     No. 95-3352



Handicabs, Inc.,                 *
                                 *
                   Petitioner,   *
                                 *
        v.                       *
                                 *
National Labor Relations   *
Board,                           *
                                 *
                   Respondent.   *

---------------------------

Claudia Fuglie, individually     *
and o/b/o others   similarly     *
situated,                        *
                                 *
              Amicus Curiae      *

                                     On Petition for Review
                                     from the National Labor
                                     Relations Board.


     No. 95-3628



Handicabs, Inc.,                 *
                                 *
                   Respondent,   *
                                 *
        v.                       *
                                 *
National Labor Relations   *
Board,                           *
                                 *
                   Petitioner.   *

---------------------------

Claudia Fuglie, individually     *
and o/b/o others   similarly     *
situated,                        *
                                 *
              Amicus Curiae      *
                         Submitted:    June 12, 1996

                         Filed:   September 11, 1996


Before BOWMAN, HEANEY, and BEAM, Circuit Judges.



HEANEY, Circuit Judge.

     Handicabs, Inc. petitions for relief from an order of the National
Labor Relations Board ("Board"), holding that Handicabs violated section
8(a)(1) and (3) of the National Labor Relations Act ("Act"), 29 U.S.C. §
158(a)(1) and (3) (1994) by (1) maintaining company policies prohibiting
the discussion of work-related problems with other employees and clients
and (2) discharging an employee because of his union activity.    The Board
cross-petitions for enforcement of its order.    We deny Handicabs petition
and enforce the order.


                                      I.


     Handicabs provides transportation services to disabled and elderly
persons in the Minneapolis-St. Paul metropolitan area.     On September 20,
1994, Handicabs discharged one of its drivers, Ronald F. Trail, after
receiving a complaint that he had been "talking about the union" with his
passengers.   The complaint was made by Claudia Fuglie, a Handicabs employee
and paying client; Fuglie, who suffers from spina bifida, is wheel-chair
bound and dependent on the handicapped-accessible transit service.   Fuglie
complained that the talk of unionization and potential work stoppage was
distressing to her.


     Handicabs fired Trail, allegedly for violating its rule prohibiting
the discussion of company-related problems with




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clients.   The policy, addendum no. 2 in the employee handbook, states in
relevant part:

     Discussing complaints or problems about the company with
     our clients will be grounds for immediate dismissal.

     . . . .

     All of our clients are protected by the Vulnerable Adults
     Act.   According to this law, you must not tease them,
     take monies (other than ride-fare or tip) from them,
     curse or use profanity while in their presence, or do
     anything verbal or physical of a sexual nature. Also,
     you must not put these people in a threatening or
     uncomfortable position by discussing any personal or
     company-related problems that may make them feel coerced
     or obligated to act upon or react to.

Petitioner's   App.   at   197   (emphasis   added).   In   addition,   Handicabs
maintained a company policy, addendum no. 1, that prohibited its employees
from discussing their wages among themselves, violation of which was also
grounds for immediate termination.       Id. at 199.


     In response to his termination, Trail filed an unfair labor practice
charge with the Board.     The Board issued a notice of hearing and complaint
against Handicabs, which alleged that the company discharged Trail because
of his union activity.1     The Board also contended that Handicabs' policy
prohibiting employees from discussing employment concerns with clients
violated section 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1) and (3),
because it interfered with employees' rights to "self-organization, to
form, join, or assist labor organizations . . . and . . . to engage in
other concerted activities for the purpose of collective




     1
      In mid-1994, Trail participated in an organizing campaign of
the Handicabs drivers by Miscellaneous Drivers, Helpers &
Warehousemen's Union, Local No. 638, I.B.T.. The campaign led to
a representation election on October 14, 1994. Trail signed a card
authorizing the Union to represent him, passed out authorization
cards, and was elected a member of one of the organizing
committees.

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bargaining," guaranteed under Section 7 of the Act, 29 U.S.C. § 157.


