UC Hastings Inter-Journal Writing Competition 2015
Inter-Journal
Writing Competition
for Journal Membership
including
competition rules and information on
all nine of Hastings’ official law journals
START: May 9, 2015
DEADLINE: May 20, 2015
emailed by 5 p.m. PST
INTRODUCTION: Thank you for participating in the Inter-Journal Writing Competition. Each year, journal editors
use this Competition to evaluate first-year candidates for journal membership during their second year of law school.
The Competition is designed to assess these main skills:
(1) legal reasoning and analysis;
(2) writing ability and style;
(3) proper citation format.
Each journal weighs these factors to varying levels in evaluating Competition entries. In addition, each journal may
consider other criteria, such as grades or a personal statement.
For more information on Hastings’s journals, see pages 5 through 11 of this packet or visit the Scholarly Publications
website at http://www.uchastings.edu/academics/journals/index.html.
Although you have twelve (12) days to complete your Competition entry, we estimate that it should take only four or
five days to complete. However, please be aware that the issues presented are taken from areas of substantive law
that are not included in the first-year curriculum. Please allow adequate time to familiarize yourself with these
materials.
Please read all of the instructions and rules before beginning.
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UC Hastings Inter-Journal Writing Competition 2015
Table of Contents
Introduction .......................................................................................................................................................1
Instructions — Read Very Carefully! ................................................................................................................3
Writing Competition Rules ................................................................................................................................3-4
Honor Code Memorandum ................................................................................................................................5
Grades Release Form — Instructions ................................................................................................................5
Scholarly Publications Grade Release Form .....................................................................................................6
More information about the journals .................................................................................................................7
Hastings Business Law Journal ..........................................................................................................7
Hastings Communications and Entertainment Law Journal ...............................................................7
Hastings Constitutional Law Quarterly ..............................................................................................8
Hastings International and Comparative Law Review ........................................................................9
Hastings Law Journal .........................................................................................................................9
Hastings Law Journal Special Admissions Cover Sheet ....................................................................10
Hastings Race and Poverty Law Journal ............................................................................................11
Hastings Science and Technology Law Journal ..................................................................................12
Hastings West-Northwest Journal of Environmental Law & Policy ...................................................13
Hastings Women’s Law Journal ..........................................................................................................14
TECH EDIT INSTRUCTIONS .........................................................................................................................15
Writing Assignment THE FACTS.....................................................................................................................20
Research Materials ............................................................................................................................................20
National Labor Relations Act ..........................................................................................21
2006 Duke L. & Tech Rev. 17. .........................................................................................21
100 S. Ct. 856 ....................................................................................................................................27
98 S. Ct. 2505 ...............................................................................................................30
TIMEKEEPING SYSTEMS INC. ...........................................................................................32
HOLLING PRESS INC. .....................................................................................................34
538 F. 2d 607 ................................................................................................................39
ATLANTIC STEEL ..........................................................................................................41
PATTERSON-SARGENT ....................................................................................................43
74 S. Ct. 172 .................................................................................................................45
330 F. 2d 683 ................................................................................................................49
ROADWAY PACKAGE SYSTEM INC. ...................................................................................51
OAKWOOD CARE CENTER ..............................................................................................56
For any questions or concerns regarding the Inter-Journal Writing Competition procedures or rules, email to
scholarp@ uchastings.edu.
Please do not consult anyone else or solicit their assistance, student or not, about any aspect of the completion and
delivery of IJWC entries.
You received an Inter-Journal Writing Competition Number in your uchastings.edu email. You must identify
yourself only by your Competition Number on all your entries in the Inter-Journal Writing Competition. To fail to do
so is to risk disqualification.
If you do not have your Competition Number, from your hastings.edu account email your name and student ID
number to scholarp@uchastings.edu.
The journals are expected to begin extending invitations about the first of July 2015. The results of the InterJournal Writing Competition will be posted at http://www.uchastings.edu/academics/journals/ index.html and will be
emailed to all rising 2Ls.
Please respond to all the offers you receive, yes or no, by August 20, 2015, 5 p.m. Join one journal only.
All rules will be enforced, and any violation may result in disqualification.
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UC Hastings Inter-Journal Writing Competition 2015
Instructions — Read Very Carefully!
These instructions will guide you step-by-step through the Competition process.
Step 1. Read the enclosed “Writing Competition Rules” very carefully. The Competition Rules will be strictly
enforced, and any deviation from the Rules may result in disqualification.
Step 2. Read all the materials in this packet, and then complete The Assignment in compliance with The Rules.
Step 3. Prepare and submit your entries. Identify yourself by Competition Number only. DO NOT INCLUDE YOUR
NAME ON COMPETITION ENTRIES.
Using only your uchastings.edu email account, email entries to ijwc@uchastings.edu.
Complete your Memorandum and Editing Assignment in MS Word, then COPY AND PASTE INTO THE BODY
OF A SINGLE EMAIL the Memorandum, Editing Assignment, and any Personal Statement etc. required by the
journal; then, using your uchastings.edu email account, send one email per journal entry to ijwc@uchastings.edu
with one of the following appropriate SUBJECT LINES:
HBLJ Submission COMP # XXX
CMT Submission COMP # XXX
CLQ Submission COMP # XXX
HICLR Submission COMP # XXX
HLJ Submission COMP # XXX
HRPLJ Submission COMP # XXX
HSTLJ Submission COMP # XXX
WNW Submission COMP # XXX
WLJ Submission COMP # XXX
Note: Replace the Xs with your Competition Number.
If a Personal Statement is required by the particular journal, put it and your Memorandum into the body of a single
Word document and copy and paste it into the email. One email per journal.
Using your uchastings.edu email account, send all emails to ijwc@uchastings.edu; no gmail, no hotmail, etc.
Step 4. Mail Signed Grade Release Form
This form authorizes the Records Office to distribute your first-year grades to the editors of journals that examine
grades as part of their evaluation of entries. You need only submit one copy of this form, and must mail it to:
O’Brien Center for Scholarly Publications
UC Hastings College of the Law
200 McAllister St.
San Francisco, CA 94102-4978
REIMNDER: Use your uchastings.edu email account to email entries to ijwc@uchastings.edu.
Writing Competition Rules
Rule 1. Follow thru les to complete Tech Edit Portion of the competition. Then write an objective memorandum of
law addressing the issues raised by The Facts and The Assignment. Do not discuss any other issues. Explore The
Assignment objectively; however, you must also resolve each issue definitively, to the extent possible under the facts
of this case. Consider the reader of your memo to be very familiar with The Facts, so do not include a separate
statement of facts in your memo.
Rule 2. Use only the materials provided in this packet and your Bluebook. While you are not required to use all of the
enclosed sources in your Memorandum, you are not permitted to rely on any outside sources.
• Do Not look up any of the cases on Lexis, Westlaw, or any other online or hardcopy database.
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UC Hastings Inter-Journal Writing Competition 2015
• Do Not work with anyone else, student or not, on the composition, proofreading, or completion of The Assignment,
or the emailing of your entries.
• Do Not reveal to anyone, student or not, your Competition Number.
• Do Not reveal in your Personal Statement or any other materials your participation on or affinity with any UC
Hastings student organization.
• Do Not reveal in your Personal Statement or any other materials your participation on or affinity with any personal
or scholastic activity or information that may identify you.
• Do Not contact the journals directly. If you have questions or concerns, email only scholarp@uchastings.edu.
You may NOT cite or otherwise make reference to any sources not contained in this packet. If a source in this packet
(a “primary source”) makes reference to another source (a “secondary source”), you may not make direct reference to
the secondary source unless the secondary source is also contained in this packet. You may make reference to the
primary source and parenthetically indicate the secondary source, provided you are in full compliance with Bluebook.
You may NOT use, adopt, or rely on the reasoning, conclusion, or mode of analysis of any source not contained in
this packet. This includes, but is not limited to, any knowledge you may have of this area of law. You are to rely only
on the materials provided for your reasoning and analysis. You must read all of the enclosed materials even if they
seem familiar to you, or you are familiar with one of the issues involved. The materials have been specifically
modified for the purposes of this Competition, and may or may not reflect the actual state of the law. Do not assume
a case stands for a certain proposition just because it appears similar to another case you have encountered. Do not
make presumptions about The Facts or holding of a case. Assume the cases are presented in their entirety and were
decided in the jurisdiction indicated.
You may only rely on the facts provided to you in this packet. Do NOT assume any facts not given to you. If you
believe there is an ambiguity in The Facts which would affect your conclusion, discuss how your conclusion depends
on the ambiguity. Do not, however, resolve the ambiguity by fabricating additional facts.
Rule 3. Formatting of the Writing Assignment.
Ten (10) pages or 2,400 words maximum. There is no minimum number of pages or words.
No footnotes or endnotes.
Courier or Courier New, 12 point, regular — or similar font, like Times New Roman. This includes, but is not limited
to, headings, body text, and page numbers. Only underlining is permitted. No bold, no italics, no small caps, etc.
8½ x 11 inch (standard letter size) pages for your document file.
One (1) inch margins on all sides (left, right, top, and bottom).
Left justification (a ragged right alignment).
Double-spaced text. Headings and footers, if used, may be single spaced.
Your Competition Number, at the top of the first page of your memorandum and nowhere else.
Rule 4. Citations. All citations must be formatted according to Bluebook. (Bluebook is the only permissible outside
source within Rule 2.) Do not use any other source for citation format, including any citation references that may be
contained in these materials. Do not rely on the citations as they appear in the sources (or even within cases) for
accuracy. The citation formats in this packet were intentionally altered to test your citation skills.
Rule 5. Honor Code. You are not permitted to communicate with any other person, student or nonstudent, (with the
exception of Tom McCarthy of Scholarly Publications) about any aspect of the Competition, the completion of the
assignment, or the delivery of the entries, until midnight on May 20, 2015 -- including, but is not limited to, substance,
organization, style, or form of The Assignment or Tech Edit answers. Your entry must be entirely your own work
product. No other person may review or revise your Memorandum. Violation of this rule will be considered to be as
serious as cheating on an examination and will subject a student to disciplinary action by the College. Revealing your
Competition Number to any person, student or not, will be treated likewise. Please see the memorandum from the
Associate Academic Dean for more information, on page 3.
Rule 6. In order to participate on a law journal, the Academic Regulations require that 2Ls have a minimum GPA of
2.20. Moot Court or LW&R are prerequisites.
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UC Hastings Inter-Journal Writing Competition 2015
Honor Code MEMORANDUM
from Associate Academic Dean Heather Field
Date: May 1, 2015
To: Participants in Inter-Journal Writing Competition
From: Heather Field, Associate Academic Dean
Re: Honor Code for Inter-Journal Writing Competition
This memo is intended to inform you of the policy of the College concerning the consequences of violating the rules
of the Inter-Journal Writing Competition (Competition).
The nine journals explicitly prohibit any participant in the Competition from talking with any other person about any
aspect of the writing problem or the participant’s entry. By entering the Competition, each student agrees to work
individually and to submit a product that reflects only that student’s efforts.
Violation of this rule will be considered to be as serious as cheating on an examination and will subject a student to
disciplinary action pursuant to the Student Conduct and Discipline Regulations. 1 Depending on the circumstances,
various penalties may be imposed on any student found cheating. Expulsion and suspension are the most serious
sanctions.2
Alternatively, a letter of reprimand may be placed in the student’s file summarizing the problem and findings. 3 This
letter may be transmitted to the Committee of Bar Examiners for its review when it evaluates the character and fitness
of an applicant for the Bar.
For more information, please consult the U.C. Hastings Academic Regulations: Student Conduct and Discipline
sections 50.00-53.00.
1. See U.C. Hastings College of the Law, Academic Regulations (2010-2011): Student Conduct Code § 50.00 (2010), available
at http://www.uchastings.edu/about/admin-offices/academic-dean/docs/AcademicRegulations2010-2011.pdf.
2. Id. at § 52.00.
3. Id.
Grade Release Form — Instructions
Immediately following this page is a Grade Release Form, which is designed to obtain the following information: (1)
a summer address for all Writing Competition participants; and (2) a release that will permit the Records Office to
distribute your first-year grades and section rank to the editors in chief of journals that use grades as part of the
evaluation of entries. You need to send only one copy of this form. The Grade Release Form must be mailed to:
O’Brien Center for Scholarly Publications
UC Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102-4978
All participants must complete the top half of the Grade Release Form (fill in your Competition Number and name
and summer address). If you wish to release your grades to the journals that use grades as a membership criteria, you
must complete and sign the bottom portion as well. Note that if you do not complete the bottom half of the form
(the grade release), you will not be considered for a position on a journal based solely, or in part, on your grades.
Those applicants who wish to be considered only through the Writing Competition need not sign the bottom portion,
but must still submit the form with their address.
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UC Hastings Inter-Journal Writing Competition 2015
Scholarly Publications Grade Release Form
This form must be completed and mailed to:
O’Brien Center for Scholarly Publications
UC Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102-4978.
All Writing Competition entrants must complete the following:
Writing Competition # _____________________________
Name (Please print): _______________________________________________________
Last
First
Middle Initial
Address: ________________________________________________________________
Number and street
City
ZIP
Grade Release Form
All Writing Competition entrants who wish to apply to the Hastings journals that review grades as part of their
membership selection criteria must complete this section.
Please read the follo wing information before signing this form:
I, (print)______________________________________________, hereby give permission to the
Hastings Records Office to release my class and section rank to the Editors in Chief of
COMM/ENT, HICLR, HLJ, HWLJ, and STLJ, and any othe r UC Hastings law journals that
consider grades as part of their criteria for membership.
I understand that this release applies only to the participant selection process of the above
mentioned Scholarly Publications.
Signature and Date:
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________________________________________________________________
UC Hastings Inter-Journal Writing Competition 2015
Hastings Business Law Journal
General Statement
Hastings Business Law Journal (“HBLJ”) is one of the fastest growing journals at U.C. Hastings and in the country.
HBLJ’s growth within the ten years of its existence reflects our commitment to publishing content addressing
contemporary, cutting-edge business law issues. As a result, HBLJ is ranked within the top ten commercial law
journals in the country and ahead of business law journals at N.Y.U., Northwestern, and Georgetown. Numerous state
and federal court decisions have cited our articles, including the California, Delaware and Texas state supreme courts
and the U.S. Supreme Court. Our articles have also been cited in more than 350 other academic articles. In addition,
some of HBLJ’s past symposiums have featured prominent law professors, SEC officials, and general counsels from
companies such as Apple and Google. Finally, our current alumni base includes partners at several of the American
Lawyer Top 100 firms and in-house counsel at Facebook, Cisco, and various tech startups.
Member Selection Process
To be considered for a position on HBLJ, please submit the Inter-Journal Writing Competition (“IJWC”) materials
and a brief personal statement. We will evaluate your application based on your IJWC submission, your grades, and
the information you provide in your personal statement. Personal statements provide us with insight into your
experience and personality. While your personal statement does not need to contain obvious “business experience,” it
must explain your interest in HBLJ and in business law. The personal statement may not exceed 350 words. Remember
to use your competition number, not your name, in all submissions to HBLJ.
DUTIES OF NEW MEMBERS
2L journal members are critical to HBLJ’s success. While your primary responsibilities will be reviewing sources and
editing, 2L members will be involved with various HBLJ-related functions, including planning symposiums, assisting
senior editors on special projects, assisting in article selections, planning alumni events, and maintaining office hours.
Each 2L will also write a “Note” on a current business law topic of their choosing. We will publish the best student
notes in HBLJ.
Hastings Business Law Journal wishes you the best of luck in the Inter-Journal Writing Competition!
Hastings Communications & Entertainment Law Journal
SUMMARY OF MEMBER SELECTION PROCESS
Second-year members are chosen through a weighing of performance in the Writing Competition and grades. DO
NOT use your name.
JOURNAL’S GENERAL STATEMENT
Comm/Ent is the nation’s premier law journal dedicated to the scholarly publication of literature addressing the
intellectual property, sports, communications, and entertainment industries. Comm/Ent has an outstanding reputation
among practitioners and academics. We are consistently ranked among the top five journals in the nation within our
focus area. The significant growth in these industries had a decisive impact on society. Comm/Ent explores the
important legal questions associated with this burst of activity, and it has effectively done so since the journal’s
inception in 1976.
Comm/Ent’s articles encompass a vast array of legal issues, which are at the forefront of issues relating to radio and
television broadcasting, film, sports, labor, cable television, music recordings, copyrights, trademarks, patents, the
First Amendment, satellite communications, computer technology, the Internet, advertising, telecommunications, and
commercial speech, just to name a few.
These areas of law are in a constant state of flux, which makes Comm/Ent essential to scholars, practitioners, and
academics as they seek to keep apprised of current views within their fields of interest.
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UC Hastings Inter-Journal Writing Competition 2015
Comm/Ent takes tremendous pride in producing annual symposia. Our symposia consistently attract the leading
practitioners and litigators in the fields of computer, communications, and entertainment law, providing members with
a fantastic opportunity to network. Comm/Ent’s former Editor in Chief, Rachelle Chong, served as a commissioner
for the Federal Communications Commission.
Conveniently, the symposium affords a unique opportunity for Comm/Ent members to meet and speak with these
individuals in a professional setting. As a Comm/Ent member, you are essential to the success of the journal.
Members’ responsibilities include: examining articles and student notes to ensure proper citations, making substantive
and technical edits to pieces in preparation for publication, helping to plan the annual symposium, and generally
assisting the senior editors at their request on various projects. Additionally, each member writes a “Note” on a cuttingedge issue on the law within the scope of the journal, and the best of these will be published in Comm/Ent.
Comm/Ent produces a high quality product while maintaining a relaxed and flexible atmosphere for members.
Comm/Ent is dedicated to making the second-year membership experience a useful, rewarding, and “entertaining”
one. Comm/Ent has developed a strong on-line presence that benefits all members, while providing the legal
community with a new, useful service. Comm/Ent strongly encourages each member to contribute ideas and time, and
to focus on the needs of the journal.
Comm/Ent brings members into contact with leading corporate communications, entertainment, sports, intellectual
property, practitioners. Comm/Ent strives to connect students with practitioners in fields related to the First
Amendment, film, radio, cable television, satellite communications, commercial speech, the print media,
telecommunications, musical recordings, defamation, and obscenity.
The Comm/Ent Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.
Hastings Constitutional Law Quarterly
SUMMARY OF MEMBER SELECTION PROCESS
Hastings Constitutional Law Quarterly selects its second-year staff editors based solely on their Inter-Journal Writing
Competition submissions. CLQ seeks strong legal writers who demonstrate clear, concise prose as well as outstanding
legal reasoning and technical competence. Entries are evaluated holistically, but particularly close attention is paid to
proper use of citation and legal authority, rhetorical style, analysis, structure, and clarity. Entries will be scored and
ranked according to these criteria. The CLQ will extend invitations to those who rank best.
We at the CLQ congratulate you on the completion of your first year and look forward to reading your submission.
JOURNAL’S GENERAL STATEMENT
Hastings Constitutional Law Quarterly is the country’s oldest scholarly publication devoted exclusively to
constitutional law. CLQ publishes four times a year, with the primary goal to publish innovative articles exploring
issues arising under federal, state, and foreign constitutions. Recent articles have covered such diverse topics as the
free speech implications of sexting, writs of Habeas Corpus, warrantless wiretapping, and the California Initiative
process.
Second-year members will participate in different phases of the editing and production process, symposium
organization, and a broad range of social events.
Each 2L will write a student note of publishable quality addressing a specific issue in constitutional law. The writing
process provides members the opportunity to research a topic of particular interest to them and refine their writing
skills under the supervision of a third-year Notes Editor. CLQ publishes several student notes in each issue.
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UC Hastings Inter-Journal Writing Competition 2015
Hastings International and Comparative Law Review
Personal Statement
Because Hastings International and Comparative Law Review (HICLR) has a particular focus, we seek candidates
with an inter-national interest or background. While international experience is not required, we do consider whether
a candidate has an interest in international issues and concerns. You may choose to submit a personal statement
describing those experiences that are relevant to your international interests and/or what you hope to contribute to
HICLR. Please write a minimum of 1 double spaced page, and submit your personal statement with your Writing
Competition Number only.
Selection Process
HICLR selects new members based on: (1) performance in the writing competition, (2) first year grades (including
LW&R), and (3) the personal statement.
Journal’s General Statement
Founded in 1976, HICLR is one of the few law reviews devoted exclusively to the discussion of contemporary original
ideas pertaining to international and comparative law.
International law transcends national boundaries and governs relations among public and private international actors.
Comparative law is the comparison of legal systems. These fields include: international trade and business
transactions; international litigation; politics; treaties; international institutions such as the UN and WTO; intellectual
property; immigration; human rights; environment; criminal law and procedure; tax policies; and labor relations.
HICLR staff members will receive significant training and gain experience in all areas of the journal — selecting and
editing articles, essays, and notes for publication; technical production and work with the authors and publishers; and
planning and execution of the prestigious Schlesinger Lecture, which aired on CSPAN in recent years. Regular
networking with HICLR alumni and international scholars and practitioners will also be available.
HICLR seeks members who will bring unique perspectives based upon experiences abroad or strong interests in
international issues. HICLR members will learn from the editors and from one another throughout the year. In addition
to publishing a high quality law review, and all the hard work and creativity attendant thereto, members will have fun
and make career connections. With social and networking events throughout the year, being a HICLR member will
mean a well-rounded journal experience that includes training, teambuilding, and professional development.
Members will also write a note of publishable quality on an inter-national or comparative law topic, under the guidance
of 3L men-tors. One advantage to writing a note in comparative law is that it can concern any substantive field of law.
The journal is committed to working with every member to produce excellent, relevant, publishable articles; HICLR
publishes as many eligible member notes as possible, giving HICLR staff the highest probability of publication and
additional units. This is an excellent opportunity to hone one’s writing skills and publish work in an internationally
circulated and cited journal.
In addition, HICLR member unit(s) will count toward fulfillment of the International Concentration requirement.
The HICLR Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.
Hastings Law Journal
Selection Process To be eligible to join HLJ, students must submit a writing competition application.
Invitations will be extended according to the following allocations:
1) The top five students from each section are invited to join on the basis of their GPA.*
2) Twenty students are invited on the basis of their writing competition scores.
3) Sixteen students are invited on the basis of a composite of their writing competition scores and their GPA.
4) Students may be invited through the Intellectual Diversity Program, described below.
*Please note that a student invited based on GPA must still submit a writing competition application.
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UC Hastings Inter-Journal Writing Competition 2015
Journal’s Statement
Since 1949, HLJ has published scholarly articles, essays, and student Notes on a broad range of legal topics. With
close to ninety members, HLJ publishes six issues each year, reaching a large domestic and international audience.
One issue will be dedicated to papers on “Advancing Equal Access to Justice” in conjunction with a Fall Symposium
addressing inequalities and reforms to accessing legal services in the American civil justice system. HLJ will also host
a Spring Symposium examining the Status of Antidiscrimination Law in the United States.
Second-year members may contribute to the Journal in a variety of areas, including article, Note, and SCOCAblog
editing, technical production of pieces ready for publication, and Symposia preparation and execution. Members also
have the opportunity to participate in a variety of HLJ’s social functions, networking events, and campus engagements
in order to develop a sense of community with their fellow classmates and meaningful relationships with the HLJ
third-year staff.
One of the most challenging and satisfying aspects of second-year membership is the opportunity to research, write,
and publish a student Note: a piece of legal scholarship similar to law review articles authored by professors. Each
second-year member investigates an area of interest in the law; selects a topic on a developing issue in that area; and,
assisted by a third-year mentor and the Journal’s Notes staff, refines the topic and composes a paper on the subject.
Thank you for your interest, and HLJ wishes you the best of luck in the Inter-Journal Writing Competition.
Hasting Law Journal – Special Admissions
PURPOSE OF THE SPECIAL ADMISSIONS PROGRAM
The HLJ Special Admissions Program recognizes the great individual effort required to overcome economic and social
disadvantage. The purpose of the Special Admissions Program is to increase interest in HLJ among those who have
effectively been denied participation in the past. HLJ also seeks to diversify the membership of HLJ and broaden its
spectrum of perspectives on legal scholarship through the program.
INSTRUCTIONS
To be considered for HLJ membership through its Special Admissions, please type your answers in MS Word, and
limit your answers to three (3) double-spaced, typed pages or 750 words; then COPY AND PASTE below your
memorandum email entry to HLJ.
NOTE: Special Admissions Program applications are separate and distinct from the general Competition; you are
required to fulfill each of the general Competition and the Special Admissions Program applications separately while
still using the same written entry. Include the Special Admissions Application with your general Competition
application, but do not attach the Special Admissions Essay to the Competition entry.
