In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 04-3156 & 04-3537

BRANDEIS MACHINERY & SUPPLY COMPANY,

a wholly owned subsidiary of BRAMCO, LLC,

Petitioner,

Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

Cross-Petitioner,

and

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL 150,

Intervening Respondent,

Cross-Petitioner.

____________

Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board.

No. 25-CA-28201

____________

ARGUED FEBRUARY 8, 2005—DECIDED JUNE 24, 2005

____________

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. In this petition, Brandeis Machinery

& Supply Company (“Brandeis” or the “Company”) seeks
2 Nos. 04-3156 & 04-3537

review of an order of the National Labor Relations Board

(“NLRB” or the “Board”). The NLRB determined that

Brandeis had violated the National Labor Relations Act

(“NLRA” or the “Act”), 29 U.S.C. § 151 et seq., with respect

to actions taken in response to union-organizing activities at

its South Bend, Indiana facility. Brandeis timely petitioned

for review of the Board’s order, and the NLRB and the

intervener, International Union of Operating Engineers (the

“Union”), filed a cross-application for enforcement of the

order. For the reasons set forth in this opinion, we deny the

petition for review and grant enforcement of the Board’s

order.

I

BACKGROUND

A. Facts

Brandeis sells and services heavy construction and mining

equipment throughout Kentucky and Indiana. The Company is nonunion and explains its approach to “employee

relations” at length in its employee handbook:

We, as a Company, prefer to deal with people directly

rather than through a third party. This is a non-union

organization. It always has been and it is certainly our

desire that it always will be that way. . . .

. . . .

You have a right to join and belong to a union and you

have an equal right NOT to join and belong to a union.

If any other employee should interfere or try to coerce

you into signing a union authorization card, please

report it to your Supervisor and we will see that the

harassment is stopped immediately.

A.R. Vol. III, General Counsel’s (“G.C.”) Ex.7 at 16.
Nos. 04-3156 & 04-3537 3

1 Cook apparently had learned of the position through Union

organizer David Fagan.

In early 2000, Brandeis took steps to open a small branch

office and service shop in South Bend, Indiana. Sam Freeman was chosen to be the manager for the office. Freeman

hired Tom Muraski as the product support manager in

charge of parts and service. From mid-2001 through February 2002, Freeman and Muraski interviewed and hired

employees for the South Bend facility.

In December 2001, Muraski interviewed Bob Cook for the

position of shop mechanic.1

 During the interview, Muraski

inquired what union represented the employees at Cook’s

former employer. Muraski then told Cook that Brandeis was

a nonunion company and that he could not foresee the

Company going union in the future. Additionally, Muraski

asked Cook how he felt about working for a nonunion

company.

Muraski also interviewed Steve Benefield for the position

of field service mechanic. Benefield was a long-time member of the Union and, like Cook, had been informed of the

position at Brandeis through a Union organizer. Muraski

did not inquire about Benefield’s union membership during

the initial interview. However, when Benefield was called

back to interview with both Muraski and Freeman, Freeman

recounted the history of Brandeis and told Benefield that

Brandeis was nonunion and that Brandeis “would close the

doors before they went union.” A.R. Vol. II at 169. Benefield

subsequently was hired and began work in March 2002.

In April 2002, Phil Overmyer, an organizer for the Union,

told Cook to begin a campaign at the South Bend facility.

Cook first spoke to Brandeis employee Ken Lubinski, who,

after considering the matter overnight, informed Cook that
4 Nos. 04-3156 & 04-3537

he was not interested in joining a union. Lubinski did not

inform anyone at Brandeis about his conversation with

Cook.

Cook next approached fellow mechanic Mike Karre. Over

lunch on May 1, 2002, Cook informed Karre about union

wages and benefits. Karre asked to meet with the Union’s

organizer, and, the following day, Karre met with Cook,

Benefield and organizers Overmyer and Delbert Watson at

a local restaurant.

On May 3, Karre went to lunch with Freeman and

Muraski and informed them that Cook and Benefield had

inquired about his (Karre’s) interest in joining the Union.

Freeman was caught off guard by the news. After returning

to the office, Freeman called Benefield into his office to

inform him that he and Karre would not be attending a

scheduled training session in Atlanta, Georgia, but that they

would attend a class in July.

