Before Manion, Rovner, and Evans, Circuit Judges.
The opinion of the court was delivered by: Evans, Circuit Judge
On Petition for Enforcement of an Order of the National Labor Relations Board
The National Labor Relations Board seeks enforcement of its order finding that the Clinton Electronics Corporation committed unfair labor practices.
Clinton manufactures and sells cathode ray tubes, monitors, and other electronics products at its facility in Loves Park, Illinois. In the summer of 1995, the United Steelworkers of America, AFL-CIO-CLC, began an organizing effort at the facility. The union filed an election petition and the Board ordered an election. The union subsequently requested the withdrawal of the election petition. The Regional Director of the NLRB approved the request, and no election was held.
Subsequently, the union filed unfair labor practice charges against Clinton. The Acting Regional Director issued two complaints. A consolidated hearing was held before an administrative law judge, and three incidents were found to violate the Act. The NLRB, by a three-member panel with one member dissenting, upheld the decision of the ALJ with minor modifications. The Board seeks enforcement of the order.
Briefly, the incidents are as follows. An employee, Bonnie Smith, received a subpoena to appear at a Board representation hearing. Smith asked Bernadine Prock for her opinion of the union while the two were on the production floor. Smith and Prock were friends, but Prock was also Smith's supervisor, having become a supervisor a few months earlier after working 27 years as an hourly employee. Prock replied, "Off the record, Bonnie, it's my opinion that we could all be looking for a job." Another employee, Holly Vineyard, overheard this conversation and asked Prock why she would say something like that. While Smith was walking away, Prock responded, "Because we would all be looking for jobs if the union came in there."
Prock then commented on Vineyard's attendance record, saying that if the union was elected, Vineyard "probably wouldn't even have a job." Vineyard said, "If a union got in here I would have sick days and personal days and I wouldn't have a problem at all." Prock then stated, "We would not get personal or sick days" if there was a union.
The second incident involved two other women who had been friends for a number of years. But, as well as being a friend whom she had known for 10 to 15 years, Betty Krueger was also Debbie Williams' immediate supervisor. Williams was unsure about what she thought about the union and asked Krueger to arrange a meeting with the company employee relations supervisor to discuss unionization. Then Williams attended her first union meeting, after which another employee told Krueger that she had seen Williams at the meeting. Krueger, in turn, told Williams that she "knew Williams went to the union meeting." Williams responded, "I thought it was our right to be able to do that." Krueger said, "Yes, it is." That was the end of the conversation about the union.
The final incident involves the company's rule governing solicitations and distribution of materials. The rule states that all solicitations are prohibited "except when both the person doing the soliciting and the person being solicited are on break, on meal time, or otherwise are properly not engaged in performing their work tasks." Despite this rule, the company permitted, or at least tolerated, solicitations for things like sports pools, Girl Scout cookie sales, and merchandise sales to benefit other groups. No employees were ever disciplined for these activities.
One day, maintenance worker Daniel Lee left his department to go to another department, where he spoke with some of the employees. He engaged employee Leonard Walsh in a conversation about the union. Two supervisors observed Lee talking to Walsh but said nothing. A few days later, Lee and other union supporters were standing on the parking lot handing out flyers. As Walsh entered the lot the union supporters stopped him, and Lee asked him if he had thought more about supporting the union. Walsh complained to his supervisor that he "got bothered Monday and I figured maybe [Lee] got the message and would leave me alone. People been knocking on my door every day at home and now they're going to interfere with me pulling into the parking lot. Possibly making me late." Walsh asked the supervisor how the union members knew where he lived. He then said, "I want to make a complaint about being harassed at work. I didn't think that the company could do anything about getting harassed at home but this was starting to interfere with my work, getting to work. Being on time." The supervisor reported this conversation to a manager, who then spoke with Walsh.
The company issued a written warning to Lee for violating the no-solicitation policy based on the conversation inside the facility. The notice said "Nature of Violation: Complaints have been brought to our attention that you violated the solicitation policy on page 27-policy 2 of the Company handbook." The company would not tell Lee who complained and refused to listen to his denials of misconduct. As we have said, over one dissent, the Board upheld findings that these three incidents amounted to unfair labor practices.
Section 7 of the National Labor Relations Act (29 U.S.C. sec. 157) grants employees the right to "self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." Section 8(a)(1) of the Act (29 U.S.C. sec. 158(a)(1)) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." An employer violates Section 8(a)(1) by coercively interrogating employees about their support for the union or by threatening adverse economic consequences, such as job loss or closing of a plant, if the employee engages in union activities. Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363 (7th Cir. 2001); NLRB v. Q-1 Motor Express, Inc., 25 F.3d 473, 477 (7th Cir. 1994). Clinton was found to have violated Section 8(a)(1) in these incidents.
Section 8(a)(3) of the Act (29 U.S.C. sec. 158(a)(3)) makes it an unfair labor practice for an employer to discriminate in regard to any condition of employment in order to "discourage membership in any labor organization." An employer violates Sections 8(a)(3) and (1) of the Act by taking adverse actions against an employee for engaging in union activity. Jet Star, Inc. v. NLRB, 2 ...