No. 95-3352

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

--------------------------- Claudia Fuglie, individually * and o/b/o others similarly * situated, * * Amicus Curiae * On Petition for Review from the National Labor Relations Board.

No. 95-3628

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

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

### -2- Submitted: June 12, 1996 Filed: September 11, 1996
Before BOWMAN, HEANEY, and BEAM, Circuit Judges.

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

I.

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

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

### In mid-1994 , Trail participated in an organizing campaign of 1 

### th e Handicabs drivers by Miscellaneous Drivers, Helpers & Warehousemen's Union, Local No. 638, I.B.T.. The campaign led to a representation election on October 14, 1994. Trail signed a card author izing the Union to represent him, passed out authorizatio n cards, and was elected a member of one of the organizin g committees.
-3- clients. The policy, addendum no. 2 in the employee handbook, states in relevant part: Discussing c omplaints or problems about the company with our clients will be grounds for immediate dismissal.

. . . . All of our clients are protected by the Vulnerable Adults Act. Acc ording to this law, you must not tease them , take monies (other than ride-fare or tip) from them , curse or use profanity while in their presence, or d o anythi ng verbal or physical of a sexual nature. Also , you mu st not put these people in a threatening o r uncomfortable position by discussing any personal o r company-rela ted problems that may make them feel coerced or obligated to act upon or react to.
Petiti oner's App. at 197 (emphasis added). In addition, Handicab s maintained a company policy, addendum no. 1, tha t prohibited its employees from discussing their wages among themselves, violation of which was also grounds for immediate termination. Id . at 199.
In response to his termination, Trai l filed an unfair labor practice charge with the Board. The Board issued a notic e of hearing and complaint against Handicabs, which alleged that the compan y discharged Trail because of his union activity. The Board also contended that Handicabs' polic y 1 proh ibiting employees from discussing employment concerns with client s violated section 8(a)(1) and (3) of the Act, 29 U.S.C. § 158(a)(1) and (3) , beca use it interfered with employees' rights to "self-organization, t o form, join, or assist labor organizations . . . and . . . to engage i n other concerted activities for the purpose of collective

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

After a hearing, an Administrative Law Judge issued a decision i n favor of the Board. The ALJ held, and Handicabs did not contest, tha t addend umno. 1, prohibiting the discussion of wages among employees , violated Section 8(a) (1) of the Act. The ALJ also determined that, while Hand icabs has an obligation to protect its passengers from abuse an d mist reatment, the policy against discussing work-related problems wit h passengers violated the Act because it was overl y broad. Finally, the ALJ decide d that because Trail's discharge was motivated by his unio n involvement and founded on an unlawful policy, i t also was in violation of the Act. T he ALJ recommended that Handicabs be ordered to rescind it s workplace rules and r einstate Trail. After consideration of the parties' except ions and briefs, the Board affirmed the ALJ's decision an d recommended order. Handicabs now petitions for relief from this court.

II.
As a general rule, our standard of r eview affords great deference to the Board's affirmation of the ALJ's findings. See Wilson Trophy Co. v. N.L.R.B. , 989 F.2d 1502, 1507 (8th Cir. 1993). We will enforce an order of the Board if the Board has correctly applied the law and its factua l findings are supported by substantial evidence o n the record considered as
a whole, even though we might have reached a different decision had th e matter b een before us de novo

. Id . Handicabs argues that the Board' s findings are not supported by the record and that the decision demonstrate s bia s on the part of the ALJ against persons with disabilities. Afte r careful examination of the record, we see no reason to upset the ALJ' s factual characterizations and credibility determinations. In any event,
we need not rely on the disputed facts to resolve this matter: The conten t of the policies and the

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releva nt facts surrounding Trail's discharge are undisputed. We thu s consider each of Handicabs' substantive arguments in turn.

Ha ndicabs concedes that the blanket prohibition of wage discussio n among employees contained in policy addendum no. 1 was in violation of the Act. See Jeannette Corp. v. N.L.R.B. , 552 F.2d 916, 919 (3d Cir. 1976) (a n unqualified rule barring wage discussions among employees constitutes a violation); Waco, Inc. , 273 N.L.R.B. 74, 118 L.R.R.M. 1163, 1166 (1984). Handicabs argues only that there is no need to enforce the portion of the Board's order that addresses this violation because the compan y unilat erally agreed to change the policy shortly after the hearing

. Because Handicabs did not raise this defense bef ore the Board, however, we may not consider it under section 10(e) of the Act, 29 U.S.C. § 160(e ) (1994). See Woelke & Romero Framing, Inc. v. N.L.R.B. , 456 U.S. 645, 665- 6 (1982)

