In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2528

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

CLINTON ELECTRONICS CORPORATION,

Respondent.

On Petition for Enforcement of an Order
of the National Labor Relations Board

Argued January 18, 2002--Decided March 25, 2002



  Before MANION, ROVNER, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. 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, 209 F.3d 671 (7th
Cir. 2000). Clinton was found to have
violated this section in the Lee
incident.

  The Board’s findings of fact are
"conclusive" if supported by substantial
evidence. Section 10(e) of the Act, 29
U.S.C. sec. 160(e); Universal Camera
Corp. v. NLRB, 340 U.S. 474 (1951).
Substantial evidence is "such relevant
evidence as a reasonable mind might
accept as adequate to support" the
Board’s conclusion. National By-Products,
Inc. v. NLRB, 931 F.2d 445, 451 (7th Cir.
1991). In addition, we owe deference to
the Board’s inferences and conclusions
drawn from the facts. U.S. Marine Corp.
v. NLRB, 944 F.2d 1305 (7th Cir. 1991)
(en banc). This Board-friendly standard
of review does not mean, however, that we
roll over and play dead. We must "examine
all of the evidence in context to ensure
that the Board’s findings fairly and
accurately represent the picture painted
by the record." NLRB v. Harvstone Mfg.
Corp., 785 F.2d 570, 575 (7th Cir. 1986).

  The incident involving Krueger and
Williams involves an alleged unlawful
interrogation. In evaluating whether an
interrogation is coercive we look to the
factual context in which the questioning
occurred. Multi-Ad Servs. In NLRB v. Acme
Die Casting Corp., 728 F.2d 959, 962 (7th
Cir. 1984), we set out a number of
pertinent inquiries about the
interrogation:

[T]he tone, duration, and purpose of the
questioning, whether it is repeated, how
many workers are involved, the setting,
the interrogator’s authority, the
ambience of the questioning (has the
company created an atmosphere of
hostility to the union?), and, more
doubtfully, whether the worker answers
truthfully.

Krueger made a statement that she
understood Williams had been at the union
meeting; apparently, unintimidated by the
statement, Williams pointed out that she
had a right to be there. Krueger did not
pursue the topic, nor did she object to
Williams’ view that she had a right to be
at the meeting. The conversation was
extremely short. Krueger did not seek
Williams out to talk to her; they met by
accident on that occasion and Williams
initiated the dialog. Of further, and
major, significance is the fact that the
two women had a longstanding friendship.
Neither this, nor, for that matter, the
relationship between Prock and Smith, was
a purely business-like, hierarchical
relationship between a boss and an
employee. Krueger, in fact, was a low-
level supervisor. It is hard to find
anything resembling coercion in this
encounter. What occurred, we think, is a
far cry from what one would ordinarily
conclude is "coercive interrogation."
Thus, we conclude that there is no
substantial evidence to support an unfair
labor practice finding on this point.

  The Board found that Prock’s statements
to Smith constituted a threat of job loss
if the union were certified. While the
ALJ discussed the subsequent statements
to Vineyard, it was Prock’s statement to
Smith that they could all be looking for
jobs if the union came in which
constituted the unfair labor charge
before the ALJ and the Board, as both
correctly recognized.

  It is well-established that a threat of
a plant closing is a per se violation of
Section 8(a)(1). Multi-Ad Servs. The
reach of that section is limited by
Section 8(c), 29 U.S.C. sec. 158(c),
which provides that an employer’s
expressions of "any views, argument, or
opinion . . . shall not constitute or be
evidence of an unfair labor practice . .
. if such expression contains no threat
of reprisal or force or promise of
benefit." A statement must be evaluated
in the context in which it was made. NLRB
v. Gissel Packing Co., 395 U.S. 575
(1969); NLRB v. Champion Labs., Inc., 99
F.3d 223 (7th Cir. 1996).

  Looking at Prock’s statement in context
leads us to conclude that the record
lacks substantial evidence to support a
finding of an unfair labor practice. The
statement, made in a casual conversation
on the factory floor, is not clearly a
threat of job loss; it is an expression
of a personal opinion. Prock qualified
her statement as her opinion and,
further, said her view was "off the
record." And who was she? Like Krueger,
she was a low-level supervisor, who had
only recently been made a supervisor. She
continued to socialize with the employees
who had been her friends before she
became a supervisor. She did not suggest
that she was speaking on behalf of higher
level management. Her remark was her
view, perhaps her personal fear, of job
loss if the union were certified. Prock
was herself hardly in a position to
threaten job loss. The record is full of
speculation regarding the effects of the
statement, but speculation is not
evidence. We find no substantial evidence
supporting this finding of the Board.

