No. 96-1326 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 HANDICABS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHT CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN OPPOSITION WALTER DELLINGER Acting Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Solicitor General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board Washington, D.C. 20570 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the National Labor Relations Board reasonably concluded that petitioner's rule prohibit- ing employees from "discussing complaints or pro- blems about the company with [its] clients" violates Section 8(a)(1) of the National Labor Relations Act by unduly interfering with employee activity protected by the Act. 2. Whether the Board's finding that petitioner dis- charged one of its employees because of his union activity, in violation of Section 8(a)(3) and (1) of the Act, was supported by substantial evidence. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . .2 Argument . . . . 9 Conclusion . . . . 18 TABLE OF AUTHORITIES Cases: Aroostook County Regional Ophthalmological Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996) . . . . 14 Beth Israel Hosp. v. NLRB, 437 U. S. 483 (1978 ).... 11 Cincinnati Suburban Press. Inc., 289 N.L.R.B. 966 (1988) . . . . 9 Eastex, Inc. v. NLRB, 437 U. S. 556(1978) . . . . 5, 9,10 Kinder-Care Learning Centers, Inc., 299 N.L.R.B. 1171(1990) . . . . 9 Local No. 980, UAW, 280 N. L. R. B. 1378(1986), enforced, 819 F.2d 1134 (3d Cir. 1987) . . . . 9 NLRB v. Baptist Hosp., Inc., 442 U.S. 773 (1979) . . . . 11, 12 NLRB v. Local Union No. 1229, IBEW (Jefferson Standard Broadcasting Co.), 346 U. S. 464(1953).. 9 St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150 (1976), enforced in part, 557 F.2d 1368 (10th Cir. 1977) . . . . 11 Universal Camera Corp. v. NLRB, 340 LT. S. 484 (1951) . . . . 17 Statutes: Americans with Disabilities Act, 42 U.S.C. 12101 et seq . . . . 5 42 U. S. C. 12101(a)(8) . . . . 15 42 U. S. C. 12203(b) . . . .14 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Statutes-Continued: Page National Labor Relations Act, 29 U.S.C. 151 et seq.: 7,29 U.S.C. 157 . . . .2, 5, 9, 10 8(a)(l), 29 U.S.C. 158(a)(l) . . . . 2, 4, 10, 11, 17 8(a)(3), 29 U.S.C. 158(b)(3) . . . . 2, 4, 9, 17 8(b)(7)(C), 29 U.S.C. 158(b)(7)(C) . . . . 9 10(a), 29 U.S.C. 160(a) . . . . 15, 16 Minn. Stat. 626.557 (subd. 19) (West 1983) . . . . 14-15 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1326 HANDICABS, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1- A9) is reported at 95 F.3d 681. The decision and order of the National Labor Relations Board (Pet. App. A11- A12), including the decision of the administrative law judge (Pet. App. A12-A48), are reported at 318 N.L.R.B. 890. JURISDICTION The judgment of the court of appeals was entered on September 11, 1996. A petition for rehearing was denied on November 26,1996. Pet. App. A10. The peti- tion for a writ of certiorari was filed on February 20, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Section 8(a)(l) of the National Labor Relations Act (NLRA or Act), 29 U.S.C. 158(a)(l), makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" Section 7 of the Act. Section 7, 29 U.S.C. 157, provides that "[employees shall have the right to self-organization, to form, join, or assist labor organizations * * * and to engage in other concerted activities for the purpose of * * * other mutual aid or protection." Section 8(a)(3) of the Act, 29 U.S.C. 158(a)(3), makes it an unfair labor prac- tice for an employer "by discrimination in regard to hire or tenure of employment or any term or con- dition of employment to encourage or discourage membership in any labor organization." 2. Petitioner provides transportation services to senior citizens and disabled persons in the Minneapolis-St. Paul metropolitan area. Pet. App. A13; Pet. 4. Petitioner's employee handbook con- tained a section known as "policy addendum no. 2." That section provided, among other things, that "[discussing complaints or problems about the com- pany with our clients will be grounds for immediate dismissal" (the "discussion rule"), and that "you must not put [clients] in a threatening or uncomfortable position by discussing any personal or company- related problems that may make them feel coerced or obligated to act upon or react to" (the "discomfort rule"). Pet. App. A14-A15. 