Benefield believed the Company knew that a union campaign was afoot and contacted Overmyer shortly after his

discussion with Freeman. Overmyer faxed Freeman notice

that Cook and Benefield were Union members and were

launching a union campaign at Brandeis’ South Bend facility. Freeman then contacted Brandeis President Gene

Snowden and Vice President of Operations Larry Shuck

concerning the events that were taking place. Snowden and

Shuck informed Freeman that they would contact legal

counsel and instructed Freeman not to make any major personnel decisions without first consulting them.

On May 7, Cook and Benefield were working near

Lubinski when Benefield commented that nobody was talking to Cook or to Benefield except for Lubinski. Lubinski—

who had been approached by Overmyer at his home about

the Union and had informed Overmyer repeatedly that he
Nos. 04-3156 & 04-3537 5

2 Cook was present during these discussions as Benefield’s

Union representative.

was not interested in joining the Union—became upset and

yelled at Benefield to stop talking to him and stop sending

union organizers to his home. Another employee, Kevin

Hardy, intervened and told Benefield to leave Lubinski

alone or he (Hardy) might do something he would regret.

The following day, Lubinski complained to Freeman that

Benefield was talking to him about the Union. Lubinski told

Freeman that he wanted to avoid contact with Cook and

Benefield unless such contact was related to work. In

response, Freeman met with Benefield to discuss Lubinski’s

complaint. During that discussion, Benefield informed

Freeman that Lubinski was the person who had escalated

the discussion into a shouting match and that Hardy had

threatened him (Benefield); Freeman instructed Benefield to

stay away from Lubinski and stated that he would look into

the matter of Hardy’s threat. Later, Freeman informed

Benefield that Hardy had not meant to threaten him; Hardy

only meant “that he would quit his job” if the Union

solicitations persisted. A.R. Vol. II at 180. Freeman then told

Benefield that if he or Cook2

 needed to speak with either

Lubinski or Hardy, they would have to do so through

Muraski.

Snowden and Shuck arrived in South Bend and met with

facility employees on the morning of May 8, 2002. During

the meeting, they explained the Company’s position with

respect to the Union. Although Snowden had a written

speech that he worked from, he did not follow his script

verbatim. Cook secretly taped the meeting, which included

the following comments by Snowden:

Well they have the right to talk to you. If they want to
6 Nos. 04-3156 & 04-3537

3 This arrangement apparently is the policy at the other Brandeis

facilities.

4 Prior to this event, Freeman had made a comment to Cook

(continued...)

talk to you they can. But again you have the right not to

listen. If they follow you on your property you have a

right to tell them to leave the property. They don’t have

any right on your property if you don’t want them on it.

So, once again, if the union gets so aggressive that you

feel you’re being harassed, then we need to know about

it because we will do everything within our legal means

to keep you from being harassed.

A.R. Vol. III, G.C. Ex.12a at 2.

While Snowden and Shuck were visiting, a customer experienced transmission problems with a truck leased from

Brandeis. All of the mechanics were at lunch at the time;

consequently, Muraski attempted to assist the customer.

Only a few minutes later, Karre returned from lunch and

took over for Muraski. In light of these events, Shuck “suggested to [Freeman] that he consider staggering lunches so

that these kinds of situations did not occur.” A.R. Vol. II

at 441. Freeman took Shuck’s suggestion. On May 9,

Freeman implemented a staggered and shortened lunch

policy; according to the new policy, only one employee

could be off for lunch at a given time, and the time allotted

for lunch was shortened from one hour down to one-half

hour.3

Also on May 9, Freeman observed that Benefield was

wearing a union button on his uniform that covered the

Brandeis logo. Freeman told Benefield that he did not appreciate Benefield wearing the button at work and asked

him to remove the button from the Brandeis logo.4

 The fol
Nos. 04-3156 & 04-3537 7

4 (...continued)

about wearing a union hat.

lowing week, on May 14, Muraski observed Cook wearing

a union hat. Muraski, who was carrying a Brandeis hat,

handed Cook the hat and told Cook that he might want to

wear the Brandeis hat instead of a union hat. There were no

repercussions for the employee for either incident.

Around this same time, Benefield had approached Karen

Bailey, the office secretary, to gauge her interest in the

Union. Bailey stated that she was not interested. Benefield

then suggested that the Union could send a representative

to speak to Bailey’s husband, who owned his own excavation business, at their home. Bailey became upset and told

Benefield: “I have to put up with you here. It is not coming

to my house . . . . Don’t send those people to my house, so

help me God.” A.R. Vol. II at 184.

