NLRB v. Colburn Electric Co

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-60912
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VERSUS
COLBURN ELECTRIC CO.,
Respondent.
Application for Enforcement of an Order of the
National Labor Relations Board
(Cases 15-CA-13614 and 15-CA-13617)
December 4, 2002
Before DAVIS, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
After reviewing the briefs and the NLRB’s decision, we find
that Colburn has not shown a lack of substantial evidence
supporting the Board’s factual findings, nor has it shown that the
Board’s legal conclusions are inconsistent with the National Labor

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1 See Cent. Freight Lines, Inc. v. NLRB, 666 F.2d 238, 239 (5th
Cir. 1982) (“We must sustain the Board’s findings if they are
supported by substantial evidence on the record considered as a
whole.”); Valmont Indus. v. NLRB, 244 F.3d 454, 463 (5th Cir. 2001)
(“A reviewing court will uphold the Board’s decision if it is
reasonable and supported by substantial evidence on the record
considered as a whole.”); Poly-America, Inc. v. NLRB, 260 F.3d 465,
476 (5th Cir. 2001) (“We review questions of law de novo, but defer
to the legal conclusions of the Board if reasonably grounded in the
law and not inconsistent with the Act.”) (citations omitted).
2 597 F.2d 1046, 1048–49 (5th Cir. 1979).
3 See id. at 1050.
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Relations Act.1 We therefore GRANT the Board’s application for
enforcement of its order.
I. Colburn’s No-Solicitation Policy
In NLRB v. Roney Plaza Apartments, we found that the ultimate
question in cases like this one is “whether the employer’s actions
. . . interfered with the organizational rights of employees under
the Act.”2 A no-solicitation rule that prohibits only union
solicitation is an interference with those rights that violates §
8(a)(1) of the NLRA.3 Colburn contends that its rule was not
designed to prohibit employees from merely “talking” about the
Union on working time, but was instead narrowly tailored to prevent
“union activity” amounting to harassment. But even if this
distinction between “union activity” and “union talk” is
meaningful, the rule still singles out union activity for
prohibition while permitting nonunion, nonwork-related activity,
which could just as easily amount to harassment and disrupt work.
Thus, Clifford Zylks’ alleged union-related harassment of a fellow

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4 See id. at 1048–51 (finding that an employer was not entitled
to impose a no-solicitation policy that singled out union
solicitation during work time, despite allegations that an employee
who engaged in union solicitation had frightened and harassed
employees and had interrupted their work).
5 See id. at 1049–50 (concluding that a no-solicitation policy
was unlawful where it singled out union activity for punishment,
even though the policy permitted union activity during lunch or
breaks).
6 Cf. NLRB v. Pneu-Elec., Inc., 309 F.3d 843, 850 (5th Cir.
2002) (“The test for determining whether an employer has violated
§ 8(a)(1) is whether the employer’s questions, threats, or
statements tend to be coercive, not whether the employees are in
fact coerced.”) (internal quotation and citation omitted).
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employee does not justify Colburn’s implementation of a
discriminatory no-solicitation policy.4
Colburn also may not justify its policy by citing the
provision that permitted employees to engage in union activity
during “breaks or lunch” because that provision does nothing to
alter the rule’s discriminatory core language, which singles out
union activity for punishment.5 And because Colburn’s rule is
unlawful on its face, a determination of whether its application
had a discriminatory effect is unnecessary.6 In other words, the
facially discriminatory rule supports the Board’s conclusion that
Colburn interfered with the organizational rights of its employees
in violation of § 8(a)(1).
II. Discharge of Clifford Zylks
Colburn argues that Zylks was discharged for disrupting the
work of a fellow employee and for declaring that he would continue
such activities anytime he felt like it. In Roney Plaza, the

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7 See 597 F.2d at 1050–51.
8 Id. at 1051.
9 See id.
10 See generally NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,
397–403 (1983).
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employer also attempted to justify a discharge by citing the
employee’s interruption of the work of others and his
insubordination in continuing to engage in at-work solicitation.7
This court found, however, that “[b]oth reasons are removed by our
conclusion that substantial evidence supports the Board’s finding
of an invalid no solicitation policy.”8 Similarly, Zylks’ defiance
in this case is “inextricably involved” with Colburn’s promulgation
of a rule that discriminatorily prohibited union activity during
working hours.9 At the hearing before the ALJ, job superintendent
Robert Jackson testified that Zylks “told me he would conduct union
business any time that he felt like it. And therefore, I fired
him.” This testimony constitutes substantial evidence supporting
the Board’s finding that Zylks’ protected activity was a motivating
factor in his discharge. The discharge was therefore unlawful
unless the record compels the conclusion that Colburn would have
fired Zylks even in the absence of his union activity.10 As the ALJ
and the Board correctly determined, the record cannot support that
conclusion because the very reason for the discharge was Zylks’
intent to continue his union activity. Because Jackson’s testimony
reveals that the purportedly legitimate reasons offered by Colburn

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are pretextual, we cannot disturb the Board’s finding that Colburn
discharged Zylks in violation of §§ 8(a)(1) and (3) of the NLRA.
APPLICATION FOR ENFORCEMENT GRANTED.

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