1. ___________________(footnotes) 1 The quoted sentences (which we have labelled as separate "rules" for convenient reference) are the "italicized portions" referred to in the Board's decision at Pet. App. A14. See 318 N.L.R.B. at 891 (emphasis added by the Board). The italics are ---------------------------------------- Page Break ---------------------------------------- 3 In 1994, a union local began an organizing campaign among petitioner's drivers. Pet. App. A15. A certi- fication election was scheduled for October 14. Id. at A16. Ronald Trail, one of petitioner's drivers, distrib- uted authorization cards to his fellow drivers and spoke with them about the union. Ibid. Until Sep- tember 20, 1994, petitioner was unaware that Trail supported the union. Id. at A36. On September 20, Claudia Fuglie, who was both an employee and a disabled client of petitioner, told Gary Nord, Trail's supervisor, that Trail was a union supporter. Pet. App. A18, A20, A32. Nord reported that conversation to Joyce Doerffler, petitioner's president, who in turn spoke directly with Fuglie. Id. at A18. Although there was conflicting testimony concerning Fuglie's conversations with Trail, Nord, and Doerffler, the administrative law judge (ALJ) concluded that Fuglie based her statement on a con- versation she had had with Trail about a week earlier, wherein Trail expressed his belief that petitioner was engaged in "unequal treatment" of its employees, and that such "inequities" could be corrected were the union "voted in." Id. at A18, A27-A28, A32. Fuglie was vehemently opposed to unions. Id. at A28-A29. Petitioner fired Trail at the end of his shift on September 20. Pet. App. A16, A18. When Trail asked why he was being fired, Nord explained only that ___________________(footnotes) missing from the decision as it is reprinted in the appendix to the petition. Petitioner's employee handbook also contained a rule prohib- iting employees from discussing their wages among themselves, on pain of "immediate termination." Pet. App. A14. The Board and the court of appeals accepted petitioner's concession that that rule was unlawful (id. at A5, A14, A43 n.5), and petitioner does not challenge that holding in this Court. ---------------------------------------- Page Break ---------------------------------------- 4 "we've got a complaint against you." Id. at A16. Although Nord refused to give Trail any details, the evidence before the ALJ established that Trail's termination was based on Fuglie's statements to Nord and Doerffler earlier the same day. Id. at A16- A18. When Trail requested "something in writing" (id. at A16), Nord gave him a copy of petitioner's "policy addendum no. 2." Id. at A16-A18. Trail also received a copy of a memorandum from Nord, dated the same day and addressed to all petitioner's drivers. Id. at A16-A17. That memorandum stated that "some passengers have complained that drivers have been hassling them with complaints and problems regard- ing potential unionization," and that "[m]any passen- gers are scared and fearful that unionization would mean a strike and loss of service." Id. at A17. It concluded by warning drivers: "[R]egardless of your personal beliefs regarding this union thing, please do not trouble our passengers with your problems. Failure to comply with this policy will result in immediate dismissal." Ibid. 3. On September 21 (the day after his discharge) Trail filed a complaint with the National Labor Relations Board (the Board), charging that petitioner had engaged in an unfair labor practice by firing him. Pet. App. A13. On October 27, 1994, the Board's General Counsel issued a complaint against peti- tioner, alleging violations of Section 8(a)(l) and (3) of the Act. Pet. App. A12-A13. After an evidentiary hearing (see Pet. App. A12), the ALJ found that petitioner's "discussion" and "dis- comfort" rules, quoted above, violated Section 8(a)(l) of the Act. Pet. App. A35, A43. The ALJ explained that, generally speaking, employees engage in activ- ity protected by the "mutual aid or protection" clause ---------------------------------------- Page Break ---------------------------------------- 5 of Section 7 "when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the im- mediate employee-employer relationship." Pet. App. A33 (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). He recognized that communications with third parties may be unprotected where they "do not relate to labor practices of the employer, such as disparaging the employer's reputation or quality of its product," or if they are "maliciously motivated." Pet. App. A33. He held, however, that the chal- lenged rules were "not limited to those types of [unprotected] communication." Ibid. Rather, the discussion rule was "too extensive; because it "expressly prohibited] statutorily protected activ- ity." Id. at A33, A35. The discomfort rule, although "somewhat less sweeping," was impermissible be- cause it "condition[ed] [a] violation * * * on the subjective reaction of the passenger," thereby