the discharge of the two employees for distributing union circulars.

These were the facts upon which the Board reached its conclusions as to unfair labor practices. The Intermediate Report in the Republic Aviation case, 51 N. L. R. B. at 1195, set out the reason why the rule against solicitation was considered inimical to the right of organization.6 *802This was approved by the Board. Id., 1186. The Board’s reasons for concluding that the petitioner’s insistence that its employees refrain from wearing steward buttons appear at page 1187 of the report.7 In the Le Tourneau Company case the discussion of the reasons underlying the findings was much more extended. 54 N. L. R. B. 1253, 1258, et seq. We insert in the note below a quotation which shows the character of the Board’s opinion.8 Furthermore, in both opinions of the Board full citation of *803authorities was given, including Matter of Peyton Packing Co., 49 N. L. R. B. 828, 50 N. L. R. B. 355, hereinafter referred to.9

The Board has fairly, we think, explicated in these cases the theory which moved it to its conclusions in these cases. The excerpts from its opinions just quoted show this. The reasons why it has decided as it has are sufficiently set forth. We cannot agree, as Republic urges, that in these present cases reviewing courts are left to “sheer acceptance” of the Board’s conclusions or that fits formulation of policy is “cryptic.” See Eastern-Central Assn. v. United States, 321 U. S. 194, 209.

Not only has the Board in these cases sufficiently expressed the theory upon which it concludes that rules against solicitation or prohibitions against the wearing of insignia must fall as interferences with union organization, but, in so far as rules against solicitation are concerned, it had theretofore succinctly expressed the requirements of proof which it considered appropriate to outweigh or overcome the presumption as to rules against solicitation. In the Peyton Packing Company case, 49 N. L. R. B. 828, at 843, hereinbefore referred to, the presumption adopted by the Board is set forth.10

*804Although this definite ruling appeared in the Board’s decisions, no motion was made in the court by Republic or Le Tourneau after the Board’s decisions for leave to introduce additional evidence to show unusual circumstances involving their plants or for other purposes.11 Such a motion might have been granted by the Board or court in view of the fact that the Intermediate Report in the Republic Aviation case was dated May 21, 1943, and that in Le Tourneau November 11, 1943, while the opinion in the Peyton Packing Company case was given as late as May 18, 1943. We perceive no error in the Board’s adoption of this presumption.12 The Board had previously considered similar rules in industrial establishments and the definitive form which the Peyton Packing Company decision gave to the presumption was the product of the Board’s appraisal of normal conditions about industrial establishments.13 Like a statutory presumption or one established *805by regulation, the validity, perhaps in a varying degree, depends upon the rationality between what is proved and what is inferred.14

In the Republic Aviation case, petitioner urges that irrespective of the validity of the rule against solicitation, its application in this instance did not violate § 8 (3), note 1, supra, because the rule was not discriminatorily applied against union solicitation but was impartially enforced against all solicitors. It seems clear, however, that if a rule against solicitation is invalid as to union solicitation on the employer’s premises during the employee’s own time, a discharge because of violation of that rule discriminates within the meaning of § 8 (3) in that it discourages membership in a labor organization.

Republic Aviation Corporation v. National Labor Relations Board is affirmed.

National Labor Relations Board v. Le Tourneau Company of Georgia is reversed.

No. 226 affirmed.

No. 452 reversed.

Mr. Justice Roberts dissents in each case.

5.2.2 Lechmere, Inc. v. National Labor Relations Board 5.2.2 Lechmere, Inc. v. National Labor Relations Board

Supreme Court of the United States
502 U.S. 527, 117 L. Ed. 2d 79, 112 S. Ct. 841, SCDB 1991-031, 1992 U.S. LEXIS 555
No. 90-970
1992-01-27

LECHMERE, INC. v. NATIONAL LABOR RELATIONS BOARD

No. 90-970.

Argued November 12, 1991

Decided January 27, 1992

*528Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’ConnoR, Scalia, Kennedy, and SouteR, JJ., joined. White, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 541. Stevens, J., filed a dissenting opinion, post, p. 548.

Robert P. Joy argued the cause for petitioner. With him on the briefs were Keith H. McCown and Benjamin Smith.

Michael R. Dreeben argued the cause for respondent. With him on the brief were Solicitor General Starr, Acting Deputy Solicitor General Wright, Norton J. Come, and Linda Sher. *

*529JUSTICE THOMAS

delivered the opinion of the Court.

This case requires us to clarify the relationship between the rights of employees under § 7 of the National Labor Relations Act (NLRA or Act), 49 Stat. 452, as amended, 29 U. S. C. § 157, and the property rights of their employers.

I

This case stems from the efforts of Local 919 of the United Food and Commercial Workers Union, AFL-CIO, to organize employees at a retail store in Newington, Connecticut, owned and operated by petitioner Lechmere, Inc. The store is located in the Lechmere Shopping Plaza, which occupies a roughly rectangular tract measuring approximately 880 feet from north to south and 740 feet from east to west. Lech-mere's store is situated at the Plaza's south end, with the main parking lot to its north. A strip of 13 smaller "satellite stores" not owned by Lechmere runs along the west side of the Plaza, facing the parking lot. To the Plaza's east (where the main entrance is located) runs the Berlin Turnpike, a four-lane divided highway. The parking 1st, however, does not abut the Turnpike; they are separated by a 46-foot-wide grassy strip, broken only by the Plaza's entrance. The parking lot is owned jointly by Lechmere ~nd the developer of the satellite stores. The grassy strip is public property (except for a 4-foot-wide band adjoining the parking lot, which belongs to Lechmere).

The union began its campaign to organize the store's 200 employees, none of whom was represented by a union, in June 1987. After a full-page advertisement in a local newspaper drew little response, nonemployee union organizers entered Lechmere's parking 1~t and began placing handbills on the windshields of cars parked in a corner of the lot used mostly by employees. Lechmere's manager immediately *530confronted the organizers, informed them that Lechmere prohibited solicitation or handbill distribution of any kind on its property,1 and asked them to leave. They did so, and Lechmere personnel removed the handbills. The union organizers renewed this handbilling effort in the parking lot on several subsequent occasions; each time they were asked to leave and the handbills were removed. The organizers then relocated to the public grassy strip, from where they attempted to pass out handbills to cars entering the lot during hours (before opening and after closing) when the drivers were assumed to be primarily store employees. For one month, the union organizers returned daily to the grassy strip to picket Lechmere; after that, they picketed intermittently for another six months. They also recorded the license plate numbers of cars parked in the employee parking area; with the cooperation of the Connecticut Department of Motor Vehicles, they thus secured the names and addresses of some 41 nonsupervisory employees (roughly 20% of the store’s total). The union sent four mailings to these employees; it also made some attempts to contact them by phone or home visits. These mailings and visits resulted in one signed union authorization card.

*531Alleging that Lechmere had violated the NLRA by barring the nonemployee organizers from its property, the union filed an unfair labor practice charge with respondent National Labor Relations Board (Board). Applying the criteria set forth by the Board in Fairmont Hotel Co., 282 N. L. R. B. 139 (1986), an Administrative Law Judge (ALJ) ruled in the union’s favor. Lechmere, Inc., 295 N. L. R. B. 94 (1988). He recommended that Lechmere be ordered, among other things, to cease and desist from barring the union organizers from the parking lot and to post in conspicuous places in the store signs proclaiming in part:

“WE WILL NOT prohibit representatives of Local 919, United Food and Commercial Workers, AFL-CIO (‘the Union’) or any other labor organization, from distributing union literature to our employees in the parking lot adjacent to our store in Newington, Connecticut, nor will we attempt to cause them to be removed from our parking lot for attempting to do so.” Ibid.

The Board affirmed the ALJ’s judgment and adopted the recommended order, applying the analysis set forth in its opinion in Jean Country, 291 N. L. R. B. 11 (1988), which had by then replaced the short-lived Fairmont Hotel approach. 295 N. L. R. B. 92 (1989). A divided panel of the United States Court of Appeals for the First Circuit denied Lech-mere’s petition for review and enforced the Board’s order. 914 F. 2d 313 (1990). This Court granted certiorari, 499 U. S. 918 (1991).

II

A

Section 7 of the NLRA provides in relevant part that “[ejmployees shall have the right to self-organization, to form, join, or assist labor organizations.” 29 U. S. C. § 157. Section 8(a)(1) of the Act, in turn, makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in *532[§7].” 29 U. S. C. § 158(a)(1). By its plain terms, thus, the NLRA confers rights only on employees, not on unions or their nonemployee organizers. In NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), however, we recognized that insofar as the employees’ “right of self-organization depends in some measure on [their] ability... to learn the advantages of self-organization from others,” id., at 113, § 7 of the NLRA may, in certain limited circumstances, restrict an employer’s right to exclude nonemployee union organizers from his property. It is the nature of those circumstances that we explore today.

Babcock arose out of union attempts to organize employees at a factory located on an isolated 100-acre tract. The company had a policy against solicitation and distribution of literature on its property, which it enforced against all groups. About 40% of the company’s employees lived in a town of some 21,000 persons near the factory; the remainder were scattered over a 30-mile radius. Almost all employees drove to work in private cars and parked in a company lot that adjoined the fenced-in plant area. The parking lot could be reached only by a 100-yard-long driveway connecting it to a public highway. This driveway was mostly on company-owned land, except where it crossed a 31-foot-wide public right-of-way adjoining the highway. Union organizers attempted to distribute literature from this right-of-way. The union also secured the names and addresses of some 100 employees (20% of the total) and sent them three mailings. Still other employees were contacted by telephone or home visit.

The union successfully challenged the company’s refusal to allow nonemployee organizers onto its property before the Board. While acknowledging that there were alternative, nontrespassory means whereby the union could communicate with employees, the Board held that contact at the workplace was preferable. The Babcock & Wilcox Co., 109 N. L. R. B. 485, 493-494 (1954). “[T]he right to distribute is not ab*533solute, but must be accommodated to the circumstances. Where it is impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the employer’s premises, distribution on a nonworking area, such as the parking lot and the walkways between the parking lot and the gate, may be warranted.” Id., at 493. Concluding that traffic on the highway made it unsafe for the union organizers to distribute leaflets from the right-of-way and that contacts through the mails, on the streets, at employees’ homes, and over the telephone would be ineffective, the Board ordered the company to allow the organizers to distribute literature on the company’s parking lot and exterior walkways. Id., at 486-487.

The Court of Appeals for the Fifth Circuit refused to enforce the Board’s order, NLRB v. Babcock & Wilcox Co., 222 F. 2d 316 (1955), and this Court affirmed. While recognizing that “the Board has the responsibility of ‘applying the Act’s general prohibitory language in the light of the infinite combinations of events which might be charged as violative of its terms,’” 351 U. S., at 111-112 (quoting NLRB v. Stowe Spinning Co., 336 U. S. 226, 231 (1949)), we explained that the Board had erred by failing to make the critical distinction between the organizing activities of employees (to whom § 7 guarantees the right of self-organization) and nonemploy-ees (to whom §7 applies only derivatively). Thus, while “[n]o 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,” 351 U. S., at 113 (emphasis added) (citing Republic Aviation Corp. v. NLRB, 324 U. S. 793, 803 (1945)), “no such obligation is owed nonem-ployee organizers,” 351 U. S., at 113. As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. As with many other rules, however, we recognized an exception. Where “the location of a plant and the living quarters of the *534employees place the employees beyond the reach of reasonable union efforts to communicate with them,” ibid., employers’ property rights may be “required to yield to the extent needed to permit communication of information on the right to organize,” id., at 112.

Although we have not had occasion to apply Babcock’s analysis in the ensuing decades, we have described it in cases arising in related contexts. Two such cases, Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), and Hudgens v. NLRB, 424 U. S. 507 (1976), involved activity by union supporters on employer-owned property. The principal issue in both cases was whether, based upon Food Employees v. Logan Valley Plaza, Inc., 391 U. S. 308 (1968), the First Amendment protected such activities. In both cases we rejected the First Amendment claims, and in Hudgens we made it clear that Logan Valley was overruled. Having decided the cases on constitutional grounds, we remanded them to the Board for consideration of the union supporters’ §7 claims under Babcock. In both cases, we quoted approvingly Babcock’s admonition that accommodation between employees’ § 7 rights and employers’ property rights “must be obtained with as little destruction of one as is consistent with the maintenance of the other,” 351 U. S., at 112. See Central Hardware, supra, at 544; Hudgens, supra, at 521, 522. There is no hint in Hudgens and Central Hardware, however, that our invocation of Babcock’s language of “accommodation” was intended to repudiate or modify Bab-cock’s holding that an employer need not accommodate non-employee organizers unless the employees are otherwise inaccessible. Indeed, in Central Hardware we expressly noted that nonemployee organizers cannot claim even a limited right of access to a nonconsenting employer’s property until “[a]fter the requisite need for access to the employer’s property has been shown.” 407 U. S., at 545.

If there was any question whether Central Hardware and Hudgens changed § 7 law, it should have been laid to rest by *535 Sears, Roebuck & Co. v. Carpenters, 436 U. S. 180 (1978). As in Central Hardware and Hudgens, the substantive § 7 issue in Sears was a subsidiary one; the case’s primary focus was on the circumstances under which the NLRA pre-empts state law. Among other things, we held in Sears that arguable § 7 claims do not pre-empt state trespass law, in large part because the trespasses of nonemployee union organizers are “far more likely to be unprotected than protected,” 436 U. S., at 205; permitting state courts to evaluate such claims, therefore, does not “create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board’s decision, would find protected,” ibid. This holding was based upon the following interpretation of Babcock:

“While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer’s access rules discriminate against union solicitation. That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity.” 436 U. S., at 205 (emphasis added; footnotes omitted).

We further noted that, in practice, nonemployee organizational trespassing had generally been prohibited except where “unique obstacles” prevented nontrespassory methods of communication with the employees. Id., at 205-206, n. 41.

B

Jean Country, as noted above, represents the Board’s latest attempt to implement the rights guaranteed by §7. It sets forth a three-factor balancing test:

*536“[I]n all access cases our essential concern will be [1] the degree of impairment of the Section 7 right if access should be denied, as it balances against [2] the degree of impairment of the private property right if access should be granted. We view the consideration of [3] the availability of reasonably effective alternative means as especially significant in this balancing process.” 291 N. L. R. B., at 14.

The Board conceded that this analysis was unlikely to foster certainty and predictability in this corner of the law, but declared that “as with other legal questions involving multiple factors, the ‘nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.’ ” Ibid, (quoting Electrical Workers v. NLRB, 366 U. S. 667, 674 (1961)).

Citing its role “as the agency with responsibility for implementing national labor policy,” the Board maintains in this case that Jean Country is a reasonable interpretation of the NLRA entitled to judicial deference. Brief for Respondent 18, and n. 8; Tr. of Oral Arg. 22. It is certainly true, and we have long recognized, that the Board has the “special function of applying the general provisions of the Act to the complexities of industrial life.” NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963); see also Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 196-197 (1941). Like other administrative agencies, the NLRB is entitled to judicial deference when it interprets an ambiguous provision of a statute that it administers. See, e.g., NLRB v. Food & Commercial Workers, 484 U. S. 112, 123 (1987); cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).

Before we reach any issue of deference to the Board, however, we must first determine whether Jean Country — at least as applied to nonemployee organizational trespassing— is consistent with our past interpretation of § 7. “Once we *537have determined a statute’s clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency’s later interpretation of the statute against our prior determination of the statute’s meaning.” Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990).

In Babcock, as explained above, we held that the Act drew a distinction “of substance,” 351 U. S., at 113, between the union activities of employees and nonemployees. In cases involving employee activities, we noted with approval, the Board “balanced the conflicting interests of employees to receive information on self-organization on the company’s property from fellow employees during nonworking time, with the employer’s right to control the use of his property.” Id., at 109-110. In cases involving nonemployee activities (like those at issue in Babcock itself), however, the Board was not permitted to engage in that same balancing (and we reversed the Board for having done so). By reversing the Board’s interpretation of the statute for failing to distinguish between the organizing activities of employees and nonemploy-ees, we were saying, in Chevron terms, that §7 speaks to the issue of nonemployee access to an employer’s property. Babcock’s teaching is straightforward: §7 simply does not protect nonemployee union organizers except in the rare case where “the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels,” 351 U. S., at 112. Our reference to “reasonable” attempts was nothing more than a commonsense recognition that unions need not engage in extraordinary feats to communicate with inaccessible employees — not an endorsement of the view (which we expressly rejected) that the Act protects “reasonable” trespasses. Where reasonable alternative means of access exist, § 7’s guarantees do not authorize trespasses by nonemployee organizers, even (as we noted in Babcock, ibid.) “under . . . reasonable regulations” established by the Board.

*538 Jean Country, which applies broadly to “all access cases,” 291 N. L. R. B., at 14, misapprehends this critical point. Its principal inspiration derives not from Babcock, but from the following sentence in Hudgens: “[T]he locus of th[e] accommodation [between §7 rights and private property rights] may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.” 424 U. S., at 522. From this sentence the Board concluded that it was appropriate to approach every case by balancing §7 rights against property rights, with alternative means of access thrown in as nothing more than an “especially significant” consideration. As explained above, however, Hud-gens did not purport to modify Babcock, much less to alter it fundamentally in the way Jean Country suggests. To say that our cases require accommodation between employees’ and employers’ rights is a true but incomplete statement, for the cases also go far in establishing the locus of that accommodation where nonemployee organizing is at issue. So long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It is only where such access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights as described in the Hudgens dictum. See Sears, 436 U. S., at 205; Central Hardware, 407 U. S., at 545. At least as applied to nonem-ployees, Jean Country impermissibly conflates these two stages of the inquiry — thereby significantly eroding Bab-cock’s general rule that “an employer may validly post his property against nonemployee distribution of union literature,” 351 U. S., at 112. We reaffirm that general rule today, and reject the Board’s attempt to recast it as a multifactor balancing test.

*539c

The threshold inquiry in this case, then, is whether the facts here justify application of Babcock’s inaccessibility exception. The ALJ below observed that “the facts herein convince me that reasonable alternative means [of communicating with Lechmere’s employees] were available to the Union,” 295 N. L. R. B., at 99 (emphasis added).2 Reviewing the ALJ’s decision under Jean Country, however, the Board reached a different conclusion on this point, asserting that “there was no reasonable, effective alternative means available for the Union to communicate its message to [Lech-mere’s] employees.” Id., at 93.

We cannot accept the Board’s conclusion, because it “rest[s] on erroneous legal foundations,” Babcock, supra, at 112; see also NLRB v. Brown, 380 U. S. 278, 290-292 (1965). As we have explained, the exception to Babcock’s rule is a narrow one.' It does not apply wherever nontrespassory access to employees may be cumbersome or less-than-ideally effective, but only where “the location of a plant 'and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them,” 351 U. S., at 113 (emphasis added). Classic examples include logging camps, see NLRB v. Lake Superior Lumber Corp., 167 F. 2d 147 (CA6 1948); mining camps, see Alaska Barite Co., 197 N. L. R. B. 1023 (1972), enforced mem., 83 LRRM 2992 (CA9), cert. denied, 414 U. S. 1025 (1973); and mountain resort hotels, see NLRB v.S&H Grossinger’s Inc., 372 F. 2d *54026 (CA2 1967). Babcock’s exception was crafted precisely to protect the § 7 rights of those employees who, by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society. The union’s burden of establishing such isolation is, as we have explained, “a heavy one,” Sears, supra, at 205, and one not satisfied by mere conjecture or the expression of doubts concerning the effectiveness of nontrespassory means of communication.