SPECIAL ADMISSIONS ESSAY
INSTRUCTIONS: Please read the following eleven (11) questions, and consider carefully only those that apply to
you. In an essay format, use your answers to those questions to illustrate why your particular set of experiences makes
you an excellent candidate for a staff editor position with HLJ.
1.
Identify and describe the community(ies) in which you resided from birth to age of college entry.
2.
What was (were) the occupation(s) of the person(s) who raised you? Please provide description if necessary.
3.
What was (were) the educational background(s) of the person(s) who raised you?
4. Who were the members of your household from the time of your birth to age of college entry? Please include
extended family and others.
5.
Describe your early education experiences. Please include elementary and junior high school.
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UC Hastings Inter-Journal Writing Competition 2015
6. Describe the financial situation of the family in which you were raised, form birth to age of college entry. Please
include sources of income, income estimates, number of wage earners and number of dependants, and any unusual
expenses.
7.
Were you employed prior to college? Please indicate where, how, and the number of hours worked.
8.
Were you employed during college? Please indicate where, how, and the number of hours worked.
9.
Please list your source(s) of financial support in college by approximate percentage:
Family_______
Employment
_______
Grants / Scholarships ________ Other Assistance ________
10.
Loans
_______
Did you have to work during your first year of law school?
11. What was your occupation before entering law school?
Hastings Race and Poverty Law Journal
Required Personal Statement
Please respond to Question 1 and answer at least 2 of the other 8 questions. All questions should be answered in a
narrative format. Your responses will be evaluated based on the substance of your answers. Our purpose in having the
“Personal Statement” component of the application is so that we understand the reasons for your interest in the
Hastings Race and Poverty Law Journal, and so you can identify and describe ways in which you hope to shape the
dialogue and mission of the journal. Please limit your response to three (3) to five (5) double-spaced pages or 750 to
1,000 words.
1. MANDATORY: Please explain your reasons for applying to HRPLJ, and briefly describe your vision for the
Journal.
2. What topics within the scope of race and poverty do you hope the Journal addresses through its publication, events,
and/or community activities, and how do you plan to make these become a reality?
3. As a member, what do you see your role being on this Journal? What would you like to achieve as part of this
Journal?
4. HRPLJ prides itself on being “more than just a Journal.” What steps would you take to achieve a balance between
editing for the Journal’s publication and participating in the active side of HRPLJ?
5. How do you define “social justice?” Please give a full description of your activities in the past that contributed to
issues of social justice. (Please go beyond reiterating your resume.)
6. How do you plan on using your knowledge, skills, and experience to contribute to mission of the Journal? (We
encourage you to discuss any past work or volunteer experience in the public interest sector.)
7. What are your goals after law school, and how does HRPLJ help you to achieve those goals?
8. Please provide additional information about any personal experiences you think we should know and how it is
relevant to HRPLJ.
Selection Process
GPA is given minimal consideration beyond the 2.2 minimum. Your degree of interest as articulated in the Personal
Statement is our primary consideration for selection to the Hastings Race and Poverty Law Journal. We will also look
to past experience in public interest activities as evidenced by your personal statement. Finally, we weigh the quality
of your writing as exhibited in the writing competition memorandum and editing assignments.
Thank you for applying to the Hastings Race and Poverty Law Journal. We appreciate your interest in our Journal
and look forward to reviewing your application. HRPLJ embraces diversity in its various forms, including race,
socioeconomic status, gender, sexual orientation, ability, and religion.
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UC Hastings Inter-Journal Writing Competition 2015
Journal’s General Statement
Hastings Race and Poverty Law Journal is dedicated to promoting and inspiring discourse in the legal community
regarding issues of race, poverty, social justice and the law. This Journal is committed to ad-dressing disparities in the
legal system. We will create an avenue for compelling dialogue on the subject of the growing marginalization of racial
minorities and the economically disadvantaged. It is our hope that the legal theories addressed in this Journal will
prove useful in remedying the structural inequalities facing our communities.
In addition to publishing two issues annually, Hastings Race and Poverty Law Journal hosts a number of dynamic
panels and symposia on such topics as “The Real Casualties of the War on Drugs,” “The Patriot Act: Legal and Social
Implications,” and “Economic Justice: growing Inequality in America,” bringing to Hastings such speakers as Dolores
Huerta, co-founder of the United Farm Workers; Patricia Williams, prominent law critic and a proponent of critical
race theory; Maya Harris of the ACLU; former Mayor Willie Brown and Angela Glover Blackwell, CEO and Founder
of Policylink.
The HRPLJ Editorial Board wishes you the best of luck in the Inter- Journal Writing Competition.
Hastings Science and Technology Law Journal
GENERAL STATEMENT
The Hastings Science & Technology Law Journal (“STLJ”) is a multidisciplinary journal created to enrich the
discourse at the nexus of science, technology, and the law. Specifically, STLJ focuses on the exciting legal issues
surrounding startups, intellectual property, data privacy, biotechnology, clean technology, and health policy, while
exploring the implications of technological advances on traditional legal fields, such as contracts, antitrust, and tax.
Partnered with the Institute for Innovation Law, STLJ publishes twice a year. Recent articles have discussed the rise
of three parent in vitro fertilization and its effect on parental rights, e-book price fixing litigation against major
publishing companies, net neutrality and what it means for the future of the Internet, and copyright concerns
surrounding “remix” music culture.
This year, STLJ co-hosted a symposium entitled, “Regulating the Disruption Economy: Tech Startups as Regulatory
Reformers” featuring panelists from Airbnb, Pantera Capital, and Lyft. Additionally, STLJ regularly collaborates with
on-campus organizations such as the Startup Legal Garage, Privacy Pathways Program, and the Hastings Intellectual
Property Association.
DUTIES AND RESPONSIBILITIES OF STLJ 2L MEMBERS
2L members are an important part of our team. As a Staff Editor, 2Ls will have the opportunity to participate in all
aspects of production including: planning our annual symposium, editing articles, planning social events, and assisting
in the acquisition of new articles. 2Ls will also have the opportunity to write a “Note” and may be selected to publish
in our journal.
INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS
Applicants to STLJ must submit the following:
1. Inter-Journal Writing Competition Memo
2. Inter-Journal Writing Competition Edits
3. OPTIONAL Personal Statement
· Format: Times New Roman, double-spaced, one-inch margins, two pages maximum or 500 words. Include
your writing competition number on the upper right corner of all pages.
· Instructions: Please describe why you want to be on STLJ. Appropriate topics include educational
background, work experience, personal interests, or career goals related to STLJ’s areas of interest mentioned
above.
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UC Hastings Inter-Journal Writing Competition 2015
Please note that a science background is not required for selection. We are interested in applicants who demonstrate
sound writing skills and a keen interest in our journal’s subject matter. You are encouraged to convey such interests
in a personal statement.
Hastings Science & Technology Law Journal looks forward to reviewing your entry! We wish you the best of luck.
Hastings West-Northwest Journal of Environmental
Policy and Law
INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS
Please email your Writing Competition Entry and your Mandatory Personal Statement as per the IJWC Rules.
Do not write your name anywhere on your entry, or personal statement.
West-Northwest will grant a 10-day extension of the Competition deadline for good cause; email such requests to
scholarp @uchastings.edu in advance of the IJWC deadline May 20, 2015.
MANDATORY PERSONAL STATEMENT
The personal statement should describe why you are interested in joining an environmental law journal, any experience
you may have had with environmental issues, and any work done on scholarly publications in the past. Experience
with environmental issues can only help in the selection process, but is not required. All that is necessary is strong
interest and dedication. Target length is one to two pages.
West-Northwest actively seeks to maintain a high level of diversity in its membership. Candidates who have overcome
significant disadvantage may also describe the nature of that disadvantage and relevant experience or perspective
gained thereby.
SELECTION PROCESS
GPA is given minimal consideration beyond the 2.2 minimum.
Quality of writing and degree of interest demonstrated in the personal statement will be important selection criteria.
However, serious effort and quality in the completion of the memorandum portion of the writing competition is
required.
JOURNAL’S GENERAL STATEMENT
Founded in 1993, West-Northwest is the environmental law journal at Hastings. The name “West-Northwest” describes
the journal’s regional focus on the Western and Northwestern United States. Articles from experts and West-Northwest
members examine environmental issues facing California, Oregon, Washington, Alaska, Hawaii, and neighboring
states. This geographical focus allows West-Northwest to provide a complete spectrum of analysis on issues ranging
from specific, local concerns to large-scale, regional policies.
West-Northwest monitors and explains environmental law issues to practicing attorneys, policy-makers, law students
and professors, resource managers, scientists, citizen groups, and activists. West-Northwest also publishes non-legal
pieces, such as policy articles and works by experts in fields other than law. As a journal, we are respectful of the
various opinions and outlooks held by people working in environmental law. West-Northwest is a forum for lawyers
and others practicing in the private, public, and nonprofit sectors. West-Northwest is not an “environmentalist” journal.
We are an academic journal, focused on environmental law and policy.
Events. West-Northwest hosts events periodically in the spring. Past events have included several symposiums:
“Surviving Climate Change: Adaptation and Innovation,” “Smart Growth: How Smart Is It?,” “Environmental Audits:
Privileged Information or Privileged Violations?,” “Beyond Takings: Pragmatic Solutions for Resolving the Conflicts
Between Property Rights,” and “Environmental Regulations and Adaptive Management and Market Incentives: Tools
for the Next Millennium.” Planning for and attending a symposium can be a great networking and learning experience.
Selection. The two primary selection criteria for West-Northwest members are writing ability (including composition,
editing and Bluebooking skills) and an interest in the broad topical area of environmental law. The required personal
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statement is an opportunity to express your reasons for wanting to be a West-Northwest member and is given
considerable weight. Beyond a 2.2 minimum GPA requirement, West-Northwest does not take grades into account.
The environmental statutory class is not a prerequisite for joining our journal. All those who have any interest in WestNorthwest are encouraged to apply.
The West-Northwest Editorial Board wishes you the best of luck in the Inter-Journal Writing Competition.
Hastings Women’s Law Journal
INTER-JOURNAL WRITING COMPETITION ENTRY INSTRUCTIONS
Please submit: Your competition memo, editing assignment, and a short personal statement on why you wish to join
HWLJ in a single MS Word document attached to an email sent to ijwc@uchastings.edu.
WLJ MISSION STATEMENT
Since 1989, the Hastings Women’s Law Journal has provided a forum for voices outside the traditional scope of legal
academic scholarship. We offer and maintain an inclusive space for feminism, race theory, queer theory, multiculturalism, animal rights, disability rights, language rights, international human rights, children’s rights, criminal
defendants’ rights and prisoners’ rights, among others.
This perspective embraces difference and celebrates diversity. HWLJ enhances the school’s academic diversity and
contributes to scholarly thought by publishing articles and student notes that present a critical perspective of traditional
legal discourse. We strongly believe that the law is a solution for the ills of the human condition, not merely a means
of gaining and preserving privilege and position. To that end, HWLJ is a progressive law journal that offers women
and men the opportunity to work on provocative legal issues through a “traditional” journal experience.
COMMITTEES: HWLJ is comprised of various committees on which members serve. This helps members get more
involved with the day-to-day running of the journal and allows for more interaction with various members. The handson experience cultivates leadership skills and helps members determine what editorial board roles they will take on
the following year.
COMMUNITY: HWLJ hosts a variety of informal get-togethers and events throughout the year, providing opportunities
for the exchange of thoughts and ideas. In addition to our social events, we also provide our members with ample
networking opportunities by holding special panels and giving them an opportunity to participate in local community
activities and volunteer work. We welcome new members of all backgrounds to participate on this high-caliber journal,
used by academics and practitioners alike, to advance provocative and contemporary legal scholarship.
Hastings Women’s Law Journal wishes you the best of luck in the Inter-Journal Writing Competition.
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UC Hastings Inter-Journal Writing Competition 2015
TECH EDIT INSTRUCTIONS
Welcome to the editing portion of the Inter-Journal Writing Competition. You will edit a section from a hypothetical
law review article. Please read these instructions very carefully, as failure to do so may make you ineligible for
consideration.
% You are required to make both substantive edits (spelling and grammar edits within the body of the article
and the text within footnotes) and technical edits (Bluebook edits to the footnotes).
% The Bluebook edits must be in accordance with the Bluebook’s White Pages (not the Practitioner’s Blue
Pages found in the front of the Bluebook).
% The only permissible source you may use is the Bluebook.
% Do not rely on the sources from the writing assignment for citation formatting help. These sources
were intentionally altered to test your citation skills.
% You may either complete the editing assignment in Microsoft Word using track changes, or handwrite all
edits. Regardless, you must ensure that your identity remains anonymous.
% If you choose to complete the editing assignment through Microsoft Word, make sure to remove
your name from the comment bubbles. By default, the track changes will display your name.
% Please see the instructions on the following page on “How to anonymously use track
changes in Microsoft Word” for further guidance.
% Failure to remain anonymous may make you ineligible for consideration.
% If you choose to handwrite the editing assignment, you must scan and convert the handwritten
document into a PDF when you are finished editing. Your handwriting must be legible to be
considered.
% Finally, convert the completed editing assignment to PDF for submission.
% Title the editing assignment: EDITING_COMPXXX, replacing XXX with your competition
number (i.e. EDITING_COMP123 if your assigned competition number is 123).
% Do not include your name in the title of your saved tech edit assignment.
How to anonymously use track changes in Microsoft Word:
% Word Mac 2011:
% To delete your name from the comment bubble in Microsoft Word, go to Word! Preferences! under
“Output and Sharing,” click “Track Changes” ! under “Balloons,” unclick the “Include review,
time stamp, and action buttons” option.
% Word 2007:
% To change the reviewer’s name! click the “Review” tab! Click the button labeled “Track Changes”
On the drop-down menu that appears, click “Change User Name” ! Change the name in the field
marked “User name” and change the initials in the field marked “Initials.” You can use an
anonymous name or simply write in your competition number ! click “Ok.”
% If neither of these instructions work:
% Google “how to remove personal information in Microsoft Word track changes” and find
instructions that do work.
How to change font to small caps:
% To change font to small caps, highlight the text you wish to alter, go to “Format” > “Font” and under “Effects”
check the box that says “Small caps” and click “Ok.” If for some reason you are unable to locate the “Small
caps” feature, highlight the text in yellow that you believe should be in small caps. If you’re completing the
editing portion by hand, indicate the text you believe should be in small caps.
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UC Hastings Inter-Journal Writing Competition 2015
FINAL CHECKLIST
‘
Remove your name from Microsoft Word track change bubbles.
‘
Convert completed editing assignment to PDF and do not include your name in the title of the
document. Title the editing assignment: EDITING_COMPXXX, replacing XXX with your
competition number (i.e. EDITING_COMP123 if your assigned competition number is 123).
‘
Upload completed tech edit portion.
TECH EDIT ASSIGNMENT
I.
Metadata and the Right to Privacy: Dual Considerations in a Post-Blizzarden World
Criticism has been mounting against the National Security Agency’s (“NSA”) surveillance program, which
acquires call records of nearly all americans who have no connection whatsoever to terrorism. 1 The suspicion behind
this program is underscored by the fact that americans were completely unaware of the NSA’s activity until Donald
Blizzarden exposed it to the public.2 According to these critics, the collection of metadata—data that provides
information about other data 33 Black’s Law Dictionary at 1235, eighth edition 2004.—that the NSA had approved
before Blizzarden’s revelations became public were too expansive to be “relevant to any type of authorized
investigation of domestic or international terrorism.”4 These concerns are legitimate, seeing that in times of secrecy,
our Framer’s celebrated virtue of deliberation is eviscerated. 5 Indeed, courts6 and some of the nations most erudite
legal scholars7 have long championed the importance of individual rights.
Despite claims to the contrary8, secrecy and an awareness of individual rights can and should be
complimentary. This concept has been advanced as an aspirational goal in some of the world’s most well-known and
highly regarded texts.9 And, while certain civil rights organizations have taken the position that this concept is
unconstitutional10, the U.S. supreme court and various lower courts have indicated otherwise. 11 In Wang v. Strider,
for example, the Court noted that in certain situations the individual rights of some may be infringed upon in order to
enhance the aggregate rights of all.1212 660 F. 2d, at 594. The trouble with striking a balance between maintaining the
integrity of our national intelligence programs and protecting the individual’s right to privacy, however, is rooted in
the governments ill-founded belief that unfettered access to the data of U.S. citizens is a panacea to it’s national
security woes.13 This Article argues that it is indeed possible to strike such a balance and outlines 3 approaches to do
so.
(Footnotes)
Hader, Mark L. Data collection in the 21st century: constitutional considerations, 56 University of Illinois Journal of
Law Technology and Policy 112, 113
–115, 2013
1
2
Id. 125.
Brian M. Feinstein Jr., World of Deception: How to control the intelligence community, New York Times, May 15,
2013 p. A.5 (summarizing the views of critics of metadata programs and noting there affects on interstate commerce);
cf Cara Sonstein, Student note, The History of Congressional Power and Freedom in America, 54 Harvard Journal of
Law and Public Policy (will be published in 2015) available at http://ssrn.com/abstract=325678
4
5
See The Federalist # 61 at 380 (J. Madison)(Clinton Rossiter editor 1981).
See e.g.,U.S. v. Acme Mining LLC, No. 14-398, 2012 U.S. District Court Lexis 4539833 * 9—10 (September 23,
2014).
6
7
See, e.g., 1972 Restatement Contracts 2nd section 331
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UC Hastings Inter-Journal Writing Competition 2015
See, e.g., Hader supra note 1, at 117; Interview w/James Risen, Vice President of Net Security Society in Hoboken,
New Jersey (Jun.12, 2013) (discussing the affect of 9/11 on the intelligence-gathering community), available at
http://ssrn.com/abstract=1234; James Ball, Our privacy for sale, Guardian (6:26 PM, January 26, 2015),
http://www.theguardian.com/privacy-for-sale.
8
9
Seem United States Constitution Fourth Amendment, § 1; Proverbs verse 12 line 24 (King James).
See In re Sealed Case, No. BR 06-05, 2006 WestLaw 5678497 at 2 (Foreign Intelligence Surveillance Court May
24, 2006).
10
See, e.g., National Security Commissioner v. Brotherhood of Chemical Pharmaceuticals 563 United States 331, 335
–336 (1979) (Justice Burger concurred); Wang v. Strider, 660 F.2d 590 (3rd Circ. 1983), certiorari denied, 234 U.S.
505 (1983)
11
See Raymond N. Ku, Secrets and leaks: The dilemma of state secrecy, at 12 (D. Bogaards and C. Marian editors
2013)
13
*** END OF TECH EDIT PORTION ***
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UC Hastings Inter-Journal Writing Competition 2015
Writing Assignment THE FACTS
Organix Industries is a young, online, start-up company specializing in the sale of backpacks, T-Shirts, and cashmere
hoodies (all under $100!). It was founded in San Francisco in October 2010 and has offices in San Francisco, New
York, and Chicago. Organix prides itself on its transparent, innovative startup culture. The San Francisco offices are
open concept and employees are required to work at long, shared desks. Beanbag chairs and standing desks litter the
premises. On Fridays, Organix buys lunch for its employees, and during that time, the CEO hosts weekly “all hands”
meetings where employees can freely speak about company goals, successes, and shortcomings. There is no dress
code at Organix, and employees frequently talk informally to each other and the CEO.
Joy James has worked at Organix Industries S.F. (company) since August 2012 managing a creative team comprised
of three members: Ben, Nick, and Sara. Joy has complete control over who is hired onto her team, but cannot terminate
any of her team members without her supervisor, Christy Bailey’s, approval. Joy assigns tasks to Ben, Nick, and Sara
based on seniority. For example, Ben, as the most senior team member, is tasked with the most complicated
assignments, while Nick, the most junior team member, is given the least complicated assignments. Sara, who is
Organix’s only videographer, is always responsible for the filming and producing of video content for the Organix
backpack division. Joy conducts performance evaluations for all three of her team members on a yearly basis, and
Joy’s performance evaluations partly affect whether Ben, Nick, or Sara receive a raise. If Ben, Nick, or Sara make a
mistake at work, Joy is not held accountable.
Ben and Nick are both full time employees of Organix. Ben, the most senior member of Joy’s team, is responsible
for buying all parts and materials necessary to create Organix’s extremely popular backpacks. Ben has full discretion
over what parts and materials if the order is below $10,000. For purchases that exceed $10,000, Ben must seek
approval from Joy before purchasing. Typically, Ben’s purchases that exceed $10,000 are approved by Joy after
thorough discussion. Organix does not have a manual or other set policy dictating what Ben can and cannot buy.
Sara is a highly skilled videographer, who creates online content for Organix’s backpack division. Sara is paid by the
job, creates her own work schedule, and must obtain approval from Joy before undertaking each new project.
Joy maintains a Facebook page and is “Facebook friends” with approximately 1,878 individuals, including fifteen of
her San Francisco co-workers and three employees working in the New York office. She has selected certain privacy
settings so that only her “Facebook friends” can access her profile. Her page identified Organix Industries as her
employer. Joy is not Facebook friends with Christy Bailey, the supervisor of Organix Industries SF.
From early March until mid-April of 2015, Joy and her creative team were in the finals stages of launching the latest,
hippest Organix backpack. During that time, Joy and at least three other members of her team were working at the
Organix offices into the wee hours of the morning. On April 13, at about 2:30 a.m., when Joy was finally about to
head home after another fifteen hour day, she received a phone call from Christy, her supervisor. Christy asked Joy
if the latest specs for the Spring 2015 “Gunner” backpack were available. Joy informed Christy that, though she had
been working all day, the information Christy requested was not yet available. Christy insisted that Joy compile the
specs within the hour. Joy promptly complied with Christy’s request, but she was outraged at her supervisor’s late
night direction and at the fact that she, and members of her creative team, had worked past 3 a.m. for the past two
weeks without any recognition.
When Joy returned to work later that day, she noticed that Christy had left her and each of her team members discount
vouchers for an ice cream sandwich. Included with the vouchers was a note from Christy:
Dear Creative Team,
Thank you for all your hard work on the “Gunner” launch. Per Organix values, we believe that money
has never made man happy. This is why we strive to bring our customers low-cost luxury goods.
However, hard work should not go unrewarded, so we have chosen to share our favorite low-cost SF
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UC Hastings Inter-Journal Writing Competition 2015
experiences with you. Please enjoy this ice cream voucher for Organix’s favorite ice cream—you
deserve it.
Gratefully yours,
Christy
Upon reading Christy’s letter and receiving the ice cream voucher, Joy expressed outrage to her team members over
Christy and Organix’s bonus structure.
When Joy got home from work, she immediately opened Facebook and tagged her three team members (Nick, Ben,
and Sara) in the following post:
[@Nick @Ben @Sara]Dear Organix,
Thanks for the sweet ice-cream voucher! As you may or may not know, I am lactose intolerant, and,
unfortunately, will not be able to enjoy this SF “low-cost-luxury” ice cream. My team and I realize
what a tremendous sacrifice Organix has taken to obtain these “low-cost-luxury” ice cream vouchers,
and can’t wait to work another 50+ hour week in order to receive our next “bonus.” Hopefully it will
be a voucher for a “low-cost-luxury” hamburger. I know me and my fellow VEGETARIAN teammates
will definitely enjoy that “bonus.” We know money isn’t everything, but it would make us feel A LOT
more valued.
“Gratefully yours,”
Joy
Her posting provoked the following Facebook “conversation” over the course of several hours:
Sara: “Oh man, I’m really bummed that we worked so hard only to receive an ice cream voucher. We all put our
hearts and souls into the Gunner campaign, and we should get more than one free ice cream.”
Nick: “We should have gotten like eighty million free ice cream vouchers for our 100+ hour working week. What a
damn fine company we work for…”
Ben: “It really doesn’t matter how much overtime we put into that Gunner backpack. Those backpacks still suck.”
Nick: “How dare you make people question the quality of these Organix packs! Bad bad man. Preach [@Sara] Preach.”
Ben: [@Nick] “I know, I’m in rare form today. But, come on, these backpacks don’t even zip. I’m like screw the
crappy backpacks, and screw Organix, then.”
Joy: [@Sara] “Nick said the same thing to me earlier today, haha. Maybe we should talk to Christy or Organix CEO,
Mr. Smith, about our bonus system…who knows if they’ll actually listen...Even though listening is an Organix
value…”
Joy: [@Ben] “The $99.95 is just too much to pay for these backpacks. If it costs more than an ice cream voucher, it
just isn’t worth it.”
Nick: “People who like these lame vouchers are morons. We deserve more.”