  Finally, the Lee episode. The Board
found that Clinton’s actions violated, as
relevant here, Section 8(a)(3) and (1) of
the Act, which makes it an unfair labor
practice for an employer to discourage
membership in a labor organization. An
employer violates these sections by
taking adverse action against an employee
for engaging in union activity. NLRB v.
Joy Recovery Tech. Corp., 134 F.3d 1307
(7th Cir. 1998). Whether an employer’s
adverse action violated the Act usually
depends on the employer’s motive. If
substantial evidence supports the Board’s
finding that anti-union considerations
were a "motivating factor" in an adverse
action taken against an employee, the
decision of the Board must be affirmed
unless the record supports a conclusion
that the employer would have taken
adverse action even in the absence of
union activity. If the Board finds that
the reason given by the employer either
did not exist or that the employer did
not rely on that reason, the inquiry is
over. Jet Star, Inc. The Board’s decision
as to Lee is, we think, supported by
substantial evidence.

  There is substantial evidence to show
that the written warning to Lee was
motivated by union animus. To establish
anti-union animus the Board must
establish that the employee was engaged
in union activities, that the employer
knew of the activities, that the employer
harbored animus toward union activities,
and that there was a causal connection
between the animus and the decision to
discipline. Multi-Ad Servs. Here, the
warning was issued in the midst of the
union-organizing campaign. The evidence
shows that Clinton became aware of Lee’s
union activities. The evidence also shows
that even though a supervisor and a
manager observed Lee’s conversation with
Walsh inside the factory, the company
took no action until it later learned,
when Walsh complained about Lee’s
solicitation, that the conversation was
related to union activity. The company
disciplined Lee immediately after
learning that he was soliciting for the
union. The company also issued the
warning without conducting an independent
investigation into Walsh’s allegations.
After Lee received the warning, the
company refused to listen to his denials.

  In addition, the Board reasonably found
that the company’s proffered reason for
disciplining Lee--that he violated the
no-solicitation policy by the
conversation with Walsh on the factory
floor--was pretextual. The ALJ noted that
Lee could not be disciplined for
solicitation at Walsh’s home or in the
parking lot as both actions are protected
by the NLRA. See Republic Aviation v.
NLRB, 324 U.S. 793 (1945). The only thing
the company could discipline him for was
the conversation. But the company did not
show it would have disciplined Lee for
that conversation in the absence of his
protected activity. First of all, we
again note that a manager and a
supervisor saw that the conversation was
going on but did not object to it. It was
only after Walsh complained about Lee’s
union activity that anything was done.
The fact that the conversation passed
without incident until Walsh complained
supports the finding that the company’s
claim that the conversation (without
regard to its content) was the reason for
the discipline is simply not true. The
fact that the company departed from its
prior practice in administering Lee’s
discipline adds further support to the
Board’s finding.

  Finally, the company violated Section
8(a)(1) of the Act by interfering with
the right to self-organization by
itsdiscriminatory enforcement of the no-
solicitation rule. Rights protected under
the NLRA include the right of individual
employees to solicit on behalf of a
union-organizing campaign. However, with
respect to solicitation, an employer has
a legitimate interest in maintaining
discipline and production. For that
reason it may, in fact, limit
solicitation generally during work time.
Republic Aviation. However,
discriminatory enforcement of a valid no-
solicitation rule violates the Act. That
is what happened here. This kind of
disparate enforcement of an otherwise
valid no-solicitation rule violates
Section 8(a)(1). Midwest Stock Exchange,
Inc. v. NLRB, 635 F.2d 1255 (7th Cir.
1980).

  On the basis of violations found in the
Lee incident, the Board’s request for
enforcement of its order is GRANTED. As to
the other two incidents, enforcement is
DENIED. No costs are awarded.




  MANION, Circuit Judge, concurring in part
and dissenting in part. I fully agree
with the court that the Board’s unfair
labor practice findings against Clinton
with respect to the "Smith/Prock" and
"Krueger/Williams" incidents are not
supported by substantial evidence. I
depart, however, from the court’s
conclusion that substantial evidence
supports the Board’s finding that Clinton
violated sec.sec. 8(a)(3) and (1) of the
Act when it reprimanded Daniel Lee for
soliciting co-worker Leonard Walsh in a
harassing manner, about joining the
union, during the company’s business
hours.

