National Labor Relations Board v. John Rooney, David Hinman and Beverly Foster, D/B/A Rooney's at the Mart

We affirm the National Labor Relations Board’s (NLRB) decision that Rooney’s at the Mart (Rooney’s) anti-button policy was discriminatorily applied, but find that the NLRB’s order is overly broad. We also hold that the NLRB erred in finding that Rooney’s committed an unfair labor practice by promulgating and enforcing (1) an allegedly invalid oral no-solicitation rule; and (2) a facially valid, but allegedly improperly motivated, written no-solicitation rule.

I

No-Solicitation Rule

On May 16,1978, Margaret Brickley, a waitress employed by Rooney’s, distributed union literature to co-workers in the dining area of the restaurant, allegedly causing work disruptions. David Hinman, one of her employers, advised her “not to solicit on my time.” Brickley retorted that she had clocked out. This was pursuant to a rule that employees clock out even for paid breaks. Hinman asked the employee Brickley was soliciting if he were on the clock. When the employee responded affirmatively, Hinman declared, “Peggy, you will not solicit my employees on my time.” On the following day, when she was seen distributing literature to an employee working in the dining room, a written reprimand was…