creat- ing "an inherent danger to the exercise of [the] drivers' statutory right to communicate." Id. at A33. The ALJ considered petitioner's contentions that its disabled clients are "not necessarily able to handle stress or difficulties in the manner of a non-disabled person," and that petitioner should therefore be en- titled, by reason of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (ADA), and Minnesota's Vulnerable Adults Act (VAA), to "greater latitude to formulate and implement a more stringent * * * rule intended to protect passengers from speech and action which might be upsetting, even threatening, to them." Pet. App. A15, A32-A35. The ALJ acknowl- edged that petitioner "has an obligation to protect passengers from abuse and mistreatment," and that "some words and conduct do cause greater concern ---------------------------------------- Page Break ---------------------------------------- 6 for a vulnerable person than is the fact for other individuals." Id. at A32-A33. Nonetheless, the ALJ held that petitioner's rule was overbroad, because it "potentially prevents employees from publicizing any aspect of a labor dispute with [petitioner] * * * for fear that a single client may come to feel threatened or uncomfortable." Id. at A34. Such a rule, he con- cluded, "hardly strikes a reasonable balance between protection which Congress sought to extend to the handicapped and challenged segment of the public [under the ADA] and the rights which Congress sought to provide for employees under the [NLRA]." Id. at A34-A35. The ALJ suggested that petitioner could lawfully satisfy its obligations to its disabled passengers by implementing a rule prohibiting any "driver communications intended to threaten or cause passengers to become apprehensive, and * * * communications naturally likely to have that effect." Id. at A33. The ALJ also found that petitioner had unlawfully discharged Trail, not because he had violated company rules, but because he supported the union. Pet. App. A43. 2. After extensively reviewing and evaluating the evidence before him (see id. at A13-32, A36-A41), the ALJ found "no credible evidence that Trail engaged ___________________(footnotes) 2 Petitioner moved to dismiss this aspect of the complaint on the ground that petitioner's motivation for discharging Trail had been conclusively determined by a decision of the Minnesota Department of Economic Security, which ruled that Trail was not entitled to unemployment benefits because he had been discharged for misconduct. Pet. App. A35-A36. The ALJ denied petitioner's motion, in part because "no consideration was accorded to the unfair labor practice motivation issue" in the state proceeding. Id. at A36. Petitioner does not challenge that ruling in this Court. ---------------------------------------- Page Break ---------------------------------------- 7 in any actual misconduct which frightened passen- gers," or that petitioner was "actually motivated by a[ny] legitimate reason which, absent Trail's union sympathies and activities, would have motivated [it] to discharge Trail, in any event, on September 20." Id. at A42. The ALJ noted that, even if petitioner had discharged Trail for violating its rules, the discharge would have been unlawful, because the rules were themselves unlawful. Id. at A41. In fact, however, he found that the discharge was "motivated by animus toward [Trail's] union involvement or, at least, sus- pected involvement" (ibid.), and was intended "as a warning to other drivers when they cast their ballots in the representation election conducted 24 days later" (id. at A32). The Board affirmed the ALJ's rulings, findings and conclusions, and adopted his recommended order. Pet. App. A1l-A12. That order requires petitioner, among other things, to "[r]escind work rules which * * * prohibit employees from discussing with passengers and clients job-related problems and complaints," and to offer Trail reinstatement with back pay. Id. at A45. 3. The court of appeals enforced the Board's order. Pet. App. A1-A9. The court noted that, contrary to petitioner's characterization of its rules as "limited in time or place," petitioner had "broadly prohibited] all [employee] discussions with clients about company complaints." Id. at A7. It agreed with the Board that petitioner's discussion rule impermissible forbade "all discussion of working conditions with clients even if the communication were intended to enlist their support for protected concerted activity," and that the discomfort rule "potentially prevents em- ployees from discussing any aspect of a labor dispute and from appealing for support from the public for ---------------------------------------- Page Break ---------------------------------------- 8 fear that a single client may feel threatened or un- comfortable." Ibid. Noting the Board's recognition of petitioner's interest in protecting its clients, as well as the federal interest in enforcement of the labor laws, the court observed that "Congress and the courts rely on the Board to strike the appropriate balance between such conflicting legitimate inter- ests." Id. at A6-A7. The court concluded that the ALJ's decision, as adopted by the Board, "is well- reasoned and strikes an appropriate balance between Handicabs' responsibility to its passengers and the employees' rights under the Act." Id. at A8. The court therefore "defer[red] to the Board's decision that policy addendum no. 2, as currently written, vio- lates the Act because its prohibition of protected organizing activity is too extensive." Ibid. The court rejected petitioner's contention that the Board's order "violate[s] or conflict[s] with the ADA or the Minnesota Vulnerable Adults Act." Pet. App. A8. The court observed that petitioner's "impermissible generalization about persons with disabilities-that all persons who ride handicapped- accessible, public transit services will be disturbed by talk of union activity [-] cannot bring its policy under the protection of the disability laws." Ibid- Moreover, "[t]he Board's decision does not prevent or even discourage [petitioner] from taking the ap- propriate steps to protect its passengers. It simply informs the company that it cannot blatantly trample its employees' rights with a rule that speaks gener- ally of protecting passengers yet targets only the discussion of company-related problems." Ibid. The court noted that "[t]he Board's decision leaves open the opportunity for [petitioner] to design a neutral rule that does not single out activity protected under ---------------------------------------- Page Break ---------------------------------------- 9 the Act, but rather focuses on all speech and conduct that harms its passengers." Ibid. Finally, the court reviewed the grounds for the Board's finding that petitioner discharged Trail because of his union activity, and concluded that the Board's finding was supported by substantial evi- dence. Pet. App. A9. The court therefore enforced the Board's order in its entirety. ARGUMENT 1. The right to engage in concerted activities for "mutual aid or protection" under Section 7 of the National Labor Relations Act includes the right of employees to solicit the support of third parties in their organizational efforts or other concerted activity, so long as the employees' communication does not disparage the employer's reputation or product and is not maliciously motivated. See Pet. App. A33; Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978). 3. The Board reasonably concluded that the ___________________(footnotes) 3 See also NLRB v. Local Union No. 1229, IBEW (Jeffer- son Standard Broadcasting Co.), 346 U.S. 464, 475 (1953) (distinguishing "acts of insubordination, disobedience or dis- Ioyalty"); Kinder-Care Learning Centers, Inc., 299 N.L.R.B. 1171, 1171-1172 (1990) (rejecting work rule that prohibited childcare employees from discussing with parents terms and conditions of employment or work-related problems); Cin- cinnati Suburban Press, Inc., 289 N.L.R.B. 966, 967-968 (1988) (employee's article about employer's opposition to an organiz- ing campaign, which was published in a local journal, was protected activity); Local No. 980, UAW, 280 N.L.R.B. 1378, 1381 (1986) (employee's provision of information about a labor dispute with her employer to a reporter for a newspaper arti- cle was protected activity), enforced, 819 F.2d 1134 (3d Cir. 1987). Cf. 29 U.S.C. 158(b)(7)(C) (second proviso) (Permitting, under certain circumstances, "any picketing or other publicity for the purpose of truthfully advising the public (including ---------------------------------------- Page Break ---------------------------------------- 10 "discussion" and "discomfort" rules (see page 2, supra) set out in petitioner's "policy addendum no. 2" violated Section 8(a)(1), by interfering with the exer- cise of a right protected by Section 7 in a manner that was broader than necessary to protect petitioner's disabled clients. Pet. App. A15, A32-A35. As the Board explained, petitioner's discussion rule flatly prohibits "[discussing complaints or problems about the company with our clients," while the dis- comfort rule prohibits discussion of "company-related problems" based on "the subjective reaction of the passenger," thereby creating "an inherent danger to the exercise of [the] drivers' statutory right to communicate `through channels outside the immedi- ate employee-employer