NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,535, EARLE INDUSTRIES, INC. and AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, SOUTHWEST REGIONAL JOINT BOARD., (Oct. 21, 1994), National Labor Relations Board, (Oct 21, 1994)

EARLE INDUSTRIES, INC. and AMALGAMATED CLOTHING AND TEXTILE WORKERS UNION, SOUTHWEST REGIONAL JOINT BOARD.

315 NLRB No. 45.Case Nos. 26-CA-14700 and -14759. October 21, 1994 John H. West, Administrative Law Judge..

Before Gould, Devaney and Cohen.

Grace Speer, for General Counsel. J. Gregory Grisham and Jeff Weintraub (Weintraub, Robinson, Weintraub & Stock), Memphis, Tennessee, for Respondent. Donneth Wright, St. Louis, Missouri, for Charging Party.

Discrimination--Proof of Intent--Protected Union Activities.--By terminating an employee on the basis of her allegedly false responses to an employer’s questions as well as for her concerted protected activity, the employer discriminated against her. The employee was under no obligation to cooperate with the employer’s coercive and unlawful interrogation regarding her open, concerted and protected activities. Further, the employer’s past history of unlawful activity, including the repeated terminations of the employee and other union supporters so that they could not vote in a union representation election, supported a finding of union animus. Section 8(a)(3).

Back reference: ¶4010.45.

From Text of Board’s Decision

The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, [1] and conclusions only to the extent consistent with this Decision and Order.

Background

Earle Industries is an employer engaged in the manufacture of closet accessories in Earle, Arkansas. The Union began an organizing campaign among the Respondent’s employees in January 1991. [2] Pursuant to a petition filed by the Union on January 27, a secret ballot election was held among the Respondent’s employees on March 8. Although the Union received a majority of the ballots cast, the results of that election were set aside by the Board based on objections filed by the Respondent and a second election was directed. [3] The second election was held on October 25. The Union again received a majority of the ballots cast and subsequently was certified by the Board as the representative of the Respondent’s employees. [4]

On October 1, the Union sponsored a rally at the Respondent’s premises in support of its organizing campaign. The rally began at approximately 11:30 a.m., during the employees’ lunch period, when some employees began distributing union buttons to other employees in the Respondent’s parking lot. Shortly thereafter, the Reverend Jesse Jackson, accompanied by union representatives and members of the media, arrived at the entrance to the parking lot. A few minutes later, a union representative drove a large flat bed truck into the parking lot. Reverend Jackson climbed onto the trailer bed and began speaking to the assembled employees about the benefits of organization.

At the Respondent’s request, the Earle police stopped the rally by driving the truck--with Reverend Jackson and others still on it--out of the parking lot. The Earle police also arrested two union representatives, handcuffed them, and placed them in a police car. Reverend Jackson subsequently saw the two union officials in the police car and told them that he would try to see the Respondent’s owner and get them released. A videotape of this event, taken by a local television station and introduced as an exhibit in this case, shows Jackson reentering the parking lot and walking toward the plant’s employee entrance. As he does so, employee Blanche Bowers can be seen making encouraging gestures. Jackson then entered the plant through the employee entrance, together with a number of other individuals and the media. Just after Jackson passed through the door, Wallace entered the door, passed Jackson, and began walking in front of him down an aisleway leading toward the plant’s front office.

Jackson was intercepted almost immediately by Personnel Manager Gary Smith, who informed Jackson that he was trespassing and repeatedly asked him to leave the plant through the employee entrance and re-enter through the front entrance, which was designated for visitors.