The Board’s conclusion in this case that the union had no reasonable means short of trespass to make Lechmere’s employees aware of its organizational efforts is based on a misunderstanding of the limited scope of this exception. Because the employees do not reside on Lechmere’s property, they are presumptively not “beyond the reach,” Babcock, 351 U. S., at 113, of the union’s message. Although the employees live in a large metropolitan area (Greater Hartford), that fact does not in itself render them “inaccessible” in the sense contemplated by Babcock. See Monogram Models, Inc., 192 N. L. R. B. 705, 706 (1971). Their accessibility is suggested by the union’s success in contacting a substantial percentage of them directly, via mailings, phone calls, and home visits. Such direct contact, of course, is not a necessary element of “reasonably effective” communication; signs or advertising also may suffice. In this case, the union tried advertising in local newspapers; the Board said that this was not reasonably effective because it was expensive and might not reach the employees. 295 N. L. R. B., at 93. Whatever the merits of that conclusion, other alternative means of communication were readily available. Thus, signs (displayed, for example, from the public grassy strip adjoining Lechmere’s parking lot) would have informed the employees about the union’s organizational efforts. (Indeed, union organizers picketed the shopping center’s main entrance for months as employees came and went every day.) Access to employees, not success in winning them over,, is: the critical issue — although success, or lack thereof, may be relevant in determining *541whether reasonable access exists. Because the union in this case failed to establish the existence of any “unique obstacles,” Sears, 436 U. S., at 205-206, n. 41, that frustrated access to Lechmere’s employees, the Board erred in concluding that Lechmere committed an unfair labor practice by barring the nonemployee organizers from its property.

The judgment of the First Circuit is therefore reversed, and enforcement of the Board’s order is denied.

It is so ordered.

Justice White,

with whom Justice Blackmun joins, dissenting.

“We will uphold a Board rule so long as it is rational and consistent with the Act, . . . even if we would have formulated a different rule had we sat on the Board.” NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 787 (1990). The judicial role is narrow: The Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced. Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978).

In NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956), the Court said that where nonemployee union representatives seek access to the employer’s parking lot for the purpose of communicating with employees, the employer’s property rights and the organizational rights of employees must be “[a]ceommodat[ed] . . . with as little destruction of one as is consistent with the maintenance of the other.” Although it said that it was slow to overturn an administrative decision, the Court disagreed with the balance the Board had struck in granting access to the union because the Board had failed to recognize that access by nonemployees required a different accommodation than where employees are involved. Id., at 112-113. The Court went on to say that “when the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from prop*542erty has been required to yield to the extent needed to permit communication of information on the right to organize.” Ibid. Later the Court said: “The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.” Id., at 113. The Court went on to hold that no such conditions were shown in the records of the cases before it.

In the case before us, the Court holds that Babcock itself stated the correct accommodation between property and organizational rights; it interprets that case as construing §§7 and 8(a)(1) of the National Labor Relations Act (NLRA) to contain a general rule forbidding third-party access, subject only to a limited exception where the union demonstrates that the location of the employer’s place of business and the living quarters of the employees place the employees beyond the reach of reasonable efforts to communicate with them. The Court refuses to enforce the Board’s order in this case, which rested on its prior decision in Jean Country, 291 N. L. R. B. 11 (1988), because, in the Court’s view, Jean Country revealed that the Board misunderstood the basic holding in Babcock, as well as the narrowness of the exception to the general rule announced in that case.

For several reasons, the Court errs in this case. First, that Babcock stated that inaccessibility would be a reason to grant access does not indicate that there would be no other circumstance that would warrant entry to the employer’s parking lot and would satisfy the Court’s admonition that accommodation must be made with as little destruction of property rights as is consistent with the right of employees to learn the advantages of self-organization from others. Of course the union must show that its “reasonable efforts,” *543without access, will not permit proper communication with employees. But I cannot believe that the Court in Babcock intended to confine the reach of such general considerations to the single circumstance that the Court now seizes upon. If the Court in Babcock indicated that nonemployee access to a logging camp would be required, it did not say that only in such situations could nonemployee access be permitted. Nor did Babcock require the Board to ignore the substantial difference between the entirely private parking lot of a secluded manufacturing plant and a shopping center lot which is open to the public without substantial limitation. Nor indeed did Babcock indicate that the Board could not consider the fact that employees’ residences are scattered throughout a major metropolitan area; Babcock itself relied on the fact that the employees in that case lived in a compact area which made them easily accessible.

Moreover, the Court in Babcock recognized that actual communication with nonemployee organizers, not mere notice that an organizing campaign exists, is necessary to vindicate §7 rights. 351 U. S., at 113. If employees are entitled to learn from others the advantages of self-organization, ibid., it is singularly unpersuasive to suggest that the union has sufficient access for this purpose by being able to hold up signs from a public grassy strip adjacent to the highway leading to the parking lot.

Second, the Court’s reading of Babcock is not the reading of that case reflected in later opinions of the Court. We have consistently declined to define the principle of Babcock as a general rule subject to narrow exceptions, and have instead repeatedly reaffirmed that the standard is a neutral and flexible rule of accommodation. In Central Hardware Co. v. NLRB, 407 U. S. 539, 544 (1972), we explicitly stated that the “guiding principle” for adjusting conflicts between § 7 rights and property rights enunciated in Babcock is that contained in its neutral “accommodation” language. Hudgens v. NLRB, 424 U. S. 507 (1976), gave this Court the *544occasion to provide direct guidance to the Board on this issue. In that case, we emphasized Babcock’s necessity-to-accommodate admonition, pointed out the differences between Babcock and Hudgens, and left the balance to be struck by the Board. “The locus of that accommodation ... may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance.” 424 U. S., at 522. Hudgens did not purport to modify Babcock and surely indicates that Babcock announced a more flexible rule than the narrow, ironclad rule that the Court now extracts from that case. If Babcock means what the Court says it means, there is no doubt tension between that case and Hudgens. If that is so, Hudgens, as the later pronouncement on the question, issued as a directive to the Board, should be controlling.*

*545The majority today asserts that “[i]t is only where [reasonable alternative] access is infeasible that it becomes necessary and proper to take the accommodation inquiry to a second level, balancing the employees’ and employers’ rights.” Ante, at 538. Our cases, however, are more consistent with the Jean Country view that reasonable alternatives are an important factor in finding the least destructive accommodation between §7 and property rights. The majority’s assertion to this effect notwithstanding, our cases do not require a prior showing regarding reasonable alternatives as a precondition to any inquiry balancing the two rights. The majority can hardly fault the Board for a decision which “conflates . . . two stages of the inquiry,” ante, at 538, when no two-stage inquiry has been set forth by this Court.

Third, and more fundamentally, Babcock is at odds with modern concepts of deference to an administrative agency charged with administering a statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). When reviewing an agency’s construction of a statute, we ask first whether Congress has spoken to the precise question at issue. Id., at 842. If it has not, we do not simply impose our own construction on the statute; rather, we determine if the agency’s view is based on a permissible construction of the statute. Id., at 843. Babcock did not ask if Congress had specifically spoken to the issue of access by third parties and did not purport to explain how the NLRA specifically dealt with what the access rule should be where third parties are concerned. If it had made such an inquiry, the only basis for finding statutory language that settled the issue would have been the language of § 7, which speaks only of the rights of employees; i. e., the Court might have found that § 7 extends no access rights at all to union representatives. But Babcock itself recognized that *546employees have a right to learn from others about self-organization, 351 U. S., at 113, and itself recognized that in some circumstances, §§7 and 8 required the employer to grant the union access to parking lots. So have later Courts, and so does the Court today.

That being the case, the Babcock Court should have recognized that the Board’s construction of the statute was a permissible one and deferred to its judgment. Instead, the Court simply announced that as far as access is concerned, third parties must be treated less favorably than employees. Furthermore, after issuing a construction of the statute different from that of the Board, rather than remanding to the Board to determine how third parties should be dealt with, the Babcock Court essentially took over the agency’s job, not only by detailing how union organizer access should be determined but also by announcing that the records before it did not contain facts that would satisfy the newly coined access rule.

Had a case like Babcock been first presented for decision under the law governing in 1991, I am quite sure that we would have deferred to the Board, or at least attempted to find sounder ground for not doing so. Furthermore, had the Board ruled that third parties must be treated differently than employees and held them to the standard that the Court now says Babcock mandated, it is clear enough that we also would have accepted that construction of the statute. But it is also clear, at least to me, that if the Board later reworked that rule in the manner of Jean Country, we would also accept the Board’s change of mind. See NLRB v. Curtin Matheson Scientific, Inc., 494 U. S., at 787; NLRB v. J. Weingarten, Inc., 420 U. S. 251, 265-266 (1975).

As it is, the Court’s decision fails to recognize that Babcock is at odds with the current law of deference to administrative agencies and compounds that error by adopting the substantive approach Babcock applied lock, stock, and barrel. And unnecessarily so, for, as indicated above, Babcock certainly *547does not require the reading the Court gives it today, and in any event later cases have put a gloss on Babcock that the Court should recognize.

Finally, the majority commits a concluding error in its application of the outdated standard of Babcock to review the Board’s conclusion that there were no reasonable alternative means available to the union. Unless the Court today proposes to turn back time in the law of judicial deference to administrative agencies, the proper standard for judicial review of the Board’s rulings is no longer for “ ‘erroneous legal foundations,’” ante, at 539, but for rationality and consistency with the statute. Litton Financial Printing Div. v. NLRB, 501 U. S. 190 (1991); NLRB v. Curtin Matheson Scientific, Inc., supra; Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987); NLRB v. Financial Institution Employees, 475 U. S. 192, 202 (1986); Beth Israel Hospital, 437 U. S., at 501. “The judicial role is narrow: . . . the Board’s application of the rule, if supported by substantial evidence on the record as a whole, must be enforced.” Ibid. The Board’s conclusion as to reasonable alternatives in this case was supported by evidence in the record. Even if the majority cannot defer to that application, because of the depth of its objections to the rule applied by the Board, it should remand to the Board for a decision under the rule it arrives at today, rather than sitting in the place Congress has assigned to the Board.

The more basic legal error of the majority today, like that of the Court of Appeals in Chevron, is to adopt a static judicial construction of the statute when Congress has not commanded that construction. Cf. 467 U. S., at 842. By leaving open the question of how §7 and private property rights were to be accommodated under the NLRA, Congress delegated authority over that issue to the Board, and a court should not substitute its own judgment for a reasonable construction by the Board. Cf. id., at 844.

*548Under the law that governs today, it is Babcock that rests on questionable legal foundations. The Board’s decision in Jean Country, by contrast, is both rational and consistent with the governing statute. The Court should therefore defer to the Board, rather than resurrecting and extending the reach of a decision which embodies principles which the law has long since passed by.

It is evident, therefore, that, in my view, the Court should defer to the Board’s decision in Jean Country and its application of Jean Country in this case. With all due respect, I dissent.

Justice Stevens,

dissenting.

For the first two reasons stated in Justice White’s opinion, ante, at 541-545, I would affirm the judgment of the Court of Appeals enforcing the Board’s order. I agree with Justice White that the Court’s strict construction of NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), is not consistent with Hudgens v. NLRB, 424 U. S. 507 (1976), and our other cases interpreting Babcock. I do not, however, join his opinion to the extent that it suggests that the Bab-cock case was incorrectly decided, ante, at 545-548. That decision rejected the Board’s view that the rules applicable to union organizing draw no distinction between employees and nonemployees. I believe that central holding in Bab-cock was correct and is not inconsistent with the current law of deference to administrative agencies. Accordingly, I also respectfully dissent.

5.2.3 National Labor Relations Board v. Town & Country Electric, Inc. 5.2.3 National Labor Relations Board v. Town & Country Electric, Inc.

Supreme Court of the United States
516 U.S. 85, 116 S. Ct. 450, 133 L. Ed. 2d 371, 1995 U.S. LEXIS 8311, SCDB 1995-007
No. 94-947
1995-11-28

NATIONAL LABOR RELATIONS BOARD v. TOWN & COUNTRY ELECTRIC, INC., et al.

No. 94-947.

Decided November 28, 1995

*86Breyer, J., delivered the opinion for a unanimous Court.

Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General Days, Paul A. Engelmayer, Linda Sher, Norton J. Come, Peter Winkler, and John Emad Arbab.

James K. Pease, Jr., argued the cause for respondents. With him on the brief for respondent Town & Country Electric, Inc., was Douglas E. Witte. Stephen D. Gordon, Laurence Gold, Laurence J. Cohen, Marsha S. Berzon, Mary Lynne Werlwas, and Scott A. Kronland filed briefs for respondent union.*

*87Justice Breyer

delivered the opinion of the Court.

Can a worker be a company’s “employee,” within the terms of the National Labor Relations Act, 29 U. S. C. § 151 et seq., if, at the same time, a union pays that worker to help the union organize the company? We agree with the National Labor Relations Board that the answer is “yes.”

I

The relevant background is the following: Town & Country Electric, Inc., a nonunion electrical contractor, wanted to hire several licensed Minnesota electricians for construction work in Minnesota. Town & Country (through an employment agency) advertised for job applicants, but it refused to interview 10 of 11 union applicants (including two professional union staff) who responded to the advertisement. Its employment agency hired the one union applicant whom Town & Country interviewed, but he was dismissed after only a few days on the job.

The members of the International Brotherhood of Electrical Workers, Locals 292 and 343 (Union), filed a complaint with the National Labor Relations Board claiming that Town & Country and the employment agency had refused to interview (or retain) them because of their union membership. See National Labor Relations Act (Act) §§ 8(a)(1) and (3), 49 Stat. 452, as amended, 29 U. S. C. §§ 158(a)(1) and (3) (1988 ed.). An Administrative Law Judge ruled in favor of the Union members, and the Board affirmed that ruling. Town & Country Elec., Inc., 309 N. L. R. B. 1250,1258 (1992).

In the course of its decision, the Board determined that all 11 job applicants (including the two Union officials and the one member briefly hired) were “employees” as the Act defines that word. Ibid. The Board recognized that under well-established law, it made no difference that the 10 members who were simply applicants were never hired. See *88 Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 185-186 (1941) (statutory word “employee” includes job applicants, for otherwise the Act’s prohibition of “ ‘discrimination in regard to hire’” would “serve no function”). Neither, in the Board’s view, did it matter (with respect to the meaning of the word “employee”) that the Union members intended to try to organize the company if they secured the advertised jobs, nor that the Union would pay them while they set about their organizing. The Board then rejected the company’s fact-based explanations for its refusals to interview or to retain these 11 “employees” and held that the company had committed “unfair labor practices” by discriminating on the basis of union membership. Town & Country Elec., supra, at 1250, n. 3, 1256, 1258.

The United States Court of Appeals for the Eighth Circuit reversed the Board. It held that the Board had incorrectly interpreted the statutory word “employee.” In the court’s view, that key word does not cover (and therefore the Act does not protect from antiunion discrimination) those who work for a company while a union simultaneously pays them to organize that company. 34 F. 3d 625, 629 (1994). See also H. B. Zachry Co. v. NLRB, 886 F. 2d 70, 75 (CA4 1989). For this threshold reason the court refused to enforce the Board’s order.

Because other Circuits have interpreted the word “employee” differently, see, e. g., Willmar Elec. Service, Inc. v. NLRB, 968 F. 2d 1327, 1330-1331 (CADC 1992) (paid union organizers can be “employees” protected by the Act), cert. denied, 507 U. S. 909 (1993); NLRB v. Henlopen Mfg. Co., 599 F. 2d 26, 30 (CA2 1979) (same), we granted certiorari. We now resolve the conflict in the Board’s favor.

II

The Act seeks to improve labor relations (“eliminate the causes of certain substantial obstructions to the free flow of commerce,” 29 U. S. C. § 151 (1988 ed.)) in large part by granting specific sets of rights to employers and to employ*89ees. This case grows out of a controversy about rights that the Act grants to “employees,” namely, rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” § 157. We granted certiorari to decide only that part of the controversy that focuses upon the meaning of the word “employee,” a key term in the statute, since these rights belong only to those workers who qualify as “employees” as that term is defined in the Act. See, e. g., § 158(a)(1) (“unfair labor practice” to “interfere with . . . employees in the exercise of the rights guaranteed in section 157 of this title”) (emphasis added).

The relevant statutory language is the following:

“The term ‘employee’ shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined.” § 152(3) (emphasis added).

We must specifically decide whether the Board may lawfully interpret this language to include company workers who are also paid union organizers.

We put the question in terms of the Board’s lawful authority because this Court’s decisions recognize that the Board *90often possesses a degree of legal leeway when it interprets its governing statute, particularly where Congress likely intended an understanding of labor relations to guide the Act’s application. See, e. g., Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984) (interpretations of the Board, the agency that Congress “ ‘created ... to administer the Act,’ ” will be upheld if “reasonably defensible”) (internal citation omitted); NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 786 (1990) (Congress delegated to the Board “primary responsibility for developing and applying national labor policy”); ABF Freight System, Inc. v. NLRB, 510 U. S. 317, 324 (1994) (the Board’s views are entitled to “the greatest deference”). See also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). We add, however, that the Board needs very little legal leeway here to convince us of the correctness of its decision.

Several strong general arguments favor the Board’s position. For one thing, the Board’s decision is consistent with the broad language of the Act itself — language that is broad enough to include those company workers whom a union also pays for organizing. The ordinary dictionary definition of “employee” includes any “person who works for another in return for financial or other compensation.” American Heritage Dictionary 604 (3d ed. 1992). See also Black’s Law Dictionary 525 (6th ed. 1990) (an employee is a “person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed”). The phrasing of the Act seems to reiterate the breadth of the ordinary dictionary definition, for it says “[t]he term ‘employee’ shall include any employee.” 29 U. S. C. § 152(3) (1988 ed.) (emphasis added). Of course, the Act’s definition also contains a list of exceptions, for example, for independent contractors, agricultural laborers, domestic workers, and employees sub*91ject to the Railway Labor Act, 45 U. S. C. § 151 et seq.; but no exception applies here.

For another thing, the Board’s broad, literal interpretation of the word “employee” is consistent with several of the Act’s purposes, such as protecting “the right of employees to organize for mutual aid without employer interference,” Republic Aviation Corp. v. NLRB, 324 U. S. 793, 798 (1945); see also 29 U. S. C. § 157 (1988 ed.); and “encouraging and protecting the collective-bargaining process.” Sure-Tan, Inc. v. NLRB, supra, at 892. And, insofar as one can infer purpose from congressional reports and floor statements, those sources too are consistent with the Board’s broad interpretation of the word. It is fairly easy to find statements to the effect that an “employee” simply “means someone who works for another for hire,” H. R. Rep. No. 245, 80th Cong., 1st Sess., 18 (1947), and includes “every man on a payroll,” 79 Cong. Rec. 9686 (1935) (colloquy between Reps. Taylor and Connery). See also S. Rep. No. 573, 74th Cong., 1st Sess., 6 (1935) (referring to an employee as a “worker”); H. R. Rep. No. 969, 74th Cong., 1st Sess., 8 (1935) (same); H. R. Rep. No. 972, 74th Cong., 1st Sess., 8 (1935) (same); H. R. Rep. No. 1147, 74th Cong., 1st Sess., 10 (1935) (same). At the same time, contrary statements, suggesting a narrow or qualified view of the word, are scarce, or nonexistent — except, of course, those made in respect to the specific (here inapplicable) exclusions written into the statute.