relationship.'" Pet. App. A33- A34 (quoting Eastex, 437 U.S. at 565). The rules are not limited to communications of a disparaging or malicious nature; and petitioner adduced "no reliable evidence" that Trail (or any other driver) acted mali- ciously or disparagingly in this case. Pet. App. A34; see id. at A42. The Board acknowledged petitioner's "obvious[] * * * obligation to protect passengers from abuse and mistreatment by drivers" (Pet. App. A32), but it concluded (id. at A34-A35) that the challenged work rules swept so broadly that they failed to "strike[] a reasonable balance between protection which Con- gress sought to extend to the handicapped and chal- lenged segment of the public and the rights which Congress sought to provide for employees under the [NLRA]." The court of appeals affirmed the Board's "well-reasoned" decision, correctly recognizing that ___________________(footnotes) consumers) that an employer does not employ members of, or have a contract with, a labor organization"). ---------------------------------------- Page Break ---------------------------------------- 11 "Congress and the courts rely on the Board to strike the appropriate balance between such conflicting le- gitimate interests." Id. at A7-A8. There is no reason for further review. 2. Petitioner argues (Pet. 11-13) that the Board and the court of appeals should have sustained its work rules because its clients should be treated like the hospital patients whose special situation this Court considered in NLRB v. Baptist Hosp., Inc., 442 U.S. 773 (1979), and Beth Israel Hosp. v. NLRB, 437 U.S. 483 (1978). That argument is not persuasive. The Board has long held that, because "a tranquil atmosphere is essential to the carrying out of" a hospital's primary patient-care function, a work rule prohibiting employees from engaging in protected activity (such as union solicitation) "in strictly pa- tient care areas, such as the patients' rooms, operat- ing rooms, and places where patients receive treat- ment" is presumptively lawful under Section 8(a)(l). St. John's Hosp. & School of Nursing, Inc., 222 N.L.R.B. 1150, 1150-1151 (1976), enforced in part, 557 F.2d 1368 (10th Cir. 1977). Outside immediate patient- care areas, however, such a prohibition is presump- tively unlawful, and will be struck down unless the employer can show that permitting protected activity would actually disrupt patient care. Ibid.; see also Baptist Hosp., 442 U.S. at 778-779 & n.8 (collecting cases); Beth Israel Hosp., 437 U.S. at 494495. In Beth Israel Hospital, this Court upheld the Board's "general approach" as consistent with the Act (437 U.S. at 507), and affirmed the Board's conclusion that a hospital had not overcome the presumption that protected activity should be permitted in the hospital cafeteria (id. at 501-502). In Baptist Hospital, the Court affirmed the Board's conclusion that a hospital ---------------------------------------- Page Break ---------------------------------------- 12 had not overcome the presumption with respect to union solicitation in the cafeteria, gift shop, and first- floor lobbies, but disagreed with the Board with re- spect to solicitation in corridors and sitting rooms on patient floors, holding that the hospital had suffi- ciently justified its prohibition as to those areas. 442 U.S. at 782-787. Petitioner's reliance on Baptist Hospital and Beth Israel Hospital depends on analogizing its clients and vehicles to hospital patients and "immediate patient care areas." If petitioner's business amounted to an ambulance service, transporting disabled persons exclusively to medical facilities for the purpose of receiving medical care, those analogies might be appropriate. In the case, however, of a service that provides persons whose disabilities do not require immediate medical care with transportation for a va- riety of ordinary purposes, such as going to work or shopping, the analogy to hospital patients has little force. Petitioner's clientele comprises "senior and dis- abled persons." Pet. App. A13. Petitioner did not, however, compile below the type of complete or parti- cularized record that might have supported -the analo- gies that it now attempts to draw. Indeed, to the extent that the record sheds light on the question, it suggests that petitioner's witness (and employee) Claudia Fuglie, a paraplegic who suffers from spina bifida, used petitioner's service primarily to go to and from work. Id. at A18-A19, A26. 