The next day, on April 14, Joy initiated a meeting with the CEO, Jerry Smith, to discuss various matters, including
the bonus structure at Organix. At the meeting, she complained that her hours were unworkable, that she wanted more
transparency, and that she and her team members were not satisfied with the “lame” ice cream vouchers. Mr. Smith
said he would look into it.
In the meantime, Christy obtained Joy’s initial post and the ensuing Facebook conversation (through a friend of a
friend). Concerned about the four employees’ behavior, she brought the post to Mr. Smith’s attention. Mr. Smith has
reviewed the posts and wants to initiate termination proceedings against all four employees solely because of the April
13 Facebook “conversation.”
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The Writing Assignment
You are an associate in Organix’s legal department, and Mr. Smith wants a recommendation regarding termination of
Joy, Sara, Nick, and Ben. Your partner asked you to write a 6–8 page memo (double-spaced, Times New Roman font,
size 12) discussing whether terminating the four workers would violate the National Labor Relations Act (“Act”).
Your partner believes that Joy and Sara have engaged in protected activity under the Act, but wants to know whether
they are even covered by the Act. While he is confident that Nick and Ben are employees, he is not sure whether their
behavior is protected under the Act. He does not want you to write a separate fact section.
The primary purpose of your Memo is to inform Mr. Smith and your partner about the law. The best submissions
will:
1. Describe all angles of the problem without neglecting any analysis simply because it would not comport with
Mr. Smith’s goals.
2. Conclude with a well-reasoned recommendation for Mr. Smith.
You may use the following outline to guide your analysis:
I. Introduction
a. Introduce the issues addressed in the analysis section.
b. Briefly indicate your recommendation.
II. Analysis
a. Issue 1: Whether Joy and Sara’s employment status will remove them from the Act’s protection.
i. Analysis for Joy
ii. Analysis for Sara
b. Issue 2: Whether Nick and Ben’s Facebook posts are concerted activity for the benefit of mutual aid
and protection.
i. Analysis for Nick
ii. Analysis for Ben
III. Conclusion
a. Propose a course of action for Mr. Smith.
RESEARCH MATERIALS
Note:
·
·
·
No outside research is allowed. The following materials and your Bluebook are the only materials you can
use for the writing portion.
You must properly cite the sources according to the Bluebook Blue pages.
The statutes, articles, and cases were copy and pasted from the Internet. As a result, some of the page numbers
and formatting may be disturbed. Please forgive us. If it makes your life easier, you may pin cite to the page
number of the research material packet.
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National Labor and Relations Act (29 U.S.C.A. §§ 151-169)
Sect. 2. [§152.] When used in this Act [subchapter]-(1): The term “employer” includes any person acting as an agent of an employer, directly or indirectly, but
shall not include the United States or any wholly owned Government corporation, or any Federal Reserve
Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act [45 U.S.C.
§ 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an
employer), or anyone acting in the capacity of officer or agent of such labor organization.
(2): The term “employee” shall include any employee, and shall not be limited to the employees of a particular
employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has
ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular and substantially equivalent employment, but shall not
include any individual employed as an agricultural laborer, or in the domestic service of any family or person
at his home, or any individual employed by his parent or spouse, or any individual having the status of an
independent contractor, or any individual employed as a supervisor, or any individual employed by an
employer subject to the Railway Labor Act [45 U.S.C. 151 et seq.], as amended from time to time, or by any
other person who is not an employer as herein defined.
(8): The term "unfair labor practice" means any unfair labor practice listed in section 8 [section 158 of this
title].
(3): The term “supervisor” means any individual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Sect. 7 [§ 157]: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or
all of such activities except to the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
Sec. 8. [§ 158.] (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer-(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7
[section 157 of this title];
2006 Duke L. & Tech. Rev. 17
Duke Law & Technology Review
October 4, 2006
Media and Communications
WHEN IS ONLINE EMPLOYEE ACTIVITY PROTECTED BY SECTION 7 OF THE NLRA?
Katherine M. Scott1
Copyright © 2006 by Duke Law & Technology Review; Katherine M. Scott
Abstract
The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or
intimidating those who engage in it. This iBrief examines how online activities like blogging or Facebook posting fits
into the current statutory framework and recommends how the National Labor Relations Board and the courts should
address the unique features of employee blogs.
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Introduction
*1 Blogging and Facebooking has tremendous potential to shift the balance of power from employers to employees,
as employees gain the ability to communicate their concerns to other employees, customers, neighbors, stockholders,
and other parties interested in the employer.2While many businesses already communicate with the public through
well-organized, well-funded marketing and public relations departments, employees now have an inexpensive way to
get their own messages out to the public--a factor of rising importance in modern labor disputes. 3 While employers
can already send messages to employees through their own communication channels, employees now have a new
means of discussing issues with each other, regardless of the obstacles presented by differently-timed shifts, physically
separated workplaces, and the operational demands of work.
*2 Blogs and shared posts allow an unprecedented visibility, participation, and volume of communication. A blogger
can reach members of the public who do not visit the employer's business or walk by a protest. Also, a blogger can
communicate with co-employees in different work locations4 and even with employees of other employers5 without
having to obtain their contact information. The information posted on a blog can come from multiple sources because
readers often post comments,6 and large amounts of text and links to other sites make detailed information more
accessible. Anyone reading the blog can see the factual support for or interest in any idea that is posted. Finally, the
anonymity of the Internet allows employees to explore information about a labor dispute and test the waters without
having to reveal their identities.7
*3 As blogging has grown in popularity, employer concern about blogging has grown, and some employees have
already been fired for their blogs.8 Employees can disclose trade secrets,9 confidential financial information,10 or
other internal documents;11 put the employer in an embarrassing light by abusing its trademarks, 12 or projecting a
negative or otherwise unprofessional attitude;13 disrupt the workplace with public comments about
other employees;14 or offend the employer's customers by making racist, sexist, or otherwise inappropriate remarks.15
*4 Despite these concerns, various laws limit an employer's control over what employees write, especially outside of
working hours.16One such law is the National Labor Relations Act (“NLRA”), which protects certain activities by
non-supervisory private sectoremployees.17 Specifically, section 7 of the NLRA protects “the right ... 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.”18 Employers may not “interfere with, restrain, or coerce employees in the exercise
of” their section 7 rights.19 These provisions likely extend to employee blogs under certain circumstances.20
*5 Blogs present courts with a new context in which to strike the balance between employee and employer rights.
This iBrief focuses on employee blogging during personal time without the aid of an employer's property. The iBrief
recommends that courts recognize employees' criticisms of their employer on blogs as protected concerted activity,
and argues that existing case law examining unfair labor practices readily applies to the blogging context.
I. Protected Concerted Activity
A. What Kind of Activities Are Protected?
*6 The NLRA protects “concerted activities for ... mutual aid or protection”21 by most private-sector, nonsupervisory employees.22These protections apply in unionized and non-unionized workplaces; no union or
organizing campaign is necessary.23 This section will summarize the basic law describing when employee activities
are protected under section 7 of the NLRA.
1. What is Concerted Activity?
*7 For an employee's action to be “concerted,” he or she must act with, or as authorized by, other employees.24 The
“definition of concerted activity ... encompasses those circumstances where individual employees seek to initiate or
to induce or to prepare for group action,”25 sometimes including situations when an employee implies, but does not
expressly state, a request for other employees to act.26 Concertedness also exists when an employee's action is a
“logical outgrowth” of previous group activity. What constitutes as
2. What is Mutual Aid or Protection?
*8 Concerted activities are protected only when done “for mutual aid or protection.”28 Historically, this has meant a
“self-interested economic objective”29 such as improved pay, bonuses, hours, safety, or workload, rather than concerns
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such as product quality30 or environmental damage.31 However, courts sometimes look broadly at employee motives
to find self interest even when concerns for customers, neighbors, or other employers' workers also exist and even
predominate within the communication.32
3. Exceptions to NLRA Protections
*9 “[E]mployee communications to third parties in an effort to obtain their support are protected where the
communication indicate[s] it is related to an ongoing dispute ... and the communication is not so disloyal, reckless or
maliciously untrue as to lose the Act'sprotection.”33 Though the meaning of “disloyalty” is hotly debated,34 certain
categories of speech have emerged as being unprotected: (1) remarks that disparage the employer or its products, 35 (2)
confidentiality breaches36 and (3) recklessly or maliciously false accusations.37
*10 Courts have applied different tests to determine when negative remarks about the employer or its products fall
under section 7's disparagement exception. In general, disparaging “appeals to third parties forfeit
[section] 7 protection only if their connection to the employees' working conditions is too attenuated or if they are
unrelated to any grievance which the workers may have.”38 Although the tenor of the language seems to be a factor in
the analysis,39 several Courts of Appeals and the NLRB have found employee speech protected even when that
speech uses harsh language.40 The D.C. Circuit, however, recently held that an employee's remarks lost
the protection of section 7 when those remarks, which supported a union and protested recent layoffs, “constituted
‘a sharp, public, disparaging attack upon the quality of the company's product and its business policies' at a ‘critical
time’ for the company.”41
*11 The scope and rationale of the disparagement exception is unclear. Some courts seem to believe that only
managers, and not employees, have a legitimate interest in product quality and the employer's impact on the
community.42 Under that interpretation, any criticism must be framed as a concern about working conditions to
be protected.43 Another theory suggests that the exception arises from fear that employees will deceive the public
into exerting economic pressure on their employer. 44 Therefore, a court may find unrelated product
criticisms protected as long as the communication also reveals the employees' dispute with their employer.45
*12 Breaches of confidentiality are another category of unprotected communication. Although employees cannot be
prohibited from discussing their own working conditions,46 they are not protected when disseminating information
obtained in confidence or without authorization, even when it concerns terms and conditions of employment.47
*13 False statements remain protected as long as the employee making the statements does so neither knowingly nor
recklessly.48An employee who has no reason to question the information that he or she merely passes along from
someone else has no duty to investigate its truthfulness because such a duty would unacceptably chill employee speech
under section 7.49 Yet employees have no right under the NLRA to propagate lies knowingly or
recklessly.50 Therefore, an overly excited employee who spreads harmful and sensitive rumors that he or she should
know are false will not be protected.51
B. How Courts Should Construe Protection of Online Activities
*14 For blogging or Facebook posting to be protected as section 7 activity, it must be concerted, for mutual aid
or protection, and not within one of the exceptions discussed above. This section of the iBrief addresses how such
standards should apply to blogs, finding considerable room to treat some blogging as a “concerted activity,” endorsing
a broad scope for “mutual aid or protection,” and recommending that courts evaluate a blog as a whole, rather than
post by post, when deciding whether statements on the blog are protected under the NLRA.
*15 When evaluating concertedness, courts should continue to apply a broad standard, so
that blogs where employees discuss work concerns meet this initial threshold criterion for protection. Certainly, if
multiple employees create a draft together with the intent of posting it, then their activity is literally and obviously
concerted,52 and if two or more employees have been complaining about particular working conditions and one alerts
the public by writing about it online, then this is a “logical outgrowth” of concerted activity. In addition,
an employee who posts without previously consulting his co-workers could be seen as initiating group action by
inviting his co-workers to share their concerns.53 The presence of a comment feature on most blogs arguably implicitly
invites others to participate in the discussion, but to find a blog protected, a court should have to find that the blog at
least implies that co-employees are the intended audience.54 The presence of actual comments or links from
other employees' blogs may also create concertedness.55
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*16 Unlike the analysis of concertedness, the analysis of the “mutual aid or protection” requirement does not depend
upon the characteristics of blogging as a medium. How courts interpret the scope of protection will be critical in
practice, though, so two particular issues merit discussion. First, it is currently unclear whether, outside the union
context, distributing “political” literature about laws affecting working conditions is always unprotected, or whether
the distribution is merely unprotected at the workplace.56 Some employee bloggers will probably refer to political
changes affecting their workplaces and include links to or material from political organizations in support of their
position.57 Such inclusion of political material, when related to employees' working conditions, furthers workers'
mutual aid or protection.58 Second, courts' current exclusion of concerns such as product quality and the natural
environment “reflects an impoverished understanding of the meaning of work in our lives.”59 Certainly,
an employee may just write negative things to retaliate against a soon-to-be former employer or to blackmail an
employer into making labor concessions.60 But at a basic level, many employees want their employer to prosper so
that they will keep their jobs and advance in them.61 Perhaps more importantly, it is reasonable to believe
many employees want to take pride in what they do and to be part of an organization with which they feel morally
aligned.62 As Professor Cynthia Estlund asks rhetorically, “[C]an it fairly be said, as a categorical matter, that the
employer's toxic contamination of the surrounding community or the quality of the collective work product is of less
legitimate concern to employees than, for example, the price of soft drinks in employer-provided vending
machines?”63 Although the interpretation of “mutual aid or protection” does not depend on the characteristics
of blogging, how courts resolve these open issues will profoundly influence the effectiveness of blogging as a tool
for employee organizing.
*17 Even with a broad reading of concertedness and “mutual aid or protection,” the multitude of posts and comments
contained on blogs will present an analytical challenge. On nearly any blog where employees frankly discuss their
jobs, some posts, examined individually, probably “disparage” the employer or its products without explicitly
connecting the criticism to a labor dispute. Other gripes probably fall outside the scope of “mutual aid or protection”
because they do not reveal the “specific objective” of changing a particular employment practice. 64 However, requiring
each individual post to meet the standards for protected concerted activity would certainly chill
communication.65 Instead, if a post at issue does not meet the “mutual aid or protection” standard or is an instance of
product disparagement, courts should consider the entire blog to evaluate whether a post is part of a campaign
by employees to improve their employment conditions and whether readers would reasonably understand that
purpose. Such information could be found in the blog's “About” section, in a banner at the top of the blog, or in a
“critical mass” of posts that would lead a reasonable reader of the site to understand that the blog presents concerns
of employees about their working conditions.
*18 In summary, there are good reasons to believe that employee blogs can and should be protected in many
instances as concerted activities under section 7 of the NLRA. In light of that conclusion, blogs raise a number of
special issues for employers, including surveillance, blogging policies, and anonymity.
II. Special Issues in NLRA Protection of Blogging
A. Prohibition of Employer Surveillance, Impression of Surveillance, or Interrogation
*19 Retaliation and discrimination on the basis of protected activity are obviously “unfair labor practices” under
the NLRA,66 but other actions also qualify. Interrogation that has a “coercive effect” when considered in context is an
unfair labor practice.67 Also, engaging in surveillance of union or organizing activity or creating the “impression of
surveillance” of that activity is an unfair labor practice under some circumstances because it can facilitate later unfair
labor practices, and if known to employees, it can intimidate them out of exercising their rights. 68 Although the case
law addresses unions and organizing campaigns, the same rationales should logically apply to surveillance of other
concerted activities.
*20 The prohibition against surveillance limits how employers can respond even to activity that occurs in public. For
example, in cases where supervisors spent hours every evening at the village drugstore watching handbill
distribution69 and where a supervisor abandoned his usual lunch restaurant to watch employees solicit union members
in the cafeteria,70 courts found unlawful surveillance. These were, however, relatively extreme cases involving tense
union organizing situations. In most instances when management watches open and public activity, no unfair labor
practice will be found.71
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*21 Far from analogous to eavesdropping on a private conversation, 72 management's visiting a non-secure blog is
more like reading an advertisement that employees have placed in the local newspaper. Information deliberately
placed on the Internet is meant to be read, and it would be unreasonable to expect employers not to monitor websites
where they know employees are posting openly and publicly and perhaps exposing the company to risk.
*22 Even when observation is acceptable, however, recording employees' section 7 activity can be an unfair labor
practice unless the employer has an objectively reasonable justification for doing so. 73 Therefore, if an employer starts
to record the blog's content each day, it may need to provide an objectively reasonable justification for doing so. An
employer will likely prevail with its justification if it documents daily posts to help management piece together the
identity of an anonymous blogger who is spreading false rumors or leaking confidential information. 74 If, however,
the anonymous blogger has shown no propensity to post forbidden subject matter, then keeping records of
the blog may be analogous to an employer photographing employee unionizing activities “in the mere belief that
something might happen,” which is not allowed.75
*23 Employers might also be said to create an impression of surveillance by speaking to employees about what they
read onemployee blogs.76 One administrative law judge found an impression of surveillance when a supervisor told
an employee that he “liked her picture” the day after it was posted on the union's website, because this “convey[ed]
the impression that he was keeping track of her union activities.” 77 While this reasoning is superficially appealing, it
should rarely be applied. Because employers are free to visit the site, to forbid them to notify employees that they
read blogs would only foster employee carelessness. Also, if the blog can be read as a petition to management to
change working conditions, then it is entirely appropriate for management to ask for details about the concerns
expressed, especially if that request is directed towards employees as a group, rather than towards individuals.
Therefore, courts should not find an unlawful impression of surveillance except in the narrow case when
reasonable employees would infer that their individual protected activities are being tracked for retaliatory purposes.
In considering the reasonableness of such an inference, a court would need to look at the history of the employer's
behavior towards concerted activities, the individualized nature of the remarks, and the lack of legitimate reasons for
the employer to comment. Given the public nature of the Internet and the legitimate reasons employers have for
monitoring what is written about them, employer visits to blogs should rarely generate findings of unfair labor
practices.
B. Employee Blogger's Duty to Screen Comments
*24 The comment feature of blogs raises an entirely different set of issues. One blog may contain writing from people
with different agendas, ethical codes, and levels of self-restraint. Therefore, comments posted to the blog may cause
harm that the original blogger never intended, including the posting of falsehoods or confidentiality breaches.
*25 Someone who merely posts to a blog in no way inviting criticism of his employer is probably not engaged
in section 7 activity. However, the employer should normally see no reason to penalize him or her for
unsolicited blog comments unless the employee refuses to take down the objectionable material.
*26 On the other hand, a blogger who invites criticism of his or her employer (e.g., by criticizing the employer,
debating the employer's critics, or asking for others' opinions of the employer) should foresee that others will post
false accusations or comments that breach confidentiality agreements. Therefore, such a blogger would be negligent
not to pre-screen comments and should lose protection for those not screened.78 Moreover, falsehoods and
confidentiality breaches can cause too much harm to allow the blogger to avoid liability with a mere disclaimer.79 The
problem is that if the duty to screen comments is too onerous, an employee blogger is likely to turn off the comment
feature or not to blog at all, and the employee organizing benefits of blogs will be lost. Existing case law, which
considers whether an employee has reason to doubt that information he or she passes along is false, already balances
employers' interests and employee speech.80 Courts should apply this standard to comments that an employee blogger
screens and extend the standard to confidentiality breaches as well as falsehoods.
C. Employer Blogging Policies
*27 In response to concerns about inappropriate blog postings, some employers have created policies to
tell employees what is prohibited.81 While it is obviously reasonable to warn employees not to disclose trade
secrets82 or confidential financial information83 and to require employees to post a disclaimer saying that they do
not blog on the company's behalf,84 not all policies that regulate employee speech are acceptable under the NLRA.
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This section will describe the general rules regarding such policies and then examine a few examples of actual or
potential blogging policies.
*28 In general, promulgating a policy that “would reasonably tend to chill employees in the exercise of
their Section 7 rights” is an unfair labor practice.85 Policies previously ruled unlawful in non-blogging contexts
include “confidentiality” policies that forbid employees from discussing terms and conditions of employment with
each other or customers86 and policies forbidding union solicitation in the workplace during non-working time, even
without evidence that employees are unable to communicate outside of the workplace.87 Still, particular prohibitions
on “profane language,”88 “harassment,”89 and “slanderous or detrimental statements”90 in the workplace have been
upheld on the grounds that a reasonable employee would see such rules as directed to the employer's legitimate
concerns, rather than as a bar on protected activity.91 In Adtranz ABB Daimler-Benz Transportation, N.A. v.
NLRB,92 the D.C. Circuit held that employers may prohibit “abusive or threatening” language at work, 93 but
acknowledged that discriminatory enforcement of such a policy could be an unfair labor practice. 94
*29 A company might want to forbid its employees to discuss the employer on the Internet at all, but this is almost
certainly unlawful.95Because other means of communication are not nearly equivalent to blogging, the employer's rule
could easily be described as an “unreasonable impediment to self-organization”96 that denies employees “an essential
component of ... communication.”97
*30 One company's proposed blogging policy states, “You may not post any material that is obscene, defamatory,
profane, libelous, threatening, harassing, abusive, hateful or embarrassing to another person or ... entity.” 98 This policy
has much in common with the one in Adtranz, except that in Adtranz, the restrictions applied only to the workplace,
but this policy applies to speech outside of work. The balancing of employer and employee interests is likely to be
similar, however, because the policy is facially neutral towards section 7 activity. Employees can blog about working
conditions without using outrageous language, and employers have legitimate interests in not having their public
image tarnished or the relationships between their employees damaged by inappropriate material
that employee bloggers post on the Internet. Moreover, a reasonable employee is likely to understand the rationale
for the policy and thus not see it as a prohibition of protected activity. The only major concern is the word
“embarrassing” because any public criticism of the employer is arguably embarrassing. The validity of this particular
prohibition is likely to depend upon whether it is, in fact, applied to prevent section 7 activities.
*31 Another company, Sun Microsystems, warns employees that “using your weblog to trash or embarrass the
company, our customers, or your co-workers, is not only dangerous but stupid.”99 Courts examine policy provisions
in their overall context,100 and this particular remark comes after a description of the harm the company would suffer
if a prospective customer were to read an employee post saying that a Sun product
“sucks.”101 Employees complaining about their working conditions could certainly be seen as “trashing” the company,
and the tone of the language is somewhat threatening, but the example given and the title of the section (“Think About
Consequences”) indicate that Sun is interested in warning employees not to post thoughtless, “amateurish”
remarks.102While the validity of this provision, standing alone, might be a closer call than the previous two examples,
the provision is probably acceptable under the NLRA when viewed in the context of the overall policy.
*32 Finally, an employer probably cannot mandate that employees utilize other channels of communication
before blogging,103especially when employees are “legitimately concerned about reprisals,”104 because management
does not have the prerogative to dictate how concerted activity will be performed. 105 The existing doctrines that control
employer restrictions on employee communications are thus easily adaptable to the analysis of blogging policies.
D. The Structure of the Workplace
*35 One final idea merits discussion. The NLRB has analyzed the structure of the individual workplace in recent
technology cases, including general counsel memoranda about employer email and cell phone policies 114 and a Board
decision about whether an employer must furnish a union with a list of employee email addresses.115 It might be
argued that courts should also consider the structure of a given workplace when deciding how vigorously to protect a
particular instance of employee blogging. Obviously, when employees are spread across many locations, or when
they spend little or no time at employer facilities, the Internet may be the only practicable way for them to
communicate.116 In those cases, the employee's interest in section 7 activities is clearly strong relative to the
employer's interest in avoiding damage to its reputation. In contrast, employees who work mostly in the same physical
location may simply be airing dirty laundry that they could discuss in private to accomplish the same goals.
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*36 Such a distinction for the structure of the workplace, which would add yet another layer of complexity to the
concerted activity doctrines, is unnecessary and undesirable. All employees have an interest in a blog's ability to reach
the public, to archive commentary, and to link to further resources on the Internet. It would be very difficult to apply
a rule protecting employees' concerted appeals when they are directed at the public, but protecting concerted
activities directed at other employees only when the Internet is essential for the communication.
Conclusion
*37 Blogs and Facebook posting will add a new twist to established concerted activity doctrine as courts will have
to strike the balance between employee and employer rights. Courts should strongly protect all employee bloggers
as they engage in legitimate concerted activity, but they should also require that bloggers bear some responsibility in
exercising those rights by identifying themselves as employees and screening comments for obvious falsehoods and
confidentiality breaches. Existing standards of protection against interference with protected rights often extend
readily into the blogging context. Though highly fact-specific, these standards must be applied conscientiously
to protect employees' legitimate appeals to the public and attempts to discuss employment issues, while avoiding
unreasonable restrictions on employers' needs to monitor what is said about them and promulgate policies
to protect their legitimate business interests.
100 S.Ct. 856
Supreme Court of the United States
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
YESHIVA UNIVERSITY.
YESHIVA UNIVERSITY FACULTY ASSOCIATION, Petitioner,
v.
YESHIVA UNIVERSITY.
Nos. 78–857, 78–997.
Argued Oct. 10, 1979.Decided Feb. 20, 1980.
Opinion
Mr. Justice POWELL delivered the opinion of the Court.
Supervisors and managerial employees are excluded from the categories of employees entitled to the benefits of
collective bargaining under the National Labor Relations Act.1 The question presented is whether the full-time faculty
of Yeshiva University fall within those exclusions.