  Lee began working in Clinton’s
maintenance department in 1977. On
February 5, 1996, during regular work
hours, Lee left the maintenance
department and went to the yoke pinning
department where he engaged in a
conversation with Walsh about joining the
union. Walsh complained to his
supervisor, Emma Hall, that Lee was
harassing him about joining the union.
Walsh informed Hall that Lee had
solicited him for union membership on
numerous occasions outside of work, and
was now bothering him during the workday,
even though he had clearly expressed to
Lee that he was not interested in joining
the union. Clinton responded to Walsh’s
complaint by issuing Lee the following
warning: "[c]omplaints have been brought
to our attention that you violated the
solicitation policy on page 27-policy 2
of the company handbook. Any other
violation of company policy will result
in further disciplinary action."

  As the court acknowledges, Lee asked
Walsh to join the union on several
occasions. See ante at 3. Although it is
true that many of the solicitations,
while no doubt intrusive on Walsh’s
personal privacy (e.g., bothering him at
home), constitute protected activity
under the NLRA, see Republic Aviation v.
N.L.R.B., 324 U.S. 793, 803 n.10 (1945),
Lee’s solicitation of Walsh at his work
area during regular business hours is
not. See Nat’l By-Products, Inc. v.
N.L.R.B., 931 F.2d 445, 452 (7th Cir.
1991) (holding "’[a]n employer may have
and enforce a rule prohibiting
solicitation by union and other employees
in working areas during working hours.’")
(citation omitted). There is also no
dispute about the validity of Clinton’s
no-solicitation rule. Therefore, the only
questions before us are whether
substantial evidence supports the Board’s
findings that: (1) Clinton was motivated
by anti-union animus when it issued the
warning to Lee, and (2) Clinton enforced
its no-solicitation rule in a manner
violative of the NLRA.

  The court contends there is substantial
evidence to show that the written warning
to Lee was motivated by union animus. See
ante at 8. First, the court notes "the
warning was issued in the midst of the
union organizing campaign," and that
Clinton was aware of Lee’s union
activities. Id. Second, the court relies
heavily on the fact that Clinton took no
action against Lee until after Walsh
filed a complaint, even though a
supervisor and manager witnessed Lee
speaking with Walsh at his work area in
the yoke pinning department. Id. Third,
the court notes that Clinton "issued the
warning [to Lee] without conducting an
independent investigation into Walsh’s
allegations," and "refused to listen to
his denials." Id. Finally, the court con
tends that Clinton departed from prior
practice in issuing Lee a warning for
violation of the no-solicitation rule.
Id. at 9.

  While it is uncontested that Clinton
issued the warning to Lee during a union
organizing campaign, and that the company
was aware of Lee’s pro-union sentiments,
the remainder of the court’s conclusions
are not supported by the evidentiary
record. As an initial matter, there
should be no inference of anti-union
animus simply from the fact that a
manager and supervisor allowed two
employees to briefly engage in a
conversation during the workday. As the
court notes, at the time of this
conversation Clinton was aware of Lee’s
union activity. Yet, at the same time,
neither the supervisor nor the manager
who witnessed the conversation was aware
that Lee was soliciting Walsh for union
membership (or for that matter anything
else), or that Walsh considered Lee’s
solicitation of him as harassment.
Additionally, Clinton issued the warning
based on Walsh’s subsequent complaint.
Walsh was tired of being repeatedly
harassed by Lee about joining the union.
He told Lee that he did not want to join
the union, but Lee persisted in
interrogating him about the matter. While
Walsh could not stop Lee from bothering
him outside of work, he knew that Lee was
not permitted to bother him during work.
Once this occurred, Walsh filed a
complaint against Lee, and Clinton
responded to the complaint by issuing the
warning.