Muraski had witnessed the end of the conversation between Bailey, who had begun her working day, and

Benefield, who had not. Muraski approached Benefield and

told him that it was his understanding that Benefield could

not solicit other employees during their work time.

Benefield then asked whether the rule prohibited him from

discussing any subject with a fellow employee when the employee was working. Muraski replied, “No, about soliciting

your stuff.” A.R. Vol. III, G.C. Exs.18 & 19. When Benefield

asked “what kind of stuff” Muraski was referring to,

Muraski responded: “Your union.” Id.

On May 10, Lubinski, Hardy and Bailey approached

Freeman and indicated that they were angry with

Benefield’s and Cook’s efforts to organize and preferred to

be left alone. Freeman then had a discussion with Benefield.

Freeman told Benefield that if he needed to talk to these
8 Nos. 04-3156 & 04-3537

5 The initial unfair labor charge brought against Brandeis included allegations that Brandeis had treated Benefield unfairly

and, eventually, had terminated his employment as a result of his

union affiliation. The Administrative Law Judge dismissed these

allegations, and those allegations are not before this court.

Consequently, those charges, and their factual bases, are not discussed in this opinion.

people, Benefield would have to talk with either Muraski or

himself. Freeman also stated that he “was just basically

looking for a cooling down period. [He] didn’t want to fight

them right now.” A.R. Vol. II at 316.

Bailey had another confrontation with Cook with respect

to his union activities on May 31. Cook approached Bailey

and asked her how things were going. Bailey ignored Cook,

and Cook repeated his question. Bailey then informed Cook

that she did not want to speak with him because the

employees of Brandeis were not interested in joining a

union. Bailey told Cook that it was ridiculous that he and

Benefield did not respect the other employees’ wishes.

When Cook replied that the Union would be good for the

employees and that Bailey was taking things too personally,

Bailey directed a “few choice words” at Cook and left the

room. A.R. Vol. II at 351. Bailey was reprimanded for using

profanity and acting in an unprofessional manner.

B. Administrative Proceedings

Based on these and other events,5

 the Union brought an

unfair labor practice charge against Brandeis. On the basis

of this charge, the NLRB’s General Counsel issued a complaint against Brandeis in which it alleged violations of

§ 8(a)(1) and (3) of the NLRA. 29 U.S.C. § 158(a)(1) & (3).

After a hearing, the Administrative Law Judge (“ALJ”) con-
Nos. 04-3156 & 04-3537 9

6 The NLRB adopted the ALJ’s decision with only minor modifications. For instance, the NLRB affirmed the ALJ’s determination that the incident involving the union hat constituted a

violation of the NLRA. However, the NLRB explained that, “[b]ecause it would be cumulative of this violation to consider and

(continued...)

cluded that Brandeis engaged in several violations of the

Act. Specifically, the ALJ held that Brandeis had violated

§ 8(a)(1) of the Act by engaging in the following conduct: (1)

“[q]uestioning job applicants about their union membership

and affiliation”; (2) “promulgating . . . a written policy that

encourages employees to report to management any

employees who solicit support for a union”; (3)

“[t]hreatening job applicants with plant closure if employees

chose to be represented by a union”; (4) “[v]erbally encouraging employees to report to management any employees

who solicit support for a union and stating that [the Company] would put a stop to such union solicitation”; (5)

“[p]rohibiting employees from wearing union buttons and

union hats on the job during working hours”; and (5)

“[v]erbally promulgating, maintaining and enforcing a rule

that prohibits employees from discussing the Union during

work time, while allowing non-union and non-work discussions during the same time.” A.R. Vol. I, ALJ Dec. at 22. The

ALJ also concluded that Brandeis had violated § 8(a)(3) of

the Act by staggering lunch hours and shortening the lunch

period in response to the Union’s campaign efforts. The ALJ

recommended that the Company cease and desist the

violations and take affirmative steps to correct the violations.

Brandeis filed exceptions to the ALJ’s decision with the

NLRB. However, the NLRB adopted the decision of the ALJ

and ordered the relief recommended by the ALJ.6

 Brandeis
10 Nos. 04-3156 & 04-3537

6 (...continued)

affirm the judge’s finding that the Respondent additionally violated Sec. 8(a)(1) by prohibiting Benefield from wearing union

insignia (a button) on his hat, and it would not affect the remedy,

we find it unnecessary to pass on this latter allegation.” A.R.

Vol. I, NLRB Dec. at 1 n.7.

