The substantive questions before us in the instant case were not involved in the earlier appeal. In addition, the D.C. Circuit reviewed another order of the NLRB growing out of this same general labor dispute in Midwest Regional Joint Bd. v. N.L.R.B., 183 U.S.App.D.C. 413, 564 F.2d 434 (1977). The aspects of the dispute under consideration there are not directly before us. However, the decision has some relevance to the instant case, as noted in our opinion.

The law is clear that a valid no-solicitation rule applied in a discriminatory manner or maintained for discriminatory reasons may not be enforced against union solicitation. See Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C. Cir. 1977); William L. Bonnell Co. v. NLRB, 405 F.2d 593, 595 (5th Cir. 1969). The statutorily protected organizing rights of employees may be limited only by the legitimate interests of the employer in discipline, workplace efficiency, and property protection.

An employer's interrogations of employees concerning union sympathies violate § 8(a)(1) if they coerce employees in the exercise of rights guaranteed by § 7 of the Act.Midwest Regional Joint Board, Amalgamated Clothing Workers v. NLRB, 564 F.2d 434, 443 (D.C. Cir. 1977) [hereinafter Midwest Regional]. The coerciveness of an interrogation must be considered in the totality of the circumstances. Rossmore House, 269 N.L.R.B. 1176, 1178 n. 20 (1984), aff'd sub nom. Hotel Employees Restaurant Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).

Although we agree with Perdue that the "place and method" of Chappell's questioning of employees (the fourth Bourne factor) were not particularly coercive, the other Bourne factors support the Board's finding of unlawful interrogation. Chappell came from Perdue's headquarters and served as its top human resources supervisor (factor 3). See Bourne, 332 F.2d at 48; Midwest Reg. Joint Bd., Amalgamated Clothing Workers of Am., 564 F.2d 434, 443 (D.C. Cir. 1977). In his questions to employees, Chappell appeared to seek information about individual employee union sympathies (factor 2). Cf. Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1359 (D.C. Cir. 1997) ("`[A]ny attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his [statutory] rights.'"

Though some involved acts of generosity between employees, all permitted anti-union or pro-company solicitation, solicitation that is unquestionably "substantially equivalent" to union solicitation. See, e.g., Midwest Regional Joint Board v. NLRB, 564 F.2d 434, 446 (D.C. Cir. 1977) (disparate enforcement found where "Company countenanced distribution of pro-Company literature . . ., while strictly enforcing the rule with respect to the distribution of pro-Union activity"); Ridgewood Management Co. v. NLRB, 410 F.2d 738, 740 (5th Cir.) (no-solicitation rule discriminatory where employer permitted solicitations ranging from candy sales to church donations as well as solicitations designed to persuade employees not to unionize), cert. denied, 396 U.S. 832, 90 S.Ct. 87, 24 L.Ed.2d 83 (1969); NLRB v. Electro Plastic Fabrics, 381 F.2d 374, 376 (4th Cir. 1967) (no-solicitation rule found discriminatory where employer permitted collections for gifts for employees, sales of cosmetics and other merchandise, and antiunion solicitations). The fact that the employer permitted anti-union or pro-company solicitations in all of these cases conclusively distinguishes the present case.

It is equally clear, however, that the Board's determinations should not be sustained if, after a full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board's determination is substantial. NLRB v. Brown, supra, 380 U.S. at 290, 85 S.Ct. 980; Universal Camera Corp. v. NLRB, supra, 340 U.S. at 488, 71 S.Ct. 456; Midwest Regional Joint Board v. NLRB, 183 U.S.App.D.C. ___ at ___, 564 F.2d 434, at 438 (decided June 24, 1977); Mueller Brass Co. v. NLRB, 544 F.2d 815 (5th Cir. 1977). The Board's orders, therefore, are neither open to de novo redetermination nor immune from all review.

The striker-misconduct standard thus offers misbehaving employees greater protection from disciplinary action than they would enjoy in the normal course of employment. See Midwest Regional Joint Board v. NLRB , 564 F.2d 434, 440 (D.C. Cir. 1977) (“Absent a showing of anti-union motivation, an employer may discharge an employee for a good reason, a bad reason or no reason at all without running afoul of the labor laws.”). There is a “burden-shifting element to the Burnup & Sims test” for determining whether employer discipline of a striker amounts to an unfair labor practice.

Recognizing the Board's "`competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship,'" Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 106 (D.C. Cir. 2003) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 620, 89 S.Ct. 1918, 1943, 23 L.Ed.2d 547 (1969)), we find nothing unreasonable in the Board's conclusion that these conversations, if they occurred as alleged, were sufficiently coercive to violate the Act. See, e.g., Perdue Farms, 144 F.3d at 835-36; Avecor, Inc. v. NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991); Timsco Inc. v. NLRB, 819 F.2d 1173, 1176-80 (D.C. Cir. 1987); Midwest Reg'l Joint Bd. v. NLRB, 564 F.2d 434, 443 (D.C. Cir. 1977). Shamrock's principal contention is that substantial evidence does not support the ALJ's finding that the conversations between Shalley and Trujillo took place at all.

Thus, this circuit has itself applied Struksnes criteria in the context of an employer-organized vote over whether temporary employees belonged in a bargaining unit, on the rationale that this vote was really a vote on union representation since the employer and the union had openly advocated contrary positions on the scope of the bargaining unit. See Midwest Reg'l Joint Bd. v. N.L.R.B., 564 F.2d 434, 444-45 (D.C. Cir. 1977). The Board, too, has found that an employer engaged in unlawful "polling" when its agents organized a betting pool for employees on the outcome of an upcoming representation election, Wellstream Corp., 313 N.L.R.B. 698, 698 n. 2, 704 (1994), personally passed out hats bearing the message "Vote No" to employees, Laidlaw Transit, 310 N.L.R.B. 15, 17 (1993), or personally asked employees to let themselves be photographed holding anti-union signs, Florida Steel Corp., 224 N.L.R.B. 587, 588-89 (1976).

"Absent a showing of anti-union motivation," however, "an employer may discharge an employee for a good reason, a bad reason, or no reason at all without running afoul of the labor laws." Midwest Regional Joint Bd., etc. v. NLRB, 564 F.2d 434, 440 (D.C. Cir. 1977). Here the employer's decision was within such limits as it had imposed upon itself in specifying the maximum penalty under the rule that Huff and Jones violated.