4. Although petitioner ___________________(footnotes) 4 Jan Snook, another of petitioner's disabled riders, lived independently with her husband and was employed as a secre- tary at a local hospital. Pet. App. A30; Tr. 93-94. The record ---------------------------------------- Page Break ---------------------------------------- 13 now argues (Pet. 11) that clients "[o]ften * * * use [its] transportation to get to medical facilities" and that "[p]ersons with disabilities are more likely to be receiving medical attention for chronic problems than the average population, " its restrictions on employee speech were not limited to situations involving trans- portation for medical services. Those assertions are, in any event, not an adequate substitute for record evidence concerning petitioner's actual operations. Moreover, the same generalizations might be made about senior citizens or veterans, yet one would not ordinarily think of either group as analogous to hospital patients. 5. Thus, petitioner provided the Board with no factual basis on which to conclude that the specialized presumption applicable to hospitals and immediate patient-care settings should be ex- tended to petitioner's facially very different situation. Neither the Board nor the court of appeals erred in failing to accept petitioner's argument in the absence of any evidentiary foundation. For the same reason, there is no merit to peti- tioner's suggestion (Pet. 13-15) that there is a "con- flict developing between the Circuit Courts" (Pet. 15) on the applicability of the hospital presumption. Compare ibid. (case is "one of first impression"). ___________________(footnotes) suggests that Snook also used petitioner's service to commute to work. Tr. 96-97. 5 Petitioner's argument (Pet. 11) that its clients are de- pendent on its services similarly fails to distinguish petitioner's clients from persons who are not elderly or disabled, but who may rely just as completely on public transportation. More- over, it is not self-evident that the NLRA should be interpreted to favor keeping those who are particularly reliant on an em- ployer's services ignorant, for that reason alone, of a labor dispute that could affect those services. ---------------------------------------- Page Break ---------------------------------------- 14 The case petitioner cites, Aroostook County Re- gional Ophthalmological Center v. NLRB, 81 F.3d 209 (D.C. Cir. 1996), involved small medical facili- ties where physicians consulted with patients and performed eye surgery. Id. at 210. The court sus- tained a work rule that prohibited employees from "discuss[ing] any grievances `within earshot of patients'" (id. at 211), noting that the case involved no "large facilities where the distinction between patient and non-patient areas can easily be dis- cerned," and that the operator of a "small medical practice" had "unique concerns about employees act- ing in a way that might disturb patients." Id. at 213. Nothing in Aroostook County addressed the applica- tion of the hospital presumption to transportation services, and there is no reason to believe that the D.C. Circuit would have decided the present case any differently than did the court below. 3. Petitioner contends (Pet. 16) that the Board "refus[ed] to consider the ADA and the Vulnerable Adults Act." Petitioner does not argue, however, that anything in the decisions below directly violates, or requires petitioner to violate, the ADA or the VAA. 6 ___________________(footnotes) 6 It is not clear that petitioner would be a proper party to seek to vindicate rights that may be accorded to its passengers under either Act. In any event, although petitioner cites (Pet. 3, 13) 42 U.S.C. 12203(b), which makes it "unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of * * * any right granted or pro- tected by" the ADA, petitioner does not explain why the conduct at issue in this case should be deemed to violate that provision. Nor does petitioner explain how that conduct, which the ALJ specifically found (Pet. App. A42) did not and was not intended to frighten petitioner's passengers. could have violated the VAA's prohibition against "intentionally abus[ing] or neglect[ing] a vulnerable adult." Minn. Stat. Ann. ---------------------------------------- Page Break ---------------------------------------- 15 Petitioner claims only that the Board failed to take sufficient account of the interests reflected in those Acts, and of petitioner's interest in protecting its disabled or otherwise vulnerable clients. As the court of appeals pointed out, however, "the Board recognized that [petitioner] has a responsibil- ity to protect persons with disabilities from harass- ment or harm." Pet. App. A6; see id. at A32. Specifi- cally, the Board acknowledged that "some words and conduct do cause greater concern for a vulnerable person than * * * for other individuals." Id. at A32- A33. 