One member of the Board dissented from the Board’s affirmance of the same issue. That member did not believe that the

request to substitute the Brandeis hat for a union hat constituted

a violation of the Act and believed it equally insupportable that

the button incident constituted a violation.

7 Brandeis’ petition for review does not contest the Board’s conclusion that the inquiries and statements concerning union involvement that occurred during the interviews conducted by

Freeman and Muraski violated the Act.

then petitioned this court for review of the NLRB’s

decision;7

 the NLRB filed a cross-application for enforcement of the order, and the Union intervened in support of

the NLRB’s application.

II

DISCUSSION

This court will enforce the NLRB’s order “if its factual

findings are supported by substantial evidence and its

conclusions have a reasonable basis in law.” BloomingtonNormal Seating Co. v. NLRB, 357 F.3d 692, 694 (7th Cir. 2004).

“Substantial evidence is ‘such relevant evidence as a

reasonable mind might accept as adequate to support’ the

Board’s conclusion.” NLRB v. Clinton Elecs. Corp., 284 F.3d

731, 737 (7th Cir. 2002) (quoting Nat’l By-Products, Inc. v.

NLRB, 931 F.2d 445, 451 (7th Cir. 1991)). We also “owe

deference to the Board’s inferences and conclusions drawn

from the facts.” Id. This deferential standard, however, is
Nos. 04-3156 & 04-3537 11

not a rubber stamp; in conducting our review, “[w]e must

‘examine all of the evidence in context to ensure the Board’s

findings fairly and accurately represent the picture painted

by the record.’ ” Id. (quoting NLRB v. Harvstone Mfg. Corp.,

785 F.2d 570, 575 (7th Cir. 1986)). With this standard in

mind, we turn to the issues raised by Brandeis in its petition.

A. Handbook Language

Brandeis first maintains that the NLRB incorrectly concluded that its handbook section, which protects its employees from harassment by union organizers, violated

§ 8(a)(1) of the NLRA. The NLRB concluded that Brandeis’

“policy statement invites the employees to report ‘harassment’ by union organizers attempting to get employees to

sign authorization cards” and that “[i]t reasonably could be

construed to mean that the conduct would be punished.”

A.R. Vol. I, NLRB Dec. at 4. According to Brandeis, however, the policy forwards the Company’s legitimate goal

of maintaining discipline in its facilities. Furthermore,

Brandeis asserts, the provision is not so vague as to invite

complaints of activities protected by the Act.

Section 8(a)(1) provides that “[i]t shall be an unfair labor

practice for any employer . . . to interfere with, restrain, or

coerce employees in the exercise of the right[]” to organize

collectively under the Act. 29 U.S.C. § 158(a)(1). In order

to establish a violation of this provision, “[n]o proof of coercive intent or effect is necessary . . . the test being whether

the employer engaged in conduct, which, it may reasonably

be said, tends to interfere with the free exercise of employee

rights under the Act.” NLRB v. Gen. Thermodynamics, Inc.,

670 F.2d 719, 721 (7th Cir. 1981) (internal quotation marks

and citations omitted).
12 Nos. 04-3156 & 04-3537

8 The Board has contrasted employer pronouncements against

“harassment”—which violate the Act—with employer pronouncements against “threats”—which do not violate the Act. See Liberty

Nursing Homes, Inc., 245 N.L.R.B. 1194, 1197 (1979). Requesting

that employees report union-related “threats,” according to the

Board, is “not reasonably subject to an interpretation that would

violate the Act.” Battle Creek Health Sys., 341 N.L.R.B. 119, 2004

WL 1091058, at *24 (N.L.R.B. May 12, 2004).

One of the rights secured to employees under the Act is

the right to solicit on behalf of a union organizing campaign.

See, e.g., Clinton Elecs. Corp., 284 F.3d at 739. Indeed, proponents of unions may “engage in persistent union solicitation even when it annoys or disturbs the employees who

are being solicited.” Ryder Truck Rental, Inc., 341 N.L.R.B.

109, 2004 WL 963370, at *1 (N.L.R.B. April 30, 2004), order

enforced, Ryder Truck Rental v. NLRB, 401 F.3d 815 (7th Cir.

2005). According to the Board, employers “interfere” with

these rights, and therefore “violate Section 8(a)(1) of the Act,

when they invite their employees to report instances of fellow employees’ bothering, pressuring, abusing, or harassing

them with union solicitations and imply that such conduct

will be punished.” Greenfield Die & Mfg. Corp., 327 N.L.R.B.