Further, a broad, literal reading of the statute is consistent with cases in this Court such as, say, Sure-Tan, Inc. v. NLRB, supra (the Act covers undocumented aliens), where the Court wrote that the “breadth of §2(3)’s definition is striking: the Act squarely applies to 'any employee.’” 467 U. S., at 891. See NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U. S. 170, 189-190 (1981) (certain “confidential employees” fall within the definition of “employees”); Phelps Dodge Corp. v. NLRB, 313 U. S., at 185-186 (job applicants are “employees”). Cf. Chemical Workers v. *92 Pittsburgh Plate Glass Co., 404 U. S. 157, 166 (1971) (retired persons are not “employees” because they do not “work for another for hire”). See also NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131-132 (1944) (independent contractor-like newsboys are “employees”); Packard Motor Car Co. v. NLRB, 330 U. S. 485, 488-490 (1947) (company foremen are “employees”). But see 61 Stat. 137-138, 29 U. S. C. § 152(3) (1988 ed.) (amending Act to overrule Hearst and Packard by explicitly excluding independent contractors and supervisory employees).

Finally, at least one other provision of the 1947 Labor Management Relations Act seems specifically to contemplate the possibility that a company’s employee might also work for a union. This provision forbids an employer (say, the company) to make payments to a person employed by a union, but simultaneously exempts from that ban wages paid by the company to “any ... employee of a labor organization, who is also an employee” of the company. 29 U. S. C. § 186(c)(1) (1988 ed., Supp. V) (emphasis added). If Town & Country is right, there would not seem to be many (or any) human beings to which this last phrase could apply.

Ill

Town & Country believes that it can overcome these general considerations, favoring a broad, literal interpretation of the Act, through an argument that rests primarily upon the common law of agency. It first argues that our prior decisions resort to common-law principles in defining the term “employee.” See Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 323 (1992) (using common-law test to distinguish between “employee” and “independent contractor” under Employee Retirement Income Security Act of 1974, 29 U. S. C. § 1001 et seq.); Community for Creative Non-Violence v. Reid, 490 U. S. 730, 739-740 (1989) (using common-law test to distinguish between “employee” and “independent contractor” under Copyright Act of 1976, 17 *93U. S. C. §101 et seq.); NLRB v. United Ins. Co. of America, 390 U. S. 254, 256 (1968) (using common-law test to distinguish between “employee” and “independent contractor” under NLRA). And it also points out that the Board itself, in its decision, found “no bar to applying common law agency principles to the determination whether a paid union organizer is an ‘employee,’” Town & Country Elec., Inc., 309 N. L. R. B., at 1254.

Town & Country goes on to argue that application of common-law agency principles requires an interpretation of “employee” that excludes paid union organizers. It points to a section of the Restatement (Second) of Agency (dealing with respondeat superior liability for torts), which says:

“Since ... the relation of master and servant is dependent upon the right of the master to control the conduct of the servant in the performance of the service, giving service to two masters at the same time normally involves a breach of duty by the servant to one or both of them .... [A person] cannot be a servant of two masters in doing an act as to which an intent to serve one necessarily excludes an intent to serve the other.” Restatement (Second) of Agency §226, Comment a, p. 499 (1957).

It argues that, when the paid union organizer serves the union — at least at certain times in certain ways — the organizer is acting adversely to the company. Indeed, it says, the organizer may stand ready to desert the company upon request by the union, in which case, the union, not the company, would have “the right... to control the conduct of the servant.” Ibid. Thus, it concludes, the worker must be the servant (i. e., the “employee”) of the union alone. See id., § 1, and Comment a, p. 8 (“agent” is one who agrees to act “subject to [a principal’s] control”).

As Town & Country correctly notes, in the context of reviewing lower courts’ interpretations of statutory terms, we *94have said on several occasions that when Congress uses the term “employee” in a statute that does not define the term, courts interpreting the statute “ ‘must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of th[at] ter[m] .... In the past, when Congress has used the term “employee” without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.’” Nationwide Mut. Ins. Co. v. Darden, supra, at 322-323 (quoting Community for Creative Non-Violence v. Reid, supra, at 739-740). At the same time, when reviewing the Board’s interpretation of the term “employee” as it is used in the Act, we have repeatedly said that “[s]inee the task of defining the term ‘employee’ is one that ‘has been assigned primarily to the agency created by Congress to administer the Act,’ . . . the Board’s construction of that term is entitled to considerable deference . . . .” Sure-Tan, Inc. v. NLRB, 467 U. S., at 891 (quoting NLRB v. Hearst Publications, Inc., supra, at 130); NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U. S., at 177-190. In some cases, there may be a question about whether the Board’s departure from the common law of agency with respect to particular questions and in a particular statutory context, renders its interpretation unreasonable. See NLRB v. United Ins. Co., supra, at 256 (“independent contractor” exclusion). But no such question is presented here since the Board’s interpretation of the term “employee” is consistent with the common law.

Town & Country’s common-law argument fails, quite simply, because, in our view, the Board correctly found that it lacks sufficient support in common law. The Restatement’s hornbook rule (to which the quoted commentary is appended) says that a

“person may be the servant of two masters ... at one time as to one act, if the service to one does not involve *95 abandonment of the service to the other.” Restatement (Second) of Agency §226, at 498 (emphasis added).

The Board, in quoting this rule, concluded that service to the union for pay does not “involve abandonment of... service” to the company. 309 N. L. R. B., at 1254.

And, that conclusion seems correct. Common sense suggests that as a worker goes about his or her ordinary tasks during a working day, say, wiring sockets or laying cable, he or she is subject to the control of the company employer, whether or not the union also pays the worker. The company, the worker, the union, all would expect that to be so. And, that being so, that union and company interests or control might sometimes differ should make no difference. As Prof. Seavey pointed out many years ago, “[o]ne can be a servant of one person for some acts and the servant of another person for other acts, even when done at the same time,” for example, where “a city detective, in search of clues, finds employment as a waiter and, while serving the meals, searches the customer’s pockets.” W. Seavey, Handbook of the Law of Agency § 85, p. 146 (1964). The detective is the servant both “of the restaurateur” (as to the table waiting) and “of the city” (as to the pocket searching). Ibid. How does it differ from Prof. Seavey’s example for the company to pay the worker for electrical work, and the union to pay him for organizing? Moreover, union organizers may limit their organizing to nonwork hours. See, e. g., Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); Beth Israel Hospital v. NLRB, 437 U. S. 483, 492-493 (1978). If so, union organizing, when done for pay but during nonwork hours, would seem equivalent to simple moonlighting, a practice wholly consistent with a company’s control over its workers as to their assigned duties.

Town & Country’s “abandonment” argument is yet weaker insofar as the activity that constitutes an “abandonment,” i. e., ordinary union organizing activity, is itself specifically protected by the Act. See, e. g., ibid, (employer restrictions *96on union solicitation during nonworking time in nonworking areas are presumptively invalid under the Act). This is true even if a company perceives those protected activities as disloyal. After all, the employer has no legal right to require that, as part of his or her service to the company, a worker refrain from engaging in protected activity.

Neither are we convinced by the practical considerations that Town & Country adds to its agency law argument. The company refers to a Union resolution permitting members to work for nonunion firms, which, the company says, reflects a union effort to “salt” nonunion companies with union members seeking to organize them. Supported by amici curiae, it argues that “salts” might try to harm the company, perhaps quitting when the company needs them, perhaps disparaging the company to others, perhaps even sabotaging the firm or its products. Therefore, the company concludes, Congress could not have meant paid union organizers to have been included as “employees” under the Act.

This practical argument suffers from several serious problems. For one thing, nothing in this record suggests that such acts of disloyalty were present, in kind or degree, to the point where the company might lose control over the worker’s normal workplace tasks. Certainly the Union’s resolution contains nothing that suggests, requires, encourages, or condones impermissible or unlawful activity. App. 256-258. For another thing, the argument proves too much. If a paid union organizer might quit, leaving a company employer in the lurch, so too might an unpaid organizer, or a worker who has found a better job, or one whose family wants to move elsewhere. And if an overly zealous union organizer might hurt the company through unlawful acts, so might another unpaid zealot (who may know less about the law), or a dissatisfied worker (who may lack an outlet for his or her grievances). This does not mean they are not “employees.”

Further, the law offers alternative remedies for Town & Country’s concerns, short of excluding paid or unpaid union *97organizers from all protection under the Act. For example, a company disturbed by legal but undesirable activity, such as quitting without notice, can offer its employees fixed-term contracts, rather than hiring them “at will” as in the case before us; or it can negotiate with its workers for a notice period. A company faced with unlawful (or possibly unlawful) activity can discipline or dismiss the worker, file a complaint with the Board, or notify law enforcement authorities. See, e. g., NLRB v. Electrical Workers, 346 U. S. 464, 472-478 (1953); Willmar Elec. Service v. NLRB, 968 F. 2d, at 1330 (arsonist who is also union member is still an “employee,” but may be discharged). See also Budd Mfg. Co. v. NLRB, 138 F. 2d 86, 89-90 (CA3 1943) (worker who was intoxicated while on duty, “came to work when he chose and ... left the plant and his shift as he pleased,” and utterly failed to perform his assigned duties is still an “employee” protected under the Act), cert. denied, 321 U. S. 778 (1944). And, of course, an employer may as a rule limit the access of nonemployee union organizers to company property. Lechmere, Inc. v. NLRB, 502 U. S. 527, 538 (1992); NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956).

This is not to say that the law treats paid union organizers like other company employees in every labor law context. For instance, the Board states that, at least sometimes, a paid organizer may not share a sufficient “community of interest” with other employees (as to wages, hours, and working conditions) to warrant inclusion in the same bargaining unit. Brief for National Labor Relations Board 33, n. 14. See, e. g., NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U. S., at 190 (some confidential workers, although “employees,” may be excluded from bargaining unit). We need not decide this matter. Nor do we express any view about any of the other matters Town & Country raised before the Court of Appeals, such as whether or not Town & Country’s conduct (in refusing to interview, or to retain, “employees” who were on the union’s payroll) amounted to an *98unfair labor practice. See 34 F. 3d, at 629. We hold only that the Board’s construction of the word “employee” is lawful; that term does not exclude paid union organizers.

IV

For these reasons the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

5.2.4 Caesar's Entertainment d/b/a Rio All-Suites Hotel and Casino 5.2.4 Caesar's Entertainment d/b/a Rio All-Suites Hotel and Casino

368 NLRB No. 143 (2019)

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

 

CAESARS ENTERTAINMENT d/b/a RIO ALL-SUITES HOTEL AND CASINO

                        and                                                                                                                                                                                                                  

INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 16, LOCAL 159, AFL-CIO[1]                                                                   

Case   28-CA-060841

DECISION AND ORDER

CHAIRMAN RING AND MEMBERS KAPLAN AND EMANUEL,

The issue before us is whether the National Labor Relations Act requires the Respondent to permit employees to use its email and other information-technology (IT) resources for the purpose of engaging in activities protected by Section 7 of the Act.  The Respondent indisputably has a property right to restrict employee use of its equipment, including its IT resources.[2]  The question presented here is whether that property right must give way where employees seek to use the Respondent’s IT resources for Section 7 activity.  In deciding this issue, we are guided by the Supreme Court’s admonition that “[o]rganization rights are granted to workers by the same authority, the National Government, that preserves property rights.  Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.”[3]

The Board has long held that with regard to oral solicitation during nonworking time and the distribution of literature during nonworking time in nonworking areas, the Act does limit an employer’s property right to control the use of its premises.[4]  The Supreme Court approved this “adjustment between the undisputed right of self-organization assured to employees under the” Act and “the equally undisputed right of employers to maintain discipline in their establishments” in its seminal decision in Republic Aviation Corp. v. NLRB.[5]  But decades of Board precedent establish that the Act generally does not restrict an employer’s right to control the use of its equipment.[6]  In Register Guard, the Board held that this precedent, and the principle for which it stands, applies with equal force to an employer’s email system.[7]  Subsequently, however, a divided Board in Purple Communications, Inc. overruled Register Guard, holding for the first time in the history of the Board that employees do have a right to use employer-owned equipment for non-work purposes.[8]  As explained below, the Board’s unprecedented decision in Purple Communications impermissibly discounted employers’ property rights in their IT resources while overstating the importance of those resources to Section 7 activity.  Accordingly, we shall overrule Purple Communications and return to the standard announced in Register Guard.  Under that standard, employees have no statutory right to use employer equipment, including IT resources, for Section 7 purposes.  However, we shall recognize an exception to the Register Guard rule in those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.   

I. Background

The Respondent is a Las Vegas casino and hotel, owned and operated by Caesar’s Entertainment, Inc.  The Respondent’s employees all report to and work at the same facility, which contains an employee cafeteria, break rooms, and other non-work areas where the Respondent permits its employees to engage in non–work-related solicitation and distribution.

During the period of time covered by the complaint, the Respondent maintained an employee handbook, which it distributes to its workforce of approximately 3000 employees.  All employees must sign a form acknowledging receipt of the handbook and their responsibility to comply with its provisions.  The handbook advises employees that noncompliance with its provisions may result in discipline, up to and including discharge.  As relevant to this decision, the Respondent maintained the following work rules in the portion of its handbook headed “Computer Usage”:

ACCESS, SECURITY AND CONFIDENTIALITY

. . .

Confidentiality:

Do not disclose or distribute outside of [the Respondent] any information that is marked or considered confidential or proprietary unless you have received a signed non-disclosure agreement through the Law Department. 

. . . .

General Restrictions:

Computer resources may not be used to:

. . .

  • Share confidential information with the general public, including discussing the company, its financial results or prospects, or the performance or value of company stock by using an internet message board to post any message, in whole or in part, or by engaging in an internet or online chatroom
  • Convey or display anything fraudulent, pornographic, abusive, profane, offensive, libelous or slanderous
  • Send chain letters or other forms of non-business information

. . .

  • Solicit for personal gain or advancement of personal views
  • Violate rules or policies of the Company
  • Do not visit inappropriate (non-business) websites, including but not limited to online auctions, day trading, retail/wholesale, chat rooms, message boards and journals.  Limit the use of personal email, including using streaming media (e.g., video and audio clips) and downloading photos.

The complaint alleges that the Respondent violated Section 8(a)(1) of the Act by maintaining the above-quoted handbook rules, hereafter the “computer rules,” as well as eight other rules that do not restrict the use of IT resources, hereafter the “non-computer rules.”  In 2015, the Board—reviewing a 2012 decision by Administrative Law Judge William L. Schmidt—found that four of the challenged non-computer rules were unlawful and four were lawful.[9]  The Board also remanded the computer rules for further consideration in light of Purple Communications, which issued after Judge Schmidt’s decision, in which he found the computer rules lawful under Register Guard.[10]

On May 3, 2016, Administrative Law Judge Mara-Louise Anzalone issued the attached decision.  Applying Purple Communications, she found that the Respondent’s rule against “[s]end[ing] chain letters or other forms of non-business information” was presumptively unlawful.  Judge Anzalone also found that the Respondent failed to establish that its obligation to protect confidential guest information constituted special circumstances justifying this rule.  Accordingly, Judge Anzalone concluded that the Respondent violated Section 8(a)(1) of the Act by maintaining a prohibition on “[s]end[ing] . . . non-business information.”  Judge Anzalone concluded that the Board’s remand did not require her to reassess Judge Schmidt’s decision with respect to the Respondent’s other computer rules.

The Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a supporting brief.  The General Counsel filed an answering brief to the Respondent’s exceptions, and the Respondent filed an answering brief to the Charging Party’s cross-exceptions.  The Charging Party and the Respondent both filed reply briefs.

On August 1, 2018, the Board issued a Notice and Invitation to File Briefs in this matter, asking the parties and interested amici to address the following questions:

  1. Should the Board adhere to, modify, or overrule Purple Communications?

 

  1. If you believe the Board should overrule Purple Communications, what standard should the Board adopt in its stead? Should the Board return to the holding of Register Guard or adopt some other standard?

 

  1. If the Board were to return to the holding of Register Guard, should it carve out exceptions for circumstances that limit employees’ ability to communicate with each other through means other than their employer’s email system (e.g., a scattered workforce, facilities located in areas that lack broadband access)? If so, should the Board specify such circumstances in advance or leave them to be determined on a case-by-case basis?

 

  1. The policy at issue in this case applies to employees’ use of the Respondent’s “[c]omputer resources.” Until now, the Board has limited its holdings to employer email systems.  Should the Board apply a different standard to the use of computer resources other than email?  If so, what should that standard be?  Or should it apply whatever standard the Board adopts for the use of employer email systems to other types of electronic communications (e.g., instant messages, texts, postings on social media) when made by employees using employer-owned equipment?

 

The General Counsel, the Charging Party, and the Respondent filed briefs.  The Respondent filed a brief in response to the Charging Party’s and amici’s briefs, and the Charging Party filed a brief in response to the Respondent’s and amici’s briefs.  Amicus/amici briefs were filed by American Federation of Labor and Congress of Industrial Organizations; American Hospital Association and Federation of American Hospitals, jointly; Arkansas State Chamber of Commerce and Associated Builders and Contractors of Arkansas, jointly; Center for Workplace Compliance; Coalition for a Democratic Workplace, Retail Industry Leaders Association, Chamber of Commerce of the United States of America, Independent Electrical Contractors, Inc., International Foodservice Distributors, National Association of Wholesaler-Distributors, National Retail Federation, Restaurant Law Center, American Hotel and Lodging Association, and Associated Builders and Contractors, jointly; Council on Labor Law Equality; Professor Jeffrey M. Hirsch; HR Policy Association, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and Society for Human Resource Management, jointly; Illinois State Chamber of Commerce; International Brotherhood of Electrical Workers, Local Union 304; Senator Patty Murray; National Nurses United; Nevada Resort Association; Screen Actors Guild-American Federation of Television and Radio Artists; Service Employees International Union and National Employment Law Project, jointly; Montgomery Blair Sibley; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO; and United States Postal Service.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[11] and conclusions only to the extent consistent with this Decision and Order.[12]

II. Discussion

A. Positions of the parties and amici

The Charging Party and certain amici contend that the Board should adhere to the holding of Purple Communications.[13]  They argue that Purple Communications strikes an appropriate balance between employee rights and management interests.  They also emphasize the centrality of email in modern office life and that the falling costs of data storage mean that any costs employers will have to bear as a result of employees’ use of employers’ IT resources for Section 7 communications will be negligible.  They also emphasize that most employers permit at least some personal communications over employer-provided email systems without experiencing negative effects on either productivity or those systems.[14]

The Respondent, the General Counsel, and certain amici argue that the Board should overrule Purple Communications and reinstate the holding of Register Guard.[15]  They argue that the Purple Communications Board attached too little weight to employer property interests in their email systems. They also stress that enforcing restrictions on the sending, and particularly the reading, of non-work email during working time, while permissible under Purple Communications, is unworkable in practice.  Additionally, the Respondent, the General Counsel, and several amici argue that the rule of Purple Communications violates the First Amendment by requiring employers to subsidize hostile speech.

Among the parties and amici that address the issues, nearly all argue that the Board should carve out exceptions to the holding of Register Guard on a case-by-case basis and that the holding of that case, reinstated here, should apply to all employer-owned IT resources, not only to employer email systems.