I
Yeshiva is a private university which conducts a broad range of arts and sciences programs at its five undergraduate
and eight graduate schools in New York City. On October 30, 1974, the Yeshiva University Faculty Association
(Union) filed a representation petition with the National Labor Relations Board (Board). The Union sought
certification as bargaining agent for the full-time faculty members at 10 of the 13 *675 schools.2 The University
opposed the petition on the ground that all of its faculty members are managerial or supervisory personnel and hence
not employees within the meaning of the National Labor Relations Act (Act).
The evidence at the hearings showed that a central administrative hierarchy serves all of the University's schools.
Ultimate authority is vested in a Board of Trustees, whose members (other than the President) hold no administrative
positions at the University. The President sits on the Board of **859 Trustees and serves as chief executive officer,
assisted by four Vice Presidents who oversee, respectively, medical affairs and science, student affairs, business
affairs, and academic affairs. An Executive Council of Deans and administrators makes recommendations to the
President on a wide variety of matters.
The individual schools within the University are substantially autonomous. Each is headed by a Dean or Director, and
faculty members at each school meet formally and informally to discuss and decide matters of institutional and
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professional concern. At four schools, formal meetings are convened regularly pursuant to written bylaws. The
remaining faculties meet when convened by the Dean or Director. Most of the schools also have faculty committees
concerned with special areas of educational policy. Faculty welfare committees negotiate with administrators
concerning salary and conditions of employment. Through these meetings and committees, the faculty at each school
effectively determine its curriculum, grading system, admission and matriculation standards, academic calendars, and
course schedules.4
*677 Faculty power at Yeshiva's schools extends beyond strictly academic concerns. The faculty at each school make
recommendations to the Dean or Director in every case of faculty hiring, tenure, sabbaticals, termination and
promotion. Although the final decision is reached by the central administration on the advice of the Dean or Director,
the overwhelming majority of faculty recommendations are implemented. 5 **860 Even when financial problems in
the early 1970's restricted Yeshiva's budget, faculty recommendations still largely controlled personnel decisions made
within the constraints imposed by the administration. Indeed, the faculty of one school recently drew up new and
binding policies expanding their own role in these matters. In addition, some faculties make final decisions regarding
the admission, expulsion, and graduation of individual students. Others have decided questions involving teaching
loads, student absence policies, tuition and enrollment levels, and in one case the location of a school. 6
*678 II
*679 The Union won the election and was certified by the Board. The University refused to bargain, reasserting its
view that the faculty are managerial. In the subsequent unfair labor practice proceeding, the Board refused to
reconsider its holding in the representation proceeding and ordered the University to bargain with the Union. 231
N.L.R.B. 597 (1977). When the University still refused to sit down at the negotiating table, the Board sought
enforcement in the Court of Appeals for the Second Circuit, which denied the petition. 582 F.2d 686 (1978).
We granted certiorari, 440 U.S. 906, 99 S.Ct. 1212, 59 L.Ed.2d 453 (1979), and now affirm.
III
There is no evidence that Congress has considered whether a university faculty may organize for collective bargaining
under the Act. Indeed, when the Wagner and Taft-Hartley Acts were approved, it was thought that congressional
power did not extend to university faculties because they were employed by nonprofit institutions which did not “affect
commerce.”
The Act was intended to accommodate the type of management-employee relations that prevail in the pyramidal
hierarchies of private industry. Ibid. In contrast, authority in the typical “mature” private university is divided between
a central administration and one or more collegial bodies. See J. Baldridge, Power and Conflict in the University 114
(1971). This system of “shared authority” evolved from the medieval model of collegial decisionmaking in which
guilds of scholars were responsible only to themselves. See N. Fehl, The Idea of a University in East and West 36–46
(1962); D. Knowles, The Evolution of Medieval Thought 164–168 (1962). At early universities, the faculty were the
school. Although faculties have been subject to external control in the United States since colonial times, J. Brubacher
& W. Rudy, Higher Education in Transition: A History of American Colleges and Universities, 1636–1976, pp. 25–
30 (3d ed. 1976), traditions of collegiality continue to play a significant role at many universities, including
Yeshiva.10 For these reasons, the Board has *681 recognized that principles developed for use in the industrial setting
cannot be “imposed blindly on the academic world.” Syracuse University, 204 N.L.R.B. 641, 643 (1973). The Board
reasoned that faculty members are “professional employees” within the meaning of § 2(12) of the Act and therefore
are entitled to the benefits of collective bargaining. 189 N.L.R.B., at 905; 29 U.S.C. § 152(12).12
Yeshiva does not contend that its faculty are not professionals under the statute. But professionals, like other
employees, may be exempted from coverage under the Act's exclusion *682 for “supervisors” who use independent
judgment in overseeing other employees in the interest of the employer, 13 or under the judicially implied exclusion
for “managerial employees” who are involved in developing and enforcing employer policy. 14
IV
1Managerial employees are defined as those who “ ‘formulate and effectuate management policies by expressing and
making operative the decisions of their employer.’ ” NLRB v. Bell Aerospace Co., supra, at 288, 94 S.Ct., at
1768 (quoting Palace Laundry Dry Cleaning Corp., 75 N.L.R.B. 320, 323, n. 4 (1947)). These employees are “much
higher in the managerial structure” than those explicitly mentioned by Congress, which “regarded [them] as so clearly
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outside the Act that no specific exclusionary provision was thought necessary.” 416 U.S., at 283, 94 S.Ct., at
1766. *683 Managerial employees must exercise discretion within, or even independently of, established employer
policy and must be aligned with management. See id., at 286–287, 94 S.Ct., at 1767–1768 (citing cases). Although
the Board has established no firm criteria for determining when an employee is so aligned, normally an employee may
be excluded as managerial only if he represents management interests by taking or recommending discretionary
actions that effectively control or implement employer policy.15
*686 V
The controlling consideration in this case is that the faculty of Yeshiva University exercise authority which in any
other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what
courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine
teaching methods, grading policies, and matriculation standards. They effectively decide which students will be
admitted, retained, and graduated. On Occasion their views have determined the size of the student body, the tuition
to be charged, and the location of a school. When one considers the function of a university, it is difficult to imagine
decisions more managerial than these. To the extent the industrial analogy applies, the faculty determines within each
school the product to be produced, the terms upon which it will be offered, and the customers who will be served.
The record shows that faculty members at Yeshiva also play a predominant role in faculty hiring, tenure, sabbaticals,
and termination and promotion. These decisions clearly have both managerial and supervisory characteristics. Since
we do not reach the question of supervisory status, we need not rely primarily on these features of faculty authority.
There may be some tension. between the Act's exclusion of managerial employees and its inclusion of professionals,
since most professionals in managerial positions continue to draw on their special skills and training. But we have
been directed to no authority suggesting that that tension can be resolved by reference to the “independent professional
judgment” criterion *687proposed in this case.24 Outside the university context, the Board routinely has applied the
managerial and supervisory exclusions to professionals in executive positions **865 without inquiring whether their
decisions were based on management policy rather than professional expertise. 25
Moreover, the Board's approach would undermine the goal it purports to serve: To ensure that employees who exercise
discretionary authority on behalf of the employer will not *688 divide their loyalty between employer and union. In
arguing that a faculty member exercising independent judgment acts primarily in his own interest and therefore does
not represent the interest of his employer, the Board assumes that the professional interests of the faculty and the
interests of the institution are distinct, separable entities with which a faculty member could not simultaneously be
aligned. The Court of Appeals found no justification for this distinction, and we perceive none. In fact, the faculty's
professional interests—as applied to governance at a university like Yeshiva—cannot be separated from those of the
institution.
The “business” of a university is education, and its vitality ultimately must depend on academic policies that largely
are formulated and generally are implemented by faculty governance decisions. See K. Mortimer & T. McConnell,
Sharing Authority Effectively 23–24 (1978). Faculty members enhance their own standing and fulfill their
professional mission by ensuring that the university's objectives are met. But there can be no doubt that the quest for
academic excellence and institutional distinction is a “policy” to which the administration expects the faculty to
adhere, whether it be defined as a professional or an institutional goal. It is fruitless to ask whether an employee is
“expected to conform” to one goal or another when the two are essentially the same. 27
.
The problem of divided loyalty is particularly acute for a university like Yeshiva, which depends on the professional
judgment of its faculty to formulate and apply **866 crucial policies constrained only by necessarily general
institutional goals. The university requires faculty participation in governance because professional expertise is
indispensable to the formulation and implementation of academic policy. 28 The large measure of
independence *690 enjoyed by faculty members can only increase the danger that divided loyalty will lead to those
harms that the Board traditionally has sought to prevent.
There may be institutions of higher learning unlike Yeshiva where the faculty are entirely or predominately
nonmanagerial. There also may be faculty members at Yeshiva and like universities who properly could be included
in a bargaining unit. It may be that a rational line could be drawn between tenured and untenured faculty members,
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depending upon how a faculty is structured and operates. But we express no opinion on these questions, for it is clear
that the unit approved by the Board was far too broad.
Affirmed.
98 S.Ct. 2505
Supreme Court of the United States
EASTEX, INCORPORATED, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD.
No. 77-453.
Argued April 25, 1978.Decided June 22, 1978.
Mr. Justice POWELL delivered the opinion of the Court.
Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during
nonworking time urging employees to support the union and discussing a proposal to incorporate the state “right-towork” statute into the state constitution and a Presidential veto of an increase in the federal minimum wage. The
newsletter also called on employees to **2509 take action to protect their interests as employees with respect to these
two issues. The question presented is whether petitioner's refusal to allow the distribution violated § 8(a)(1) of the
National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), by interfering with, restraining, or
coercing employees' exercise of their right under § 7 of the Act, 29 U.S.C. § 157, to engage in “concerted activities
for the purpose of . . . mutual aid or protection.”
The newsletter was divided into four sections. The first and fourth sections urged employees to support and participate
in the union and, more generally, extolled the benefits of union solidarity. The second section encouraged employees
to write their legislators to oppose incorporation of the state “right-to-work” statute into a revised state constitution
then under consideration, warning that incorporation would “weake[n] Unions and improv[e] the edge business has at
the bargaining table.” The third section noted that the President recently had vetoed a bill to increase the federal
minimum wage from $1.60 to $2.00 per hour, compared this action to the increase of prices and profits in the oil
industry under administration policies, and admonished: “As working men and women we must defeat our enemies
and *560 elect our friends. If you haven't registered to vote, please do so today.” 3
Petitioner contends that the activity here is not within the “mutual aid or protection” language of section 7 because it
does not relate to a “specific dispute” between employees and their own employer “over an issue which the employer
has the right or power to affect.” Brief for Petitioner 13. In support of its position, petitioner asserts that the term
“employees” in § 7 refers only to employees of a particular employer, so that only activity by employees on behalf of
themselves or other employees *564 of the same employer is protected. Id., at 18, 24. Petitioner also argues that the
term “collective bargaining” in § 7 “indicates a direct bargaining relationship whereas ‘other mutual aid or protection’
must refer to activities of a similar nature . . . .”Id., at 24. Thus, in petitioner's view, under § 7 “the employee is only
protected for activity within the scope of the employment relationship.” Id., at 13. Petitioner rejects the idea that § 7
might protect any activity that could be characterized as “political,” and suggests that the discharge of an employee
who engages in any such activity would not violate the Act.11
1We believe that petitioner misconceives the reach of the “mutual aid or protection” clause. The “employees” who
may engage in concerted activities for “mutual aid or protection” are defined by § 2(3) of the Act, 29 U.S.C. § 152(3),
to “include any employee, and shall not be limited to the employees of a particular employer, unless **2512this
subchapter explicitly states otherwise . . . .” This definition was intended to protect employees when they engage in
otherwise proper concerted activities in support of employees of employers other than their own. 12
2We also find no warrant for petitioner's view that employees lose their protection under the “mutual aid or protection”
clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees
through channels outside the immediate employee-employer relationship. The 74th Congress knew well enough that
labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the
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immediate employment context. It recognized this fact by choosing, as the language of § 7 makes clear, to protect
concerted activities for the somewhat broader purpose of “mutual aid or protection” as well as for the narrower
purposes of “self-organization” and “collective bargaining.”14 Thus, it has been held that the “mutual aid
or*566 protection” clause protects employees from retaliation by their employers when they seek to improve working
conditions through resort to administrative and judicial forums,15 and that employees' **2513 appeals to legislators to
protect their interests as employees are within the scope of this clause. 16 To hold that activity of this nature is entirely
unprotected-irrespective of location or the means employed-would leave employees *567 open to retaliation for much
legitimate activity that could improve their lot as employees.
It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as
employees than other such activity. We may assume that at some point *568 the relationship becomes so attenuated
that an activity cannot fairly be deemed to come within the “mutual aid or protection” clause. It is neither necessary
nor appropriate, however, for us to attempt to delineate precisely the boundaries of the “mutual aid or protection”
clause. That task is for the Board to perform in the first instance as it considers the wide variety of cases that come
before it.18
5*569 The Board determined that distribution of the second section, urging employees to write their legislators to
oppose incorporation of the state “right-to-work” statute into a revised state constitution, was protected because union
security is “central to the union concept of strength through solidarity” and “a mandatory subject of bargaining in
other than right-to-work states.” 215 N.L.R.B., at 274. The newsletter warned that incorporation could affect
employees adversely “by weakening Unions and improving the edge business has at the bargaining table.” The fact
that Texas already has a “right-to-work” statute does not render employees' interest in this matter any less strong, for,
as the Court of Appeals noted, it is “one thing to face a statutory scheme which is open to legislative modification or
repeal” and “quite another thing to face the prospect that such a scheme will be frozen in a concrete constitutional
mandate.”
6The Board held that distribution of the third section, criticizing a Presidential veto of an increase in the federal
minimum wage and urging employees to register to vote to “defeat our enemies and elect our friends,” was protected
despite the fact that petitioner's employees were paid more than the vetoed minimum wage. It reasoned that the
“minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the
minimum,” and that “concern by [petitioner's] employees for the plight of other employees might gain support for
them at some future time when they might have a dispute with their employer.” 215 N.L.R.B., at 274 (internal
quotation marks omitted). We think that the Board acted within the range of its discretion in so holding. Few topics
are of such immediate concern to employees as the level of their wages. The Board was *570 entitled to note the
widely recognized impact that a rise in the minimum wage may have on the level of negotiated wages generally, 19a
phenomenon that would not have been lost on petitioner's employees. The union's call, in the circumstances of this
case, for these employees to back persons who support an increase in the minimum wage, and to oppose those who
oppose it, fairly is characterized as concerted activity for the “mutual aid or protection” of petitioner's employees and
of employees generally.
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TIMEKEEPING SYSTEMS, INC.
323 NLRB No. 30 (N.L.R.B.), 323 NLRB 244, 154 L.R.R.M. (BNA) 1233, 1997 WL 109101
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
Timekeeping Systems, Inc.
And
Lawrence Leinweber
Case 8-CA-27999
February 27, 1997
Chairman Gould and Members Browning and Fox:
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.
BERNARD RIES, ADMINISTRATIVE LAW JUDGE
This case was tried in Cleveland, Ohio, on August 27, 1996. The sole issue presented is whether Respondent
discharged Lawrence Leinweber on December 5, 1995, 1 because of his protected concerted activities and therefore
violated Section 8(a)(1) of the Act.
I. THE FACTS
Respondent is a small Cleveland, Ohio company which manufactures data collection products. The chief operational
officer of Respondent is Barry Markwitz. His father, George Markwitz, is nominally the president, but is essentially
inactive in the business. Larry Leinweber, the Charging Party, 1 of about 23 employees located in two buildings, was
hired by Respondent in April 19954 as a “software engineer” who prepared computer programs.
On December 1, Markwitz sent a message to all of Respondent's employees by electronic mail (“e-mail”) regarding
“proposed plans” for an incentive based bonus system *246 (as to which employees were told to “reply with your
comments or stop by to see me. A response to this is required.”) and changes in vacation policy (“Your comments are
welcome, but not required”). The incorporated memorandum regarding the proposed vacation policy changes, which
are our only concern here, stated prefatorily, “Please give me your comments (send me an e-mail or stop in and talk
to me) by Tuesday, 12/5.”The particular suggested policy changes in which we are interested were to close the offices
on December 23 and reopen on January 2 and to adjust the number of paid days off over a 5-year period, the effect of
which, Markwitz asserted, was that the employees “actually get more days off each year, compared to our present
system.”
**4 Markwitz received a number of employee responses regarding his vacation proposals, including one on December
1, by e-mail, from Leinweber. Leinweber's response demonstrated that, in fact, the change referred to above would
result in the same number of vacation days per year, and less flexibility as to their use. 5 On December 4, Leinweber,
having checked his calculations over the weekend, discovered a minor error, and notified Markwitz by e-mail.
Markwitz did not reply to Leinweber's communications. On December 5, Tom Dutton, a member of the engineering
team, sent an e-mail to Markwitz, with copies to other engineering team members (which would include Leinweber),
reading, “In response to the proposed vacation plan, I have only one word, GREAT!” Promptly, Leinweber, according
to his credible testimony, sent an e-mail to Dutton telling him that the proposed policy did not, in fact, redound to the
advantage of the employees.
Also on December 5, Leinweber sent a lengthy e-mail message to all employees, including Markwitz. The message
spelled out in detail Leinweber's calculations regarding the result of the proposed vacation policy change. It contained,
as well, some flippant and rather grating language.
The salutation was “Greetings Fellow Traveler.”6 In his initial remarks, Leinweber wrote, “The closing statement in
Barry's memo: 'The effect of this is that you actually get more days off each year, compared to our present system,'
will be proven false.” This declaration is reiterated in the final thought of the memo: “Thus, the closing statement in
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Barry's memo ... is proven false.” The paragraph preceding that statement reads, “Assuming anyone actually cares
about the company and being productive on the job, if Christmas falls on Tuesday or Wednesday [sic 7 as it will in
1996 and 1997, respectively, two work weeks of one and two days each will be produced by the proposed plan, and I
wouldn't expect these to be any more productive than the fragmented weeks that they replace. “In closing, Leinweber
asked that the recipient “please send errata to the [sic] Larry.”
Also on December 5, after reading the e-mail message from Leinweber, Dutton e-mailed again to Markwitz, and also
the engineering team (as shown on the e-mail address), saying in part, “After reading Larry's E-mail(s) of this date[,]
I realized I had made a mistake in calculating the vacation days and wish to change my comment from 'GREAT' to
'Not so Great' on the proposed vacation policy.” Dutton also noted in his message that the proposals had “generated
more E-mail than any other plan in the company.”
At the hearing, Markwitz at first admitted that he was “angry that Mr. Leinweber sent his e-mail messages to all
employees.”8 He prepared on December 5 a memorandum to Leinweber which was conveyed to him by the
engineering team leader. The memo stated that Markwitz was “saddened and disappointed” by Leinweber's e-mail,
which was “inappropriate and intentionally provocative” and beneath “someone as talented and intelligent as you are.”
Markwitz then wrote:
**5 Our employment manual states:
“Certain actions or types of behavior may result in immediate dismissal. These include, but are not limited
to:
Failure to treat others with courtesy and respect.”
Markwitz went on to “direct” Leinweber to write him, by 5 p.m. that day:
In light of the above, why this e-mail message was inappropriate
How sending an e-mail message like this hurts the company
How this matter should have been handled
Markwitz continued:
If your response is acceptable to me, you will post it by e-mail today to those who received your other
message.
If you decline to do so, or if your response is unacceptable to me, your employment will be terminated
immediately. Otherwise, your employment will continue on a probationary basis for six months, during
which time your employment may be terminated at any time and for any reason.
Larry, I am very disappointed in you.
At the hearing, Markwitz testified that what upset him about the document was its “tone”: it was a “slap in the face”
of employees with good attitudes and a “personal attack” upon him.
Leinweber testified that in his last meeting with Markwitz on December 5, they agreed to extend the memo deadline
to 8 a.m. the next day. He further stated that he stayed up well into the morning as he attempted to compose an
appropriate letter, but he was unable to come up with anything he deemed satisfactory. When the two men met at 8
a.m., and Markwitz asked if Leinweber had produced a memo, Leinweber said, “No, I couldn't really write anything
incriminating, because it could be used against me later.” Markwitz wished him luck in his future endeavors and bade
him farewell.
**6 Later that day, Leinweber called his supervisor and asked for a discharge letter. The December 9 letter received
by him cited as the “Reason [sic] for termination” two of the grounds for dismissal given in the employee manual:
Failure to treat others with courtesy and respect
Failure to follow instructions or to perform assigned work
Early on December 6, Markwitz e-mailed all the employees. After discussing the proposal, he turned to “Larry's
memo” and how to “address our grievances.” He wrote of the impropriety of using “sarcasm or disrespect”; he pointed
out that “long or provocative” e-mail messages take up everyone's time and that reading, printing, discussing, and
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dealing with this memo had “unnecessarily cost our company time and money”; he noted that “the right way” to handle
a “grievance, or a question, or a comment, or a complaint” was to discuss it with a team leader or Markwitz or his
father; he admitted that he had erred in explaining the proposed vacation policy and he asked employees to inform
him if that had changed their minds; and he closed by saying that while he welcomed disagreement, he also demanded
that everybody be treated with courtesy. No specific mention was made of Leinweber's discharge.
II. DISCUSSION AND CONCLUSIONS
Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the
concerted nature of the employee's activity, the concerted activity was protected by the Act, and the adverse
employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity.
Leinweber's e-mailings clearly constituted “concerted” activity as that term has been defined by case law.
While Meyers II stated that the Board was “fully embracing” (281 NLRB at 887) the rule in Mushroom Transportation
Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), in which the court held that “mere talk” could be found to be protected
Section 7 activity only when it is “looking toward group action,” id. at 685,. The Board has repeatedly held that “the
object of inducing group action need not be express. For instance, '[i]t is obvious that higher wages and better bonuses
are a frequent objective of organizational activity, and discussions about wages or bonuses are necessary to further
that goal.' Jeannette Corp. V. NLRB, 532 F.2d 916, 918 (3d Cir. 1976).” Whittaker Corp., 289 NLRB 933 (1988); U.S.
Furniture Industries, 293 NLRB 159, 161 (1989).
Plainly, in communicating with his fellow employees, Leinweber was attempting to correct any misimpression of the
vacation proposal, such as Dutton's, and to arouse support for his own decision to oppose the proposal. Leinweber
credibly testified that his purpose in circulating the e-mail was “because I understood everybody didn't understand and
that they needed help in making an informed decision.” While his “object of inducing group action [was not] express,”
Whittaker Corp., supra, it is manifest from the record.
**8 Contrary to Respondent's contention on brief, this is a case of concerted activity for the “purpose of mutual aid or
protection,” as required by Section 7 of the Act. Leinweber's effort to incite the other employees to help him preserve
a vacation policy which he believed best served his interests, and perhaps the interests of other employees,
unquestionably qualified his communication as being in pursuit of “mutual aid or protection.”
Under the precedents, Leinweber's e-mail to Markwitz, with transmission to the other employees, was, in and of itself,
concerted activity. The General Counsel also seems to argue that Section 7 was brought into play by the fact that
Leinweber discussed with other employees the error in the December 1 memorandum prior to dispatching his e-mails.
But some showing of employer knowledge of prior employee concert must be made and here there was no such
showing. The only employee who reacted publicly to Leinweber's message was Dutton, and that was after the message
was sent. In the present case, moreover, while Leinweber's testimony on this score is uncontradicted, it is also vague,
and indeed, he testified that he sent the December 5 e-mail to the other employees because they did not seem to
understand the problem. It could be argued that once Dutton sent his e-mail, he was, to Respondent's knowledge,
converting Leinweber's message into concerted activity. See A.N. Electric Corp., 276 NLRB 887, 888-889 (1985).
However, on this record, I need not rely on any such theory in concluding that Leinweber's e-mail effort constituted
concerted activity.
While I have found that Markwitz was principally aggrieved by the tenor of Leinweber's e-mail and its perceived
personal denigration of Markwitz, his December 9 message to employees establishes as well that a component of his
anger was caused by the fact that Leinweber had attempted to enlist other employees in his cause. Although the law
of “protected concerted activity” does not require the General Counsel to prove that the employer has disciplined an
employee because he/she has engaged in concerted activity, but rather only requires that the employer knows that the
conduct being disciplined is concerted, the evidence here shows that the concertedness of Leinweber's conduct also
very likely infected Markwitz' decision to discharge. 11
In considering the other elements of a prima facie protected concerted activity case, as outlined in Meyer I, supra,
there is obviously no question that Markwitz was aware of the concerted activity, nor any doubt that it played the
principal role in Leinweber's discharge.12
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**9 The final question raised by the Respondent is whether Leinweber's December 5 message was “protected.” Some
concerted conduct can be expressed in so intolerable a manner as to lose the protection of Section 7. While the legal
description of the sort of behavior which withdraws the protection of the Act from concerted activity has
varied, [c]ommunications occurring during the course of otherwise protected activity remain likewise protected unless
found to be “so violent or of such serious character as to render the employee unfit for further service.”