237, 238 (1998). The rationale behind this rule is that “such

announcements from the employer are calculated to chill

even legitimate union solicitations, which do not lose their

protection simply because a solicited employee rejects them

and feels ‘bothered’ or ‘harassed’ or ‘abused’ when fellow

workers seek to persuade him or her about the benefits of

unionization.” Id.8

This court, however, has rejected the type of “per se”

approach adopted by the Board. “[O]ur cases demonstrate

that a fact-based, contextual inquiry is required to determine whether a company has violated the NLRA.”
Nos. 04-3156 & 04-3537 13

Bloomington-Normal, 357 F.3d at 696. Factors to consider

include: “the timing of the speech, the words used in the

speech, whether the speech targeted union supporters, and

whether the speech was directed toward employees who

were being threatened.” Id.

After considering the factors set forth above, we conclude that the NLRB’s determination—that the Brandeis

handbook language violates § 8(a)(1)—is supported by

substantial evidence. First, the context of the Company’s

policy is important. The policy is located in a section of

the handbook entitled “Employee Relations Philosophy,”

which details Brandeis’ desire to remain union-free; it is not

part of a more general anti-harassment policy. Second, the

focus of the prohibition against “harassment” is union

activity; there is no acknowledgment that opponents of a

union may harass, interfere or coerce fellow employees into

rejecting union representation. Thus, the language employed

by Brandeis in its handbook stands in stark contrast to that

approved by the Board in S.E. Nichols, Inc., 284 N.L.R.B. 556

(1987), which provided: “Remember, do not sign a card because

you are threatened, tell us and we will protect you. It is your

right to have a union. It is your right not to have a union.

Our Company will try to see to it that your rights are

preserved no matter how you choose. Tell us if someone is

trying to stop your freedom of choice.” Id. at 557 (emphasis

in original). The Board found that this language merely

advised all of its employees—whether pro-union, anti-union

or undecided—“that the Respondent would be available to

protect employees from conduct that might restrain or

coerce them in the exercise of their Section 7 rights.” Id. The

same “equal protection” guarantee does not appear in, and

cannot be gleaned from, the language employed by

Brandeis.
14 Nos. 04-3156 & 04-3537

Furthermore, Brandeis’ policy was not promulgated in

response to threats or incidents of violence. When employers use terms such as “harassment” after employees have

been threatened or encountered violence at the hands of

union proponents, employees are less likely to perceive the

term as referring to protected activity. Brandeis’ policy,

however, was part of its handbook, which was disseminated

to employees when they were hired. Thus, Brandeis employees were not able to discern any limiting principles

from the circumstances under which the policy was issued.

It is incumbent upon employers to use language that

“is not reasonably subject to an interpretation that would

unlawfully affect the exercise of Section 7 rights.” S.E.

Nichols, Inc., 284 N.L.R.B. at 557. In the present case, neither

the factual context nor the language employed by Brandeis

served to limit employees’ understanding of what constitutes harassment under the policy; employees reasonably

could conclude that engaging in protected activity was

tantamount to “harassment” under the policy. In light of

these facts—that the policy was promulgated “without any

knowledge of threats or harassment from the union, and

targeted only union supporters”—“it was not unreasonable

for the NLRB to conclude that the [policy] encouraged

employees to report unionization efforts” in violation of

§ 8(a)(1). Bloomington-Normal, 357 F.3d at 697.

B. Snowden’s Speech

Brandeis also urges us to revisit the NLRB’s determination

that Snowden’s speech to the South Bend workforce on May

8, 2002, violated § 8(a)(1). During his speech, Snowden

remarked:

Well they have the right to talk to you. If they want to

talk to you they can. But again you have the right not to
Nos. 04-3156 & 04-3537 15

9 Indeed, although there is no evidence in the record that Cook

and Benefield were engaging in something other than protected

activity under the Act, their actions engendered a number of

complaints to management.

listen. If they follow you on your property you have a

right to tell them to leave the property. They don’t have

any right on your property if you don’t want them on it.

So, once again, if the union gets so aggressive that you

feel you’re being harassed, then we need to know about

it because we will do everything within our legal means

to keep you from being harassed.

A.R. Vol. III, G.C. Ex.12.

As noted above, although statements by management

encouraging employees to report “harassment” in connection with a union solicitation is not per se violative of the

Act, the context in which the statement is made must not be

“so vague as to invite employees generally to inform on

fellow workers who were engaged in union activity,” Liberty

Nursing Homes, Inc., 245 N.L.R.B. 1194, 1197 (1979), and thus

interfere with union proponents’ rights under the Act.