B. The Board’s decision in Register Guard

As noted above, the Board first considered whether employees have a Section 7 right to use employer-provided email for Section 7 communications in Register Guard.[16]  The Board there determined that employees do not have such a right, relying on a long line of Board decisions holding that there is no statutory right to use employer-provided equipment.[17]  

In Register Guard, the Board rejected the argument that rules governing employees’ use of workplace email should be analyzed under the balancing test articulated in Republic Aviation Corp. v. NLRB.[18] The Board explained that Republic Aviation safeguards employees’ right to face-to-face solicitation and distribution in the workplace, but it “does not require the most convenient or most effective means of conducting those communications, nor does it hold that employees have a statutory right to use an employer’s equipment or devices for Section 7 communications.”[19]  Having clarified that Republic Aviation’s holding is limited to communications “that involve only the employees’ own conduct during nonwork time and do not involve use of the employer’s equipment,” the Board concluded that the outcome of the case should be determined by “applying the settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communications.”[20]  The Board also observed that there was no contention that the employer’s employees rarely or never saw each other in person or that they communicated with each other solely by electronic means, and the Board did not pass on “circumstances, not present here, in which there are no means of communication among employees at work other than e-mail.”[21] 

C. The Board’s decision in Purple Communications

In 2014, a Board majority, over the dissents of then-Members Miscimarra and Johnson, overruled Register Guard in Purple Communications.  The Purple Communications Board did not contend that its decision was necessitated by technological changes or that the rule announced in Register Guard had proven unworkable or given rise to unintended consequences.  Rather, the majority in Purple Communications believed that Register Guard “undervalued” employees’ Section 7 rights and “failed to perceive the importance of email as a means” of employee communication.[22]  Rather than being equipment,[23] the Purple Communications Board held that email was a “natural gathering place,” akin to a breakroom or employee cafeteria, the use of which was governed by the Republic Aviation framework.[24]  Based on these premises, the Purple Communications Board held that if an employer provides an employee with access to its email system, it cannot prohibit the employee from using the system for Section 7–protected communications on nonworking time absent a showing by the employer of special circumstances.[25]  The Board stated that such circumstances would be “rare,”[26] and in the years since Purple Communications was decided, the Board has never found special circumstances justifying a prohibition on nonwork-related email. 

Conversely, the Purple Communications dissenters took the position that requiring employers to open their email systems to nonwork-related communications “demonstrate[d] an unreasonable indifference to employer property rights.”[27]  The dissenters emphasized that the Supreme Court had admonished that the Act “does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it.”[28]

They explained that the Republic Aviation framework was limited to the analysis of restrictions on face-to-face communications,[29] and they warned that although the right identified by the majority was purportedly limited to nonworking time, in practice that limitation would be impossible to enforce.[30]  The dissenters concluded that because employees had no need to utilize employer-provided email in order to exercise their Section 7 rights, there was no basis for finding that employers interfered with, restrained, or coerced employees in the exercise of those rights by limiting business email to business-related purposes.[31]

D. Purple Communications is overruled

We believe the Register Guard Board and the Purple Communications dissenters were correct when they concluded that there is no statutory right for employees to use employer-provided email for nonwork, Section 7 purposes in the typical workplace.  As we shall explain, only that view faithfully hews to the Supreme Court’s admonition that “[a]ccommodation between [employees’ organizational rights and employers’ property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other.”[32]  

As the Board observed in Register Guard, an employer’s communication systems, including its email system, are its property.[33]  Accordingly, employers have a property right to control the use of those systems.[34]  This principle was not disputed by the Purple Communications majority, and we regard it as indisputable.[35] 

Consistent with that principle, we reaffirm the long line of Board decisions holding that there is no Section 7 right to use employer-owned televisions,[36] bulletin boards,[37] copy machines,[38] telephones,[39] or public-address systems.[40]  Although not necessarily articulated in those decisions, their holdings nevertheless follow from the Supreme Court’s recognition, in NLRB v. Steelworkers (NuTone),[41] that the Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it.[42]

Contrary to the Purple Communications majority, the Supreme Court’s decision in Republic Aviation does not require a different result, either for employer equipment generally or for employer email systems in particular.  In Republic Aviation, the Court considered a series of Board decisions where employers had banned all union solicitation or the distribution of union literature on their premises.  As those decisions carefully explained, employees cannot realize the benefits of the right to self-organization guaranteed them by the Act, unless there are adequate avenues of communication open to them whereby they may be informed or advised as to the precise nature of their rights under the Act and of the advantages of self-organization, and may have opportunities for the interchange of ideas necessary to the exercise of their right to self-organization.[43]

A complete prohibition on solicitation and literature distribution in the workplace would necessarily choke off those “avenues of communication” at “the very time and place uniquely appropriate and almost solely available to them therefor.”[44]  Accordingly, the Board has held that restrictions on oral solicitation during nonworking time are presumptively unlawful.[45]  As the Board subsequently explained,

unless the right of employees to engage in effective oral solicitation is to be virtually nullified, a limitation upon the employer's normal and legitimate property rights is required.  The scope of that limitation, however, is to be determined by the nature of the need.  Balancing the respective rights, the working time versus nonworking time adjustment has been evolved.  The respective rights of both employer and employees are thus accorded their proper weight.[46]

Importantly, the Board did not hold that all restrictions on Section 7 activity in the workplace were unlawful.  To the contrary, the Board has explicitly recognized that

[t]he Act . . . does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time.  Working time is for work.  It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours.  Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose.[47]

Similarly, the Board has held that restrictions on the distribution of literature during working time and in working areas are also presumptively lawful, after carefully balancing the interests of employers and employees implicated by that organizational technique.[48]  Thus, only rules that restrict solicitation during nonworking time or the distribution of literature on nonworking time and in nonworking areas are presumptively unlawful, and even then the rules may be justified if “special circumstances” are shown.[49]

The Republic Aviation Court held that these balanced presumptions, carefully developed by the Board based on its experience in the administration of the Act, represented a proper “adjustment between the undisputed right of self-organization assured to employees under the” Act and the equally undisputed right of employers to maintain discipline in their establishments.  Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee.  Opportunity to organize and proper discipline are both essential elements in a balanced society.[50]

The Purple Communications majority nevertheless seized on Republic Aviation as the basis for its conclusion that employees have a statutory right to use their employer’s email system for Section 7 activity.  As explained below, the majority’s analysis in Purple Communications is fundamentally flawed.

Initially, we note that Republic Aviation dealt exclusively with face-to-face Section 7 activity within a physical workplace,[51] where the line separating working and nonworking areas is generally clear, and where solicitation takes place synchronously and it is easily determined whether all employees engaged therein are on working or nonworking time.  The teaching of that decision regarding the times when and places where employers may restrict Section 7 activity has little relevance to an employer’s email system, which creates a virtual space in which the distinction between working and nonworking areas is meaningless, and in which solicitation may and often would take place asynchronously—i.e., where Section 7–related communications may be composed, sent, and read at different times.  We need not reach the issue of whether, as numerous amici contend, employers have no practical means of restricting nonwork emails to nonworking time under Purple Communications.  We simply observe that Republic Aviation was premised on the principle that “working time is for work” and involved circumstances in which the line separating working from nonworking time could be clearly perceived and understood by employers and employees alike, which is not the case with emails.

More fundamentally, Republic Aviation does not support the proposition, embraced by a Board majority in Purple Communications, that if an employer grants employees access to its email system, it must allow them to use it for Section 7 activity absent special circumstances.  To the contrary, even with respect to on-premises solicitation and literature distribution, any limitation imposed by the Act on “the employer’s normal and legitimate property rights . . . is to be determined by the nature of the need.”[52]  Moreover, “[w]here there is no necessary conflict neither right should be abridged.  By the same [token], where conflict does exist, the abridgement of either right should be kept to a minimum.”[53]  It necessarily follows that the scope of any limitation on employer property rights in equipment must likewise “be determined by the nature of the need” and, where necessary to accommodate Section 7 rights, “kept to a minimum.”[54] 

Properly understood, then, Republic Aviation stands for the twin propositions that employees must have “adequate avenues of communication”[55] in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to employees’ Section 7 rights when necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.”[56]  In the typical workplace, however, oral solicitation and face-to-face literature distribution provide more than “adequate avenues of communication.”  Indeed, the Board has long recognized that the “free time of employees on plant property [is] the very time and place uniquely appropriate for” oral solicitation.[57]  Likewise, the distribution of literature, in nonworking areas on nonworking time, is also an effective method of communication.[58]  There is no reason to believe that these methods of communication have ceased to be available in the typical workplace, and almost all employees continue to report to such workplaces on a regular basis.[59]  Moreover, in modern workplaces employees also have access to smartphones,[60] personal email accounts,[61] and social media,[62] which provide additional avenues of communication, including for Section 7–related purposes.[63]  Accordingly, there is no basis for concluding that a prohibition on the use of an employer’s email system for nonwork purposes in the typical workplace creates an “unreasonable impediment to the exercise of the right to self-organization.”[64]

Significantly, the Purple Communications Board did not contend that opportunities for face-to-face communication in the typical workplace were no longer adequate to permit employees to exercise their Section 7 rights.  Rather, the Board argued that an employer’s email system was a useful, convenient, and effective additional means for employees to engage in Section 7 discussions with their coworkers.  But the Act “does not require the most convenient or most effective means of conducting those communications.”[65]  Moreover, to hold that mere convenience is sufficient to negate employers’ right to regulate the use of their IT systems would be to ignore the Supreme Court’s directive to resolve the tension between employees’ Section 7 rights and employers’ property rights “with as little destruction of one as is consistent with the maintenance of the other.”[66]  

We recognize that there may be some cases in which an employer’s email system furnishes the only reasonable means for employees to communicate with one another.  Consistent with the principles stated above, an employer’s property rights may be required to yield in such circumstances to ensure that employees have adequate avenues of communication.  Because, in the typical workplace, employees do have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment, we expect such cases to be rare.  We shall not here attempt to define the scope of this exception but shall leave it to be fleshed out on a case-by-case basis.[67]

Accordingly, for the foregoing reasons, as well as—to the extent consistent with this decision—those articulated in Register Guard and by Members Miscimarra and Johnson in their Purple Communications dissents, we have determined that Purple Communications must be overruled.  We hold instead that an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.[68]  

E. Retroactive application of the new standard

When the Board announces a new standard, a threshold question is whether the new standard may appropriately be applied retroactively, or whether it should be applied only in future cases.  In this regard, “[t]he Board’s usual practice is to apply new policies and standards retroactively ‘to all pending cases in whatever stage.’”[69]  Only when it would create a “manifest injustice” does the Board decide not to apply a new rule retroactively.[70]  The Supreme Court has indicated that the propriety of retroactive application is determined by balancing any ill effects of retroactivity against “the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.”[71]

We do not envision that any ill effects will result from retroactively applying the standard we announce here in cases where the issue presented is whether the employer unlawfully maintained certain rules.  As discussed above, Purple Communications represented a sharp departure from decades of precedent holding that an employer has the right to impose nondiscriminatory restrictions on the use of its equipment.  There is no suggestion that any party relied on Purple Communications with respect to any of the actions at issue in this case, and no rule that was lawful under Purple Communications will be found unlawful as a result of the retroactive application of our decision.  

On the other hand, because the Board’s standard in Purple Communications failed to properly accommodate Section 7 rights and private property rights, failing to apply our new standard retroactively would “produc[e] a result which is contrary to a statutory design or to legal and equitable principles.”[72]  Such a result would be produced if the Board were to require an employer that violated the now-overruled Purple Communications standard to post a notice stating that it will cease and desist from maintaining rules against the use of its email system for nonwork purposes, when it had no obligation to permit such use in the first place.  Moreover, the Purple Communications standard was in effect for less than four years before the Board solicited briefs on whether it should be overruled, and it has never been approved by a court of appeals.  Accordingly, we find no “manifest injustice” in applying the standard we announce today to this case and all pending cases that similarly involve allegations that an employer unlawfully maintained rules restricting the use of the employer’s IT resources for nonwork purposes.

F. Response to the Dissent

Our dissenting colleague offers a number of arguments in favor of retaining Purple Communications.  She argues that our holding elides the distinction between employees and third parties and improperly considers alternative means of communication in striking the balance between employers’ property rights and employees’ Section 7 rights.  She claims that the Board’s equipment cases do not support the rule that we adopt today.  And the dissent believes that we improperly balance the rights at issue.  We have considered our colleague’s arguments, and we find them unpersuasive.

Preliminarily, the dissent contends that we improperly rely on NLRB v. Babcock & Wilcox[73] because the instant case involves balancing employer property rights against the Section 7 rights of employees, and Babcock involved balancing employer property rights against the derivative Section 7 rights of nonemployee union organizers.  However, we have cited Babcock & Wilcox solely for the principle that “[a]ccommodation between [organizational rights and employer property rights] must be obtained with as little destruction of one as is consistent with the maintenance of the other”[74]—and that same principle has been invoked and relied on in cases involving a balancing of employer rights and employees’ Section 7 rights, including by the Supreme Court in a decision upon which the dissent heavily relies.[75]     

Citing Eastex, Inc. v. NLRB,[76] Beth Israel Hospital v. NLRB,[77] and Hudgens v. NLRB,[78] the dissent contends that when employees are “lawfully on the employer’s e-mail system,” the employer’s property right to exclude is irrelevant, and the availability of alternative means is immaterial.  These cases, however, like Republic Aviation, involved the right to engage in face-to-face communication—not, as here, the right to use employer-owned equipment.  As we have explained above, this is a distinction of substance.[79]  We similarly reject the dissent’s attempt to treat as mere dicta decades of Board precedent finding no Section 7 rights to use employers’ equipment.[80] 

The dissent repeats the claim, advanced in Purple Communications, that an employer’s property right in its email system is “relatively weak” because the common law of torts imposes liability for trespass to chattels only if “actual harm . . . is proven.”[81]  Commentators have criticized the application of these tort principles, which long predate the use of electricity, to electronic communications systems.[82]  In any event, we cannot agree that an individual’s use of personal property is rightful simply because it is not actionable at common law.  This is confirmed by the very treatise cited by the dissent, which presents, as an illustrative example of the principle she invokes, the following hypothetical:  “A leaves his car parked in front of a store.  B releases the brake on A’s car and pushes it three or four feet, doing no harm to the car.  B is not liable to A.”[83]  Even if B is not liable for these acts at common law, we do not believe that B’s actions can reasonably be regarded as rightful, and we doubt the dissent would regard them as rightful, either.[84]  Indeed, the common law recognized that actions of this type are not rightful, albeit by privileging the reasonable use of force for their prevention rather than by providing an action for damages.[85]  In sum, “the fact that liability for a trespass to personal property requires evidence of harm does not derogate from the owner’s right to control the use of that property.”[86] 

Contrary to the dissent, cases addressing the circumstances in which an employer may prohibit employees from affixing union insignia to company-issued hard hats are not contrary to the principles stated herein.  To begin with, the Board’s early hard hat cases contradict the dissent’s position that alternative means of communication are irrelevant to the analysis of the issue this case presents.  There, the Board considered the availability of alternative means of communication when determining whether a ban on affixing union insignia to company-provided hard hats was lawful,[87] and it acknowledged that employer property rights bear on that determination.[88]  In two later cases, the Board did not consider property rights or alternative means of communication in finding similar bans unlawful.[89]  We believe those cases are properly understood as resting on Republic Aviation’s specific recognition of a right to display union insignia in the workplace.  In our view, the dissent errs by reading them to stand for the broad proposition that property rights are irrelevant whenever, in her words, “an employer restricts the use of company property for Section 7 purposes.”  Certainly no such right to use employer-owned equipment for Section 7 purposes is recognized in Republic Aviation or any other Supreme Court precedent.  Moreover, the dissent’s reading of these cases would put them in conflict with Board precedent, discussed above, holding that employees do not have a right to use employer-provided equipment for Section 7 purposes.[90]  Our decision, in contrast, aligns with this precedent.  And Republic Aviation’s broad holding concerning the balance to be struck when employees are rightfully on the employer’s real property simply does not fit the hard hat cases.  For one thing, hard hats are not realty; for another, employees are not “on” the hard hats, the hard hats are on the employees.  We also note that reviewing courts have rejected the dissent’s view that an employer’s property right in its hard hats is irrelevant in determining whether an employer must permit the display of union insignia on them.[91]  Our decision is consistent with the views of these courts as well. 

In the end, contrary to our dissenting colleague, we believe that there is a difference between email and a hard hat.

Finally, we reject the dissent’s contention that, absent access to an employer’s email system, employees in the modern workplace will necessarily lack adequate means of communication in order to meaningfully exercise their Section 7 rights.  Here, our colleague posits a situation where employees seek to communicate with the entire workforce for the purpose of organizing an employer-wide unit, and she suggests that face-to-face communication is inadequate in those circumstances.[92]  But since the earliest days of the Act, multi-site bargaining units have been successfully organized—indeed, even units that arguably would be covered by our exception for situations where employer-provided email is the only reasonably available means of workplace communication.[93]  If the lack of employer-provided email (or any other form of electronic communication, for that matter) was not an obstacle to organizing, for example, a unit comprised of the crews of 58 trans-oceanic steamships based out of at least 2 different ports,[94] it defies reason to suggest that it is an indispensable tool for communications between and among employees who happen to work on different floors of an office building.

We do not dispute that in some circumstances, an employer’s email system may be a more efficient and convenient means of communication than traditional face-to-face methods.  But for the reasons already explained, efficiency and convenience alone are insufficient grounds to override an employer’s property rights.   

G. Application of the new standard to the Respondent’s rules[95]

  1. The “General Restrictions” on the use of the Respondent’s IT resources are lawful

As explained above, facially neutral restrictions on the use of employer IT resources are generally lawful to maintain, provided that they are not applied discriminatorily.  Here, the computer-usage rules appearing under the heading “General Restrictions,” set forth in the margin below,[96] are all facially neutral.  There is no suggestion that the Respondent has applied these rules discriminatorily.  Nor does any party contend that this is a case where the Respondent’s email system furnishes the only reasonable means for employees to communicate with one another.  Accordingly, we find that the Respondent did not violate Section 8(a)(1) of the Act by maintaining the above rules.

  1. The computer confidentiality rule is severed and remanded together with the non-computer rules

The rule prohibiting employees from “disclos[ing] or distribut[ing] outside of [the Respondent] any information that is marked or considered confidential or proprietary unless you have received a signed non-disclosure agreement through the Law Department” (the “computer confidentiality rule”) is not a restriction on the use of the Respondent’s IT systems.  Because our decision today does not resolve the lawfulness of the computer confidentiality rule, and the record is insufficient for us to do so, we shall remand the computer confidentiality rule for further proceedings consistent with this decision.  

As discussed above, in its prior decision in this case the Board found that four of the non-computer rules were unlawful and four others were lawful.[97]  The Board analyzed those rules under the then-applicable “reasonably construe” prong of the Board’s decision in Lutheran Heritage Village-Livonia.[98]  The Board sought enforcement in the Ninth Circuit of its order finding the four non-computer rules unlawful, and the Charging Party sought review of the Board’s finding that the other four non-computer rules were lawful.

After the issuance of Judge Anzalone’s decision on remand,[99] and while the non-computer rules were pending before the Ninth Circuit, the Board decided The Boeing Company,[100] which overruled the Lutheran Heritage “reasonably construe” test.  In its place Boeing set forth a new standard for determining whether an employer’s maintenance of a facially neutral work rule unlawfully interferes with employees’ Section 7 rights.[101]  Under the Boeing standard, if a facially neutral rule, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will “evaluate . . . (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”[102]  Having performed this two-step evaluation, the Board will find that “the rule’s maintenance . . . violate[s] Section 8(a)(1) if . . . the justifications are outweighed by the adverse impact on rights protected by Section 7.”[103] 

In order to provide certainty and predictability, the Board will, over time, sort employer rules into three categories:

Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. . . .

Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.[104]

However, these categories “will represent a classification of results from the Board’s application of the new test.  The categories are not part of the test itself.”[105] 

Because Boeing applies retroactively and the parties had not had the opportunity to address the lawfulness of the non-computer rules under Boeing, the General Counsel requested that the Ninth Circuit remand the proceedings before it, which the court granted on April 28, 2018.[106] 

The computer confidentiality rule, like the non-computer rules, is governed by the standard announced in Boeing.[107]  Because the parties have not had the opportunity to address the impact of Boeing on either the computer confidentiality rule or the non-computer rules remanded by the Ninth Circuit, we shall sever the computer confidentiality rule from the other computer rules, consolidate it with the non-computer rules, and remand those allegations to Judge Anzalone for further proceedings in light of Boeing.

ORDER

IT IS ORDERED that the allegation that the Respondent violated Section 8(a)(1) by maintaining the rule headed “Confidentiality” in the section of the Respondent’s handbook entitled “Use of Company Systems, Equipment, and Resources” is severed and consolidated with the allegations remanded by the Court of Appeals for the Ninth Circuit on April 28, 2018, and that the consolidated allegations are remanded to Administrative Law Judge Mara-Louise Anzalone for further appropriate action—including, if necessary, the filing of statements of position and/or reopening the record—and issuance of a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order.  Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found or remanded.

 

MEMBER McFERRAN, dissenting in part[108]

The majority’s decision aims to turn back the clock on the ability of employees to communicate with each other at work, for purposes that the National Labor Relations Act protects.  As the Supreme Court has explained, the Board has the “responsibility to adapt the Act to the changing patterns of industrial life.”[109]  E-mail, of course, represents a basic change in the American workplace, which Congress hardly foresaw more than 80 years ago.  It is an incontrovertible fact of modern life that “[i]n many workplaces, email has effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations.”[110] 

In Purple Communications, supra,[111] the Board appropriately recognized this sea change in the nature of workplace communications and fulfilled its statutory responsibility to keep labor law current when it held that if an employer gives employees access to an e-mail system, then it must let them use the system (on nonworking time) to communicate with each other for statutorily-protected purposes, unless the employer can prove that the need to maintain production or discipline, or to preserve the efficiency of the system itself, justifies restricting or prohibiting use of the system. 

That was then; this is now. Today, the majority overrules Purple Communications and, in its place, resurrects an approach that not only is out of touch with modern workplace realities, but that also contradicts basic labor-law principles, long reflected in the decisions of the Supreme Court and the Board.  The Court has stated unequivocally that “[n]o 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.”[112]  The majority ignores this clear direction.  For the majority, employees’ use of their employer’s email system is almost entirely a matter of the employer’s control over its property.  Employers “have a property right to control the use” of their email and other communications systems, the majority insists, and the employer’s property right is not “required to yield” to employees’ Section 7 rights “absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination.”  Subordinating the Act by misapplying absolutist notions of private property rights is, indeed, an unfortunate theme of the Board’s recent decisions.[113]  But the rationale offered by the majority here is untenable as a matter of law -- unless the clock is turned back not just before 2014, when Purple Communications was decided, but before 1935, when the Act was passed and the Administrative Procedure Act was not yet law.

I.

Contrary to the majority’s representation, the Board’s holding in Purple Communications was a limited one that carefully balanced employees’ statutory rights and employers’ legitimate interests.  The Board adopted a presumption that

that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communication on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.

 

361 NLRB at 1063.[114]  That decision “encompasse[d] email use by employees only”; the Board did “not find that nonemployees have rights to access an employer’s email system.”[115]  Nor did the Board “require an employer to grant employees access to its email system where it has not chosen to do so.”[116]  The presumption of access, meanwhile, was “expressly limited to nonworking time.”[117]

In adopting this rule, the Board overruled its own prior decision in Register Guard, which had held categorically that employees have no statutory right to use their employers’ email system for Section 7 purposes.  The Board rejected Register Guard’s analysis for three reasons: (1) that it “undervalued employees’ core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property rights;”[118] (2) that it “inexplicably failed to perceive the importance of email as a means by which employees engaged in protected communications;” and (3) that it “placed more weight on the Board’s equipment decisions than those precedents can bear.”[119] 

First, the Purple Communications Board examined the “centrality of employees’ workplace communication to their Section 7 rights,” reflected in a series of Supreme Court decisions[120] clearly establishing that the effective exercise of such statutory rights “necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”[121]  Next, the Board painstakingly detailed abundant evidentiary support for the seemingly self-evident conclusion that email has transformed workplace communications and has, in many workplaces, become the default mode of efficient communication.  Finally, the Board turned to the “equipment” precedents that Register Guard relied on heavily.  It concluded first that “email systems are different in material respects from the types of workplace equipment the Board has considered in the past,” citing email’s “flexibility and capacity” in contrast to bulletin board and telephone lines.[122]  Moreover, based on a painstaking reading of the decisions, the Board observed that the “broad pronouncements in the equipment cases, to the effect that employers may prohibit all nonwork use of such equipment,” were “best understood as dicta”[123]  because a “reading of Board precedent that would allow total bans on employee use of an employer’s personal property, even for Section 7 purposes, with no need to show harm to the owner,” was “impossible to reconcile with … common-law principles”  applicable to personal property (as opposed to real property).[124]

After rejecting the Register Guard analysis, the Purple Communications Board adopted a “new analytical framework,” which took the Supreme Court’s 1945 decision in Republic Aviation[125] as a “starting point.”[126]  There, the Court had upheld the Board’s presumption that an employer ban on oral solicitation by employees during nonworking time was unlawful, unless the employer demonstrated that “special circumstances made the rule necessary in order to maintain production or discipline.”[127]  “[F]or nearly 70 years,” Purple Communications observed, “the Board ha[d] applied Republic Aviation to assess employees’ right to engage in Section 7 activity on their employer’s premises, i.e., real property” and, consistent with the Supreme Court’s decisions, had “sought to accommodate the employees’ Section 7 rights and the employers’ property and management rights,” recognizing “that employees’ interests are at their strongest when “‘the [Section 7] activity [is] carried on by employees already rightfully on the employer’s property.’”[128]  The Board acknowledged the “significant differences” between an e-mail system and employer land and facilities, explaining that it accordingly “appl[ied] Republic Aviation and related precedents in some but not all respects.”[129]  Nonetheless, the Board concluded that it was “consistent with the purposes and policies of the Act, with [the Board’s] responsibility to adapt the Act to the changing work environment, and with [the Board’s] obligation to accommodate the competing rights of employers and employees for [the Board] to adopt a presumption in this case like the one that [was] adopted in Republic Aviation” and thus the Board established a presumption that workers can use their employer-provided email for Section 7 activity during nonworking time in the absence of special circumstances.

II.

Today, the Board reverses course again, abandoning the nuanced and well-reasoned approach adopted in Purple Communications and reverting to the  categorical rule of Register Guard in holding that “there is no statutory right for employees to use employer-provided email for nonwork, Section 7 purposes in the typical workplace.”[130]   When an agency reverses its own precedent, the Supreme Court has held, it must “provide a reasoned explanation for the change.”[131]  The majority has failed to do so. 

The twin premises of the majority’s decision are that Purple Communications is not even a permissible interpretation of the National Labor Relations Act and that its own interpretation is compelled by the Supreme Court’s decision in Babcock & Wilcox, supra, where the Court held that nonemployee union organizers were statutorily entitled to access to an employer’s property only if employees were otherwise inaccessible or the employer had discriminated in granting access.  Neither premise is correct, and that error alone requires reversal.  When the Board mistakenly believes that a particular interpretation of the Act is mandated, it has failed to properly exercise its administrative discretion and its decision cannot stand.[132]  That is the case here.  Nothing in the text, structure, or legislative history of the Act resolves the question whether employees who have been granted access to an employer’s e-mail system have a statutory right to use the system for statutorily-protected communications.  Nor does any decision of the Supreme Court require the Board to answer the e-mail-use question in a particular way.  The Board may be free to reject the reasoning of Purple Communications and free to reach a different result, but it is not free to treat this reversal of precedent as required, as opposed to chosen.

But the majority’s errors do not end there.  Even if the result the majority reaches today is assumed to be a permissible interpretation of the Act, the reasoning offered for that result is insufficient.  As the Supreme Court has held, in a case involving the Board, “[n]ot only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.”[133]  This principle applies with full force when the Board engages in a balancing analysis to determine a question of employee access rights.[134]  The flaws in the majority’s reasoning are clear, and there are several. 

A.

First, the majority errs in failing to properly acknowledge that the e-mail use issue, as decided by Purple Communications, involves (1) employees of the employer, not nonemployees, (2) who have already been granted access to the e-mail system by the employer for non-Section 7 uses.  Under Supreme Court precedent, these facts are crucial to a proper balancing of the Section 7 rights of employees and the countervailing rights and interests of employers.  In light of the Supreme Court’s decisions, the appropriate focus here is not on the employer’s supposed property right to exclude employees from the e-mail system -- as if (as in Babcock & Wilcox) they were nonemployees, such as union organizers, who may be denied access to the employer’s real property to communicate with employees -- but on what potential harm employee use of the e-mail system during non-working time poses to the employer’s legitimate interests in maintaining production and discipline as well as the efficiency of the e-mail system.  And because the issue here involves the Section 7 rights of employees who are both lawfully on the employer’s real property and lawfully on the employer’s e-mail system, the availability of alternative means of communication is immaterial – as the decisions of the Supreme Court, the federal appellate courts, and the Board all demonstrate.

1.

In Hudgens, supra, the Supreme Court addressed the issue of whether warehouse employees had a Section 7 right to picket at a shopping mall near the entrances of their employer’s retail store.  Identifying the relevant considerations, the Court distinguished cases such as Babcock & Wilcox, where nonemployees sought access to employer property, and, citing Republic Aviation, observed that:

A wholly different balance was struck when the organizational activity was carried on by employees already rightfully on the employer’s property, since the employer’s management interests rather than his property interests were there involved. [Citation to Republic Aviation.]  This difference is “one of substance.”

424 U.S. at 521 fn. 10 (emphasis added), quoting Babcock & Wilcox, supra, 351 U.S. at 113.  After Hudgens, the Court has continued to adhere to the “difference … of substance” between property interests and management interests, between employees and nonemployees, and between cases like Republic Aviation and cases like Babcock & Wilcox.  It did so in Beth Israel Hospital, supra, which involved restrictions on solicitation and distribution by hospital employees, and in Eastex, supra, which also involved distribution by employees at work.[135]

Quoting Hudgens, and distinguishing Babcock & Wilcox, the Beth Israel Hospital Court explained that in the case before it, the “employees’ interests are at their strongest,” because the “‘activity was carried on by employees already rightfully on the employer’s property,” and thus the “‘employer’s management interests rather than his property interests [are] involved.”[136]   Similarly, in Eastex, the Court cited Hudgens and observed that in opposing the distribution of literature by employees, the employer’s “reliance on its property right is largely misplaced” because “as in Republic Aviation,  … employees are ‘already rightfully on the employer’s property,” so that … it is the ‘employer’s management interest rather than [its] property interests’ that primarily are implicated.” [137]  The employer, meanwhile, had “made no attempt to show that its management interests would be prejudiced in any way by the exercise of [Section] 7 rights proposed by its employees.”[138]  The Eastex Court held that the Board was “entitled to view the intrusion by employees on the property rights of their employer as quite limited in this context as long as the employer’s management rights are adequately protected.”[139] 

The federal courts of appeals have followed Hudgens, Beth Israel Hospital, and Eastex in holding that when employees are rightfully on the employer’s property, the “proper balance is between their right to organize and an employer’s managerial rights.”[140]  Thus, it is mistaken (as the District of Columbia Circuit has explained) to argue the Board is “required to conduct a balancing of [the employer’s] property interests against its employees’ organizational interests”: that argument “ignores the differences between employees and strangers and fails to distinguish property rights from managerial rights.”[141]  The “critical point” is that “while the [employer] may be able to dictate the terms of access to strangers, contractors, and other business invitees, ‘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.’”[142]

The majority is demonstrably wrong, then, when it frames the issue here in terms of balancing employees’ Section 7 rights and employers’ property rights.  There can be no dispute that employees who are at work and who have been granted access to an employer’s e-mail system are rightfully on the employer’s property.  The proper balance, as Supreme Court precedent establishes, is thus between employees’ Section 7 rights and employers’ management interests.  And this means that the employer’s restriction on employees’ exercise of their statutory rights will be lawful only when the employer can establish that it is necessary to maintain production or discipline.  Under the majority’s test, however, an employer is not required to make such a showing; rather, invoking its property right to control the e-mail system is sufficient.  That test is invalid because it makes no sense even in property-law terms,[143] but in any case it cannot be reconciled with Supreme Court precedent. 

2.

For essentially the same reasons, the majority also errs in establishing a test that is based on whether employees have alternative means of communicating with each other at work, rather than using the employer’s e-mail system (to which they have already been granted access).  The Supreme Court’s decisions, beginning with Republic Aviation, establish that when employees, already rightfully on the employer’s property, seek to communicate with each other for Section 7 purposes, the issue of alternative means of communication is immaterial.  As the Eastex Court explained, distinguishing Babcock & Wilcox:

In Republic Aviation the Court upheld the Board’s ruling that an employer may not prohibit its employees from distributing union organizational literature in nonworking areas of its industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production.  This ruling obtained even though the employees had not shown that distribution off the employer’s property would be ineffective.

437 U.S. at 571 (emphasis added), citing Republic Aviation, supra, 324 U.S. at 798-799. 

The Republic Aviation Court pointed out that in neither of the consolidated cases before it could “it properly be said that there was evidence or a finding that the plant’s physical location made solicitation away from company property ineffective to reach prospective union members” – in contrast to cases where employees were otherwise inaccessible because of their location, such as a “mining or lumber camp.”[144]  Yet the Court endorsed the Board’s holding that the employer was required to permit solicitation on nonworking time, absent a showing of “special circumstances” that made a prohibition “necessary in order to maintain production or discipline.”[145]

In the more than 70 years since Republic Aviation was decided, the Supreme Court has never adopted or approved a different approach; to the contrary, it has consistently treated alternative means of communication as immaterial when the Section 7 rights of employees rightfully on the property are concerned.  The Court’s Magnavox decision, supra, illustrates this consistency.  There, the Court held that a union could not waive the Section 7 rights of represented employees to engage in literature distribution that the employer could not otherwise lawfully prohibit.  The “availability of alternative channels of communication,” the Court noted, was not a consideration, because the waiver, if permitted, “might seriously dilute [Section] 7 rights.”[146]   In Beth Israel Hospital, meanwhile, the Court observed that the “availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry.”[147]

Citing Republic Aviation, Eastex, and Magnavox, the District of Columbia Circuit has concluded that “[i]t is well established that the availability of other channels of communication does not justify employer restraint of employees’ Section 7 rights in nonwork areas at nonwork times.”[148]  Here, however, the majority says that it does.  There is no support for the majority’s position in Supreme Court precedent – or in Board precedent, which is emphatically contrary to the majority.[149]  According to the majority, “[p]roperly understood, Republic Aviation stands for the twin propositions that employees must have ‘adequate avenues of communication’ in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to Section 7 rights when necessary to avoid creating an ‘unreasonable’ impediment to the exercise of the right to engage in self-organization’” (emphasis in original).[150]  But, as demonstrated, the Supreme Court has never interpreted the Act, or its own decision in Republic Aviation, to condition the Section 7 communication rights of employees rightfully on the employer’s property on a showing that they lack alternative means of communication.  Nor has the Board – until today.  And because this position is inconsistent with the Court’s precedent, it cannot stand.

B.

Second, the majority is mistaken in its understanding of the Board’s equipment cases and their application to the issue presented here.  The majority is wrong to equate an e-mail system with other types of employer equipment (as the Purple Communications Board explained in reversing Register Guard) and wrong, in any case, in concluding that the equipment decisions support a rule that completely prohibits employees from using equipment for Section 7 communication, after they have been permitted to use the equipment for other purposes.  The conclusion that simply because the e-mail system is the property of the employer, the employer is entitled to prevent its use for Section 7 communication is contrary to decisions (addressed neither in Register Guard nor by the majority) that involve the right of employees to place union insignia on employer-owned hardhats.

There is no need to repeat the careful review of the equipment cases conducted by the Purple Communications Board, which correctly concluded that they were materially distinguishable.   A bulletin board or an old-fashioned telephone are not the equivalent of an e-mail system, and given the different nature of the mediums, the employer’s managerial interests in restricting use are simply not equivalent.  Moreover, as the Purple Communications Board thoroughly explained, even apart from these relevant factual distinctions the statements in the equipment cases seized on by the Register Guard majority that purportedly supported an absolute ban on employee use of employer email systems were best understood as dicta.[151] 

Here, the majority makes no real effort to argue that the Purple Communications Board misread the equipment cases, and none of those cases relied on the rationale that the majority offers today.  It is notable, too, that Register Guard dramatically changed the legal landscape in which the equipment cases arose by sharply narrowing the Board’s definition of unlawful discrimination in access: when the equipment cases were decided, it was well established that an employer that permitted employees to use its bulletin board (for example) for any non-work-related purpose could not lawfully prohibit employees from using the bulletin board for Section 7 purposes. [152]  Thus, Register Guard hardly represented an effort to maintain continuity in Board precedent.

Indeed, one line of Board equipment cases flatly contradicts the approach that the majority revives today.  The Board has held that employers must permit employees to wear union insignia on employer-owned hardhats, squarely rejecting the argument that because the hardhat was the employer’s property, the employer was entitled to control what was affixed to the hardhat, even without showing special circumstances that made a restriction necessary to maintain production or discipline or to ensure safety.[153]  Wearing union insignia, of course, is a form of communication.  It might well be argued that a hardhat and an e-mail system are different, but the majority cannot have it both ways: if the Board’s equipment cases bear on the issue presented in this case, then the majority must somehow  square its approach here with the hardhat cases.  As the District of Columbia has explained, “when the Board fails to explain – or even acknowledge – its deviation from established precedent, ‘its decision will be vacated as arbitrary and capricious.’”[154]  The majority’s tortured attempt to reconcile  today’s decision with the Board’s employer-owned hardhat precedent is unsuccessful, as a careful reading of the cases proves.[155]

C.

Finally, although the majority’s basic error here is in framing this case in terms of the accommodation between employees’ Section 7 rights and employers’ property rights rather than its managerial interests, the majority’s decision would still reflect a failure to engage in reasoned decision-making even if a property-rights framework were appropriate.  In Hudgens, supra, the Court explained that where property rights are implicated, the “basic objective under the Act” is the “accommodation of [Section] 7 rights and private property rights ‘with as little destruction of one as is consistent with the maintenance of the other.’”[156]  The “locus of that accommodation … may fall at different points along the spectrum depending on the nature and strength of the respective [Section] 7 rights and private property rights asserted in any given context.”[157]  The majority, however, has failed adequately to analyze the “nature and strength” of the Section 7 rights implicated here, relative to the asserted property rights of employers in their e-mail systems.  In short, the majority has arbitrarily failed to consider “an important aspect of the problem” that today’s decision purports to resolve by reversing Board precedent.[158]   The result is a purported “locus of … accommodation” that has not been satisfactorily explained, assuming it can be.

1.

Employees’ Section 7 rights here are at their strongest.  Again, the issue presented is whether employees (not nonemployees) already granted access to their employer’s e-mail system (not seeking access) may be prohibited from using the system for communicating any type of Section 7 message to each other -- necessarily including an organizational message.  Promoting self-organization, of course, is a core purpose of the Act (as the text of Section 7 shows[159]), and as the Supreme Court has observed the right of employees to self-organize “necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”[160]  This is not a case where non-employees, such as union organizers, who are strangers to the employer’s property seek to exercise derivative Section 7 rights to reach employees.[161]  The Board must recognize the “distinction between rules of law applicable to employees and those applicable to nonemployees,” [162] and must “distinguish between the organizing activities of employees and nonemployees,”[163] or run afoul of the Supreme Court.