In applying the foregoing or similar standards, the Board has invoked a forfeiture of the protection of the Act only in
cases where the concerted behavior has been truly insubordinate or disruptive of the work process. It has generally
been the Board's position that *249 unpleasantries uttered in the course of otherwise protected concerted activity do
not strip away the Act's protection. In Postal Service, 241 NLRB 389 (1979), a letter characterizing acting supervisors
as “a-holes” was not beyond the pale. In Harris Corp., 269 NLRB 733 (1984), a letter describing management with
such words as “hypocritical,” “despotic,” and “tyrannical” was not disqualifying, despite its “boorish, ill-bred, and
hostile tone.” Id. at 738. In Churchill's Restaurant, 276 NLRB 775 (1985), where an employer discharged an employee
who, he believed, was saying that the employer was “prejudiced,” which the latter considered an “insult,” the remarks
were held not “so offensive as to threaten plant discipline,” id. at 777 fn. 11. A statement to other employees that the
chief executive officer was a “cheap son of a bitch” was considered to be protected concerted activity in Groves Truck
& Trailer, 281 NLRB 1194, 1195 (1986).
It is clear from Markwitz' correspondence and testimony that his ultimate decision to discharge Leinweber was based
on two aspects of Leinweber's conduct. The major reason was the tone of the letter and the specific remarks about
Markwitz. As I have noted previously, it is also evident that Markwitz was displeased by the fact that Weber had
communicated the message to the other employees,13 and that concern entwined with and aggravated, in Markwitz'
mind, the first reaction.
Markwitz, like any other employer, wants a friction free working environment. But, as the court of appeals pointed
out in Thor Power Tool, supra, Section 7 activity may acceptably be accompanied by some “impropriety.” And,
in Dreis & Krump Mfg. Co., supra, the court of Appeals laid down the rather stiff test of whether the questioned
activity is “of such serious character as to render the employee unfit for further service.” Surely, the words and phrases
used by Leinweber in his message were not that egregious. The Leinweber message has arrogant overtones, but the
language is less assaultive than the “boorish, ill-bred, and hostile” wording found not be disqualifying in Harris Corp.,
supra. Indeed, Markwitz was prepared to retain Leinweber if he would submit some sort of apology, which he failed
to do. I find that the message itself was not couched in language sufficiently serious to warrant divestment of Section
7 protection.
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HOLLING PRESS, INC.
343 NLRB No. 45 (N.L.R.B.), 343 NLRB 301, 175 L.R.R.M. (BNA) 1449, 2004-05 NLRB Dec. P 16766, 2004 WL
2368662
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
HOLLING PRESS, INC., AND BONCRAFT-HOLLING PRINTING GROUP F/K/A BONCRAFT, INC.
AND
CATHERINE M. FABOZZI
Case 3-CA-20229
October 15, 2004
CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER
The issue before the Board is whether Catherine Fabozzi was engaged in activity encompassed by Section 7 of the
Act when she solicited a coworker to be a witness in support of her sexual harassment claim filed with a State
agency.2 We find that Fabozzi's conduct, though concerted, was uniquely designed to advance her own cause, and
thus, that it was not engaged in for the purposes of mutual aid or protection. Accordingly, we find that she was not
engaged in activity protected by Section 7 and that her termination was lawful. 3
Background
In early January 1996,4 Fabozzi, a 3-year employee of the Respondent— Holling Press, Inc., complained to her union
steward that leadman John Leon was sexually harassing her. The Union looked into the accusation and concluded that
it was unfounded.5Thereafter, in January or February 1996, Fabozzi contacted the New York State Division of Human
Rights, claiming that she had been subjected to sexual harassment. In a letter dated March 7, the State agency directed
Fabozzi to supply specific information so that a complaint could be prepared. 6 In March, before returning from a
routine layoff, Fabozzi raised the harassment issue with the production manager, and the Respondent met with her
and union officials. Much of the meeting centered on whether Fabozzi had threatened Leon, and although Fabozzi's
accusations were not substantiated, then-owner Brian Maher resolved that, to the extent possible, Fabozzi would not
have to work alone with Leon. Thereafter, in May, Fabozzi asked employee Susan Garcia to testify before the State
agency, saying that she (Garcia) could be “hit” with a subpoena in any event. 7 At the time of Fabozzi's solicitation,
Garcia had just informed her that Leon said he was wearing his “tight white pants” for Garcia. The Respondent
suspended Fabozzi on June 26, and terminated her on July 2, for purportedly “attempt[ing] to coerce coworkers into
corroborating an unsubstantiated charge of sexual harassment against one of [her] supervisors.” 8
Analysis
*302 In order for employee conduct to fall within the ambit of Section 7, it must be both concerted and engaged in for
the purpose of “mutual aid or protection.” These are related but separate elements that the General Counsel must
establish in order to show a violation of Section 8(a)(1).
In the Meyers cases,10 which refined the scope of conduct that constitutes concerted activity, the Board discussed and
adhered to a longstanding distinction between concerted activity on the one hand and mutual aid or protection on the
other. Thus, in Meyers I and II, the Board noted that earlier Board cases “had, with court approval, distinguished
between the two clauses and regarded them as separate tests to be met in establishing Section 7 coverage.” 11 The
Board reaffirmed that concerted activity included “circumstances in which individual employees seek to initiate or to
induce or to prepare for group action,”12 and “activity which in its inception involves only a speaker and a listener, for
such activity is an indispensable preliminary step to employee self-organization,” so long as what is being articulated
goes beyond mere griping.13 Consistent with treating the two elements as separate but indispensable requirements of
Section 7, the Board in Meyers II then discussed mutual aid or protection separately, noting that “the Supreme Court
regarded proof that an employee action inures to the benefit of all simply as proof that the action comes within the
‘mutual aid or protection’ clause of Section 7.”14 Accordingly, our analysis of Fabozzi's conduct follows this
distinction.
Where employees concertedly band together to seek from their employer an improvement in terms and conditions of
employment, or protection against an adverse change in the same, they are engaged in Section 7 activity. That is, their
activity is concerted, and it is for mutual aid or protection. However, in the instant case, the employee sought to pursue
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a personal claim before a State agency. When she sought other employees to help her, that conduct was concerted.
But, inasmuch as the claim before the State was personal, that conduct was not for mutual aid or protection.
Fabozzi was engaged in concerted activity because she appealed to other employees for help. We do not disagree that
such a finding could be made on this record. To the extent that Fabozzi exhorted another employee, Garcia, to support
her sexual harassment claim, Fabozzi was engaged in concerted activity within the meaning of Section 7.
**3 However, with respect to mutual aid or protection, the record reveals that from the outset, Fabozzi charted a course
of action with only one person in mind—Fabozzi herself. To begin with, Fabozzi's complaint was individual in nature.
Believing herself to be a victim of sexual harassment, she complained to the State agency. It was the State agency that
instructed Fabozzi to provide more information and, presumably, to identify potential witnesses. Thus, her apparent
requests to coworkers to help her out with John Leon were not made to accomplish a collective goal. Rather, their
purpose was to advance her own cause. Significantly, Fabozzi testified, she asked Garcia to “help me follow through
with charges [against Leon].” (Emphasis added.) Further, there is no evidence that Fabozzi offered or intended to help
any employees as a quid pro quo for their support of her personal claim. Her goal was a purely individual one. In
addition, there is no evidence that any other employee had similar problems—real or perceived—with a coworker or
supervisor. In particular, there is no evidence Garcia took offense to Leon's comment, which she reported to Fabozzi,
or sought Fabozzi's help. Nor did Garcia show any interest in assisting with Fabozzi's claim. Indeed, Fabozzi's request
that Garcia become a witness was accompanied by the threat that she could force Garcia to testify by “hitting” her
with a subpoena. Garcia's evident lack of concern regarding Leon's comment, her lack of interest in supporting
Fabozzi, and Fabozzi's aggressive tactics with Garcia clearly establish the absence of any mutual purpose here. Thus,
even though Fabozzi's exhortation to Garcia to testify on her behalf constitutes concerted activity, it was not made to
benefit the group, but rather to advance Fabozzi's personal case.
Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), is not to the contrary. The employees there sought to gain support for their
effort to oppose a “right to work” law and to protest a presidential veto of a minimum wage bill. Obviously, “right to
work” vs. union security is an issue that is an important one for all union supporters within the unit. As they see it, the
inability to collect dues from “free riders” creates a financial impediment to the union's role as representative for all.
Equally obvious, *303 minimum wage laws are not personal to any particular employee.15
Our dissenting colleague asserts that nothing in the Court's language in Eastex implies that a single employee's resort
to an administrative forum is protected only if she is not the sole immediate beneficiary of her action. By this, we
understand our colleague to mean the Eastex does not require that for a single employee's complaint to be protected,
the complaint must benefit other employees as well as the complainant herself. We read Eastex differently. Simply
stated, Eastex (and Sec. 7) require concert plus mutual aid or protection. The element of mutual aid or protection was
shown by the fact that, as set forth above, the group of employees had a common interest in the subject matter. In the
instant case, we have the element of concert, but not the element of mutual aid or protection. In our view, our dissenting
colleague is simply presuming from the concerted nature of Fabozzi's request to Garcia, that she assist her with her
complaint, that Fabozzi's complaint was for the purpose of mutual aid or protection. This is contrary to the teaching
of Meyers I and II, discussed above, which explain that the concepts of concertedness and mutual aid or protection are
analytically distinct and must be analyzed separately. Thus, in Meyers I and II, the Board, declining to find
concertedness from the object of the action taken, overruled its decision in Alleluia Cushion, 221 NLRB 999 (1975).
In that decision, the Board had announced that it would presume that a lone employee's (Henley's) filing of a complaint
with the California OSHA office constituted concerted activity because “it [was] clear from the nature and extent of
the safety complaints registered that Henley's object encompassed the well-being of his fellow employees.” Alleluia
Cushion, 221 NLRB at 1000-1001 (emphasis added). By her arguments here, our dissenting colleague now asserts, as
it were, the “flip side” of the Alleluia Cushion analysis: that where activity is found to be concerted, the purpose of
that activity must, in effect, be presumed to be for mutual aid or protection. We reject this argument as contrary
to Meyers I and II. As explained above, Fabozzi's purpose in filing the charge was to benefit herself alone. The mere
fact that Fabozzi subsequently enlisted Garcia to assist her with her complaint does not somehow expand the scope of
the original complaint beyond its intended purpose of benefiting Fabozzi alone to one of benefiting others for mutual
aid or protection. Nothing in Eastex suggests otherwise.16
In sum, our colleague suggests that, when one employee asks for the assistance of another, there is always mutual aid
or protection, for there may come a day when the second employee asks for help. In our view, that approach obliterates
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the distinction between concert and mutual aid or protection. That is inconsistent with the principle that the two
elements are separate and distinct.
Our dissenting colleague overstates our position and then seeks to demolish (through statistics) the straw man that she
had created. In fact, we do not “treat sexual harassment at work as merely an individual concern.” Such conduct can
be, and often is, of concern to many persons in the workplace. Where the victims and their supporters protest that
conduct, the protest can fall within the ambit of Section 7. However, where one employee is the alleged victim, that
lone employee's protest is not concerted. And, even if the victim seeks support from another employee, and that
seeking of support is concerted activity, the “mutual aid or protection” element may be missing. The bare possibility
that the second employee *304 may one day suffer similar treatment, and may herself seek help, is far too speculative
a basis on which to rest a finding of mutual aid or protection.17
We recognize that, in IBM Corp., 341 NLRB 1288 (2004), the Board said that the activity there was protected. The
activity was one employee asking his employer for the assistance of another employee during an investigatory
interview of the former, which interview could potentially lead to discipline. A Board majority concluded that the
seeking of assistance was protected, although a different Board majority held that the employer did not have to grant
the request.
**5 We believe that IBM is distinguishable. In an employment context, discipline and the threat thereof are
commonplace occurrences. Thus, employees have an interest in a regimen under which any one employee, threatened
with discipline, can request the assistance of the another. 18 There is a real possibility that, in the future, other
employees will be subjected to an investigatory interview and will seek assistance at that time. By contrast, the claim
here (before a State agency) was a private one to remedy alleged sexual harassment. Such claims are not a common
everyday occurrence. Although there is a theoretical possibility that the solicited person may herself file a claim or
suit some day and ask for assistance at that time, that possibility is far too remote and tenuous to support a conclusion
that the request is for mutual aid or protection.
The dissent argues, and we agree, that any workplace grievance can be the basis for Section 7 protection. However,
our point is simply that some types of workplace matters are far more likely than others to involve mutual aid or
protection. As noted above, it is a common practice for employers to investigate alleged employee misconduct at the
workplace, and it is not uncommon for employees to seek the protection of each other during such investigations. By
contrast, the filing of private lawsuits or charges outside the workplace is less common, and there is no showing that
the plaintiffs in such cases seek mutual aid or protection in the prosecution of such lawsuits or charges. 19
Finally, we do not think that Leon's comment to Garcia established mutual aid or protection. There are far too many
assumptions that one has to make to support such a claim. For example, we would have to assume that Garcia was in
fact the victim of sexual harassment and that the Fabozzi lawsuit would offer her protection. With particular respect
to the latter point, there is nothing to suggest that Fabozzi's lawsuit would give any relief to Garcia.
Accordingly, we find that the complaint was properly dismissed.
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538 F.2d 607
United States Court of Appeals,
Fourth Circuit.
COMMUNITY HOSPITAL OF ROANOKE VALLEY, INCORPORATED, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 75-1971.
Argued April 5, 1976.Decided July 1, 1976.
CRAVEN, Circuit Judge:
Community Hospital1 appeals the ruling of the National Labor Relations Board that it violated Section 8(a)(1) of the
NLRA2 by interfering with its employees' exercise of their Section 7 rights. The Board found that the Hospital violated
the rights of Nurse Irene Weinman by issuing a warning notice to her on September 26, 1974, in connection with
comments she made concerning the Hospital on a television interview program. Nurse Helen Fields' rights were found
to be violated by the Hospital's removal of her name from an “on-call” list3 on October 10, 1974, and the refusal of
the Hospital on November 29, 1974, to reemploy her on a full-time basis.
The Board4 found that these actions were taken as to both women because of their “bringing to public attention their
efforts to organize for the improvement of their wages and working conditions through collective bargaining, which
management was attempting to channel and control.” App. 25(a). It ordered that the warning notice issued to Weinman
be rescinded and removed from hospital files. The Board further ordered that Fields' name be restored to the on-call
list; that the Hospital offer her immediate full-time employment as a staff nurse or an equivalent position; and that it
make her whole for any loss of earnings suffered as a result of the Hospital's unlawful conduct.
On the Board's cross-application, we order enforcement.
I.
On August 27, 1974, Helen Fields, who had resigned from full-time employment with the Hospital in September 1973,
interviewed with Ms. Margaret Hanley, director of nursing services. She told Hanley she was interested in returning
to full-time employment with the Hospital. Hanley expressed surprise in view of “ ‘the letter 5 *609 (Fields) wrote to
the newspaper and (her) unhappiness with hospital nursing.’ ” Since Fields had neither resigned from her employment
with a private medical clinic nor given notice of her intent to resign, Hanley declined to discuss the matter further.
On the evening of August 27, between 40 and 50 of the Hospital's staff nurses held a meeting. Its purpose was to
consider organizing a chapter of the Virginia Nurses Association to discuss salaries, benefits and grievances with the
Hospital. Temporary officers were elected. Weinman was named chairman and Fields secretary.
On September 24, 1974, Weinman and Fields were interviewed by a reporter from a local television station as part of
a news story concerning dissatisfaction among the Hospital's nurses and organizational activities there. During the
interview, Weinman made the following statement:
There are times, especially the 3:00 to 11:00, and the 11:00 to 7:00 shifts, when there are not rn's to cover
the whole medical-surgical unit of 40 patients. And this isn't just particular at our hospital alone in the valley
. . . that's a known fact. And, you know, we feel very badly about this, we feel it is directly related also to the
salary and benefits situation we're having, like Helen was saying earlier. The cost of living, according to the
National Chamber of Commerce figures, that have come out, are just as high here in the Roanoke area as
they are anywhere in the country. And yet our salaries in this area are like 60 to 80 cents an hour lower than
they are anywhere else in the country.
App. 39(a)-40(a).
On September 26, two days later, Hanley met with Weinman. Hanley stated that she “was appalled at what she had
said on the television interview.” Weinman responded that she had said nothing which was untrue. Hanley replied:
“That may be so; but the impression that you created with the public was disastrous to the hospital as far as I was
concerned.” (Emphasis added.) Hanley then gave Weinman the following warning notice:
Nature of Warning: Breach of hospital and professional ethics in broadcasting via the television news media
her dissatisfaction with hospital working conditions regarding staffing and her demotion.
Remarks: Further incidents of this nature would be cause for dismissal.
App. 58(a).
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Weinman protested the issuance of this notice.
On November 18, 1974, Fields had another interview with Hanley and asked to be transferred from the on-call list to
a full-time staff nursing position. Hanley told her that she had been removed from the on-call list because she had not
worked the required two weekend days per month. Fields protested that she had received no notice of that action, a
fact that the Hospital does not dispute. Full-time employment was discussed further, and Fields' April 1974 letter to
the newspaper was again mentioned by Hanley.
On November 29, 1974, Fields and Hanley met. Hanley told Fields that she would not be reemployed “because of her
prospective dissatisfaction with employment at Community Hospital based on publicly announced dissatisfaction and
frustration with working conditions at Community Hospital.” 6
II.
1It is for the Board to find facts and draw appropriate inferences. The Board found that:
*610 The evidence . . . clearly reveals that the (Hospital's) true motivation was to channel or control its employees'
organizing efforts
It is also clear that the appearance of these two employee(s) (Weinman and Fields) . . . on the television news broadcast
brought their cause to public attention and thereby triggered the (Hospital's) coercive conduct toward them.
App. 24(a).
2This finding is supported by substantial evidence, and is buttressed by the chronology of events. Shortly after
Weinman and Fields7 were publicly identified as leaders of employee organizational efforts in the Hospital, adverse
actions were taken concerning them. And these actions were taken by individuals who had clearly demonstrated an
antiorganizational animus. This circumstantial evidence, coupled with the Administrative Law Judge's credibility
findings in favor of Weinman and Fields, requires that the determination of the Board be affirmed.
3As to Weinman, the Hospital argues that, regardless of its motivation, the warning notice could not constitute an
unfair labor practice since her disparaging and disloyal statements were unprotected under NLRB v. International
Brotherhood of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953). “Irene Weinman, either
intentionally or negligently, disparaged and discredited the quality of nursing care available at the Hospital, to the
point of insinuating that it was unsafe.” Brief for Appellant at 33.
We conclude that Weinman's statements were not unprotected. As Hanley admitted, they were true, and unlike the
statements found unprotected in Electrical Workers, supra, they were directly related to protected concerted activities
then in progress. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298
(1962) (interpreting Electrical Workers ); NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029-30 (6th Cir. 1974).
Having found the other assignments of error without merit, the Board's order will be
ENFORCED.
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ATLANTIC STEEL
245 NLRB No. 107 (N.L.R.B.), 245 NLRB 814, 102 L.R.R.M. (BNA) 1247, 1979-80 NLRB Dec. P 16338, 1979
WL 10011
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
Atlantic Steel Company
and
Kenneth Chastain
Case 10-CA-13634
September 28, 1979
DECISION AND ORDER
**1 BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On December 15, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor
Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided
to affirm the rulings of the Administrative Law Judge, and to adopt his findings and conclusions only to the extent
consistent herewith.
Although an arbitrator had previously upheld the discharge of Kenneth Chastain for calling his supervisor a “lying
s.o.b.,” the Administrative Law Judge found that the arbitrator confined his decision to legal issues arising under the
contract and failed to consider whether the conduct amounted to an unfair labor practice. The Administrative Law
Judge found that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Chastain because, at the time
Chastain made the remark, he was discussing a grievance and therefore was engaged in protected concerted activity.
Respondent maintains that Chastain was discharged for insubordination, and that the Board, under
its Spielberg doctrine,1 should defer to the arbitrator's award which upheld the lawfulness of the discharge. We agree
with Respondent.
The facts, as found by the arbitrator, are relatively simple. 2
Around 2 p.m. on November 3, 1977, employee Kenneth Chastain, during his regular work shift, approached his
foreman in the production area, and asked him a question about assignment of overtime by seniority. Chastain was
concerned that a probationary employee had worked overtime. Shortly thereafter, the foreman returned with an
answer, also stating that he had asked all of the crew to take the overtime. Based on the testimony of four witnesses-two employees, the foreman, and Chastain--the arbitrator found that, as the foreman was walking away from the area,
Chastain turned to another employee and either called the foreman a “lying son of a bitch” or stated that the foreman
had told a “m--f--lie” (or was a “m--f--liar”) as to whether he had asked the entire crew to work overtime. The foreman
heard his statement and told Chastain to go to the office. Chastain was suspended pending discharge and thereafter
terminated.
At the arbitration hearing. Chastain claimed that the foreman had been harassing him for circulating a petition
concerning benefits, and that the discharge was part of that harassment. Other claimed harassment was the foreman's
complaint that he was spending too long in the bathroom, and that the foreman had poked him in the chest with a
finger, insisted that he wear his hardhat, and objected to his rejection of certain of Respondent's products as
defective.3 The foreman denied all of these claims except the complaint about his going to the bathroom too frequently.
In any event, the arbitrator found that Chastain had not been disciplined for any of these incidents, and that Respondent
did not rely on them as grounds for the discharge.
**2 The arbitrator also noted, as conceded by both Respondent and the Union, that Chastain was discharged on the
basis of his entire record, and not solely because of the incident with the foreman. In the preceding 3 years, Chastain
had been suspended twice and given two warning letters. The first suspension, for poor work performance which
curtailed production, was grieved but not taken to arbitration. The second suspension--which occurred only 10 months
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before the final incident--was for cursing in the presence of female clerks in violation of a supervisor's directive not
to use such language. This suspension was grieved and taken to arbitration, whereupon the same arbitrator who issued
the instant decision upheld the suspension but reduced it from 2 days to 1 day. The arbitrator also observed in the
present proceeding that Chastain had a poor attendance record--32 instances of tardiness, 1 of which concerned his
leaving early with no apparent excuse, and 7 unexcused absences.
Based on all of the above, the arbitrator concluded that Respondent had good cause for the discharge. He found that
Chastain had properly questioned the foreman about overtime, and that the foreman had acted promptly to answer the
question. The arbitrator, concluding that Chastain's obscene reaction to the supervisor was unwarranted
insubordination, noted that:
*815 If Mitchell [the foreman] was in error in stating the entire crew had been offered the overtime, a grievance was
the proper way to correct the mistake. But the use of insulting, obloquous [sic] language to other employees about
their supervisor in the hearing of the supervisor cannot be regarded as “mere disrespect.” On the contrary it shows a
willful disregard for constituted industrial authority, a challenge to the dignity and character of the foreman, [and] a
derrogation [sic] of the authority necessary to direct the working forces. Under any definition, this, in the setting it
was found, constitutes insubordination.
Furthermore, the arbitrator found that any alleged harassment by Respondent played no role in the decision to
discharge, since these alleged incidents were not “a causitive [sic] factor for Grievant's utterance concerning Mitchell.
Grievant's language was a reaction to information supplied by Mitchell at Grievant's request. In this there was
obviously disagreement, but not provocation.”He also found that, while a supervisor once cursed an employee without
being disciplined, that single event did not constitute a practice which would justify Chastain's language “in the
circumstances where it was uttered.” Finally, the arbitrator concluded that the discharge was warranted because
Respondent did not discharge Chastain because of one insubordinate act. Rather, the discharge was part of a pattern
of progressive discipline by Respondent, which included a prior suspension for a similar act.
We find that the Board should defer to the arbitrator's decision. In concluding that Chastain's statements were
unjustified, the arbitrator also considered Chastain's allegation that he was discharged as part of a pattern of harassment
for having circulated a petition concerning benefits. He rejected this claim and found that Chastain was discharged on
the basis of his entire disciplinary record, including the uttering of the obscenities about the supervisor, and not as part
of any campaign of harassment. We are satisfied that the arbitrator thoroughly considered all of the evidence and made
factual findings that are clearly supported by the evidence. Accordingly, we defer to his factual findings. 11
**5 The decision as to whether the employee has crossed that line depends on several factors: (1) the place of the
discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the
outburst was, in any way, provoked by an employer's unfair labor practice.