  Furthermore, Lee’s warning from Clinton
was minimal. Clinton neither fired nor
suspended him. Lee was given the
opportunity to respond to the charges
filed against him on the notice form.
Instead of addressing the charges,
however, Lee responded: "I feel I have
been set up with this fictitious warning.
They know I am involved with the USSW
[i.e., the union]." This response shows
that Lee was fully aware that the warning
concerned his solicitation of employees
for union membership. Nevertheless, he
did not request that the company clarify
the nature of the complaint filed against
him, or that the matter be looked into
any further. He simply denounced the
complaint as being "fictitious." Given
the inadequacy of this response, as well
as the minimal nature of discipline
involved, it was improper for the Board
to infer anti-union animus from the
manner in which Clinton addressed Walsh’s
complaint. We have held that an employer
"should be free to prohibit solicitations
on the premises that interfere with or
bother employees or customers . . . ." 6
West Ltd. Corp. v. N.L.R.B., 237 F.3d
767, 780 (7th Cir. 2001). The Board’s
decision to discredit Clinton’s
nondiscriminatory reason for issuing the
warning was unjustified, and amounts to
the Board substituting its own business
judgment for that of the employer. See,
e.g., N.L.R.B. v. Louis A. Weiss Mem’l
Hosp., 172 F.3d 432, 446 (7th Cir. 1999)
(holding that "’[a]n employer not
motivated by anti-union animus may freely
exercise its business judgment . . . and
the board should not substitute its
judgment for the employer’s.’") (citation
omitted). It is worth noting that the
ALJ’s own findings of fact demonstrate
that Clinton had a legitimate reason for
issuing the warning notice to Lee:

[Lee’s] explanation for even being in the
yoke pinning department on February 5 is
contradicted by the undisputed evidence
about the work, which had been assigned
to him at that time. His description of
the work which he purportedly had been
performing there, greasing a conveyor, is
contradicted by the uncontestedevidence
that conveyor greasing could not be
accomplished while that department was
operating, nor could it be accomplished
in so short a period and in the manner
which Lee described it.

Lee’s blatant misrepresentation is
consistent with his "fictitious warning"
response to Clinton’s reprimand.

  The ALJ’s finding that "solicitations--
for sports and other pools, for school
related events such as Market Days and
for Girl and Boy Scout sales--occurred
with significant regularity at
[Clinton’s] facility," and that "some
employees had participated in such
activities during work time and, in fact,
that supervisory personnel had
participated in such activities on
occasions when employees were involved
were supposed to be working," does not
support a conclusion that the company’s
issuance of the warning was fueled by
anti-union animus or that its no-
solicitation policy was enforced in a
manner violative of the NLRA. "Whenever
the Board cites anti-union discrimination
as the basis of its orders, we have
required it to establish that the cases
among which the employer has
distinguished are indeed ’similar’ in all
respects relevant to labor policy, and we
have refused to enforce the Board’s
orders when it falls short." Guardian
Indus. Corp. v. N.L.R.B., 49 F.3d 317,
321 (7th Cir. 1995). This incident falls
short of that standard. We have held that
"[a]n employer may not discriminate in
violation of section 8(a)(1) by denying
’union access to its premises while
allowing similar distribution or
solicitation by non-employee entities
other than the union.’" 6 West Ltd.
Corp., 237 F.3d at 779 (emphasis added)
(citation omitted). There is nothing in
the record to support a finding that
Lee’s solicitation of Walsh is similar to
other solicitations involving sports
pools or Girl Scout cookies. First, there
is no evidence of other incidents where
employees complained of being solicited
in a harassing manner, or that, upon
being notified of such conduct, Clinton
failed to address an employee’s
complaint. Second, we have held that
solicitations for sports pools (i.e., the
NCAA tournament), Girl Scout cookies, and
other community or personal projects are
not similar to unwanted union (or anti-
union) solicitations. Id. at 780
("[S]olicitations for Girl Scout cookies,
Christmas ornaments, hand-painted
bottles, and the other examples listed by
the ALJ certainly cannot, under any
circumstances, be compared to union
solicitation as support for the ALJ’s
determination that the [employer] engaged
in a discriminatory application of its
non-solicitation policy.").

  In sum, I completely agree with the
court’s conclusion that the Board’s
findings of unfair labor practice for the
"Krueger/Williams" exchange and the
"Smith/Prock" encounter are not supported
by substantial evidence. While I
acknowledge that the "Lee/Walsh" incident
presents a closer question, Lee’s
solicitation on behalf of the union is
not similar to the examples of community
service or personal solicitations
enumerated by the ALJ. Because
substantial evidence does not exist to
support the Board’s findings that
Clinton’s decision to issue the warning
to Lee was motivated by anti-union
animus, or that the company enforced its
no-solicitation policy in a manner
violative of the NLRA, I would deny the
Board’s request for enforcement of its
order with respect to the Lee/Walsh
incident as well.