Although Snowden gave trespass as an example of behavior

that is not protected, this example failed to enlighten

Brandeis employees as to what did or did not constitute

“harassment” at work. Employees easily could have been

left with the impression that protected activity such as persistent solicitations, offers of union literature or invitations

to organizational/informational meetings could constitute

harassment.9

 In the absence of further guidance as to the

meaning of “harassment,” Brandeis employees were left

to draw their own conclusions about the definition of

“harassment”—a definition that well may have included

activity protected by the NLRA. Thus, we conclude that the

NLRB’s determination that Snowden’s statement was vio-
16 Nos. 04-3156 & 04-3537

lative of the Act is supported by substantial evidence.

C. Commentary on Union Insignia

Brandeis similarly contests the NLRB’s determination that

the actions of Freeman and Muraski in commenting upon

the union hat and buttons worn by Cook and Benefield

violated § 8(a)(1) of the Act. The NLRB maintains that, in

the absence of extenuating circumstances, i.e., a safety

reason why union items cannot be worn or displayed, commentary of this sort by management violates § 8(a)(1).

This court has recognized that the Act guarantees employees the right “to wear union buttons or insignia as part

of concerted activity to assist the union.” NLRB v. Shelby

Mem’l Hosp., 1 F.3d 550, 565 (7th Cir. 1993). This right,

however, is not absolute and may be “abridged when the

employer demonstrates that special circumstances exist

which justifies [sic] the banning of union insignia.” Eastern

Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 424 (4th Cir.

1999). Countervailing interests such as employee safety,

production or discipline may justify an employer’s restrictions on such items. See Shelby Mem’l Hosp., 1 F.3d at 565

(citing Caterpillar Tractor Co. v. NLRB, 230 F.2d 357, 359 (7th

Cir. 1956)).

Brandeis does not attempt to justify the comments made

in the present case on the grounds of safety, discipline or

production. Instead, Brandeis maintains that the actions of

Freeman and Muraski did not dissuade Cook or Benefield

from touting the Union on their clothing, consequently, no

violation of the Act occurred.

As noted above, however, the test for a violation of

§ 8(a)(1) is not whether the employer actually interfered

with its employees’ rights under the NLRA, but whether the

employer’s actions had a tendency to interfere with those
Nos. 04-3156 & 04-3537 17

10 If there had been only one stray comment by a member of

management with respect to the display of union items, we may

have reached the same conclusion as did the Fourth Circuit in

Eastern Omni Constructors, Inc. v. NLRB, 170 F.3d 418, 425 (4th Cir.

1999). In that case, the Fourth Circuit addressed a company ban

on union insignia placed on hardhats, but not other clothing

items; the court commented: “ ‘Somewhere, in the vast human experience, there must be an inconvenience so minimally damaging, so utterly trivial, so profoundly petty, that it should not

give rise to a [§ 8(a)(1) violation]. If so this is it.’ ” Id. at 426

(alteration in original; quoting Beraho v. S. C. State Coll., 394 S.E.2d

28, 29 (1990) (Sanders, C.J., concurring)). In this case, however,

both Freeman and Muraski made comments to Cook— on May

9, Freeman commented on Cook’s button, and, on May 14,

Muraski commented on Cook’s hat. As well, Freeman commented on Benefield’s pro-union button. Given that at least two

members of management noted and commented upon the

wearing of union attire and that the comments were directed to

two different employees, we cannot dismiss these incidents as “so

utterly trivial” as not to give rise to a § 8(a)(1) violation.

rights. Gen. Thermodynamics, Inc., 670 F.2d at 721. Although

Freeman’s and Muraski’s comments may not have discouraged Cook or Benefield from donning their union buttons

and hats, the effect on possible onlookers may not have been

so innocuous. These comments may have had a chilling

effect on employees who otherwise would have displayed

their support for the Union in some manner.10

Given that a showing of actual interference is not necessary to establish a § 8(a)(1) violation, we again conclude that

the NLRB’s determination is supported by substantial

evidence.

D. Prohibition of Discussion of Union
18 Nos. 04-3156 & 04-3537

Brandeis also asks us to review the Board’s determination

that Muraski’s oral prohibition of union discussions during

work time violated § 8(a)(1). Brandeis argues that it was

entitled to impose a rule that prohibits union solicitations in

order to maintain productivity and discipline. The NLRB

urges that the broad prohibition against union discussions

cannot be justified on these grounds.