To reach a decision, the Board or an arbitrator must carefully balance these various factors.
Here the arbitrator considered the factors which the Board considers, and concluded that the employee's discharge was
warranted and based on reasons not repugnant to the Act.16 He noted that the incident *817 occurred on the production
floor during working time (not at a grievance meeting), that the employee's question about overtime expressed
legitimate concern which could be grieved, and that the supervisor had investigated and answered his question
promptly; but, nevertheless, the employee had reacted in an obscene fashion without provocation and in a work setting
where such conduct was not normally tolerated. He further considered the employee's past record and concluded that,
considered together, this record established a reasonable basis for the discharge. 17
We find nothing in the arbitrator's decision that is repugnant to the Act. Indeed, a contrary result in this case would
mean that any employee's offhand complaint would be protected activity which would shield any obscene
insubordination short of physical violence. That result would not be consistent with the Act. Accordingly, we conclude
that it will effectuate the purposes of the Act to give conclusive effect to the grievance award, and, on that basis, we
shall dismiss the complaint in its entirety.
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PATTERSON-SARGENT
115 NLRB No. 255 (N.L.R.B.), 115 NLRB 1627, 38 L.R.R.M. (BNA) 1134, 1956 WL 14419
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
The Patterson-Sargent Company
and
United Gas, Coke & Chemical Workers of America, AFL-CIO,1and its Local 260
Case No. 8-CA-1042
June 22, 1956
DECISION AND ORDER
**1 On September 6, 1955, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled
proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain
other unfair labor practices and recommended that these allegations in the complaint be dismissed. Thereafter, the
Respondent, the General Counsel, and the Union as the Charging Party each filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and
briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, insofar as they are consistent with the Decision and Order herein.
1. We agree with the result reached by the Trial Examiner that the Respondent did not violate Section 8 (a) (3) of the
Act, as alleged, in refusing to reinstate, following their unconditional application after the strike, 2 complainants Poyle,
Kost, Bakula, Vertosnik, Kordic, and Leitter. We find that the Respondent was justified in its decision to terminate
these strikers because of their conduct during the strike in personally distributing to the Respondent's customers and
the general public in front of retail hardware stores in the city of Cleveland which handled paint manufactured by the
Respondent, the following handbill:3
*1628 BEWARE PAINT SUBSTITUTE
THE EMPLOYEES OF THE PATTERSON-SARGENT COMPANY IN CLEVELAND WHO MANUFACTURE
PAINT UNDER THE BRAND OF B.P.S., WERE FORCED ON STRIKE BY THE COMPANY. AS A RESULT,
THERE IS NOT BEING MANUFACTURED ANY PAINT AT THE PATTERSON-SARGENT COMPANY IN
CLEVELAND BY THE WELL TRAINED, EXPERIENCED EMPLOYEES WHO HAVE MADE THE PAINT
YOU HAVE ALWAYS BOUGHT.
THIS IS A WARNING THAT YOU SHOULD MAKE CERTAIN THAT ANY B. P. S. PAINT YOU BUY IS MADE
BY THE REGULAR EMPLOYEES WHO KNOW THE FORMULAS AND THE EXACT AMOUNT OF
INGREDIENTS TO PUT INTO PAINT. IF YOU SHOULD HAPPEN TO GET PAINT WHICH IS MADE BY ANY
OTHER THAN THE REGULAR, WELL TRAINED, EXPERIENCED WORKERS, IT MIGHT NOT DO FOR YOU
WHAT YOU WANT IT TO DO. IT COULD PEEL, CRACK, BLISTER, SCALE OR ANY ONE OF MANY
UNDESIRABLE THINGS THAT WOULD CAUSE YOU INCONVENIENCE, LOST TIME AND MONEY.
STOP! THINK! IS IT WORTH YOUR WHILE TO RISK SPENDING YOUR GOOD MONEY FOR A PRODUCT
WHICH MIGHT NOT BE WHAT YOU ARE ACCUSTOMED TO USING? YOU WILL BE INFORMED WHEN
YOU CAN AGAIN BUY B. P. S. PAINT WHICH IS MADE BY THE REGULAR EMPLOYEES IN CLEVELAND.
**2 The Trial Examiner found that “the only reasonable inference that could possibly be drawn [from the handbill]
by either the Respondent's customers or the general public in the Cleveland area was that the Respondent was about
to, and in fact, already had foisted upon those who relied upon the 'B. P. S.' label, shoddy and inferior merchandise.”
We are in substantial agreement with this view. We believe that the handbill was intended to, and did, publicly impugn
the quality and usability of the Respondent's product. In this respect we view the conduct as quite distinguishable from
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the boycott of an employer's business and product which inheres in the usual strike situation. For such a boycott has
for its purpose the publicizing of an existing labor dispute, separate and apart from the quality of his product. Cf. N.
L. R. B. v. Electronics Equipment Co., Inc., 194 F. 2d 650, 653-654 (C. A. 2); The Hoover Company v. N. L. R. B., 191
F. 2d 380, 390 (C. A. 6).
*1629 However, we consider it unnecessary to rely upon the Trial Examiner's findings that the statements contained
in the handbill were false. For the truth or falsity of these statements, in our opinion, is not material, and not the test
of their protected character.4Statements made by employees to the public which deliberately cast discredit upon their
employer's product or service are no less disloyal and a breach of confidence because they are truthful. For, as the
Supreme Court has recently observed in the Jefferson Standard case involving a situation of striking similarity, “There
is no more elemental cause for discharge of an employee than disloyalty to his employer.”5
The essential question we must decide here is whether the handbill activity for which the employees were discharged
was within the scope of protection provided employee concerted activities by Section 7 of the Act when undertaken
as an implement to an otherwise lawful strike. In the Jefferson Standard case, supra, the Supreme Court held with the
Board that the employer was justified in discharging certain of its technician employees who had prepared and
distributed to the public a handbill strongly disparaging the quality of its television broadcasting service, but making
no reference to any union, nor to the current labor dispute over contract negotiations then in progress. 6 The Supreme
Court agreed with the employer that the handbill demonstrated such “detrimental disloyalty” as to provide cause for
discharge. The Court's reasoning, as we construe it, was essentially as follows: (1) The technicians responsible for the
handbill attack on the employer were at the time of the distribution in the active employment of, and receiving their
regular pay from, the employer. These employees were therefore attacking the very interests which they were being
paid to conserve and develop and the employer was not required to finance such activities. “An employee cannot
collect wages for his employment and, at the same time, engage in activities to injure or destroy his employer's
business.”7 (2) As the handbill did not relate itself to the then existing labor controversy, it was a “separable” attack
on the employer's product and policies “as if the labor controversy had not been pending.” The attack was purported
“to be made in the interest of the public rather than in that of the employees,” and was thus effectively separated from
any concerted activity under which the protection of Section 7 of the Act might be *1630 invoked. (3) And finally, in
language applicable to the facts before us in this case, the Supreme Court concluded that even if the attack were not
treated as “separable” from the labor controversy, but instead were to be treated as a concerted activity of the kind
intended to be embraced in Section 7, the means which were used by the responsible technicians (i. e., the public
disparagement of the quality of the employer's product), “deprived the attackers of the protection of that section, when
read in the light and context of the purpose of the Act.”8
**3 While the facts as to the handbill issue in the present case differ in certain respects from those in Jefferson
Standard, we do not find these differences to be at all decisive. True, as our dissenting colleagues point out, the
employees in the Jefferson Standard case were not on strike. But during their off-duty hours they were engaged in
picketing the purpose of which was to publicize their disagreement with the employer over the current contract
negotiations and to protest the employer's “unfairness” to them.9 Under such circumstances, it cannot be maintained
that the offending conduct bore any less relation to an existing labor controversy in that case than does the conduct
complained of here. Accordingly, we reach the same result on the same broad principle as did the Board and the
Supreme Court in the Jefferson Standard case, namely that by the means employed here in the preparation and
circulation of the handbill the strikers forfeited any right they may have otherwise had to the protection of the Act.10
For the foregoing reasons, therefore, we adopt the Trial Examiner's dismissal of the complaint as to the alleged
discrimination against the 6 complainants, named above, who personally distributed the handbill. We reject the
Respondent's contention that complainant Clossin should similarly be held responsible for the handbill activity
because of his membership on the Union's executive committee. The record indicates that Clossin did not distribute,
approve, or ratify the handbill, *1631 individually or as a member of the executive committee. Having found that the
Respondent had sufficient cause for terminating the named complainants on the ground of their distribution of the
handbill, we consider it unnecessary to pass upon the Respondent's further allegations of misconduct and the Trial
Examiner's findings thereon with respect to the prestrike activities of these individuals, and their conduct during the
course of the strike.
2. Like the Trial Examiner, we find that the Respondent did not violate Section 8 (a) (3) in refusing to reinstate Clossin.
However, we base our finding upon the Murvine incident, fully described in the Intermediate Report, and do not pass
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upon Clossin's alleged abusive name-calling during the strike, nor upon his alleged prestrike misconduct. As did the
Trial Examiner, we credit Murvine's testimony at the hearing that Clossin stopped him during the strike, accused him
of delivering paint through the picket line, and told him in substance that “they have records and they know that I am
taking paint, so I better look out or they will beat me up.”
3. We likewise agree with the Trial Examiner, for the reasons stated by him, that the Respondent violated Section 8
(a) (3) of the Act by discriminatorily refusing to reinstate complainant Basar upon his unconditional application after
the strike. We find that Basar's alleged prestrike misconduct was, in any event, condoned by the Respondent.
**4 4. The General Counsel, at the hearing and in his exceptions, contends that the Respondent condoned the alleged
misconduct on the part of Leitter and Kordic by sending them a copy of its letter of October 7, 1954, notifying the
recipient strikers that they were entitled to reemployment. Personnel Director Warren testified without contradiction
that the letter was sent to Leitter and Kordic by mistake. When Leitter and Kordic applied on October 15 to return to
work, they were handed the October 15 letter, discussed above, informing them that they would not be reinstated, in
effect, because they had engaged in strike misconduct. The Trial Examiner did not pass upon this issue. We credit
Warren's testimony that Leitter and Kordic were sent the October 7 letter by mistake, and accordingly find that the
Respondent did not condone their misconduct.
74 S.Ct. 172
Supreme Court of the United States
NATIONAL LABOR RELATIONS BOARD
v.
LOCAL UNION NO. 1229, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS.
“Jefferson Standard”
No. 15.
Argued Oct. 12, 1953.Decided Dec. 7, 1953.
Mr. Justice BURTON delivered the opinion of the Court.
The issue before us is whether the discharge of certain employees by their employer constituted an unfair labor
practice, within the meaning of ss 8(a)(1) and 7 of the Taft-Hartley Act,1 justifying their reinstatement by the National
Labor Relations Board. For the reason that their discharge was ‘for cause’ within the meaning of s 10(c) of that
Act,2 we sustain the Board in not requiring their reinstatement.
*466 In 1949, the Jefferson Standard Broadcasting Company (here called the company) was a North Carolina
corporation engaged in interstate commerce. Under a license from the Federal Communications Commission, it
operated, at Charlotte, North Carolina, a 50,000-watt radio station, with call letters WBT. It broadcast 10 to 12 hours
daily by radio and television. The television service, which it started July 14, 1949, representing an investment of
about $500,000, was the only such service in the area. Less than 50% of the station's programs originated in Charlotte.
The others were piped in over leased wires, generally from New York, California or Illinois from several different
networks. Its annual gross revenue **174 from broadcasting operations exceeded $100,000 but its television
enterprise caused it a monthly loss of about $10,000 during the first four months of that operation, including the period
here involved. Its rates for television advertising were geared to the number of receiving sets in the area. Local dealers
had large inventories of such sets ready to meet anticipated demands.
The company employed 22 technicians. In December 1948, negotiations to settle the terms of their
employment *467 after January 31, 1949, were begun between representatives of the company and of the respondent
Local Union No. 1229, International Brotherhood of Electrical Workers, American Federation of Labor (here called
the union). The negotiations reached an impasse in January 1949, and the existing contract of employment expired
January 31. The technicians, nevertheless, continued to work for the company and their collective-bargaining
negotiations were resumed in July,3 only to break down again July 8. The main point of disagreement arose from the
union's demand for the renewal of a provision that all discharges from employment be subject to arbitration and the
company's counter-proposal that such arbitration be limited to the facts material to each discharge, leaving it to the
company to determine whether those facts gave adequate cause for discharge.
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July 9, 1949, the union began daily peaceful picketing of the company's station. Placards and handbills on the picket
line charged the company with unfairness to its technicians and emphasized the company's refusal to renew the
provision for arbitration of discharges. The placards and handbills named the union as the representative of the WBT
technicians. The employees did not strike. They confined their respective tours of picketing to their off-duty hours
and continued to draw full pay. There was no violence or threat of violence and no one has taken exception to any of
the above conduct.
But on August 24, 1949, a new procedure made its appearance. Without warning, several of its
technicians *468 launched a vitriolic attack on the quality of the company's television broadcasts. Five thousand
handbills were printed over the designation ‘WBT Technicians.’ These were distributed on the picket line, on the
public square two or three blocks from the company's premises, in barber shops, restaurants and busses. Some were
mailed to local businessmen. The handbills made no reference to the union, to a labor controversy or to collective
bargaining. They read:
‘Is Charlotte A Second-Class City?
‘You might think so from the kind of Television programs being presented by the Jefferson Standard Broadcasting
Co. over WBTV. Have you seen one of their television programs lately? Did you know that all the programs presented
over WBTV are on film and may be from one day to five years old. There are no local programs presented by WBTV.
You cannot receive the local baseball games, football games or other local events because WBTV does not have the
proper equipment to make these pickups. Cities like New York, Boston, Philadelphia, Washington receive such
programs nightly. Why doesn't the Jefferson Standard Broadcasting Company purchase the needed equipment to bring
you the same type of programs enjoyed by other leading American cities? Could it be that they consider Charlotte a
second-class community and only entitled to the pictures now being presented to them?
**175 'WBT Technicians'
This attack continued until September 3, 1949, when the company discharged ten of its technicians, whom it charged
with sponsoring or distributing these handbills. *469 The company's letter discharging them tells its side of the story.4
September 4, the union's picketing resumed its original tenor and, September 13, the union filed with the Board a
charge that the company, by discharging the above-mentioned ten technicians, had engaged in an unfair labor practice.
The General Counsel for the Board filed *470 a complaint based on those charges and, after hearing, a trial examiner
made detailed findings and a recommendation that all of those discharged be reinstated with back pay. 5 94 N.L.R.B.
1507, 1527. The Board found that one of the discharged men had neither sponsored nor distributed the ‘Second-Class
City’ handbill and ordered his reinstatement with back pay. It then found that the other nine had sponsored or
distributed the handbill and held that the company, by discharging them for such conduct, had not engaged in an unfair
labor practice. The Board, accordingly, did not order their reinstatement. One member dissented. Id., at 1507 et seq.
Under s 10(f) of the Taft-Hartley Act,6 the union petitioned the Court of Appeals for the District of Columbia Circuit
for a review of the Board's order and for such a modification of it as would reinstate all ten of the discharged
technicians with back pay. That court remanded **176 the cause to the Board for further consideration and for a
finding as to the ‘unlawfulness' of the conduct of the employees which had led to their discharge. *471 91
U.S.App.D.C. 333, 202 F.2d 186.7 We granted certiorari because of the importance of the case in the administration
of the Taft-Hartley Act. 345 U.S. 947, 73 S.Ct. 865.
In its essence, the issue is simple. It is whether these employees, whose contracts of employment had expired, were
discharged ‘for cause.’ They were discharged solely because, at a critical time in the initiation of the company's
television service, they sponsored or distributed 5,000 handbills making a sharp, public, disparaging attack upon the
quality of the company's product and its business policies, in a manner reasonably calculated to harm the company's
reputation and reduce its income. The attack was made by them expressly as ‘WBT Technicians.’ It continued ten
days without indication of abatement. The Board found that—
‘It (the handbill) occasioned widespread comment in the community, and caused Respondent to apprehend a loss of
advertising revenue due to dissatisfaction with its television broadcasting service.
‘In short, the employees in this case deliberately undertook to alienate their employer's customers by impugning the
technical quality of his product. As *472 the Trial Examiner found, they did not misrepresent, at least wilfully, the
facts they cited to support their disparaging report. And their ultimate purpose—to extract a concession from the
employer with respect to the terms of their employment—was lawful. That purpose, however, was undisclosed; the
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employees purported to speak as experts, in the interest of consumers and the public at large. They did not indicate
that they sought to secure any benefit for themselves, as employees, by casting discredit upon their employer.’ 94
N.L.R.B., at 1511.
1The company's letter shows that it interpreted the handbill as a demonstration of such detrimental disloyalty as to
provide ‘cause’ for its refusal to continue in its employ the perpetrators of the attack. We agree.
23Section 10(c) of the Taft-Hartley Act expressly provides that ‘No order of the Board shall require the reinstatement
of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if
such individual was suspended or discharged for cause.'8 There is no more elemental cause for discharge of an
employee than disloyalty to his employer. It is equally elemental that the Taft-Hartley Act seeks to strengthen, rather
than to weaken, that cooperation, continuity of service and cordial contractual relation between employer and
employee that is born of loyalty to their common enterprise. 9
**177 *473 4Congress, while safeguarding, in s 7, the right of employees to engage in ‘concerted activities for the
purpose of collective bargaining or other mutual aid or protection,'10 did not weaken the underlying contractual bonds
and loyalties of employer and employee. The conference report that led to the enactment of the law said:
‘(T)he courts have firmly established the rule that under the existing provisions of section 7 of the National Labor
Relations Act, employees are not given any right to engage in unlawful or other improper conduct.
‘* * * Furthermore, in section 10(c) of the amended act, as proposed in the conference agreement, it is specifically
provided that no order of the Board shall require the reinstatement of any individual or the payment to him of any
back pay if such individual was suspended or discharged for cause, and this, of course, applies with equal force whether
or not the acts constituting the cause for *474discharge were committed in connection with a concerted activity.’
H.R.Rep.No. 510, 80th Cong., 1st Sess. 38—39.
This has been clear since the early days of the Wagner Act.11 In 1937, Chief Justice Hughes, writing for the Court,
said:
‘The act does not interfere with the normal exercise of the right of the employer to select its employees or to
discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with
respect to their self-or-ganization and representation, and, on the other hand, the Board is not entitled to make
its authority a pretext for interference with the right of discharge when that right is exercised for other reasons
than such intimidation and coercion.’ National Labor Relations Board v. Jones & Laughlin Steel Corp., 301
U.S. 1, 45—46, 57 S.Ct. 615, 628, 81 L.Ed. 893.
Many cases reaching their final disposition in the Courts of Appeals furnish examples emphasizing the importance of
enforcing industrial plant discipline and of maintaining loyalty as well as the rights of concerted activities. The courts
have refused to reinstate employees discharged for ‘cause’ consisting of insubordination, disobedience or disloyalty.
In such cases, it often has been necessary to identify individual **178 employees, somewhat comparable to the nine
discharged in this case, and to recognize that their discharges were for causes which were separable from the concerted
activities of others whose acts might come within the protection of s 7. It has been equally important to *475 identify
employees, comparable to the tenth man in the instant case, who participated in simultaneous concerted activities for
the purpose of collective bargaining or other mutual aid or protection but who refrained from joining the others in
separable acts of insubordination, disobedience or disloyalty. In the latter instances, this sometimes led to a further
inquiry to determine whether their concerted activities were carried on in such a manner as to come within the
protection of s 7.
5The above cases illustrate the responsibility that falls upon the Board to find the facts material to such decisions. The
legal principle that insubordination, disobedience or disloyalty is adequate cause for discharge is plain enough. The
difficulty arises in determining whether, in fact, the discharges are made because of such a separable cause or because
of some other concerted activities engaged in for the purpose of collective bargaining or other mutual aid or protection
which may not be adequate cause for discharge. Cf. National Labor Relations Board v. Peter Cailler Kohler Swiss
Chocolates Co., 2 Cir., 130 F.2d 503.
In the instant case the Board found that the company's discharge of the nine offenders resulted from their sponsoring
and distributing the ‘Second-Class City’ handbills *476 of August 24—September 3, issued in their name as the ‘WBT
Technicians.’ Assuming that there had been no pending labor controversy, the conduct of the ‘WBT Technicians' from
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August 24 through September 3 unquestionably would have provided adequate cause for their disciplinary discharge
within the meaning of s 10(c). Their attack related itself to no labor practice of the company. It made no reference to
wages, hours or working conditions. The policies attacked were those of finance and public relations for which
management, not technicians, must be responsible. The attack asked for no public sympathy or support. It was a
continuing attack, initiated while off duty, upon the very interests which the attackers were being paid to conserve and
develop. Nothing could be further from the purpose of the Act than to require an employer to finance such activities.
Nothing would contribute less to the Act's declared purpose of promoting industrial peace and stability.12
**179 The fortuity of the coexistence of a labor dispute affords these technicians no substantial defense. While they
were also union men and leaders in the labor controversy, they took pains to separate those categories. In contrast to
their claims on the picket line as to the labor controversy, their handbill of August 24 omitted all reference to it. The
handbill diverted attention from the labor controversy. It attacked public policies of the company which had no
discernible relation to that controversy. The only connection between the handbill and *477 the labor controversy was
an ultimate and undisclosed purpose or motive on the part of some of the sponsors that, by the hoped-for financial
pressure, the attack might extract from the company some future concession. A disclosure of that motive might have
lost more public support for the employees than it would have gained, for it would have given the handbill more the
character of coercion than of collective bargaining. Referring to the attack, the Board said ‘In our judgment, these
tactics, in the circumstances of this case, were hardly less ‘indefensible’ than acts of physical sabotage.' 94 N.L.R.B.,
at 1511. In any event, the findings of the Board effectively separate the attack from the labor controversy and treat it
solely as one made by the company's technical experts upon the quality of the company's product. As such, it was as
adequate a cause for the discharge of its sponsors as if the labor controversy had not been pending. The technicians,
themselves, so handled their attack as thus to bring their discharge under s 10(c).
The Board stated ‘We * * * do not decide whether the disparagement of product involved here would have justified
the employer in discharging the employees responsible for it, had it been uttered in the context of a conventional
appeal for support of the union in the labor dispute.’ Id., at 1512, n. 18. This underscored the Board's factual conclusion
that the attack of August 24 was not part of an appeal for support in the pending dispute. It was a concerted separable
attack purporting to be made in the interest of the public rather than in that of the employees.
We find no occasion to remand this cause to the Board for further specificity of findings. Even if the attack were to
be treated, as the Board has not treated it, as a concerted activity wholly or partly within the scope of those mentioned
in s 7, the means used by the technicians in conducting the attack have deprived the attackers of *478 the protection
of that section, when read in the light and context of the purpose of the Act. 13
Accordingly, the order of the Court of Appeals remanding the cause to the National Labor Relations Board is
set **180 aside, and the cause is remanded to the Court of Appeals with instructions to dismiss respondent's petition
to modify the order of the Board. It is so ordered.
Order set aside and cause remanded with instructions.
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330 F.2d 683
United States Court of Appeals Third Circuit.
MUSHROOM TRANSPORTATION COMPANY, Inc., Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 14510.
Argued Feb. 18, 1964.Decided April 24, 1964.
KIRKPATRICK, District Judge.
The Board ordered the reinstatement with back pay of Charles Keeler, a nonregular employee of Mushroom
Transportation Company, Inc., an interstate motor carrier. The case is now before this court upon Mushroom's petition
to review and set aside the order and the Board's answer requesting enforcement.
In addition to its thirty or forty regular drivers, Mushroom maintains a list (supplied to it by the Union steward) of
part-time drivers or ‘extras' who are normally hired when regular men are not available. Shortly after December 15,
1961, Cutaiar, the petitioner's president, directed that Keeler's name be removed from the extra list and that he receive
no further work. The Board, adopting the trial examiner's findings, found that this was done because Cutaiar had heard
rumors that Keeler was going to report the company for I.C.C. violations and also other rumors to the effect that Keeler
was telling the drivers that ‘they were not getting what they were entitled to’ under the existing union contract. In
Cutaiar's words, his reasons were that he understood that Keeler was a ‘crackpot’ and had a reputation for being a
troublemaker. In the view that we take of the case, it is immaterial whether Cutaiar was correctly informed, although
it may be said that the evidence shows that the report that Keeler was a troublemaker had a fairly substantial
foundation.