2.

By contrast, the employer’s property right (such as it is) is a relatively weak one.  The Board is not dealing here with a property owner’s right to exclude unwanted persons from his real property (as was the case in Babcock & Wilcox, for example), but with his right to control the use of his personal property (the e-mail system) by persons who have already been granted access to it (employees).  As the Purple Communications Board correctly pointed out, an employer’s e-mail system is personal property, not real property, and thus (under well-established common-law principles) the employer’s property right in the system is not prejudiced unless actual harm to the system itself is proven.[164] The majority does not address this point successfully; [165] rather, it finds that employees have adequate alternative means of communication. This is a non sequitur.  Inasmuch as the majority’s holding rests entirely on the overriding value it places on the employer’s property interest in its e-mail system, the majority necessarily must explain what that interest is and how it would be harmed by permitting employees to use the system for Section 7 communications on nonwork time.  The majority’s failure to offer any reasonable explanation is enough, by itself, to require reversal of its decision.

3.

Impermissibly under-weighting employees’ Section 7 rights while impermissibly over-weighting employers’ property rights, the majority derives a purported accommodation of the respective rights that allows employers to prohibit employees with access from using the e-mail system to engage in any type of Section 7 communication, unless (absent discrimination) they lack alternative means of communication.  As explained, however, Supreme Court and Board precedent establish that when the Section 7 rights of employees is at issue, alternative means of communication are immaterial.[166]   But even putting this principle aside, the majority’s view of what alternative means are sufficient to defeat employees’ Section 7 rights is irrational.

To ensure that it effectively protects rights guaranteed by the Act, the Board must assume (1) that employees want to use the employer’s e-mail system to engage in self-organization, and (2) that they want to organize a collective-bargaining unit that encompasses all statutory employees of the employer – not just some subset of employees with whom they might have regular, face-to-face contact.[167]  Section 9 of the Act, which creates a process for achieving union representation in the workplace, guarantees employees the “fullest freedom in exercising [Section 7] rights” and it specifically provides that an “employer unit” may be appropriate for bargaining, in addition to a “craft unit, plant unit, or subdivision thereof.”[168]  An employer-wide unit may encompass thousands of employees: notably, the employer here had a workforce of about 3,000 employees.  We should assume a case where employees with access to the employer’s e-mail system will wish to communicate with every other statutory employee of the employer who also has such access.

In that context, it should be clear that e-mail communication is sui generis: there is virtually no alternative means of communication that is even a rough equivalent in terms of ease of use and comprehensive reach.  To reach a coworker by e-mail, an employee likely needs only to know her name.  The employees need not work at the same time, in the same place, and they need never meet in order to communicate.  No form of hypothetical face-to-face communication is comparable.[169] 

In contrast to e-mail, face-to-face communication – to occur even once -- requires that employees be present at the same time, in the same place.  This will not hold true for employees (1) who work different hours, perhaps on entirely separate shifts or on schedules that never overlap; and/or (2) who work in different places (even if in the same facility) where they do not ordinarily come in contact with each other, particularly in nonworking areas (the only places where, under current law, employers must permit the distribution of literature).  Indeed, even for employees who work at the same time and in the same place (if not side-by-side), there may be no nonworking-time, nonworking-place setting where they ordinarily would meet.  There may be no break room and no employee cafeteria at all  – or, in any case, no setting large enough to accommodate more than a fraction of the desired employer-wide bargaining unit.  No such limitations apply to an e-mail system.  And even if an employee has some face-to-face contact with some co-workers at some times, that contact may encompass only a small fraction of the potential unit.  These are the undeniable realities of the modern workplace.

By contrast, the majority’s invocation of a hypothetically “typical workplace,” and its idealized description of alternative means of communication, has no empirical basis and simply ignores the realities of many American workplaces where employees do not have routine face-to-face contact with many (perhaps most) of their coworkers and have no idea how to contact them, even if they have access to smartphones, personal e-mail, or social media.  Thus, there is no basis for the majority’s assertion that “[i]n the typical workplace, … oral solicitation and face-to-face literature distribution provide more than ‘adequate avenues of communication.’”  And even if, as the majority says, “in modern workplaces employees also have access to smartphones, personal email accounts, and social media,” the majority utterly fails to explain how an employee may use her personal communication device to reach a coworker whose phone number or e-mail address she does not know and with whom she has no contact with at work – but who would be a member of an appropriate employer-wide bargaining unit.   In the end, it should be clear that what the majority means by “adequate avenues of communication” is any avenues of communication, no matter how limited or ineffective.  This view does not accommodate employees’ Section 7 rights with employer property rights, it eclipses them. 

IV.

Purple Communications, overruled today, had a strong foundation in Supreme Court precedent and in Board precedent.  Today’s decision, in contrast, reflects a result in search of a rationale.  In place of a carefully-considered test for determining under what conditions employees may use an employer’s e-mail system for purposes protected by the National Labor Relations Act – if they have been granted access to the system – the majority invokes employers’ supposed property rights in order to create obstacles to employees’ ability to communicate with each other at work – the “place uniquely appropriate for dissemination of views” about union representation and working conditions.[170]  These obstacles have no basis in the Supreme Court’s decisions interpreting the Act, and they frustrate the Act’s core purpose of promoting self-organization.  There is now a long and growing list of decisions by the majority whittling down statutory protections for American workers who hope to organize a union or to improve their work lives.  Like the others, the decision here is not simply bad policy, it is arbitrary – inconsistent with the requirements of reasoned decision-making.  Accordingly, I dissent.

 

[1]           On October 10, 2018, the Charging Party filed a motion to correct the name of the Charging Party.  The motion is granted, and the name of the Charging Party has been changed to reflect Local 159’s affiliation with District Council 16.

[2]           See, e.g., Union Carbide Corp. v. NLRB, 714 F.2d 657, 663 (6th Cir. 1983) (employer “unquestionably had the right to regulate and restrict employee use of company property”) (emphasis in original).

[3]           NLRB v. Babcock & Wilcox, 351 U.S. 105, 112 (1956).

[4]           See, e.g., Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142 F.2d 1009 (5th Cir. 1944) (oral solicitation); Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 620 (1962) (distribution of literature).

[5]           324 U.S. 793, 797-798 (1945).

[6]           See Register Guard, 351 NLRB 1110, 1114-1115 (2007) (citing cases), enfd. in part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).

[7]           Id. at 1110.

[8]           361 NLRB 1050 (2014).

[9]           Rio All-Suites Hotel and Casino, 362 NLRB 1690 (2015), overruled in part by The Boeing Company, 365 NLRB No. 154, slip op. at 19 fn. 89 (2017), reconsideration denied 366 NLRB No. 128 (2018).  We address the non-computer rules in Sec. II.F.2, below.

[10]         Id.

[11]         The Respondent has excepted to some of Judge Anzalone’s credibility findings.  The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect.  Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).  We have carefully examined the record and find no basis for reversing the findings.

We decline to consider the Charging Party’s argument in its cross-exceptions brief that the Respondent has violated the Act by maintaining a provision in its employee handbook prohibiting the use of its computer resources to violate state law.  The complaint does not include this allegation, and a charging party cannot enlarge upon or change the General Counsel’s theory of the case.  See, e.g., Kimtruss Corp., 305 NLRB 710, 711 (1991).

On September 27, 2018, the Charging Party filed a motion requesting that Member Emanuel recuse himself from participating in this case because of his former affiliation with the law firm of Littler Mendelson.  The Charging Party also moved the Board to rescind the Notice and Invitation to File Briefs based on Member Emanuel’s participation in the issuance of that Notice.  In consultation with the Board's Designated Agency Ethics Official (DAEO), Member Emanuel has determined not to recuse himself.  Under paragraph 6 of the Trump Ethics Pledge, which Member Emanuel has signed as required by Executive Order 13770, Member Emanuel may not participate for the first 2 years of his term in cases in which his former firm, Littler Mendelson, represents a party, or in which one of his former clients is or represents a party.  The Respondent is not Member Emanuel’s former client, and Littler Mendelson does not represent any party to this case.  In addition, no person with whom Member Emanuel has a covered relationship within the meaning of 5 C.F.R. § 2635.502 is or represents a party to this case, nor does Member Emanuel believe that his participation would “cause a reasonable person with knowledge of the relevant facts to question his impartiality.”  Id.  Accordingly, the motion to rescind the Notice and Invitation to File Briefs is denied.

On October 24, 2018, the Charging Party filed a request that the Board take administrative notice of briefs filed by the General Counsel in the Ninth Circuit in Communications Workers of America v. NLRB (Nos. 17-70948, 17-71062, and 17-71276) and Parrish v. NLRB (Nos. 17-70648, 17-71493, and 17-71570), and on January 9, 2019, the Respondent filed a request that the Board take administrative notice of the Respondent’s filings with the Ninth Circuit in the proceeding to enforce the Board’s order as to the non-computer rules (No. 17-71353).  We deny these requests because appellate filings have no precedential value or dispositive effect in Board proceedings.   

On January 17, 2019, the Charging Party filed a request that the Board take administrative notice of the administrative law judge’s decision in Purple Communications, Inc., Cases 21-CA-149635 et al.  On April 19, 2019, the Charging Party filed requests that the Board take administrative notice of the Board’s decisions in Cayuga Medical Center at Ithaca, Inc., 367 NLRB No. 21 (2018), Bodega Latina Corporation d/b/a El Super, 367 NLRB No. 34 (2018), Chicago Teachers Union, 367 NLRB No. 50 (2018), and Quicken Loans, Inc., 367 NLRB No. 112 (2019).  On June 5, 2019, the Charging Party filed a request that the Board take administrative notice of the Board’s decision in Quality Dining, Inc., 367 NLRB No. 143 (2019). On August 27, 2019, the Charging Party filed a request that the Board take administrative notice of the Board’s decision in Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019).  And on October 3, 2019, the Charging Party filed a request that the Board take administrative notice of the Board’s decision in T-Mobile USA, Inc., 368 NLRB No. 81 (2019).  The Board may take administrative notice of its own proceedings, Farmer Bros. Co., 303 NLRB 638, 638 fn. 1 (1991), enfd. mem. 988 F.2d 120 (9th Cir. 1993), and accordingly we grant the Charging Party’s requests.  However, consideration of those decisions does not affect our decision in this case.  See Independent Stave Co., 278 NLRB 593, 593 fn. 1 (1986). 

Also on June 5, 2019, the Charging Party filed a request that the Board take administrative notice of the decision of the California Public Employment Relations Board in Moberg v. Napa Valley Community College District, 42 Pub. Employee Rep. for California ¶ 154 (2018) (adopting Purple Communications).  We find it unnecessary to do so because the decision would not affect our disposition of this case.

[12]         The Charging Party and one of the amici have requested oral argument.  The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties and amici.

[13]         Amici who favor adhering to the holding of Purple Communications are American Federation of Labor and Congress of Industrial Organizations; Professor Jeffrey M. Hirsch; International Brotherhood of Electrical Workers, Local Union 304; Senator Patty Murray; National Nurses United; Screen Actors Guild-American Federation of Television and Radio Artists; Service Employees International Union and National Employment Law Project, jointly; Montgomery Blair Sibley; and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO.

[14]         The Charging Party and two amici additionally argue that Purple Communications should be extended to give employees a presumptive right to email for Sec. 7 purposes during working time.

[15]         These amici are American Hospital Association and Federation of American Hospitals, jointly; Arkansas State Chamber of Commerce and Associated Builders and Contractors of Arkansas, jointly; Center for Workplace Compliance; Coalition for a Democratic Workplace, Retail Industry Leaders Association, Chamber of Commerce of the United States of America, Independent Electrical Contractors, Inc., International Foodservice Distributors, National Association of Wholesaler-Distributors, National Retail Federation, Restaurant Law Center, American Hotel and Lodging Association, and Associated Builders and Contractors, jointly; Council on Labor Law Equality; HR Policy Association, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, and Society for Human Resource Management, jointly; Illinois State Chamber of Commerce; and United States Postal Service.

[16]         351 NLRB at 1110.

[17]         Id. at 1114 (citing Mid-Mountain Foods, 332 NLRB 229, 230 (2000) (no statutory right to use the television in the respondent’s breakroom to show a pro-union campaign video), enfd. 269 F.3d 1075 (D.C. Cir. 2001); Eaton Technologies, 322 NLRB 848, 853 (1997) (“It is well established that there is no statutory right of employees or a union to use an employer’s bulletin board.”); Champion International Corp., 303 NLRB 102, 109 (1991) (stating that an employer has “a basic right to regulate and restrict employee use of company property,” such as a copy machine); Churchill’s Supermarkets, 285 NLRB 138, 155 (1987) (“[A]n employer ha[s] every right to restrict the use of company telephones to business-related conversations . . . .”), enfd. 857 F.2d 1474 (6th Cir. 1988); Union Carbide Corp., 259 NLRB 974, 980 (1981) (employer “could unquestionably bar its telephones to any personal use by employees”), enfd. in relevant part 714 F.2d 657 (6th Cir. 1983); Heath Co., 196 NLRB 134 (1972) (employer did not engage in objectionable conduct by refusing to allow pro-union employees to use public address system to respond to anti-union broadcasts)).

[18]         324 U.S. at 793.

[19]         Register Guard, 351 NLRB at 1115.

[20]         Id. at 1115-1116.

[21]         Id. at 1116.

[22]         Purple Communications, 361 NLRB at 1053.

[23]         Although purporting to differentiate email systems from other employer-owned equipment based on their capacity and insignificant marginal costs per message, the Purple Communications Board questioned the force of Board decisions permitting employers to restrict the use of other forms of employer-owned equipment.  Id. at 1058-1059.  Nevertheless, the Board did not overrule the employer-equipment precedent cited above in fn. 17. 

[24]         Id. at 1057.

[25]         Id. at 1063.

[26]         Id.

[27]         Id. at 1072 (Member Miscimarra, dissenting); accord id. at 1083 (Member Johnson, dissenting).

[28]         Id. at 1071 (Member Miscimarra, dissenting) (quoting NLRB v. Steelworkers of America (NuTone, Inc.), 357 U.S. 357, 364 (1958) (NuTone I)); id. at 1084 (Member Johnson, dissenting).

[29]         Id. at 1069-1070 (Member Miscimarra, dissenting); id. at 1086 (Member Johnson, dissenting).

[30]         Id. at 1074 (Member Miscimarra, dissenting); id. at 1080 (Member Johnson, dissenting).

[31]         Id. at 1077 (Member Miscimarra, dissenting); id. at 1110 (Member Johnson, dissenting).

[32]         NLRB v. Babcock & Wilcox Co., 351 U.S. at 112.  Moreover, although we believe the rule of Purple Communications is foreclosed by Supreme Court precedent, even if we were to assume that the Court’s precedent permits the rule in Register Guard as opposed to requiring it, we would nevertheless return to the Register Guard standard.  As stated above, our Court-mandated task is to strike the appropriate balance between employers’ right to control their property and employees’ Sec. 7 rights.  By prohibiting employers from adopting restrictions on employer IT systems absent special circumstances—in effect, preventing employers from adopting prophylactic rules to protect productivity and the integrity of IT systems—the Purple Communications Board disregarded employer property rights almost entirely.  The approach we adopt today, permitting employers to regulate the use of their equipment but creating an exception where the use of IT systems is reasonably necessary to vindicate employees’ Sec. 7 rights, strikes a more appropriate balance.     

[33]         351 NLRB at 1114.

[34]         Union Carbide Corp. v. NLRB, supra, 714 F.2d at 663–664.

[35]         The Purple Communications majority did contend that an employer’s property right in its equipment was weaker than its property rights in its realty because under the common law, liability for a trespass to land requires no showing of actual harm, whereas liability for a trespass to personal property requires a showing of actual harm.  361 NLRB at 1059-1060.  We are unpersuaded by this analysis for the reasons stated in Sec. II.F, below.  In any event, we find, for the reasons that follow, that in the typical workplace, employees have adequate avenues for engaging in Sec. 7 activity without infringing on their employer’s property rights in their equipment, and therefore requiring those property rights to yield to the exercise of Sec. 7 rights is unnecessary and unjustified.  

[36]            Mid-Mountain Foods, 332 NLRB at 229.

[37]         Eaton Technologies, 322 NLRB at 848; Nugent Service, 207 NLRB 158, 161 (1973).

[38]         Champion International Corp., 303 NLRB at 102.

[39]         Churchill’s Supermarkets, 285 NLRB at 138.

[40]         Heath Co., 196 NLRB at 134.

[41]         NuTone I, 357 U.S. at 357, affirming NLRB v. Avondale Mills, 242 F.2d 669 (5th Cir. 1957), and affirming in part and reversing in part Steelworkers (NuTone) v. NLRB, 243 F.2d 593 (D.C. Cir. 1956) (NuTone II).

[42]         NuTone I, supra at 364. 

The Purple Communications Board suggested that NuTone I concerned the rights of labor organizations.  361 NLRB at 1063 fn. 71.  But the cases before the Court involved the enforcement of no-solicitation rules against employees.  See NuTone I, 357 U.S. at 362 (“The very narrow and almost abstract question here [is] . . . when the employer himself engages in anti-union solicitation that if engaged in by employees would constitute a violation of the rule . . . , [is] his enforcement of an otherwise valid no-solicitation rule against the employees . . . itself an unfair labor practice.”) (emphasis added); see also Avondale Mills, 242 F.2d at 670 (“The Trial Examiner . . . concluded that the company did not violate Sections 8(a)(1) and (3) of the Act when it discharged employees . . .  for violating th[e no-solicitation] rule.”) (emphasis added); NuTone II, 243 F.2d at 596 (“The issue before us . . . is:  Whether an employer commits an unfair labor practice if . . . it enforces an otherwise valid rule against employee distribution of union literature . . . .”) (emphasis added).  Further, the Court of Appeals for the Seventh Circuit relied on NuTone I in holding that absent discrimination, employees have no right to post notices of union meetings on employer bulletin boards.  Guardian Industries Corp. v. NLRB, 49 F.3d 317, 318 (7th Cir. 1995). 

[43]         LeTourneau Co. of Georgia, 54 NLRB 1253, 1260 (1944), upheld in Republic Aviation, supra. 

[44]         Republic Aviation, 324 U.S. at 801 fn. 6 (internal quotation omitted).

[45]         Peyton Packing Co., 49 NLRB at 843.

[46]         Stoddard-Quirk, 138 NLRB at 620.

[47]         Peyton Packing Co., 49 NLRB at 843.

[48]         Stoddard-Quirk, 138 NLRB at 620-621.

[49]         Id. (literature distribution); see also Peyton Packing Co., supra (solicitation).

[50]         324 U.S. at 797-798.

[51]         Id. at 801 fn. 6 (quoting Republic Aviation, 51 NLRB 1186, 1195 (1943), enfd. 142 F.2d 193 (2d Cir. 1944), affd. 324 U.S. 793) (internal quotation marks omitted); accord Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978) (“[T]he right of employees to self-organize and bargain collectively established by § 7 of the NLRA . . . necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”) (internal citation omitted).

 

[52]         Stoddard-Quirk, 138 NLRB at 620.

[53]         Id. at 617.

[54]         Id.

[55]         Le Tourneau Co. of Georgia, 54 NLRB at 1260 (emphasis added).