. Accordingly, we summarily enforce (affirm) the Board's orde r regarding addendum no. 1.
With respect to policy addendum no. 2, Handicabs vigorously contests the Board's determination that it violates the Act. Handicabs asserts tha t the policy is designed to meet the special needs of its clients. Handicab s argues that the Board's decision ignored the company's responsibility to protec t the "enjoyment" of transportation as federally mandated by th e Americans with Disabi lities Act, 42 U.S.C. § 12203(b) (1994) ("ADA"), and to preven t harassment or abuse of its passengers as required by th e Minnes ota's Vulnerable Adults Act, Minn. Stat. § 626.557, sub. 2(d)(2 ) (1995). Handicabs also contends that because its clients "are no t necessari ly able to handle stress or difficulty in the manner of a non

disabled person," Han dicabs' Br. at 25, it should be permitted to enforce
a m ore stringent no-solicitation rule to protect them, as the hospital s
were permitted to do for its patients in N.L.R.B. v. Baptist Hospital , Inc. , 442 U.S. 773 (1979) and Beth Israel Hospital v. N.L.R.B. , 437 U.S. 483 (1978). Finally, Handicabs argues that its policy, limited in time an d

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

Contrary to Handicabs' assertions, the Board recognized tha t Handicabs has a responsibility to protect persons with disabilities from har assment or harm. Neither the Board nor this court disputes th e legitimacy or importance of this concern. The B oard also agreed that some words and conduct cause greater distress for persons with disabilities tha n those without, thereby recognizing that there ma y be a need to prevent the discussion of topics that cause Handicabs' passengers harm. Yet, the Boar d stated that work rules intended to address these concerns must be narrowly tailored to avoid unn ecessary deprivation of employees' statutory rights. Because Congress and the courts rely on the Board to strike the appropriat e ba lance between such conflicting legitimate interests, we review th e Boa rd's decision with respect to whether Handicabs has violated the Ac t only for consistency and rationality. See Beth Israel Hospital , 437 U.S. at 501.

The Boa rd determined that the company's policy was too broad. Th e first part of addendu m no. 2 forbids all discussion of working conditions with clients even if the communication were intended to enlist thei r support for protected concerted activity. The B oard also decided that the second part of the policy is too far-reaching because it condition s vio lation of its rule on the subjective reaction of the passengers--th e discussion of company-related problems that "may make [passengers] fee l coerced o r obligated to act upon or react to." The subjective standar d potent ially prevents employees from discussing any aspect of a labo r dispute and from appealing for support from the public for fear that a single client may feel threatened or uncomfortable. Neither part of the policy is limited in time or place, as Handicabs has argued;

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

So broad a prohibition hardly strikes a reasonabl e bal ance between protection which Congress sought t o extend to the handicapped and challenged segment of th e pu blic and the rights which Congress sought to provid e for emp loyees under the Act, particularly in an overal l prohib ition which begins with an expressed warning o f "immediate dismissal" for discussion with clients o f "complaints or problems about the company[.]" Petitioner's App. at 7.

The B oard's discussion of the important interests in this case i s well-reasoned and strikes an appropriate balance between Handicabs ' responsibility to its passengers and the employees' rights under the Act. Thus, strictly reviewing the Board's decision un der existing labor law, we defer to the Board's decision that policy addendum no. 2, as currentl y written, violates the Act because its prohibition of protected organizing activity is too extensive.
As a separate matter, we hold that the Board's decision under t he Act does not v iolate or conflict with the ADA or the Minnesota Vulnerabl e Adults Act . The Board's decision does not prevent or even discourag e Handicabs from taking the appropriate steps to p rotect its passengers. It simply informs the company that it cannot blatan tly trample its employees' rights with a rule that speaks generally of protecting passengers ye t target s only the discussion of company-related problems. The Board' s decision leaves open the opportunity for Handicabs to design a neutral rul e that does not single out activity protected under the Act, but rathe r focuses on all speech and conduct that harms its passengers. Handicabs' impermissible generalization about persons with disabilities--that al l persons who ride handicapped-accessible, public transit services will be disturbed by talk of union activity--cannot bring its policy under th e protection of the

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

Final ly, Handicabs challenges the Board's ruling that the compan y viola ted section 8(a)(1) and (3) of the Act by discharging Trail

. Handicabs asserts that it fired Trail because of his misconduct, not his union activity. The Board listed many reasons to support its decision to the contrary. First, while the company may not have been aware of Trail's unio n activities prior to the day they fired him, Fuglie's complain t apprised them of Trail's involvement. Second, w hen Handicabs fired Trial, he was the only employee the company knew or suspected was involved i n union organizing. Third, Handicabs fired Trail shortly after they learned of thi s involvement and just twenty-four days before the union' s representation election. Finally, Handicabs did not provide Trail with an explanatio n for his discharge and did not give him any opportunity t o respond to the allegations. In fact, the company did not engage in an y indepe ndent investigation of the charges; it relied solely on Fuglie' s comp laint. Under these circumstances, we are unable to say that th e Board' s finding of unlawful discharge is not supported by substantia l evidence. Moreover, because policy addendum no. 2 is invalid and cannot be enforced, Handicabs' "lawful" justification f or Trail's discharge under that rule lacks merit. See Jeannette Corp. , 532 F.2d at 920. Accordingly , we enforce the Board' s order requiring Handicabs to offer Trial immediate and full reinstatement, provide him with back pay and lost benefits with inter est, and remove from its files any reference to the unlawfu l discharge.

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

### -9- A true copy.

Attest:

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