1The evidence is to the effect that Keeler had been in the habit of talking to other employees and advising them as to
their rights. The trial examiner found that the subjects of these conversations were principally holiday pay, vacations,
and the company's practice of assigning trips to drivers of other companies rather than to its own regular drivers. He
registered his conclusion that Keeler's activities involved attempts by him to implement the existing bargaining
contract. That, however, is merely the trial examiner's characterization of the activities just mentioned. The Board
further found that Keeler's activities in general were directly related to the employees' legitimate interests in terms and
conditions of employment and that it was not his prime motive to advance his personal interest by establishing himself
as union steward and so assuring employment on the regular list. These findings are supported by evidence and we
accept them.
Upon the basis of them and other findings of like tenor, the Board concluded, ‘Keeler's activities, therefore, fall within
the protected ambit of concerted activities as defined in Section 7 of the Act.’ This ruling raises the question to be
decided by this court, Was Keeler in his contacts with other employees engaging in concerted activities for the purpose
of mutual aid or protection within the meaning of Section 7 of the National Labor Relations Act?
2We look in vain for evidence that would support a finding that Keeler's talks with his fellow employees involved any
effort on his or their part to initiate or promote any concerted action to do *685 anything about the various matters as
to which Keeler advised the men or to do anything about any complaints and grievances which they may have
discussed with him. It follows that, if we were to hold that Keeler's conversations constituted concerted activity, it
could only be upon the basis that any conversation between employees comes within the ambit of activities protected
by the Act provided it relates to the interests of the employees. We are unable to adopt this view.
It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a
listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or
inducing or preparing for group action or that it had some relation to group action in the interest of the employees.
This is not to say that preliminary discussions are disqualified as concerted activities merely because they have not
resulted in organized action or in positive steps toward presenting demands. We recognize the validity of the argument
that, inasmuch as almost any concerted activity for mutual aid and protection has to start with some kind of
communication between individuals, it would come very near to nullifying the rights of organization and collective
bargaining guaranteed by Section 7 of the Act if such communications are denied protection because of lack of fruition.
However, that argument loses much of its force when it appears from the conversations themselves that no group
action of any kind is intended, contemplated, or even referred to.
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Activity which consists of mere talk must, in order to be protected, be talk looking toward group action. If its only
purpose is to advise an individual as to what he could or should do without involving fellow workers or union
representation to protect or improve his own status or working position, it is an individual, not a concerted, activity,
and, if it looks forward to no action at all, it is more than likely to be mere ‘griping.'
3There being no evidence that any question of group action entered into the conversations, we hold that Keeler was
not engaged in concerted activities within the protection of Section 7 of the Act.
It is immaterial whether or not, as he testified, these individual conversations with employees which led to Keeler's
being dropped from the extra list were often initiated by the other employee or employees involved. Keeler had been
a shop steward in a previous employment with another company and it would be entirely natural that some of the men
should from time to time consult him about their rights, and the fact, if it be a fact, that they did so would carry no
implication that there was any general concerted move on foot or sought.
4The Board found upon sufficient evidence that Keeler was a competent driver and, as such, there was nothing in his
performance of his work to give dissatisfaction. However, unless limited either by a contract or by the statute, an
employer has the right to discharge any employee at will. Thus, an employer who resents any activity of an employee
has the right to discharge him unless it is found that the employer is trying ‘to interfere with, restrain or coerce
employees' with respect to rights guaranteed by the Act.
In the present case there was a union contract by which the jobs of the regular employees were protected, and, as to
them, the employer's right of discharge was limited by the terms of the contract, but Keeler was an extra man and,
therefore, outside its protection. As to him, there being no evidence that his discharge was motivated by opposition to
union policy or activity, nor by his unsuccessful prosecution of a grievance, the only limitation upon the employer's
right is that which is to be found in Section 7 of the Act. It is, therefore, unnecessary to attempt to determine whether
what he was doing would constitute ‘cause’ for his discharge within the meaning of Section 10(e).
*686 5In reaching our conclusion we have not disturbed only finding of fact which would be binding upon this court.
The statement of the trial examiner, adopted by the Board, that there was concerted activity is an ultimate or general
conclusion which must be predicated upon specific findings, and the record here shows that neither the specific
findings made by the Board nor the evidence support it.
For the reasons stated the Petition of Mushroom Transportation Company, Inc., to Review and Set Aside the Board's
Order of June 14, 1963, will be granted and the Board's Petition for Enforcement of the said Order will be denied.
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ROADWAY PACKAGE SYSTEM, INC.
326 NLRB No. 72 (N.L.R.B.), 326 NLRB 842, 159 L.R.R.M. (BNA) 1153, 1998 WL 574959
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
Roadway Package System, Inc., a wholly owned subsidiary of Roadway Services, Inc.
and
Wholesale and Retail Food, Distribution, Teamsters Local 63, International Brotherhood of Teamsters, AFL-CIO,
Petitioner
Cases 31-RC-7267 and 31-RC-7277
August 27, 1998
**1 BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN, AND BRAME
*843 I. INTRODUCTION
Roadway, a Delaware corporation, operates a nationwide pickup and delivery system for small packages throughout
the United States. This system currently is comprised of approximately 317 terminals and hub facilities. The sole issue
to be decided here is whether the drivers at Roadway's Ontario and Pomona terminals are employees under Section
2(3) of the Act or independent contractors not subject to the Board's jurisdiction. 9
The Ontario and Pomona drivers own or lease vans to perform their work for Roadway. Under the 1994 Agreement,
the drivers may operate their vehicles for other commercial or personal purposes when it is not in the service of
Roadway if they remove or mask all numbers, marks, logos, and insignia identifying Roadway. There is no evidence
that the drivers use their vehicles for any commercial purpose other than hauling for Roadway. 15 The drivers' vehicles
must meet precise specifications set by Roadway. A brochure entitled “Becoming a Roadway Package System Pickup and Delivery Contractor” (new driver brochure) illustrates the “RPS Package Vans” that are to be used by the
drivers, and indicates that the vehicles are “custom designed for RPS.” The brochure describes the required make,
model, chassis, payload (weight and number of packages), shelving, and rear door of vehicles. 16 This document further
indicates that Roadway provides the drivers with “warranty recovery assistance” and various “P&D Contractor
Assistance,” including a reference to “Assistance in Arranging Financing of Vehicle Lease or Purchase.”
Nearly all the drivers obtain either new vehicles through Bush Leasing or used vehicles from former drivers of
Roadway.17 During the “focus groups” conducted by its recruiting department, Roadway advises prospective drivers
that “we have a van that meets our specifications, *845 it's brand spanking new and you can buy it. You can go to
your credit union and buy it ... and we have recommended Bush Leasing.” In addition to recommendations of this sort,
Roadway makes sure that Bush Leasing has a sufficient number of vans that are available to the drivers. Based on its
own estimates of how many new drivers may need vans, Roadway purchases the vans from the manufacturer, Navistar,
Inc., which builds the vehicles to Roadway's specifications. Then, the Navistar vehicles are re-sold to Bush Leasing
for later acquisition by the prospective drivers referred by Roadway. Negotiations for the vehicles take place between
the drivers and Bush Leasing, without Roadway's participation.
.
The estimated purchase price of these vehicles ranges from $22,000 for the smallest-sized van to $39,000 for the
largest-sized van. William E. Breese, Roadway's director of contract relations, estimated that a vehicle lease would
require a $4000 down payment, and payments between $300 to $400 monthly for 4 to 5 years with a “balloon” payment
at the end of the lease. But, the new driver brochure suggests that vehicle financing over a 5- to 6-year term is available
with an $800 security deposit, plus 1 month's vehicle payment (amount unspecified) and an $88 filing fee from the
driver.
Under the 1994 Agreement, the drivers may operate additional vehicles with Roadway's consent and may use
additional “qualified persons” to operate the additional vehicles, pursuant to applicable laws and Roadway's “safe
driving standards” that are attached to the Agreement. According to this Agreement, these extra drivers shall “not be
considered employees of RPS.” The drivers are responsible for all expenses associated with using this extra personnel.
The drivers, without prior approval from Roadway, may also use helpers or replacement drivers on their routes.
Ontario driver Albin and Pomona drivers Calderon and Gonzales own or lease a second vehicle and use additional
drivers to service a second primary service area assigned to each of them. 18
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Under the 1994 Agreement, Roadway provides the drivers with eight distinct compensation mechanisms: (1) a “van
availability settlement” of $40 per day for “each business day” that a driver provides services under the
agreement;21 (2) one rate for each package delivered and picked up, and one rate for each stop;22 (3) a “temporary core
zone density settlement” to supplement the piece rates based on a rate for a driver's particular primary service area
which may contain one or more core zones; (4) a voluntary “flex program” to compensate participating drivers $5 per
day (in addition to the standard package pickup rates) for agreeing to pick up and deliver any overflow work from
fellow drivers; (5) a “quarterly performance settlement” of 2.25 percent of the quarterly gross settlement for drivers
with at least 1 year of service; (6) a “service bonus” of $500 per year for each of the first 4 years a driver is under the
agreement, and $1000 per year after being under the agreement for 5 years or more; (7) a “customer service program”
that provides a bonus paid for no at-fault accidents and no verified customer complaints based on driver and terminal
performance; and (8) a “service guarantee program” under which the drivers are eligible for loans from Roadway of
up to $5000, depending on the amount maintained in the driver's “service guarantee account,” which is an interestbearing savings account to which Roadway makes matching contributions of 20 percent each quarter, or 80 percent
annually.
When the drivers signed the 1994 Agreement, they were granted a “proprietary interest” in their existing service areas.
According to Roadway, this proprietary interest is manifested in the driver's contractual right to sell his service area
or portions thereof, or to receive minimum compensation for customer accounts that are reassigned or removed from
his service area.
According to Roadway, the concept of proprietary interest and the contractual right to sell service areas afford
entrepreneurial opportunity for the drivers. As reflected by the 1994 Agreement, the driver and Roadway have a
“mutual intention to reduce the geographic size of the (driver's) primary service area.” Under this plan, the driver will
sell off portions and reduce the geographic size of his service area as business grows in his primary service area if the
driver cannot “reasonably service” all or part of that area. In this way, the driver can use his proprietary interest and
his right to sell customer accounts to maintain a serviceable area. The 1994 Agreement proclaims this to be in the
driver's interest because, purportedly, his income will rise and his expenses will lessen in a smaller and more
manageable, but more lucrative, service area. In theory, the driver will also profit by receiving compensation for the
sale of these accounts.
RELEVANT LEGAL PRINCIPLES
**10 The parties and the amici agree that under Section 2(3) of the Act the Board must apply a multifactor test
developed under the common law of agency to decide whether an individual is an employee or an independent
contractor.
Roadway argues that the drivers are independent contractors. In support of its argument, Roadway emphasizes, inter
alia, that the drivers control their own work schedules and other details of job performance; they are not subject to a
disciplinary policy; and their compensation package is based on performance-related components. Roadway further
asserts that the drivers are independent entrepreneurs because they have a significant proprietary interest in their
service areas and they have experienced gains and losses in their businesses. Roadway notes that the drivers, like
independent businessmen, receive no fringe benefits from it, and they are responsible for their own tax withholdings.
Relying on the Board's decision in Standard Oil Co., 230 NLRB 967 (1976), the Petitioner takes the position that the
drivers are employees within the meaning of Section 2(3) of the Act. In support of its view, the Petitioner contends
that the drivers have no genuine or significant opportunity to realize financial gains or losses through the exercise of
entrepreneurial initiative. The Petitioner asserts that Roadway controls the customer rates and business volume, which
are the main determinants of the drivers' revenue. It further asserts that the drivers' proprietary interest is not a true
indicator of ownership but more like a rental arrangement with a deposit, some of which is to be returned upon the
termination of the driver's services to Roadway. The Petitioner also argues that the drivers' alleged ability to expand
the volume of packages by growing Roadway's business in their service areas is largely illusory. According to the
Petitioner, the drivers have only a theoretical opportunity to haul for others, and Roadway's various support programs
“cushion” the drivers' risk of loss in servicing Roadway's customer accounts.
Section 2(3) of the Act, as amended by the 1947 Labor Management Relations Act (the Taft-Hartley Act), provides
that the term “employee” shall not include “any individual having the status of independent contractor.”29 *849
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The meaning and ramifications of this 1947 amendment were first considered by the Supreme Court in NLRB v. United
Insurance Co. of America, 390 U.S. 254 (1968).30 ]In United Insurance, the Court upheld the Board's determination
of employee status for the debit agents of the respondent insurance company. In doing so, the Court emphasized the
following “decisive factors” present in that case:
[T]he agents do not operate their own independent businesses, but perform functions that are an essential part
of the company's normal operations; they need not have any prior training or experience, but are trained by
company supervisory personnel; they do business in the company's name with considerable assistance and
guidance from the company and its managerial personnel and ordinarily sell only the company's policies; the
“Agent's Commission plan” that contains the terms and conditions under which they operate is promulgated
and changed unilaterally by the company; the agents account to the company for the funds they collect under
an elaborate and regular reporting procedure; the agents receive the benefits of the company's vacation plan
and group insurance and pension fund; and the agents have a permanent working arrangement with the
company under which they may continue as long as their performance is satisfactory. [390 U.S. at 259-260.]
For a long time, United Insurance has been the preeminent guidance to the lower courts and the Board on what
standard should be applied in differentiating employee status from independent contractor status in the NLRA context.
Recent Supreme Court precedent reinforces United Insurance's observations about the appropriateness of using the
common law of agency as the test for determining employee status. See NLRB v. Town & Country Electric, 516 U.S.
85 (1995); Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992); and Community for Creative NonViolence v. Reid, 490 U.S. 730 (1989). Furthermore, these cases teach us not only that the common law of agency is
the standard to measure employee status but also that we have no authority to change it.
*850 The parties and amici in the instant case rely on the Restatement, but they debate whether any of the factors
listed in Section 220are more or less indicative of employee status. Citing the language contained in Subsections (1)
and 2(a), Roadway and several amici argue that the “most important” or “predominant” factor to be considered is
whether an employer has a “right to control” the manner and means of the work. In contrast, the Petitioner and the
AFL-CIO assert that all the factors should be weighed in the equation, as evidenced by the opening paragraph of
Subsection 2 of Section 220.
The Supreme Court has clearly stated that “all of the incidents of the relationship must be assessed and weighed with
no one factor being decisive.” See United Insurance, 390 U.S. at 258; Thus, the common-law agency test
encompasses a careful examination of all factors and not just those that involve a right of control.
APPLICATION OF AGENCY TEST FACTORS
We find that the dealings and arrangements between these drivers and Roadway, including those reflective of the
changes made by the 1994 Agreement, have many of the same characteristics of the employee-employer relationship
presented in United Insurance. Reviewing the factors relied on by the Board in Roadway I, we see insignificant change
pointing to independent contractor status.33
As in United Insurance, the drivers here do not operate independent businesses, but perform functions that are an
essential part of one company's normal operations; they need not have any prior training or experience, but receive
training from the company; they do business in the company's name with assistance and guidance from it; they do not
ordinarily engage in outside business; they constitute an integral part of the company's business under its substantial
control; they have no substantial proprietary interest beyond their investment in their trucks; and they have no
significant entrepreneurial opportunity for gain or loss. All these factors weigh heavily in favor of employee status,
and are fully supported by the following facts.
**14 The Ontario and Pomona drivers devote a substantial amount of their time, labor, and equipment to performing
essential functions that allow Roadway to compete in the small package delivery market. “[T]he functions performed
by the drivers ... constitute a regular and essential part of the company's business operations.” NLRB v. Amber
Delivery, supra, 651 F.2d at 63 (citing Restatement (Second) of Agency, Section 220(h)). None of the drivers are
required to have prior delivery training or experience. Those unfamiliar with Roadway's system can gain assistance
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and guidance from the new driver orientation meetings that are conducted by Roadway's personnel. While a few
operate as incorporated businesses, all the Ontario and Pomona drivers do business in the name of Roadway. Wearing
an “RPS-approved uniform,” the drivers operate uniformly marked vehicles. In fact, the vehicles are custom designed
by Roadway and produced to its specifications by Navistar. The vehicles are identical as to make, model, internal
shelving, and rear door, differing only as to chassis and payload (three choices depending on the size of the driver's
primary service area). All the vehicles clearly display Roadway's name, logo, and colors. 34 Thus, the drivers'
connection to and integration in Roadway's operations is highly visible and well publicized.
The drivers have a contractual right to use this customized truck in business activity outside their relationship with
Roadway,35 though none of the Ontario and Pomona drivers (and only 3 out of Roadway's 5000 drivers nationwide)
have used their vehicles for other commercial purposes. This lack of pursuit of outside business activity appears to be
less a reflection of entrepreneurial choice by the Ontario and Pomona drivers and more a matter of the obstacles
created by their relationship with Roadway.36
Roadway's drivers are prohibited under the 1994 Agreement from conducting outside business for other companies
throughout the day. The drivers' commitment to Roadway continues through the evening hours when they must return
their vehicles to the terminal to interface with Roadway's evening line-haul operations. Typically, most drivers then
take their vehicles out of circulation. They leave their vehicles overnight at the terminal to take advantage of loading
of the next day's assignments by Roadway's package handlers. As a consequence, their vehicles remain out of service
during these off-work hours. Even if the drivers want to use their vehicles for other purposes during their off-work
hours, there are several obvious built-in hindrances. First, the vehicles are not readily available. Second, before the
driver can use his vehicle for other purposes, he must mask any marking reflecting Roadway's name or business. Every
vehicle utilized by the driver has been dictated in detail-color, size, internal configuration including the internal
shelving and door-by Roadway's operations. The vehicles are also not easily flexible or susceptible to modifications
or adaptations to other types of use. Thus, these constraints on the drivers' use of their vehicles during their off-work
hours “provide minimal play for entrepreneurial initiative and minimize the extent to which ownership of a truck gives
its driver entrepreneurial independence.” Amber Delivery Service, supra at 63. Roadway has simply shifted certain
capital costs to the drivers without providing them with the independence to engage in entrepreneurial opportunities.
**15 Truck ownership can suggest independent contractor status where, for example, an entrepreneur with a truck
puts it to use in serving his or another business' customers.37 But, the form of truck ownership, here, does not eliminate
the Ontario and Pomona drivers' dependence on Roadway in acquiring their vehicles. Roadway's indirect control is
further seen in that it requires the drivers*852 to acquire and maintain their own specialty vans, and Roadway eases
the drivers' burden through its arrangement and promotion of Navistar vans sold or leased through Bush
Leasing.38 Although it does not directly participate in these van transfers, Roadway's involvement in these deals
undoubtedly facilitates and ensures that a fleet of vehicles, built and maintained according to its specifications, is
always readily available and recyclable among the drivers.
Roadway also encourages the sale of used vehicles from former to new drivers. In this way, Roadway eases the new
driver's responsibility for obtaining a qualified vehicle. It further decreases the former driver's risk of repossession by
Bush Leasing39 and increases the likelihood that there will be a qualified buyer for a costly specialty van no longer
needed by the former driver. There is simply no ready market for these vehicles. Every feature, detail, and internal
configuration has been dictated by Roadway's specifications. In short, Roadway has created a system which makes
the necessary, custom vehicles readily available to prospective drivers, and enables drivers who want to end their
relationship with it to easily transfer their vehicles to incoming drivers. By the same token, the specialized vehicles
required by Roadway are of no further use to former drivers who naturally sell the vehicles to incoming Roadway
drivers when their relationship with Roadway is over.
Roadway is also a ready source for replacement vans when the drivers' vehicles are unavailable because of needed
maintenance or repair. Roadway arranges for the rental of vehicles from national rental companies and negotiates
rental prices favorable to its drivers. At most terminals, Roadway also maintains spare vehicles purchased from former
drivers that can be used by current drivers on a short-term basis when their vehicles break down.
In addition to this vehicle assistance, the “business support package” helps ensure that the drivers' vehicles are properly
maintained and covered by specific warranties. Roadway reminds the drivers that certain essential maintenance is
needed by placing charts on the windows of the drivers' vehicles. The brochure to prospective drivers also advertises
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Roadway's maintenance “assistance” and further notes that “RPS provides warranty recovery assistance” to its drivers.
The “business support package” also gives the drivers easy access to clean work uniforms. This assistance by Roadway
points in the direction of finding employee status for the Ontario and Pomona drivers. 40
**16 Other support for employee status can be found in Roadway's compensation package for the drivers. 41 Here,
Roadway establishes, regulates, and controls the rate of compensation and financial assistance to the drivers as well
as the rates charged to customers. Generally speaking, there is little room for the drivers to influence their income
through their own efforts or ingenuity. Whatever potential for entrepreneurial profit does exist, Roadway suppresses
through a system of minimum and maximum number of packages and customer stops assigned to the drivers. For
example, when a driver becomes busier and the number of packages or customer stops grows, his territory may be
unilaterally reconfigured, and the extra packages or stops are reassigned if the driver has already attained the maximum
level for his primary service area that has been already determined by Roadway. “[I]t is clear that, unlike the genuinely
independent businessman, the drivers' earnings do not depend largely on their ability to exercise good business
judgment, to follow sound management practices, and to be able to take financial risks in order to increase their
profits.” Standard Oil Co., supra, 230 NLRB at 972.
The weekly settlement sheets supplied by Roadway show that the main components of the drivers' income are the van
availability settlement, the temporary core zone settlement, and the piece-rate payments for packages delivered and
picked up.42 The daily van availability settlement is virtually guaranteed income of $40 per day for the life of the
driver's contract with Roadway. Because the 1994 Agreement requires the driver to make his vehicle available each
weekday over a period ranging from 1 to 5 years, the driver must show up for work each day to fulfill his contract
obligations. This is not a situation where “[e]ach driver can decide not to work on any particular day-a freedom that
further links his compensation to his personal initiative and effort.” Amber Delivery Service, supra at 61.
*853 In a similar fashion, the temporary core zone settlement subsidizes the driver's income. With the 1994
Agreement, the driver receives this supplement until he reaches the “normal” range of pickups and deliveries for his
service area. In this way, the temporary core zone settlement serves as an important safety net for the fledging driver
to shield him from loss, and it guarantees an income level predetermined by Roadway, irrespective of the driver's
personal initiative and effort in his service area.
Income from each delivery and pickup, the last major compensation component, may vary among the drivers. This
variance stems not from the drivers' entrepreneurial efforts but from the differences in customer bases that were
assigned to the drivers. When it established the geographic boundaries of the service areas prior to 1994, Roadway
did not assign equal customer bases to the service areas. Because these service areas largely remain the same today,
these built-in differences directly affect the drivers' compensation. Although Roadway states that drivers can, and
have, secured new customers, there is no evidence that such additional customers have significantly affected the
earnings of any driver.43
CONCLUSION
Weighing all the incidents of their relationship with Roadway, we conclude that the Ontario and Pomona drivers are
employees and not independent contractors. Accordingly, we find that these employees of Roadway constitute an
appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
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OAKWOOD CARE CENTER
348 NLRB No. 37 (N.L.R.B.), 348 NLRB 686, 180 L.R.R.M. (BNA) 1257, 2006-07 NLRB Dec. P 17189, 2006 WL
2842124
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
OAKWOOD HEALTHCARE, INC.
AND
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO
Case 7-RC-22141
September 29, 2006
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN, SCHAUMBER, KIRSANOW, AND WALSH
I. FACTS
The Employer has approximately 181 staff RNs who provide direct care to patients in 10 patient care units at Oakwood
Heritage Hospital, an acute care hospital with 257 licensed beds.6 The patient care units are behavioral health,
emergency room, intensive care, intermediate care, medical/surgical east, medical/surgical west, operating room, pain
clinic, post-anesthesia care/recovery and rehabilitation. The RNs report to the on-site nursing manager, clinical
managers, clinical supervisors, and assistant clinical managers-all stipulated supervisors. In providing patient care,
RNs follow the doctors' orders and perform tasks such as administering medications, running blood tests, taking vital
signs, observing patients and processing admissions and discharges. RNs may direct less-skilled employees to perform
tasks such as *687 feeding, bathing, and walking patients. RNs may also direct employees to perform tests that are
ordered by doctors for their patients.
**3 Many RNs at the hospital serve as charge nurses. Charge nurses are responsible for overseeing their patient care
units, and they assign other RNs, licensed practical nurses (LPNs), nursing assistants, technicians, and paramedics to
patients on their shifts.7 Charge nurses also monitor the patients in the unit, meet with doctors and the patients' family
members, and follow up on unusual incidents. Charge nurses may also take on their own patient load, but those who
do assume patient loads will sometimes, but not always, take less than a full complement of patients. When serving
as charge nurses, RNs receive an additional $1.50 per hour.