     After a hearing, an Administrative Law Judge issued a decision in
favor of the Board.        The ALJ held, and Handicabs did not contest, that
addendum no. 1, prohibiting the discussion of wages among employees,
violated Section 8(a)(1) of the Act.          The ALJ also determined that, while
Handicabs has an obligation to protect its passengers from abuse and
mistreatment, the policy against discussing work-related problems with
passengers violated the Act because it was overly broad.           Finally, the ALJ
decided   that   because    Trail's    discharge    was   motivated     by   his   union
involvement and founded on an unlawful policy, it also was in violation of
the Act. The ALJ recommended that Handicabs be ordered to rescind its
workplace rules and reinstate Trail.          After consideration of the parties'
exceptions   and   briefs,    the     Board    affirmed   the   ALJ's   decision     and
recommended order.    Handicabs now petitions for relief from this court.


                                         II.


     As a general rule, our standard of review affords great deference to
the Board's affirmation of the ALJ's findings.            See Wilson Trophy Co. v.
N.L.R.B., 989 F.2d 1502, 1507 (8th Cir. 1993).            We will enforce an order
of the Board if the Board has correctly applied the law and its factual
findings are supported by substantial evidence on the record considered as
a whole, even though we might have reached a different decision had the
matter been before us de novo.          Id.    Handicabs argues that the Board's
findings are not supported by the record and that the decision demonstrates
bias on the part of the ALJ against persons with disabilities.                     After
careful examination of the record, we see no reason to upset the ALJ's
factual characterizations and credibility determinations.               In any event,
we need not rely on the disputed facts to resolve this matter:               The content
of the policies and the




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relevant facts surrounding Trail's discharge are undisputed.             We thus
consider each of Handicabs' substantive arguments in turn.


       Handicabs concedes that the blanket prohibition of wage discussion
among employees contained in policy addendum no. 1 was in violation of the
Act.   See Jeannette Corp. v. N.L.R.B., 552 F.2d 916, 919 (3d Cir. 1976) (an
unqualified rule barring wage discussions among employees constitutes a
violation); Waco, Inc., 273 N.L.R.B. 74, 118 L.R.R.M. 1163, 1166 (1984).
Handicabs argues only that there is no need to enforce the portion of the
Board's   order   that   addresses   this   violation   because   the    company
unilaterally agreed to change the policy shortly after the hearing.
Because Handicabs did not raise this defense before the Board, however, we
may not consider it under section 10(e) of the Act, 29 U.S.C. § 160(e)
(1994).   See Woelke & Romero Framing, Inc. v. N.L.R.B., 456 U.S. 645, 665-6
(1982).    Accordingly, we summarily enforce (affirm) the Board's order
regarding addendum no. 1.


       With respect to policy addendum no. 2, Handicabs vigorously contests
the Board's determination that it violates the Act.     Handicabs asserts that
the policy is designed to meet the special needs of its clients.        Handicabs
argues that the Board's decision ignored the company's responsibility to
protect the "enjoyment" of transportation as federally mandated by the
Americans with Disabilities Act, 42 U.S.C. § 12203(b) (1994) ("ADA"), and
to prevent harassment or abuse of its passengers as required by the
Minnesota's Vulnerable Adults Act, Minn. Stat. § 626.557, sub. 2(d)(2)
(1995).     Handicabs also contends that because its clients "are not
necessarily able to handle stress or difficulty in the manner of a non-
disabled person," Handicabs' Br. at 25, it should be permitted to enforce
a more stringent no-solicitation rule to protect them, as the hospitals
were permitted to do for its patients in N.L.R.B. v. Baptist Hospital,
Inc., 442 U.S. 773 (1979) and Beth Israel Hospital v. N.L.R.B., 437 U.S.
483 (1978).   Finally, Handicabs argues that its policy, limited in time and




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space to when drivers are transporting clients in the Handicabs vans, is
analogous to the no-solicitation rules upheld by the Board for restaurants
and retail stores see e.g., McDonald's Corp. and I.L.W.U. Local 142, 205
N.L.R.B. 404 (1973), and thus permissible under the Act.


          Contrary   to   Handicabs'   assertions,   the   Board   recognized   that
Handicabs has a responsibility to protect persons with disabilities from
harassment or harm.         Neither the Board nor this court disputes the
legitimacy or importance of this concern.         The Board also agreed that some
words and conduct cause greater distress for persons with disabilities than
those without, thereby recognizing that there may be a need to prevent the
discussion of topics that cause Handicabs' passengers harm.          Yet, the Board
stated that work rules intended to address these concerns must be narrowly
tailored to avoid unnecessary deprivation of employees' statutory rights.
Because Congress and the courts rely on the Board to strike the appropriate
balance between such conflicting legitimate interests, we review the
Board's decision with respect to whether Handicabs has violated the Act
only for consistency and rationality.          See Beth Israel Hospital, 437 U.S.
at 501.