Brandeis does not dispute the general proposition that an

employer violates § 8(a)(1) of the NLRA when it discriminatorily prohibits employees from discussing union-related

topics during work time while tolerating other subjects of

discussion. See, e.g., Atlas Metal Parts Co., Inc. v. NLRB, 660

F.2d 304, 311 (7th Cir. 1981). Brandeis, however, maintains

that, in the absence of some evidence that anti-union animus

motivated Muraski in prohibiting the discussions, the rule

should have been sustained. Brandeis relies upon Adtranz

ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253

F.3d 19 (D.C. Cir. 2001), in support of its position.

Brandeis’ reliance on Adtranz is misplaced. In Adtranz, the

company had a rule in its employee handbook against

“soliciting and distribution without authorization.” Id. at 28.

The District of Columbia Circuit first noted that the rule in

question only applied “to conduct during working time and

in the work place.” Id. The court continued: “ ‘Working time

is for work’ is a long accepted maxim of labor relations.

Therefore rules prohibiting solicitation during working time

are presumptively lawful because such rules imply that

solicitation is permitted during nonworking time, a term

that refers to the employees’ own time.” Id. (internal

quotation marks and citations omitted). Furthermore, the

court observed that Adtranz’s rule was an “across the

board” policy, and “there [wa]s no suggestion that antiunion animus motivated the policy” or that the rule “discriminate[d] against unionization efforts or other protected
Nos. 04-3156 & 04-3537 19

activity.” Id. at 29. Thus, among the court’s reasons for sustaining Adtranz’s “no solicitation” rule were that the rule

was not intended to, nor was it enforced in such a manner

as to, discriminate against speech or actions protected by the

Act.

The same cannot be said regarding Muraski’s instruction

to Benefield that he and Cook refrain from discussing

“union stuff.” There is evidence that the statement was motivated by Benefield’s and Cook’s prior solicitation efforts,

and there is no question that it targeted only future solicitations on behalf of the Union, as opposed to all speech

during work time.

Brandeis is free to adopt nondiscriminatory policies that

forward its legitimate objectives of maintaining plant productivity and discipline. However, those policies may not

target, either through design or enforcement, activity protected by the Act. Because the oral rule promulgated by

Muraski was directed only at discussions concerning the

Union, the NLRB’s conclusion that the prohibition violated

the NLRA is supported by substantial evidence.

E. Alteration of Lunch Policy

Finally, Brandeis claims that its alteration of the lunch

policy was not a response to the Union’s organizing activities that took place during the lunch hour. It was, instead,

a legitimate response to the detrimental effect that an uniform lunch hour had on its ability to serve its customers’

needs. The General Counsel urges that both the breadth of

the policy, as well as the timing of its implementation,

support the NLRB’s conclusion that the change in policy
20 Nos. 04-3156 & 04-3537

11 Specifically, the NLRB adopted the ALJ’s determination with

respect to this issue; the ALJ stated:

A careful analysis of [the] situation, however, discloses that

the changes imposed by the Respondent were not necessary

to resolve the problem. According to Shuck, there was someone available to render assistance to the customer, i.e.,

Muraski. Only 5 minutes passed before he was relieved by

Karre, who quickly fixed the problem. Nor does the evidence

disclose that this was an on-going or repeated problem or

that similar situations were likely to occur in the future given

the nature of the Respondent’s business. For example, the

field service mechanic for the most part is out of the building

and most likely would not be available to render assistance,

regardless of whether lunches were staggered and shortened.

There are two in-house service mechanics, who normally do

not perform field service work, but who conceivably could

provide the type of coverage that Shuck envisioned if they,

and they alone, staggered their lunch hours. But the changes

imposed by Freeman went far beyond what was necessary to

remedy Shrock’s [sic] concern because the changes affected

all employees, like Ken Lubinski and Kevin Hardy, who

were not mechanics, and Benefield who was a field service

mechanic. Indeed, the changes restricted everyone from

taking lunch with anyone else and therefore stymied any

attempts to organize during lunch time, which is when Cook

and Benefield previously had spoken to employees

one-on-one about joining the Union. Thus, I find that the

Respondent has failed to persuasively show that in the

absence of a union organizing drive, the changes that it

imposed on lunch times would have been the same.