[56]         Republic Aviation, 324 U.S. at 802 fn. 8 (emphasis added; internal quotation marks and citations omitted).  We disagree with Register Guard to the extent it suggested that Republic Aviation can never apply to employer equipment.  As discussed below, we recognize that the principles of Republic Aviation would require employers to permit access to their IT systems for Sec. 7 purposes in those atypical and rare situations in which employees otherwise would be deprived of “adequate avenues for communication” necessary for the exercise of their Sec. 7 rights.

[57]         Stoddard-Quirk, 138 NLRB at 620 (internal quotation omitted).

[58]         See id. at 620-621; Le Tourneau Co. of Georgia, 54 NLRB at 1260-1261.

[59]         See Latest Telecommuting/Mobile Work/Remote Work Statistics, Global Workplace Analytics, https://globalworkplaceanalytics.com/telecommuting-statistics (last visited Sept. 6, 2019) (only 3.4 percent of the workforce works from home at least half the time).  The Respondent’s facility is a case in point:  as noted above, the Respondent’s employees report to a single facility, and that facility contains employee break rooms and cafeterias where employees may engage in solicitation and distribution for Sec. 7 purposes.

[60]         According to a recent Pew Research Center survey, approximately 81% of U.S. adults own a smartphone.  Mobile Fact Sheet, Pew Research Center: Internet & Technology (June 12, 2019), https://www.pewinternet.org/fact-sheet/mobile/.

[61]         As early as 2007, nearly 90% of American adults had a personal email account.  Deborah Fallows, Spam 2007, Pew Internet & American Life Project (May 23, 2007), https://www.pewinternet.org/2007/05/23/spam-2007/.

[62]         Approximately 72% of U.S. adults use some form of social media.  Social Media Fact Sheet, Pew Research Center: Internet & Technology (June 12, 2019), https://www.pewinternet.org/fact-sheet/social-media/.  Moreover, the demographic group least likely to own a smartphone or use social media is adults over the age of 65, so these statistics almost certainly understate the prevalence of smartphones and social media usage among working-age adults.

[63]         For examples of employees using personal electronic devices and/or social media to engage in Sec. 7 communications, see, e.g., North West Rural Electric Cooperative, 366 NLRB No. 132 (2018) (protected Facebook post concerning workplace safety); EF International Language School, Inc., 363 NLRB No. 20 (2015) (protected discussions over personal email accounts), enfd. 673 Fed. Appx. 1 (D.C. Cir. 2017); Bettie Page Clothing, 361 NLRB 876 (2014) (protected Facebook messages expressing concern about working late in unsafe neighborhood), remanded 688 Fed. Appx. 3 (D.C. Cir. 2017); Triple Play Sports Bar and Grille, 361 NLRB 308 (2014) (protected concerted use of Facebook to complain about income-tax withholding), affd. sub nom. Three D, LLC v. NLRB, 629 Fed. Appx. 33 (2d Cir. 2015); Laurus Technical Institute, 360 NLRB 1155 (2014) (protected text messages regarding employer favoritism in assigning leads); Salon/Spa at Boro, Inc., 356 NLRB 444 (2010) (employees exchanged protected text messages concerning plan to complain to management about conduct of supervisors).

[64]         Republic Aviation, 324 U.S. at 802 fn. 8 (emphasis added).

[65]         Register Guard, 351 NLRB at 1115; see also Guardian Industries Corp. v. NLRB, 49

F.3d at 318 (“Section 7 of the Act protects organizational rights . . . rather than particular means by which employees may seek to communicate.”); Nutone I, 357 U.S. at 363-364.

[66]         Babcock & Wilcox, 351 U.S. at 112.

[67]         We shall likewise leave for a future appropriate case whether this exception would apply to IT resources other than email.

[68]         In Register Guard, the Board adopted a modified standard for determining whether discriminatory enforcement has been established.  351 NLRB at 1116-1119.  Because there is no contention that the Respondent discriminatorily applied its policy in this case, we do not address here the impact, if any, on that standard of our recent decision in Kroger Ltd. Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019). 

[69]         SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)).

[70]         Id.

[71]         Id. (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)).

[72]         Chenery Corp., 332 U.S. at 203.

[73]         351 U.S. 105 (1956).

[74]         Id. at 112.

[75]         See Beth Israel Hospital v. NLRB, 437 U.S. 483, 492 (1978).  See also, e.g., St. Margaret Mercy Healthcare Centers v. NLRB, 519 F.3d 373, 374 (7th Cir. 2008) (invoking Babcock accommodation principle in evaluating employer limits on union solicitation by employee nurses); Stanford Hospital and Clinics v. NLRB, 325 F.3d 334, 338 (D.C. Cir. 2003) (invoking Babcock accommodation principle in determining lawfulness of solicitation and distribution policy applicable to hospital employees); McDonnell Douglas Corp. v. NLRB, 472 F.2d 539, 545 (8th Cir. 1973) (invoking Babcock accommodation principle in evaluating lawfulness of rule limiting solicitation and distribution on company property by off-duty employees).

[76]         437 U.S. 556 (1978).

[77]         Supra.

[78]         424 U.S. 507 (1976).

[79]         Indeed, taken at face value, our colleague’s position would mean that an employer could not assert its property rights to forbid an employee rightfully “on” a photocopier during working time from using the copier to print hundreds or thousands of union flyers during nonworking time, to prevent an employee rightfully “in” a delivery truck for work purposes from using it to drop off those flyers during breaks, or to prohibit an employee rightfully granted access to a hydraulic lift during working time from using it on successive lunch breaks to service a fleet of vehicles for a trip to the employer’s headquarters for a planned union protest.  Based on the dissent’s position, the employers in these hypotheticals would be powerless to refuse (non-discriminatorily) to permit these uses of their equipment unless they could prove that doing so was necessary to maintain production or discipline—and if no one else needs to use the copier, delivery truck, or lift and the employees are all well-behaved, what’s the problem?  This is the logical endpoint of our colleague’s rationale.  Contrary to the dissent, this is not “adapting the Act to the changing patterns of industrial life.”  It is wrenching Republic Aviation loose from its real-property moorings and applying it in ways the Supreme Court never could have anticipated.

            The dissent says interference with production or discipline would result from the fact that the equipment in these examples is being “divert[ed]” from the employer’s purposes, but we have posited situations in which the equipment would have otherwise been idle.  The dissent also says that consuming the paper and gas and wearing out the lift would constitute the necessary interference.  We disagree, but very well:  assume the employees pay for the paper and gas.  As for the lift, “commercial grade 2-post and 4-post lifts will last as long as anyone bothers to maintain them.”  https://www.kwik-lift.com/2017/12/how-long-vehicle-lifts-last/ (visited Dec. 7, 2019).     

[80]         Although some of the equipment cases involved discrimination, the principle that there is no right to use employers’ equipment for Sec. 7 purposes was plainly part of the Board’s holdings in Mid-Mountain Foods, supra, 332 NLRB 229, and Nugent Service, supra, 207 NLRB at 161, as well as that of the Seventh Circuit in Guardian Industries Corp., 49 F.3d at 318.  Moreover, at least five additional courts of appeals have regarded the principle as uncontroversial.  See HealthBridge Management, LLC v. NLRB, 798 F.3d 1059, 1073 (D.C. Cir. 2015); NLRB v. Southwire Co., 801 F.2d 1252, 1256 (11th Cir. 1986); NLRB v. Honeywell, Inc., 722 F.2d 405, 406 (8th Cir. 1983); NLRB v. Container Corp. of America, 649 F.2d 1213, 1215 (6th Cir. 1981); Westinghouse Electric & Manufacturing Co. v. NLRB, 112 F.2d 657, 660 (2d Cir. 1940), affd. 312 U.S. 660 (1941); see also Skywest Pilots ALPA Organizing Committee v. Skywest Airlines, Inc., No. C-07-2688CRB, 2007 WL 1848678, at *13 (N.D. Cal. June 27, 2007).

[81]         See Restatement (Second) of Torts § 218 (1965).

[82]         See R. Clifton Merrell, Trespass to Chattels in the Age of the Internet, 80 Wash. U. L. Q. 675, 699 (2002) (criticizing efforts “to put the square peg of cyberspace into the round hole of trespass law”); Dan Burk, The Trouble with Trespass, 4 J. of Small & Emerging Bus. L. 27, 39 (2000) (“[T]he elements of common law trespass to chattels fit poorly in the context of cyberspace.”).  As these commentators note, the trend in the courts has been to find an actionable trespass upon electronic communication systems even in the absence of evidence of the type of harm normally required for liability to attach in the case of trespass to other types of chattels.

[83]         Restatement (Second) of Torts § 218, comment (i).

[84]         We likewise think it is indisputable that an employer does not have the right to break into an employee’s personal email account even if liability under common law for such a breach would not attach absent proof of actual harm.  Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199, 208 (4th Cir. 2009).

[85]         See Restatement (Second) of Torts § 218, comment (e).

[86]         Purple Communications, 361 NLRB at 1073 (Member Miscimarra, dissenting) (emphasis in original).

[87]             See Standard Oil Co. of California, 168 NLRB 153, 153 fn. 1 (1967) (finding that employer lawfully enforced rule against “adornments” on employer-provided hard hats against affixing union insignia to hard hats, relying in part on evidence that “employees were freely permitted to wear emblems signifying union affiliation on any part of their clothing except their

safety hats”); Andrews Wire Corp., 189 NLRB 108, 109 (1971) (finding that employer lawfully prohibited union insignia on its hard hats, relying in part on evidence that employees could wear insignia on any item of clothing except the hard hats, and citing Standard Oil). 

[88]         Standard Oil Co. of California, 168 NLRB at 161-162 (“Here the rights which must be balanced are the undisputed right of employees to identify themselves as union members for the purpose of organizing their fellow employees and the equally undisputed right of the Company to control its property and to maintain an effective spot identification system in the interest of the safety of all employees, the preservation of the Company’s property, and the safety of the community in which the refinery is located.”).  Although the dissent suggests that the preceding text is not part of the Board’s reasoning, this is simply not the case.  The Board disavowed the trial examiner’s reliance on the absence of a union organizing campaign at the time the “adornments” rule was enforced.  The Board did not disavow the trial examiner’s consideration of the employer’s property rights.  See id. at 153 fn. 1.

[89]         See Malta Construction Co., 276 NLRB 1494, 1496 (1985), enfd. 806 F.2d 1009 (11th Cir. 1986); Eastern Omni Constructors, Inc., 324 NLRB 652, 656 (1997), enf. denied 170 F.3d 418 (4th Cir. 1999).  To the extent the Board’s precedent on this issue has been inconsistent, we believe that Andrews Wire Corp. and Standard Oil Co. of California better reflect the competing interests at stake. 

[90]         See cases cited in fn. 17, supra.

[91]         Indeed, in NLRB v. Windemuller Electric, Inc., 34 F.3d 384 (6th Cir. 1994), the Sixth Circuit held that employers can rely on their property rights to prohibit the display of union insignia on company-owned hard hats.  The court reasoned that “[t]he Supreme Court, in the line of cases that originated in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), and culminated in Lechmere, has repeatedly declined to let organizational rights trump property rights where there is no apparent need to do so.  Nothing in the record of the case before us suggests that any such need exists here.  As a matter of law, therefore, the fact that the hard hats were Windemuller’s property provided justification enough for Windemuller’s refusal to let the hats be stickered with union insignia.”  Id. at 395; see also NLRB v. Malta Construction Co., 806 F.2d 1009, 1013 (11th Cir. 1986) (Edmondson, J., dissenting) (“Although company ownership of the helmets may not be, in and of itself, the determinative factor, surely it counts for something.  It is a circumstance that must be given substantial weight.”).  Although a subsequent panel of the Sixth Circuit questioned the Windemuller court’s reliance on property rights rather than a “special circumstances” analysis, Windemuller remains the law of the circuit.  Meijer, Inc. v. NLRB, 130 F.3d 1209, 1215 (6th Cir. 1997).

            The Fourth Circuit similarly considered the availability of alternative means of communication in reversing the Board’s finding that an employer unlawfully prohibited union insignia on company-owned hard hats.  Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 426 (4th Cir. 1999) (ban on union stickers on employer’s hard hats lawful, where employees were allowed to wear insignia on all attire except the hard hats; “that an employer prohibits some, but not all, union insignia is a factor that courts, including this one, have looked to in determining whether special circumstances are present.”), denying enf. to 324 NLRB 652 (1997).

[92]         In an unwarranted aside, the dissent asserts that we seek to require employees to organize in the “largest possible bargaining units,” citing The Boeing Co., 368 NLRB No. 67 (2019).  As we explained there, we have done no such thing.  Instead, we are, “in each case, considering the rights of all employees, included [in the petitioned-for unit] and excluded [from that unit], and the prospects of a stable and productive collective-bargaining relationship.”  Id., slip op. at 7.  

[93]         See Joyce Sportswear Co., 226 NLRB 1231 (1976) (unit of “traveling salesmen” who saw one another in person only four times a year).

[94]         Lykes Brothers Steamship Company, Inc., 2 NLRB 102 (1936).  See also Capital Coors Co., 309 NLRB 322 (1992) (two facilities located 90-100 miles apart); Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965) (multi-state 20-store unit).

[95]         As stated above, Judge Anzalone determined that the only rule before her was the prohibition on “send[ing] . . . non-business information.”  The Charging Party cross-excepts to Judge Anzalone’s failure to find the other rules quoted above (as well as another rule that is not before us, see footnote 11, supra) to be unlawful.  We find merit in the Charging Parties’ contention that Judge Anzalone improperly limited the scope of the remand.  But as discussed below, we find all of the computer rules, save one, to be lawful, and we shall remand the remaining computer rule for further proceedings.  

[96]            “Computer resources may not be used to:

. . .

  • Share confidential information with the general public, including discussing the company, its financial results or prospects, or the performance or value of company stock by using an internet message board to post any message, in whole or in part, or by engaging in an internet or online chatroom
  • Convey or display anything fraudulent, pornographic, abusive, profane, offensive, libelous or slanderous
  • Send chain letters or other forms of non-business information

. . .

  • Solicit for personal gain or advancement of personal views
  • Violate rules or policies of the Company

 

Do not visit inappropriate (non-business) websites, including but not limited to online auctions, day trading, retail/wholesale, chat rooms, message boards and journals.  Limit the use of personal email, including using streaming media (e.g., video and audio clips) and downloading photos.”

[97]         Rio All-Suites, 362 NLRB at 1691-1694 (finding unlawful confidentiality rule on p. 2.21 of employee handbook, prohibitions on photography and recording (conduct standards Nos. 24 and 35, handbook at pp. 2.20 and 2.21), and prohibition on “walk[ing] off the job” (conduct standard No. 28, handbook at p. 2.20); finding lawful rules concerning “Visiting Property When Not in Uniform” (handbook at p. 2.7), off-duty access to the Respondent’s facilities (conduct standard No. 9, handbook at p. 2.19), “Use of Facility” (handbook at p. 2.34), and prohibition on “reveal[ing] confidential information to unauthorized persons” (conduct standard No. 10, handbook at p. 2.19)).

[98]         343 NLRB 646, 647 (2004) (Lutheran Heritage). 

[99]         As noted above, Judge Anzalone did not address the lawfulness of the computer confidentiality rule.

[100]        365 NLRB No. 154 (2017).

[101]        Id., slip op. at 3-5.

[102]        Id., slip op. at 3. 

[103]        Id., slip op. at 16.

[104]        Id., slip op. at 3-4 (emphasis in original). 

[105]        Id., slip op. at 4 (emphasis in original).

[106]        The court summarily enforced the Board’s order as to the prohibition on “walk[ing] off the job.”  Accordingly, the remanded rules were the confidentiality rule on p. 2.21 of the handbook and the prohibitions on photography and recording (conduct standards Nos. 24 and 35, handbook at pp. 2.20 and 2.21). 

[107]        Additionally, because the computer confidentiality rule prohibits the release of “information that is marked or considered confidential,” its lawfulness may turn on whether the non-computer confidentiality rule listing categories of information that may not be disclosed, see Rio All-Suites, 362 NLRB at 1691, is itself lawful.

[108] For institutional reasons, I concur in the decision to sever and remand the issues involving the Respondent’s computer confidentiality rule for application of the standard announced in The Boeing Co., 365 NLRB No. 154 (2017), although I dissented from that decision and adhere to my dissenting view.  Contrary to the majority, I would apply Purple Communications, Inc., 361 NLRB 1050 (2014), and find that the Respondent’s two rules prohibiting the use of “computer resources” to “[s]olicit for personal gain or [the] advancement of personal views” or to “[s]end[] chain letters or other forms of non-business information” are unlawful, insofar as those rules ban all use of the Respondent’s email system for nonbusiness distribution and solicitation and the Respondent did not argue or present any “special circumstances” to justify its total ban on the nonwork use of email to maintain production or discipline.  Further, I would find the remaining three computer usage rules – prohibiting conveying fraudulent information, violating the company’s policies, and prohibiting visitation of nonbusiness websites—lawful under Purple Communications.  Finally, I would find that Purple Communications, which applies only to email, does not apply to the Respondent’s work rule that prohibits the “shar[ing] of confidential information to the general public…by using internet message board to post a message…or by engaging in an internet or online chatroom.”

 

 

The Charging Party has filed a motion seeking the recusal of Member Emanuel, based on the fact that his former law firm has represented the respondent employer in the decision overruled today, which is pending on appeal.  See fn. 3, infra.  Member Emanuel has chosen to participate in the Board’s decision, for reasons he has explained there, following consultation with the Board’s Designated Agency Ethics Official (DAEO).  I interpret the Charging Party’s motion as directed to Member Emanuel individually, not to the Board itself.  For that reason, and because I dissent from the Board’s decision in any case, I do not address the motion.  As I have previously noted, the Board’s rules – in contrast to those of certain other administrative agencies – do not address the question of disqualification of a Board member by the Board as a body, and the Board’s practice in that regard has varied over the years.  Hy-Brand Industrial Contractors, Ltd., 366 NLRB No. 93, slip op. at 5 fn. 4 (2018) (concurring opinion) (collecting cases).  I believe that the Board should adopt such a rule.  See National Labor Relations Board, Ethics Recusal Report (Nov. 19, 2019) (Statement of Member McFerran), available at www.nlrb.gov/reports/other-agency-reports/ethics-recusal-report.

[109] NLRB v. J. Weingarten, 420 U.S. 251, 266 (1975).

[110] Purple Communications, Inc., 361 NLRB 1050, 1057 (2014) quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 505 (1978).

[111] That case is pending before the U.S. Court of Appeals for the Ninth Circuit on petitions for review and a cross-petition for enforcement (Nos. 17-70948, 17-71062, and 17-71276).  At the Board’s request, the Ninth Circuit stayed proceedings on September 24, 2018, after the Board issued a notice and invitation to file briefs in this case, suggesting that it might overrule its Purple Communications decision.

[112] NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956), citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

[113] See, e.g., Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, slip op. at 14  (2019) (dissenting opinion) (collecting cases that reverse Board precedent involving access to employer property).

[114] The Board has addressed the “special circumstances” aspect of the Purple Communications standard only once, properly rejecting the employer’s justification for its e-mail restriction.  UPMC, 362 NLRB 1704 (2015). The majority here is correct, then, that the Board “has never found special circumstances justifying a prohibition on nonwork-related email,” but the Board has barely been presented with the occasion to address the issue.

[115] Id. at 1063 (footnote omitted).

[116] Id. at 1063-1064.

[117] Id. at 1064 (footnote omitted).