     The Board determined that the company's policy was too broad.               The
first part of addendum no. 2 forbids all discussion of working conditions
with clients even if the communication were intended to enlist their
support for protected concerted activity.         The Board also decided that the
second part of the policy is too far-reaching because it conditions
violation of its rule on the subjective reaction of the passengers--the
discussion of company-related problems that "may make [passengers] feel
coerced or obligated to act upon or react to."             The subjective standard
potentially prevents employees from discussing any aspect of a labor
dispute and from appealing for support from the public for fear that a
single client may feel threatened or uncomfortable.            Neither part of the
policy is limited in time or place, as Handicabs has argued;




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rather the policy broadly prohibits all discussions with clients about
company complaints.    As the Board concluded:

     So broad a prohibition hardly strikes a reasonable
     balance between protection which Congress sought to
     extend to the handicapped and challenged segment of the
     public and the rights which Congress sought to provide
     for employees under the Act, particularly in an overall
     prohibition which begins with an expressed warning of
     "immediate dismissal" for discussion with clients of
     "complaints or problems about the company[.]"

Petitioner's App. at 7.


     The Board's discussion of the important interests in this case is
well-reasoned   and   strikes   an   appropriate   balance   between    Handicabs'
responsibility to its passengers and the employees' rights under the Act.
Thus, strictly reviewing the Board's decision under existing labor law, we
defer to the Board's decision that policy addendum no. 2, as currently
written, violates the Act because its prohibition of protected organizing
activity is too extensive.


     As a separate matter, we hold that the Board's decision under the Act
does not violate or conflict with the ADA or the Minnesota Vulnerable
Adults Act.     The Board's decision does not prevent or even discourage
Handicabs from taking the appropriate steps to protect its passengers.          It
simply informs the company that it cannot blatantly trample its employees'
rights with a rule that speaks generally of protecting passengers yet
targets only the discussion of company-related problems.               The Board's
decision leaves open the opportunity for Handicabs to design a neutral rule
that does not single out activity protected under the Act, but rather
focuses on all speech and conduct that harms its passengers.            Handicabs'
impermissible generalization about persons with disabilities--that all
persons who ride handicapped-accessible, public transit services will be
disturbed by talk of union activity--cannot bring its policy under the
protection of the




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disability laws.      Because the Board's decision does not violate or conflict
with these laws, we also enforce the Board's order with respect to addendum
no. 2.


      Finally, Handicabs challenges the Board's ruling that the company
violated    section    8(a)(1)     and     (3)   of   the   Act   by    discharging     Trail.
Handicabs asserts that it fired Trail because of his misconduct, not his
union activity.     The Board listed many reasons to support its decision to
the contrary.      First, while the company may not have been aware of Trail's
union activities prior to the day they fired him, Fuglie's complaint
apprised them of Trail's involvement.            Second, when Handicabs fired Trial,
he was the only employee the company knew or suspected was involved in
union organizing.      Third, Handicabs fired Trail shortly after they learned
of   this   involvement      and    just    twenty-four      days      before   the    union's
representation election.       Finally, Handicabs did not provide Trail with an
explanation for his discharge and did not give him any opportunity to
respond to the allegations.          In fact, the company did not engage in any
independent investigation of the charges; it relied solely on Fuglie's
complaint.      Under these circumstances, we are unable to say that the
Board's finding of unlawful discharge is not supported by substantial
evidence.    Moreover, because policy addendum no. 2 is invalid and cannot
be enforced, Handicabs' "lawful" justification for Trail's discharge under
that rule lacks merit.       See Jeannette Corp., 532 F.2d at 920.               Accordingly,
we enforce the Board's order requiring Handicabs to offer Trial immediate
and full reinstatement, provide him with back pay and lost benefits with
interest,    and    remove   from    its    files     any   reference     to    the   unlawful
discharge.


                                             III.


      Based on the foregoing, we grant enforcement of the Board's order in
all respects.




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A true copy.


   Attest:


        CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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