On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before: Rogers, Tatel and Garland, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
When an employee anonymously distributed fliers after working hours expressing co-workers' concerns about the company's layoffs of long-term employees, the company interrogated her about who was involved. Fearing retaliation, she was evasive in her responses. When she later admitted to the general manager of the company that she had distributed the fliers, she was discharged for lying during the interrogation. The National Labor Relations Board ruled that the company violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1) (2000), by interrogating the employee about concerted activity protected under section 7 of the Act, id. § 157, and by terminating the employee for engaging in such activity. The company contends on appeal that the employee's concerted activity was not protected under section 7 because it violated the company's valid workplace rules, and that even if the activity was protected, the company did not violate section 8(a)(1) because it had legitimate business reasons for questioning the employee about her hours and work. Further, the company contends that it properly discharged the employee for lying, irrespective of her concerted activity.
We deny the petition for review. The company fails to show that the Board erred in finding that the workplace rules were invalid because overly broad or not clearly disseminated to employees. The company also fails to show that the Board erred in finding, without relying on the Bourne factors,*fn1 that the interrogation was coercive in view of the company's admissions and the questions asked. Finally, the company fails to show that the Board erred in not engaging in the Wright Line analysis*fn2 when the evidence showed that the employee was discharged for a single unlawful purpose. Accordingly, we grant the Board's cross-application for enforcement of its order.
The United Services Automobile Association, a non-union business, provides insurance and financial services to the military community. Headquartered in Texas, the company has a regional office in Tampa, Florida, consisting of a sixstory gated compound with security guards and cameras monitoring the entrance. The company employs approximately 1600 employees who work various shifts, normally between 7:30 a.m. and 6:30 p.m. Because many employees keep claimants' confidential information on their desks, it is common knowledge that employees may not look through the work files on each other's desks unless they have a business need to do so. The company's employee handbook, issued March 2001, contained a "Workplace Solicitation" policy that stated: "Advertising or distributing any non-[company] printed information including fliers, business cards, brochures, or catalogs is not permitted at any time in the work area and only during non-working hours in non-work areas."
On July 31, 2001, Loretta Williams, an insurance adjuster at the company, anonymously distributed approximately 1300 fliers throughout the building between 8 p.m. and 11 p.m. after normal working hours. This followed several weeks of discussion with her co-workers regarding their dissatisfaction with the manner in which the company was laying off longterm employees pursuant to a reorganization plan. The fliers criticized the company's layoffs and requested employees wear a red ribbon in support of their former colleagues. Williams placed the fliers on employees' desks, at the ends of hallways, and in employees' mailboxes. The following day, August 1, the Senior Vice President and General Manager of the company, General Thomas V. Draude, sent an email to the managers instructing them not to remove the fliers, to let employees "grieve" the loss of laid-off employees, and to advise employees that distributing non-company printed information in the workplace violated the no-solicitation policy. The following week, on August 6, General Draude left a voicemail message for all employees explaining that managers had begun to collect the fliers because of the no-solicitation policy.
On August 9, Williams's supervisor, Eileen Hale, asked Williams to accompany her to the personnel office. There Williams was introduced to Sheila Christy-Martin, the director of the human resources advisory team, who proceeded to question Williams for the next hour about safety, overtime, and a possible breach of security with regard to distribution of the fliers. Christy-Martin told Williams that she had been clocked leaving the building at 11 p.m. and asked if she had been working during that time. Williams responded that she had been working on her files. When asked if she had seen anything unusual, Williams said no and that even if she had she would not say because she was afraid of retaliation. Upon further interrogation, Williams became upset and said that she was very uncomfortable with the line of questioning and did not think the questioning was valid. She also said that she did not want to answer any questions about the fliers because she thought she needed an attorney. Christy-Martin then told Williams that the company's only concern was that the distribution violated the company's no-solicitation policy, and that Williams had been seen on the security camera entering the building at 7 p.m carrying a large box. When asked about the contents of the box, which held the fliers, Williams said it contained "papers." Williams then stated that she did not want to answer any more questions, and she refused to give Hale her July 31 overtime hours as she had repeatedly explained during the interrogation that she was not claiming overtime.
Six days later, Williams told General Draude that she was responsible for distributing the fliers. Although Williams explained that she was purposefully evasive during the interrogation due to fear of retaliation, General Draude fired her, effective immediately, for lying during the interrogation. Williams subsequently received a check for the overtime on July 31 that she did not claim. In November 2001, the company modified its no-solicitation policy, replacing the words "working hours" with "working time."
The Board, adopting the findings and conclusions of the Administrative Law Judge ("ALJ"), concluded that the company violated section 8(a)(1) of the Act by unlawfully interrogating Williams and another employee, Andrew Snyder, regarding concerted activity that was protected under section 7, and by unlawfully discharging Williams for engaging in that activity. The Board also found that the company had maintained an unlawful no-solicitation policy that was overly broad. The Board ordered the company to, among other things, rescind the policy and to offer Williams full reinstatement. The company petitioned for review, and the Board filed a cross-application for enforcement of its order.
An employer violates section 8(a)(1) of the Act by coercively interrogating an employee about concerted activity that is protected under section 7 of the Act. See Perdue Farms, Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998); Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 296 (6th Cir. 1985), cert. denied, 476 U.S. 1159 (1986). In deciding whether an interrogation violates section 8(a)(1), the Board must make three determinations. First, the Board must determine whether the employee engaged in concerted activity protected under section 7 of the Act. Because such a determination "implicates [the Board's] expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference" by this court. NLRB v. City Disposal Sys. Inc, 465 U.S. 822, 829 (1984). Second, the Board must determine whether, "under all the circumstances," the employer's interrogation "reasonably `tends to restrain, coerce, or interfere with rights guaranteed by the Act.' " Perdue Farms, 144 F.3d at 835 (quoting Rossmore House, 269 N.L.R.B. 1176, 1177 (1984), aff'd sub nom. Hotel Employees & Rest. Employ -ees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985)). To reach that conclusion, the Board need not find that the employer's "language or acts were coercive in actual fact," Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998), but only that it had a "tendency to coerce" employees. Avecor, Inc. v. NLRB, 931 F.2d 924, 932 (D.C. Cir. 1991); accord Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 954 (D.C. Cir. 1988). Third, the Board must determine whether the employee's interests in exercising section 7 rights are outweighed by the employer's "substantial and legitimate business justification[s]" for interfering with those rights. Medeco, 142 F.3d at 745. Because Congress has vested the Board, and not the courts, with the primary responsibility "to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy," NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967) (quoting NLRB v. Great Dane Trailers, 388 U.S. 26, 33-34 (1967)), the court will deny a petition for review if the Board's balancing is rational and consistent with the Act. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 504 (1978).
The Board's factual findings, if supported by substantial evidence in the record as a whole, are conclusive even if a reviewing court on de novo review would reach a different result. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951); Perdue Farms, 144 F.3d at 834-35. The court will uphold the Board's adoption of an ALJ's credibility determinations unless "those determinations are `hopelessly incredible,' `self-contradictory,' or `patently unsupportable.' " Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 28 (D.C. Cir. 1998) (quoting Capital Cleaning Contractors, ...