Twelve RNs at the hospital serve permanently as charge nurses on every shift they work, 8 while other RNs take turns
rotating into the charge nurse position. In the patient care units of the hospital employing permanent charge
nurses,9 other RNs may serve as charge nurses on the permanent charge nurses' days off or during their vacations.
Depending on the patient care unit and the work shift, the rotation of the charge nurse position may be worked out by
the RNs among themselves, or it may be set by higher-level managers. The frequency and regularity with which a
particular RN will serve as a “rotating” charge nurse depends on several factors (i.e., the size of the patient care unit
in which the RN works, the number of other RNs who serve as rotating charge nurses in that unit, and whether the
unit has any permanent charge nurses).
However, some RNs do not serve as either rotating or permanent charge nurses at the hospital. Most individuals who
fit in this category are either new employees at the hospital10 or those who work in the operating room or pain clinic
units. There are also a handful of RNs at the hospital who choose not to serve as charge nurses.
The Petitioner, joined by several amici, would include all the charge nurses in the RN unit. The Employer, joined by
other amici, seeks to exclude the permanent and the rotating charge nurses from the unit on the basis that they are
supervisors within the meaning of Section 2(11) because they use independent judgment in assigning and responsibly
directing employees.11 The Acting Regional Director found that none of the charge nurses are 2(11) supervisors and
directed an election in the RN unit including them.
II. LEGAL PRINCIPLES
A. Introduction
In 1947, the Supreme Court held in Packard Motor Car Co. v. NLRB, 330 U.S. 485, that supervisors were included in
the definition of “employee” as used in Section 2(3) of the Act. In response, Congress amended the National Labor
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Relations Act that same year, adding Section 2(11) to specifically exclude supervisors from the Act's definition of
“employee.”
Section 2(11) defines “supervisor” as:
any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
**4 Pursuant to this definition, individuals are statutory supervisors if (1) they hold the authority to engage in any 1
of the 12 supervisory functions (e.g., “assign” and “responsibly to direct”) listed in Section 2(11); (2) their “exercise
of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment;” and (3)
their authority is held “in the interest of the employer.” 12 Supervisory status may be shown if the putative supervisor
has the authority either to perform a supervisory function or to effectively recommend the same. The burden to prove
supervisory authority is on the party asserting it.13
Both the drafters of the original amendment and Senator Ralph E. Flanders, who proposed adding the term
“responsibly to direct” to the definition of supervisor, 14 *688 agreed that the definition sought to distinguish two
classes of workers: true supervisors vested with “genuine management prerogatives,” and employees such as “straw
bosses, lead men, and set-up men” who are protected by the Act even though they perform “minor supervisory
duties.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 280-281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess.,
4 (1947)).15 Thus, the dividing line between these two classes of workers, for purposes of Section 2(11), is whether
the putative supervisor exercises “genuine management prerogatives.” Those prerogatives are specifically identified
as the 12 supervisory functions listed in Section 2(11) of the Act. 16 If the individual has authority to exercise (or
effectively recommend the exercise of) at least one of those functions, 2(11) supervisory status exists, provided that
the authority is held in the interest of the employer and is exercised neither routinely nor in a clerical fashion but with
independent judgment.
Whether an individual possesses a 2(11) supervisory function has not always been readily discernible by either the
Board or reviewing courts. Indeed, in applying Section 2(11), the Supreme Court has recognized that “[p]hrases [used
by Congress] such as ‘independent judgment’ and ‘responsibly to direct’ are ambiguous.” 17
As a general principle, the Board has exercised caution “not to construe supervisory status too broadly because the
employee who is deemed a supervisor is denied rights which the Act is intended to protect.” Chevron Shipping Co.,
317 NLRB 379, 381 (1995)(internal quotations omitted). However, in applying that principle, the Board has
occasionally reached too far. Indeed, on two occasions involving the healthcare industry, the industry at issue in this
case, the Supreme Court rejected the Board's overly narrow construction of Section 2(11) as “inconsistent with the
Act.”18 Accordingly, although we seek to ensure that the protections of the Act are not unduly circumscribed, we also
must be mindful of the legislative and judicial constraints that guide our application and interpretation of the statute.
Thus, exercising our discretion to interpret ambiguous language in the Act, 19 and consistent with the Supreme Court's
instructions in Kentucky River, we herein adopt definitions for the terms “assign,” “responsibly to direct,” and
“independent judgment” as those terms are used in Section 2(11) of the Act.
**5 In interpreting those statutory terms, we do not, as the dissent maintains, blindly adopt “dictionary-driven”
definitions. Rather, we begin our analysis with a first principle of statutory interpretation that “in all cases involving
statutory construction, our starting point must be the language employed in Congress, … and we assume that the
legislative purpose is expressed by the ordinary meaning of the words used.” INS v. Phinpathya, 464 U.S. 183, 189
(1984) (citations and internal quotation marks omitted).20Thus, we eschew a results-driven approach and we start, as
we must, with the words of the statute. We thereafter consider the Act as a whole and its legislative history, applicable
policy considerations, and Supreme Court precedent. In so doing, our goal is faithfully to apply the statute while
providing meaningful and predictable standards for the adjudication of future cases and the benefit of the Board's
constituents. We do not, as the dissent contends, ignore potential “real-world” consequences of our interpretations.
Rather, we simply decline to engage in an analysis that seems to take as its objective a narrowing of the scope of
supervisory status and to reason backward from there, relying primarily on selective excerpts from legislative history.
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B. Assign and Responsibly to Direct
Possession of the authority to engage in (or effectively recommend) any one of the 12 supervisory functions listed in
Section 2(11) is necessary to establish supervisory status. Since the Act delineates 12 separate functions, and since
canons of statutory interpretation caution us to eschew a construction that would result in redundancy, we start from
the premise that each supervisory function is to be accorded a separate meaning. 21 That the terms “assign” and
“responsibly to direct” were *689 not intended to be synonymous is also readily apparent from the legislative history
of the 1947 amendment to the Act. Senator Flanders, who offered the amendment adding the phrase “responsibly to
direct” to Section 2(11), believed that the amendment addressed an element of supervisory status missing from an
earlier amendment, which included “assign” as 1 of 11 supervisory functions. NLRB, Legislative History of the Labor
Management Relations Act of 1947, 103-104. Consequently, consistent both with the text of the Act and its legislative
history, we ascribe distinct meanings to “assign” and “responsibly to direct.”
1. Assign
The ordinary meaning of the term “assign” is “to appoint to a post or duty.” Webster's Third New International
Dictionary 132 (1981). Because this function shares with other 2(11) functions—i.e., hire, transfer, suspension, layoff,
recall, promotion, discharge, reward, or discipline—the common trait of affecting a term or condition of employment,
we construe the term “assign” to refer to the act of designating an employee to a place (such as a location, department,
or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties,
i.e., tasks, to an employee. That is, the place, time, and work of an employee are part of his/her terms and conditions
of employment. In the health care setting, the term “assign” encompasses the charge nurses' responsibility to assign
nurses and aides to particular patients. It follows that the decision or effective recommendation to affect one of these—
place, time, or overall tasks—can be a supervisory function.
**6 The assignment of an employee to a certain department (e.g., housewares) or to a certain shift (e.g., night) or to
certain significant overall tasks (e.g., restocking shelves) would generally qualify as “assign” within our construction.
However, choosing the order in which the employee will perform discrete tasks within those assignments (e.g.,
restocking toasters before coffeemakers) would not be indicative of exercising the authority to “assign.” To illustrate
our point in the health care setting, if a charge nurse designates an LPN to be the person who will regularly administer
medications to a patient or a group of patients, the giving of that overall duty to the LPN is an assignment. On the
other hand, the charge nurse's ordering an LPN to immediately give a sedative to a particular patient does not constitute
an assignment. In sum, to “assign” for purposes of Section 2(11) refers to the charge nurse's designation of significant
overall duties to an employee, not to the charge nurse's ad hoc instruction that the employee perform a discrete task.
****
2. Responsibly to Direct
**8 We now address the term “responsibly to direct.” The phrase “responsibly to direct” was added to Section 2(11)
after the other supervisory functions of Section 2(11) already had been enumerated in the proposed legislation. Senator
Flanders, who made the proposal to add “responsibly to direct” to Section 2(11), explained that the phrase was not
meant to include minor supervisory functions performed by lead employees, straw bosses, and setup men. Rather, the
addition was designed to ensure that the statutory exemption of Section 2(11) encompassed those individuals who
exercise basic supervision but lack the authority or opportunity to carry out any of the other statutory supervisory
functions (e.g., where promotional, disciplinary and similar functions are handled by a centralized human resources
department). Senator Flanders was concerned that the person on the shop floor would not be considered a supervisor
even if that person directly oversaw the work being done and *691 would be held responsible if the work were done
badly or not at all.27 Consequently, the authority “responsibly to direct” is not limited to department heads as the
dissent suggests. The “department head” may be a person between the personnel manager and the rank and file
employee, but he or she is not necessarily the only person between the manager and the employee. If a person on the
shop floor has “men under him,” and if that person decides “what job shall be undertaken next or who shall do it,”
that person is a supervisor, provided that the direction is both “responsible” (as explained below) and carried out with
independent judgment. See footnote 19, supra. In addition, as the statute provides and Senator Flanders himself
recognized, the person who effectively recommends action is also a supervisor. 28
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Since the enactment of Senator Flanders' amendment, the Board rarely has sought to define the parameters of the term
“responsibly to direct.” In Providence Hospital,29 the Board majority summarized past efforts on the part of several
courts of appeals, namely the First,30 Fifth,31 Sixth,32 Seventh,33 and Ninth34 Circuits, to ascertain the limits of this
term. The Board majority in Providence Hospital concluded that these courts endorsed, for the most part, an
accountability definition for the word “responsibly” that was consistent with the ordinary meaning of the word. 35 The
majority cited to the Fifth Circuit's interpretation, which is set forth in NLRB v. KDFW-TV, Inc., supra at 1278, as
follows:
“To be responsible is to be answerable for the discharge of a duty or obligation.”
**9 The majority in Providence Hospital, however, found it unnecessary to pass on the courts' accountability
definition.36 We have decided to adopt that definition.
We agree with the circuit courts that have considered the issue and find that for direction to be “responsible,” *692 the
person directing and performing the oversight of the employee must be accountable for the performance of the task
by the other, such that some adverse consequence may befall the one providing the oversight if the tasks performed
by the employee are not performed properly. This interpretation of “responsibly to direct” is consistent with postKentucky River Board decisions that considered an accountability element for “responsibly to direct.”37
Thus, to establish accountability for purposes of responsible direction, it must be shown that the employer delegated
to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary. It
also must be shown that there is a prospect of adverse consequences for the putative supervisor if he/she does not take
these steps.
C. Independent Judgment
In Kentucky River, supra at 713, the Supreme Court took issue with the Board's interpretation of “independent
judgment” to exclude the exercise of “ordinary professional or technical judgment in directing less skilled employees
to deliver services.” That is, in the Board's then extant view, even if the Section 2(11) function is exercised with a
substantial degree of discretion, there was no independent judgment if the judgment was of a particular kind, namely,
“ordinary professional or technical judgment in directing less-skilled employees to deliver services.” While
recognizing that the Board has the discretion to resolve ambiguities in the Act,39the Supreme Court found that the
Board had improperly inserted “a startling categorical exclusion into statutory text that does not suggest its existence.”
The Court said that the Board had gone “beyond the limits of what is ambiguous and contradicted what in our view is
quite clear.” Id. at 714.The Court held that it is the degree of discretion involved in making the decision, not the kind of
discretion exercised—whether professional, technical, or otherwise—that determines the existence of “independent
judgment” under Section 2(11).Id. We are guided by these admonitions.
**10 Consistent with the Court's Kentucky River decision, we adopt an interpretation of the term “independent
judgment” that applies irrespective of the Section 2(11) supervisory function implicated, and without regard to whether
the judgment is exercised using professional or technical expertise. In short, professional or technical judgments
involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of
Section 2(11). Thus, for example, a registered nurse who makes the “professional judgment” that a catheter needs to
be changed may be performing a supervisory function when he/she responsibly directs a nursing assistant in the
performance of that work. Whether the registered nurse is a 2(11) supervisor will depend on whether his or her
responsible direction is performed with the degree of discretion required to reflect independent judgment.
To ascertain the contours of “independent judgment,” we turn first to the ordinary meaning of the term. 40
“Independent” means “not subject to control by others.” Webster's Third New International Dictionary 1148 (1981).
“Judgment” means “the action of judging; the mental or intellectual process of forming an opinion or evaluation by
discerning and comparing.” Webster's Third New International Dictionary 1223 (1981). Thus, as a starting point, to
exercise “independent judgment” *693 an individual must at minimum act, or effectively recommend action, free of
the control of others and form an opinion or evaluation by discerning and comparing data. As more fully explained
below, however, these requisites are necessary, but not in all instances sufficient, to constitute “independent judgment”
within the meaning of the Act. As we said above, although we start with the “ordinary meaning of the words used,”
INS v. Phinpathya, supra, 464 U.S. at 189, we also consider the Act as a whole, its legislative history, policy
considerations, and judicial precedent. Here, we must interpret ‘independent judgment” in light of the contrasting
statutory language, “not of a merely routine or clerical nature.” It may happen that an individual's assignment or
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responsible direction of another will be based on independent judgment within the dictionary definitions of those
terms, but still not rise above the merely routine or clerical.
In our view, and that of the Supreme Court, actions form a spectrum between the extremes of completely free actions
and completely controlled ones, and the degree of independence necessary to constitute a judgment as “independent”
under the Act lies somewhere in between these extremes. As the Court indicated in Kentucky River, supra at 713-714,
there are, at one end of the spectrum, situations where there are detailed instructions for the actor to follow. At the
other end, there are other situations where the actor is wholly free from constraints. In determining the meaning of the
term “independent judgment” under Section 2(11), the Board must assess the degree of discretion exercised by the
putative supervisor.
**11 Consistent with the Court's view, we find that a judgment is not independent if it is dictated or controlled by
detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in
the provisions of a collective bargaining agreement.41 Thus, for example, a decision to staff a shift with a certain
number of nurses would not involve independent judgment if it is determined by a fixed nurse-to-patient ratio.
Similarly, if a collective-bargaining agreement required that only seniority be followed in making an assignment, that
act of assignment would not be supervisory.42
On the other hand, the mere existence of company policies does not eliminate independent judgment from decisionmaking if the policies allow for discretionary choices.43 Thus a registered nurse, when exercising his/her authority to
recommend a person for hire, may be called upon to assess the applicants' experience, ability, attitude, and character
references, among other factors. If so, the nurse's hiring recommendations likely involve the exercise of independent
judgment. Similarly, if the registered nurse weighs the individualized condition and needs of a patient against the
skills or special training of available nursing personnel, the nurse's assignment involves the exercise of independent
judgment.
As Senator Flanders remarked, the supervisor determines “who shall do [the job]” and in making that determination
the supervisor makes “[a] personal judgment based on personal experience, training, and ability.” 44 As stated above,
Section 2(11) contrasts “independent judgment” with actions that are “of a merely routine or clerical nature.” Thus,
the statute itself provides a baseline for the degree of discretion required to render the exercise of any of the enumerated
functions of 2(11) supervisory. The authority to effect an assignment, for example, must be independent, it must
involve a judgment, and the judgment must involve a degree of discretion that rises above the “routine or clerical.”
See, e.g., J.C. Brock Corp., 314 NLRB 157, 158 (1994) (quoting Bowne of Houston, 280 NLRB 1222, 1223 (1986))
(“[T]he exercise of some supervisory authority in a merely routine, clerical, perfunctory, or sporadic manner does not
confer supervisory status.”). If there is only one obvious and self-evident choice (for example, assigning the one
available nurse fluent in American Sign Language (ASL) to a patient dependent upon ASL for communicating), or if
the assignment is made solely on the basis of equalizing workloads, then the assignment is routine or clerical in nature
and does not implicate independent judgment, even if it is made free of the control of others and involves forming an
opinion or evaluation by discerning and comparing data. By contrast, if the hospital has a policy that details how a
charge nurse should respond in an emergency, but the charge nurse has the discretion to determine when an emergency
exists or the authority to deviate from that policy based on the charge nurse's assessment of the particular
circumstances, *694 those deviations, if material, would involve the exercise of independent judgment.
**12 The dissent portends that our analysis in assessing supervisory status under Section 2(11) may exclude “most
professionals” from coverage under the Act. We disagree. A charge nurse is not automatically a “supervisor” because
of his or her exercise of professional, technical, or experienced judgment as a professional employee. And it is equally
true that his or her professional status does not prevent the charge nurse from having statutory supervisory status if he
or she exercises independent judgment in assigning employees work or responsibly directing them in their work. To
hold otherwise would come dangerously close to recommitting the very error the Supreme Court corrected in Kentucky
River.
D. Persons Who Are Supervisors Part of the Time
Where an individual is engaged a part of the time as a supervisor and the rest of the time as a unit employee, the legal
standard for a supervisory determination is whether the individual spends a regular and substantial portion of his/her
work time performing supervisory functions.46 Under the Board's standard, “regular” means according to a pattern or
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schedule, as opposed to sporadic substitution.47 The Board has not adopted a strict numerical definition of
substantiality48 and has found supervisory status where the individuals have served in a supervisory role for at least
10-15 percent of their total work time.49 We find no reason to depart from this established precedent.
III. THE CASE AT BAR
It is well established that the “burden of proving supervisory status rests on the party asserting that such status exists.”
Dean & Deluca New York, Inc., 338 NLRB 1046, 1047 (2003); accord Kentucky River, 532 U.S. at 711-712 (deferring
to existing Board precedent allocating burden of proof to party asserting that supervisory status exists). The party
seeking to prove supervisory status must establish it by a preponderance of the evidence. Dean & Deluca, 338 NLRB
at 1047; Bethany Medical Center, 328 NLRB 1094, 1103 (1999).
**13 As discussed below, we find that the Employer has failed to establish that its charge nurses possess the authority
to “responsibly to direct” employees within the meaning of Section 2(11). However, we also find that the Employer
has adduced evidence sufficient to establish that certain of its permanent charge nurses are supervisors based on their
delegated authority to assign employees using independent judgment. Finally, we find that the Employer has failed to
establish that its rotating charge nurses, as opposed to the 12 permanent charge nurses we find to be supervisors, spend
a regular and substantial portion of their work time performing supervisory functions. Consequently, we exclude only
the 12 permanent charge nurses from the unit.
A. Responsible Direction
The Employer alleges that its charge nurses responsibly direct nursing staff by directing them to perform certain
tasks. As part of their duties, the charge nurses are responsible for checking the crash cart, taking an inventory of
narcotics, and providing statistical information to Heritage's administrative staff for their shifts. The *695 charge
nurses may undertake these tasks themselves or delegate them to another staff member working that shift. The
delegation of these charge-nurse specific tasks is the sole basis for the Employer's claim that the charge nurses
responsibly direct the nursing staff.50
We find that the Employer failed to carry its burden of proving that the charge nurses responsibly direct the nursing
staff within the meaning of Section 2(11). As explained above, to constitute “responsible” direction the person
performing the oversight must be held accountable for the performance of the task, and must have some authority to
correct any errors made. The Employer has not demonstrated that the charge nurses meet this accountability standard.
The record reveals no evidence that the charge nurses must take corrective action if other staff members fail to
adequately check the crash cart, take the narcotics inventory, or provide the statistical information to management.
There is no indication that the charge nurses are subject to discipline or lower evaluations if other staff members fail
to adequately perform these charge nurse-specific tasks. Instead, the Employer points to an instance in which it
disciplined a charge nurse for failing to make fair assignments. This evidence, however, shows that the charge nurses
are accountable for their own performance or lack thereof, not the performance of others, and consequently is
insufficient to establish responsible direction.
B. Assignment
The record establishes that charge nurses assign nursing personnel to patients. At the beginning of each shift,51 and as
new patients are admitted thereafter, the charge nurses for each patient care unit (except the emergency room) assign
the staff52working the unit to the patients that they will care for over the duration of the shift.
**14 In the emergency room, the process of assigning work operates differently. There, the charge nurses have
primary responsibilities to “triage” the incoming patients and keep the other patient care units in the hospital informed
about possible admissions from the emergency room. The charge nurses do not assign nursing personnel to patients
in this department. Rather, the charge nurses assign employees to geographic areas within the emergency room. In
making these assignments, the charge nurses do not take into account employee skill or the nature or severity of the
patient's condition. After these initial assignments, the employees then rotate geographical locations within the
emergency room among themselves on a periodic basis.
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The charge nurses' assignment of patients to other staff and assignment of nurses to specific geographic locations
within the emergency room fall within our definition of “assign” for purposes of Section 2(11). In patient care units
other than the emergency room, the actions of the charge nurses involve assigning nurses to patients in rooms and
“giving significant overall tasks to an employee.” The charge nurses in the emergency room designate employees to
a particular place. The charge nurses' assignments determine what will be the required work for an employee during
the shift, thereby having a material effect on the employee's terms and conditions of employment. Unlike the case of
Senator Flanders' “straw bosses, leadmen, and set-up men,” the charge nurse's duties of assignment are not
“incidental” to the charge nurse's own nursing duties. The charge nurse has his or her own patients, but independently
of that, he or she will assign other nursing personnel to other patients.
Having found that the charge nurses hold the authority to engage in one of the supervisory functions of Section 2(11),
our next step is to determine whether the charge nurses exercise independent judgment in making these assignments.
C. Independent Judgment
The charge nurses at the hospital make their assignments by choosing between or among the members of the staff
available on each shift. In addition to the charge nurse, there are two to six RNs on each shift, depending on the time
of day and the unit, and many of the units also have licensed practical nurses or other licensed staff working each shift,
In the health care context, choosing among the available staff frequently requires a meaningful exercise of discretion.
Matching a nurse with a patient may have life and death consequences. Nurses are professionals, not widgets, and
may possess different levels of training and specialized skills. Similarly, patients are not identical and may require
highly particularized care. A charge nurse's analysis of an available nurse's skill set and level of proficiency at
performing certain tasks, and her application of that analysis in matching that nurse to the condition and needs of a
particular patient, involves a degree of discretion markedly different than the assignment decisions exercised by most
leadmen. As discussed below, the record evidence establishes that a number of the Employer's charge nurses exercise
independent judgment in assigning other staff to patients and therefore possess supervisory authority under Section
2(11) of the Act.
**15 *696
Therefore, we find that the Employer failed to demonstrate that the charge nurses in the emergency room unit exercise
independent judgment in making patient care assignments. Because, as discussed above, the exercise of independent
judgment is a necessary element of establishing supervisory status, we find that the Employer has failed to prove that
the charge nurses in the emergency room are supervisors, despite the parties' stipulation. We shall include the
emergency room charge nurses in the unit.
D. “Rotating” Charge Nurses
*697 We find that the Employer has carried its burden of proof with respect to the 12 permanent charge nurses that
are assigned to the following 5 units; behavioral health, intensive care, intermediate care, medical/surgical east, and
medical/surgical west. The Employer offered uncontradicted testimony that the permanent charge nurses in those units
serve in that capacity on ever/ shift they work. Indeed, the permanent charge nurses do not really fit the definition of
a “rotating” supervisor. They serve full-time as supervisors on a regular basis. Accordingly, we shall exclude these
individuals from the unit.
**16 In contrast, the Employer has failed to demonstrate regularity for the “rotating” charge nurses assigned to
behavioral health, intensive care, intermediate care, medical/surgical east, medical/surgical west, post-anesthesia
care/recovery, and rehabilitation units. The Employer offered only superficial evidence as to the regularity with which
these 112 nonpermanent or “rotating” charge nurses serve in the charge nurse role. The record reveals that none of the
units involved have an established pattern or predictable schedule for when and how often RNs take turns in working
as charge nurses.57 In those units where the RNs decide among themselves who will serve as charge nurses, the record
does not demonstrate any pattern for these selections. In those units where the managers are in charge of making
assignments, the managers likewise do not use any particular system or order for assigning charge nurses.
In the absence of a sufficient showing of regularity for assigning the “rotating” charge nurses, we need not decide
whether these RNs possess the “rotating” charge nurse duties for a “substantial” part of their work time. Accordingly,
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we shall include in the unit, as non-supervisors, the 112 RNs who are not permanent charge nurses but rather
irregularly rotate through the charge nurse position at the hospital.
CONCLUSION
**17 In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in
this decision, we have endeavored to provide clear and broadly applicable guidance for the Board's regulated
community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are
excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change
in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we
intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions
that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to
effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to
consequences that some would deem undesirable, the effective remedy lies with the Congress. Accordingly, we shall
remand this case to the Regional Director for further processing in accordance with this decision.
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