[118] Section 7 of the Act grants employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  29 U.S.C. §157.

[119] 361 NLRB at 1053.

[120] Id. at 1054, citing, inter alia, Beth Israel Hospital, supra, 437 U.S. at 491-492); Eastex, Inc. v. NLRB, 437 U.S. 556, 574 (1978); NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, 325 (1974); Central Hardware Co. v. NLRB, 407 U.S. 539, 542-543 (1972).

[121] Beth Israel Hospital, supra, 37 U.S. at 491–492

[122] 361 NLRB at 1057.  The Purple Communications Board explained that the “‘equipment cases’ … involved far more limited and finite resources,” observing that “‘if a union notice is posted on a bulletin board, the amount of space available for the employer to post its messages is reduced’” and “‘[i]f an employee is using a telephone …, that telephone line is unavailable for others to use.’”  Id., quoting Register Guard, supra, 351 NLRB at 1125-1126 (dissenting opinion).

[123] 361 NLRB at 1058.

[124] Id. at 1060.  See Restatement (Second) of Torts, § 218.

[125] Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

[126] Id.

[127] Id. at 804 fn. 10.

[128] Id. at 1061 (brackets in original), quoting Hudgens v. NLRB, 424 U.S. 507, 521-522 fn. 10 (1976).

[129] Id. at 1061.  In particular, the Board declined to “treat email communication as either solicitation or distribution per se” and found it “unnecessary to characterize email systems as work areas or nonwork areas.”  Id. at 1061-1062.

[130] Register Guard sharply divided the Board at the time.  In dissent, Members Liebman and Walsh observed that the decision “confirm[ed] that the NLRB ha[d] become the ‘Rip Van Winkle’ of administrative agencies’”: “Only a Board that has been asleep for the past 20 years could fail to recognize that e-mail has revolutionized communication both within and outside the workplace.”  Register Guard, supra, 351 NLRB at 1131 (dissenting opinion). “In 2007,” the Register Guard dissenters wrote, “no one can reasonably contend … that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.”  Id.

Not surprisingly, the Register Guard decision drew the strong criticism of labor law scholars.  See Purple Communications, supra, 361 NLRB at 1050 fn. 5 (collecting scholarly criticism).  See also Catherine L. Fisk & Deborah C. Malamud, The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform, 58 Duke L. J. 2013, 2069-2072 (2009).  Professors Fisk and Malamud observed that the “philosophical position reflected in the case” – “read[ing] the employer’s property rights in the email server to trump the employees’ [S]ec[.] 7 rights to communicate” – was a “significant departure from past practice” as reflected in the decisions of the Board and the Supreme Court.  58 Duke L. J. at 2070 (citing Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)).  They noted that the Register Guard Board had “discussed no data to address … whether there was any legitimate employer need to restrict employee use of email systems” and observed that “[i]f one does not accept the … assertion that the employer’s mere ownership of the email sever answers the question … there is little else in the opinion that would help one decide whether [S]ec[.] 7 [of the Act] protects the right to communicate via the employer’s email server.”  Id. at 2071.

[131] Encino Motorcars, LLC v. Navarro, ___ U.S. ___, 136 S. Ct. 2117, 2125-2126 (2016).

[132] See, e.g., Prill v. NLRB, 755 F.2d 941, 942 (D.C. Cir. 1985) (“[J]udicial deference is not accorded a decision of the NLRB when the Board acts pursuant to an erroneous view of law and, as a consequence, fails to exercise the discretion delegated to it by Congress.”).  See also IB EW, Local Union No. 474 v. NLRB, 814 F.2d 697, 707-78 (D.C. Circ. 1987) (following Prill, supra).  In reversing Register Guard, in contrast, the Purple Communications Board never claimed that the Act or Supreme Court precedent dictated the resolution of the e-mail access issue.

[133] Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 374 (1998).

[134] See, e.g., ITT Industries, Inc. v. NLRB, 251 F.2d 995, 1004 (D.C. Cir. 2001) (remanding Board’s initial decision that off-duty, off-site employees were entitled to access to employer’s property).  In ITT Industries, the District of Columbia Circuit observed that “‘ [i]n determining whether an agency’s interpretation represents a reasonable accommodation of conflicting statutory purposes, a reviewing court must determine both whether the interpretation is arguably consistent with the underlying statutory scheme in a substantive sense and whether ‘the agency considered the manner in a detailed and reasoned fashion.’”  251 F.3d at 1004, quoting Rettig v. PBGC, 744 F.2d 133, 151 (D.C. Cir. 1984).

[135]  The majority’s attempt to minimize its reliance on Babcock & Wilcox is belied by the rationale of the majority decision here, which turns entirely on the supposed strength of employers’ property rights and on the rejection of the Republic Aviation “special circumstances” test.

[136] 437 U.S. at 504-505 (brackets in original), quoting Hudgens, supra, 424 U.S. at 521-522 fn. 10.

[137] 437 U.S. at 572-573 (brackets in original), quoting Hudgens, supra, 424 U.S. at 521-522 fn. 10.

[138] 437 U.S. at 573.

[139] Id. at 574.

[140] DHL Express, Inc. v. NLRB, 813 F.3d 365, 374 (D.C. Cir. 2016) (affirming Board’s holding that employer committed unfair labor practice by prohibiting nonworking employees from distributing literature in hallway of employer’s facility).

[141] Id. at 375.

[142] Id. (emphasis in original), quoting Lechmere, Inc. v. NLRB, 502 U.S. 527, 533 (1992).

[143] I discuss that point below. 

[144] 324 U.S. at 798-799. 

[145] Id. at 803 & fn. 10.

[146] 415 U.S. at 325-327.  The Magnavox Court thus rejected the dissenting view that, at least as to supporters of the union, the waiver was proper, because those employees had access to company bulletin boards, among other alternative means of expressing their views.  See id. at 331-332 (dissent).

[147] 437 U.S. at 505. 

[148] Helton v. NLRB, 656 F.2d 883, 896  (D.C. Cir. 1981).

[149] The District of Columbia Circuit has observed that the Board “has consistently ruled that the presence of alternative methods of communication is not relevant in determining the rights of employees.”  Helton, supra, 656 F.2d at 897 fn. 71, citing, inter alia, H. & F. Binch Co., 168 NLRB 929, 935 (1967).  See, e.g., Capital Medical Center, 364 NLRB No. 69, slip op.  at 4 fn. 12 & 5 fn. 14, 17 (2016), enfd. 909 F.3d 427 (D.C. Cir. 2018) (rejecting argument that Board had impermissibly failed to consider alternative means of communication in case involving on-site picketing by off-duty employees); The Firestone Tire & Rubber Co., 238 NLRB 1323, 1324 (1978); Diamond Shamrock Co., 181 NLRB 261, 261-262 (1970), enf. denied 443 F.2d 52 (3rd Cir. 1971); Cone Mills Corp., 174 NLRB 1015, 1020-1021 (1969); General Aniline & Film Corp., 145 NLRB 1215, 1219 (1964). 

The Board’s decision in Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962), cited by the majority, is not to the contrary, despite the majority’s apparent implication.  The Board there held that employers lawfully could limit employees’ distribution of literature to nonworking areas of its property, given the employer’s heightened interest in “cleanliness, order, and discipline” in working areas.  Id. at 620.  Notably, the Stoddard-Quirk Board rejected the employer’s argument that the Act did not require permitting employees to engage in distribution on its property, because employees could effectively distribute literature “outside its premises, but near the main plant entrance.”  Id. at 622.  This argument, the Board explained, was inconsistent with the distinction between the rights of employees and those of nonemployees, as drawn by the Supreme Court in Babcock & Wilcox, supra. Id.

The majority, quoting Stoddard-Quirk, asserts that “the scope of any limitation on employer property rights in equipment must … ‘be determined by the nature of the need’ and, where necessary to accommodate Section 7 rights, ‘kept to a minimum.’”  But, as shown, this case implicates less employers’ property rights, but rather their management interests, because the question presented is whether employees who have been granted access to an employer’s e-mail system must be permitted to use it for Sec. 7 communications, absent special circumstances.  And, insofar as this case might require an accommodation of employees’ Sec. 7 rights and employer property rights, property rights do not have primacy, as the majority suggests.  Rather, as the Supreme Court has explained, the “locus of … accommodation” depends on the “nature and strength” of the respective rights “in a “given context.”  Hudgens, supra, 424 U.S. at 522.

[150] The majority’s argument about the proper interpretation of Republic Aviation is misdirected in any case.  Its premise is that the Purple Communications Board treated Republic Aviation as compelling the Board’s holding there, but this premise is false, as any fair reading of Purple Communications reveals.  See Purple Communications, supra, 361 NLRB at 1061 (explaining that the Board would “apply Republic Aviation and related precedents by analogy in some but not all respects”) (emphasis added).

[151] 361 NLRB at 1057-1059.

[152] Register Guard, supra, 351 NLRB at 1117-1119 (reversing Board precedent, citing Fleming Co., 336 NLRB 192 (2001), enf. denied 349 F.3d 968 (7th Cir. 2003), and Guardian Industries, 313 NLRB 1275 (1994),  enf. denied 49 F.3d 317 (7th Cir 1995). See also Register Guard, supra, 351 NLRB at 1127-1130 (dissent) (addressing majority’s reversal of precedent).  See also Roadway Express, Inc. v. NLRB, 831 F.2d 1285, 1290 (6th Cir. 1987) (observing that “where by policy or practice the company permits employee access to bulletin boards for any purpose, [S]ection 7 of the Act … secures the employees’ right to post union materials” and that “it is well established that the availability of other channels of communication does not justify employer restraint of employees’ [S]ection 7 rights”); NLRB v. Honeywell, Inc., 722 F.2d 405, 4060407 (8th Cir. 1983) (affirming Board’s finding that employer unlawfully prohibited employees from posting union-related materials on bulletin board, despite permitting personal messages); Arkansas-Best Freight System, 257 NLRB  420, 423 (1981) (collecting Board cases involving discrimination in bulletin-board access).

[153] See, e.g., Malta Construction Co., 276 NLRB 1494, 1494 (1985), enfd. 806 F.2d 1009 (11th Cir. 1986).  See also Eastern Omni Constructors, Inc., 324 NLRB 652, 656 (1997) (rejecting argument that employer could lawfully prohibit union insignia on employer-owned hardhats, because it permitted union insignia on employees’ clothing), enf. denied 170 F.3d 418 (4th Cir. 1999).

[154] ABM Onsite-Services West, Inc. v. NLRB, 849 F.3d 1137, 1146 (D.C. Cir. 2017),  quoting Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d 813, 816 (D.C. Cir. 2006).  See also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide a reasoned explanation for its action … demand[s] that it display awareness that it is changing position.”).

[155] In Malta Construction, supra, the Board – citing the Supreme Court’s decision in Republic Aviation -- expressed its “disagree[ment] with the [administrative law] judge’s recitation of the law, to wit, that ‘[n]o union or employee has a statutory right to use company property for a personal motive,’” including a “union purpose.”  276 NLRB at 1494.  It is no answer to say, as the majority does, that Supreme Court precedent – including Republic Aviation -- does not recognize a “right to use employer-owned equipment for Section 7 purposes” or that Republic Aviation “does not fit the hard hat cases.”  Plainly, the Malta Construction Board interpreted Republic Aviation, which involved the statutory right of employees to wear union insignia on the employer’s property, as rebutting the judge’s view of the law.  Malta Construction and other hardhat cases demonstrate that under Board law, the Republic Aviation “special circumstances” test (and not a property-rights analysis) applies when an employer restricts the use of company property for Section 7 purposes.  See, e.g., Malta Construction, 276 NLRB at 1495 (finding that employer “failed to establish any special circumstances based on legitimate production or safety reasons to justify [the] prohibition” of union insignia on company hardhats).

            The majority is also demonstrably mistaken when it asserts (1) that the Board “has considered the availability of alternative means of communication when determining whether a ban on affixing union insignia to company provided hardhats was lawful” and (2) that the Board has “acknowledged that employer property rights bears on the determination.”  In the hardhat cases, as in other Board cases involving employee communication at work (see cases collected at fn. 41, supra), alternative means of communication are immaterial.  In Malta Construction, for example, the Board found the prohibition unlawful despite the fact that the employer “allowed its employees to wear union insignia on articles of their personal attire.”  276 NLRB at 1494.  This fact was relevant only insofar as it demonstrated the absence of “disparate treatment.”  Id. 

            Andrews Wire Corp., 189 NLRB 108 (1971), cited by the majority, is not to the contrary. There, the Board found no violation of the Act, because the employer had “showed that it had a legitimate and not unwarranted concern about the threat to safety posed by the use of unauthorized decorations on work hats.”  Id. at 109.  That employees were free to “wear union insignia on any item of clothing except the safety hat” substantiated the employer’s showing of special circumstances and demonstrated the absence of a discriminatory motive for the prohibition.  Id.  The Board’s decision makes no mention of “alternative means of communication.” 

            Nor does Standard Oil of California, 168 NLRB 153 (1967), support the majority’s position with respect to the relevance of employer property rights or alternative means of communication.  In that case, the Board’s rationale – as opposed to the rationale of the administrative law judge – appears in footnote 1 of the decision.  168 NLRB at 153 fn. 1.  There, the Board explained that the employer “had established that it had a legitimate, longstanding, and not unwarranted concern about the threat to safety posed by the use of unauthorized decorations on work hats.”  Id.  As in Andrews Wire, supra, the fact that employees were permitted to wear union insignia on other clothing substantiated the employer’s showing, but was not independently relevant as somehow reflecting alternative means of communication.  Id.  The judge’s discussion of the employer’s property rights, meanwhile, was offered in the context of applying Republic Aviation – precisely the test rejected by my colleagues.  Id. at 161-162.  Insofar as the Board’s decision endorsed the judge’s reasoning, then, it endorsed the application of Republic Aviation.

            Contrary to the majority’s assertion, there is thus no conflict at all between Standard Oil (decided in 1967) and Andrews Wire (1971), on the one hand, and the Board’s later decisions in Malta Construction (1985) and Eastern Omni Constructors (1997).

            Finally, the majority’s position is not helped by the cited decisions of two federal appellate courts (the Fourth and Sixth Circuits) rejecting the Board’s view in those cases that the employer had unlawfully prohibited union insignia on company hardhats and relying on the fact that the employer had permitted wearing insignia elsewhere.  See Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418 (4th Cir. 1999); NLRB v. Windemuller Electric, Inc., 34 F.3d 384 (6th Cir. 1994).  Those decisions obviously are contrary to Board precedent – not to mention Supreme Court precedent explaining that the existence of alternative means of communication for employees rightfully on employer property is immaterial.  See Magnavox, supra, 415 U.S. at 325-327; Beth Israel Hospital, supra, 437 U.S. at 505.  Indeed, the majority properly acknowledges that a Sixth Circuit panel subsequently questioned the correctness of the court’s Windemuller decision.  See Meijer, Inc. v. NLRB, 130 F.3d 1209, 1215 (6th Cir. 1997). 

[156] 424 U.S. at 522.

[157] Id.

[158] Motor Vehicle Mfrs. Assn. v. State Farm Auto Mutual Insurance Co., 463 U.S. 29, 43 (1983).

[159] Section 7 provides that “[e]mployees shall have the right to self-organization.”  29 U.S.C. §157.

[160] Beth Israel Hospital, supra, 437 U.S. at 491. 

[161] The contrast between this case and cases involving nonemployee union organizers like Babcock & Wilcox and Lechmere, supra, which reaffirmed Babcock & Wilcox, is obvious.  See Beth Israel Hospital, supra, 437 U.S. at 504-505 (distinguishing Babcock & Wilcox in case involving workplace solicitation by employees).  “By its plain terms,” the Act “confers rights only on employees, not on unions or their nonemployee organizers.”  Lechmere, supra, 502 U.S. at 532 (emphasis in original).

[162] Babcock & Wilcox, supra, 351 U.S. at 113.

[163] Lechmere, supra, 502 U.S. at 537.

[164] 361 NLRB at 1059-1060.  See, e.g.,  Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1351 (2003) (addressing common-law claim of trespass to chattels with respect to employers’ e-mail system).  Citing § 218 of the Restatement (Second) of Torts, the California Supreme Court explained that “some actual injury must have occurred in order for a trespass to chattels to be actionable,” in contrast to the rule with respect to a trespass to land.  30 Cal. 4th at 1351-1352.  Potential harm to an employer’s e-mail system, as the Purple Communications Board explained, would tend to support an employer’s restriction on employees’ use of the system, if such harm could be established.  361 NLRB at 1063-1064.  In this respect, Purple Communications reflects a better understanding and acknowledgement of common-law property doctrine than does today’s decision.

             

[165] The majority makes two unpersuasive arguments.  First, my colleagues argue that, if my view is “taken at face value…an employer could not assert property rights to forbid an employee”, on nonworking time, from using its photocopier to make “thousands” of union flyers, its delivery truck to drop off flyers, or its hydraulic lift to service trucks to shuttle employees to a union protest.  But my colleagues acknowledge that a prohibition demonstrably necessary to maintain production or discipline would be perfectly permissible.  Such a showing would be simple, because in each instance, the interference with production and discipline is inherent in the use to which the employer’s equipment is being put.   In all of these examples using the employer’s equipment necessarily diverts its use from the employer’s purposes and consumes (or otherwise diminishes) the employer’s limited resources (whether copier paper, gas for a truck, or the life of the lift) – unlike the use of the employer’s email system, which my colleagues concede is “virtual.”  In other words, Purple Communications does not create a free-for-all scenario but requires a balancing of the employer’s managerial interests and employees’ right to engage in Sec. 7 communications at the workplace.   

 

Second, my colleagues fail to acknowledge the significance of the fact that under the common law of property, an interference with real property (e.g., the sort of trespass involved in cases like Babcock & Wilcox) is treated differently than an interference with personal property (e.g., the use of an employer’s e-mail system for Sec. 7 purposes).  Instead, my colleagues insist that all that matters is whether the use of the personal property is “rightful.”  In turn, the majority misattributes to me the view that “an individual’s use of personal property is rightful simply because it is not actionable at common law.”  My position, rather, is that application of the Republic Aviation “special circumstances” test here is broadly consistent with property law principles, inasmuch as it requires the equivalent of a showing of harm to the employer’s interests before use of the email system for Sec. 7 purposes – by employees already granted access to the system -- may be prohibited.  Under the majority’s new rule, employers need never show that employees’ use of an email system for Sec. 7 purposes threatened any harm at all to the system or to the employer’s interest in maintaining production and discipline.

 

 

[166] See, e.g., Beth Israel Hospital, supra, 437 U.S. at 505 (“[T]he availability of alternative means of communication is not, with respect to employee organizational activity, a necessary inquiry.”).  See supra, fn. 41.

[167] Indeed, the majority’s recent decisions reflect a clear desire to require employees to seek the largest possible bargaining units.  See, e.g., The Boeing Co., 368 NLRB No. 67, slip op. at  7 (2019) (dissent).  In Boeing, I explained that the majority’s approach – building on its reversal of precedent in PCC Structurals, 365 NLRB No. 160 (2017) – effectively required employees to seek a 2,700-person bargaining unit encompassing every production-and-maintenance employee at the facility there.

[168] 29 U.S.C. §159(b).

[169]         The majority points to cases in which employees have succeeded in organizing multi-site bargaining units, despite the absence of access to employer email systems.  But that employees can sometimes overcome obstacles to organizing – whether practical or legal – hardly demonstrates that a particular obstacle is insignificant or that its endorsement by the Board is actually justified as a matter of law or policy. 

[170] Magnavox, supra, 415 U.S. at 325.