7. Thus, the Board did consider petitioner's ADA and VAA arguments in deciding whether the chal- lenged work rules violated the NLRA. Id. at A15, ___________________(footnotes) 626.557 (subd. 19) (West 1983). Indeed, in light of Congress's declaration, in the ADA, that "the Nation's proper goals re- garding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals" (42 U.S.C. 12101(a)(8)), the court of appeals properly observed (Pet. App. A8) that petitioner's "impermissible generalization about persons with disabilities-that all persons who ride handi- capped-accessible, public transit services will be disturbed by talk of union activity [-] cannot bring its policy under the protection of the disability laws." It would, indeed, be con- descending to the intended beneficiaries of those laws to inter- pret them as placing so high a premium on keeping those persons in ignorance of information freely available to others. See id. at A32 (one purpose of the ADA is to eliminate dis- crimination against disabled individuals, "not to promote further patronization of them"). 7 The ALJ noted that he himself is partially disabled. Pet. App. A29 n.4. Petitioner's suggestions of insensitivity or bias (see Pet. 14-15) are therefore particularly unpersuasive. See also Pet. App. All n.2. ---------------------------------------- Page Break ---------------------------------------- 16 A32-A35. 8. As the Board noted, however, "nothing in the** * [ADA] provides for modification of rights guaranteed [to] employees by the [NLRA]." Id. at A32. The Board sought to reconcile protection of those rights with petitioner's legitimate concerns by requiring that work rules intended to protect vulnerable clients be "narrowly tailored to avoid unnecessary deprivation of employees' statutory rights." Id. at A33. After considering the matter (id. at A33-A34), the Board concluded (id. at A35) that petitioner's rules were not so tailored. The court of appeals reviewed the matter and affirmed. Id. at A8. The Board's conclusion was reasonable. Peti- tioner's work rules prohibited communications pro- tected by the Act without regard to whether they posed any objective threat of harm to vulnerable passengers. Pet. App. A7, A33. Moreover, peti- tioner's rules discriminated against protected com- munications by prohibiting them, completely or on the basis of anticipated subjective harm, while per- mitting discussion of all other subjects without regard to potential harm. See id. at A8, A33-A35. Both the Board and the court made clear that peti- tioner was free to design work rules to address its concerns, so long as those rules are narrowly tailored and are neutrally written and enforced. Id. at A8, ___________________(footnotes) 8 Petitioner misinterprets (Pet. 16) the Board's reference (Pet. App. A35) to Section 10(a) of the NLRA, 29 U.S.C. 160(a). The Board cited Section 10(a), not in connection with the ADA or the VAA, but in explaining why a state agency's finding, for unemployment benefits purposes, that Trail had been discharged for misconduct did not control the Board's decision in this case. See Pet. App. A35-A36; see also note 2, supra. ---------------------------------------- Page Break ---------------------------------------- 17 A33. Those essentially fact-bound determinations do not warrant this Court's review. 4. Finally, petitioner takes issue (Pet. 18-20) with the Board's conclusion that it discharged Trail be- cause of his union activity, in violation of Section 8(a)(3) and (1) of the Act. Petitioner is mistaken, how- ever, when it argues (Pet. 18) that "[t]he resolution of this issue is determined by the level of protection afforded to the disabled." It depends, instead, on the ALJ's independent factual finding (Pet. App. A42), adopted by the Board (id. at A 11), that petitioner fired Trail, not because of his violation of work rules or because of any concern petitioner had for its disabled clients, but to punish Trail for his involvement with the union, and "as a warning to other drivers when they cast their ballots in the representation election conducted 24 days later" (id. at A32). That finding resulted from a careful review of all the evidence. Id. at A36-A42). The court of appeals properly held (id. at A9) that the Board's conclusion was supported by sub- stantial evidence, and there is. no reason for further review. Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-491 (1951). ---------------------------------------- Page Break ---------------------------------------- 18 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FREDERICK L. FEINSTEIN General Counsel LINDA SHER Associate General Counsel NORTON J. COME Deputy Associate General Counsel JOHN EMAD ARBAB Attorney National Labor Relations Board MAY 1997