01-2528 NLRB v. Clinton Electronics Corp.

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“[T]he 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 its discriminatory 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).”

Order enforced in part, and denied in part.

On Petition for Enforcement of an Order of the National Labor Relations Board, Evans, J.