A.R. Vol. I, NLRB Dec. at 10.

was in response to legitimate, protected activity.11

Section 8(a)(3) of the NLRA prohibits an employer from

discriminating “in regard to hire or tenure of employment

or any term or condition of employment to . . . discourage
Nos. 04-3156 & 04-3537 21

membership in any labor organization.” 29 U.S.C.

§ 158(a)(3). In order to establish a violation of § 8(a)(3), the

“General Counsel must establish that antiunion animus was

a motivating factor in the decision. If the General Counsel

succeeds, the employer—to escape a finding of an unfair

labor practice—must establish its affirmative defense— that

it would have taken the action regardless for nondiscriminatory reasons.” NLRB v. Joy Recovery Tech. Corp., 134 F.3d

1307, 1314 (7th Cir. 1998) (citing Schaeff Inc. v. NLRB, 113

F.3d 264, 267 n. 5 (D.C. Cir. 1997)).

In this case, the NLRB found that anti-union animus was

a motivating factor behind the decision to change the lunch

policy. The record establishes that the Union was using the

lunch hour as a time to meet with potential members and

convince them of the merits of unionization. Furthermore,

the record shows that the Company became aware that

active union recruitment was taking place during the lunch

hour. The change in policy followed closely on the heels of

Cook’s and Benefield’s lunch meetings with Karre and,

according to the Board, made it “difficult for employees to

take their lunches at the same time, and thereby inhibit[ed]

the Union’s organizing efforts.” A.R. Vol. I, NLRB Dec. at 9.

Thus, the record supports the NLRB’s conclusion that union

activity was a motivating factor in the change of policy.

Brandeis does not argue that the General Counsel failed

to meet its initial burden of establishing that the union

campaign was a motivating factor in the decision to alter the

lunch policy. See Reply Br. at 15. Brandeis maintains,

however, that it established that its actions were non-pretextual. It contends that, even in the absence of the Union’s

organizing campaign, the change would have been implemented because the uniform lunch hour deprived Brandeis

of the necessary personnel to service customers, as evidenced by the events of May 8, 2002.
22 Nos. 04-3156 & 04-3537

The NLRB counters that, if customer service was the driving force behind the change in policy, the policy should

have been restricted to mechanics. However, “the changes

restricted everyone from taking lunch with anyone else and

therefore stymied any attempts to organize during lunch

time, which is when Cook and Benefield previously had

spoken to employees one-on-one about joining the Union.”

A.R. Vol. I, NLRB Dec. at 10. Furthermore, the General

Counsel argues that “[q]uickly attending to repairs was not

an ongoing problem at the facility and similar situations

were not likely to occur.” Respondent’s Br. at 38.

Brandeis need not wait, however, until it has experienced

persistent lapses in customer service before it adopts a policy that allows it to serve its customers in a more efficient

and timely manner. Furthermore, we have no doubt that, at

some level, Brandeis’ lunch policy forwards that goal.

Brandeis’ burden, however, was not simply to establish that

there was another, legitimate reason that motivated its

action; Brandeis had to show that it would have taken the

same action in the absence of the illicit motive. See, e.g.,

NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 400-03 (1983)

(upholding NLRB’s construction of the Act that, after a

showing that the employer’s adverse action was motivated

by anti-union animus, the burden was on the employer to

show that it would have reached the same decision “had the

forbidden motive not been present”), abrogated on other

grounds, Dir., Office of Workers’ Comp. Programs, Dep’t of Labor

v. Greenwich Collieries, 512 U.S. 267 (1994); Multi-Ad Servs.,

Inc. v. NLRB, 255 F.3d 363, 371 (7th Cir. 2001) (stating that,

if protected activity has motivated an adverse action, “a

violation has been established unless the employer demonstrates that it would have taken the same action in the

absence of the employee’s protected activity”). The breadth

of Brandeis’ new lunch policy suggests that factors other
Nos. 04-3156 & 04-3537 23

than customer service motivated its adoption. The policy

applied to all employees, not just mechanics or service personnel. Furthermore, the policy not only staggered lunch

periods, it also shortened lunch periods, thus making it

more difficult for union organizers to meet with recruits

during day-time hours. Consequently, we believe that the

NLRB’s conclusion—that Brandeis would not have adopted

the same policy in the absence of union activity— is supported by substantial evidence.

Conclusion

For the foregoing reasons, we deny Brandeis’ petition for

review, and we grant the cross-application for enforcement

of the NLRB’s order.

PETITION DENIED;

APPLICATION FOR ENFORCEMENT GRANTED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-24-05