During the course of this discussion between Smith and Jackson, employee Earley Mae Wallace interjected, “Front door locked. C’mon.” and “office this way,” pointing in the direction of the front office. Smith responded, “[N]o ma’am,” to Wallace and repeated his instructions to Jackson that he leave the plant. Wallace repeated the statement that the door was locked and subsequently pointed in the direction of the front office and stated, “[R]ight over there.” Other employees also can be seen on the videotape pointing towards the front office and cheering for Jackson. Jackson did not leave, but, instead, requested that Smith accompany him out of the plant and back through the front entrance. Smith refused to do so, eventually announced that he would not argue with Jackson further, turned around, and walked back to the front office with Jackson behind him. Subsequently, after discussing the matter with the Earle police, Jackson left the plant through a side entrance, re-entered through the front door, and met with Senior Vice President Peter Felsenthal. The entire incident described above, from Jackson’s entry into the plant to the time he entered the foyer to the front office, took less than 2 minutes. [5]

The Respondent took no immediate action against any employee in connection with the October 1 incident and declined to press charges against either Jackson or the union representatives whom the police had previously arrested. However, later that day, Felsenthal and Smith met to discuss the incident. Smith told Felsenthal that Wallace had undermined his authority in the presence of other employees by interfering with his efforts to make Jackson leave the plant, and that severe disciplinary action was warranted. Felsenthal testified that he instructed Smith to investigate the incident before any discipline was imposed. [6]

The next step in the investigation was the Respondent’s receipt, on October 5, of a videotape of the October 1 incident taken by a local television station. Felsenthal reviewed the videotape, in the company of the Respondent’s attorney, on October 6. Based on his review of the tape and on further discussions with Smith that night, Felsenthal determined that termination was warranted under the circumstances, although he testified that he had not reached a final decision at that time.

On October 7, Smith interviewed employees Joe Blockmon, Michelle Smith, and Debbie Evett--individuals whom he identified from the videotape as having been in the background during the October 1 incident. However, Smith testified that none of these individuals provided any additional information concerning the incident. Later on October 7, Felsenthal, Smith, and Supervisor Louise Eskridge met with Wallace to question her concerning her actions. Initially, Wallace refused to answer the questions put to her by Felsenthal, stating that she wanted to protect herself and did not understand why Felsenthal was questioning her. Felsenthal then told her that her failure to cooperate in the investigation was itself a violation of the Respondent’s policies and reiterated the questions he had previously posed. Thereafter, Wallace responded to Felsenthal’s questions and denied any wrongdoing. In the course of her responses, Wallace denied engaging in certain conduct which she is shown to have engaged in in the videotape; at the hearing in this case Wallace acknowledged that her answers to those questions were untrue. [7] At the conclusion of the interview, the Respondent advised Wallace that she was suspended for violation of plant rules and the following day, October 8, Wallace was terminated. [8]

Over the course of the following 2 weeks, the Respondent took statements from other employees concerning the Jackson incident. In this regard, employee Van Welch’s statement identifies employees Marilyn Mathis and Linda Davis as individuals who also pointed Jackson to the office door. Davis was never interviewed, counseled, or disciplined by the Respondent. While Mathis was interviewed by Smith, there is no evidence that he asked her if she had pointed toward the front office, and she was not counseled or disciplined. Further, Smith told Mathis that he would not ask her to identify other employees who were involved in the incident (to which Mathis replied that she would not tell him anyway) and accepted without comment her refusal to state what she had heard to Smith’s conversation with Jackson. On October 17, employee Cassandra Riley gave a statement in which she indicated that Wallace guided and directed Jackson to the employee entrance and turned him away from the visitor’s entrance towards which he was facing when Wallace grabbed his arm. [9]

On October 23, 2 days before the second election, the Respondent placed its parking lot off limits to nonemployees, giving the October 1 incident as the reason for its new policy. Prior to that date, nonemployees were allowed into the parking lot but supposedly were not allowed into the plant area without the Respondent’s permission. Nevertheless, nonemployees had entered the plant area without permission on a number of occasions. Specifically, Supervisor Diane Moody’s boyfriend, Melvin Witherspoon, visited her on many occasions prior to October 1, apparently without incident. In July 1991, a large group of Moody’s relatives entered the plant looking for Supervisor Barbara Moody. Neither Diane nor Barbara Moody were ever warned concerning these incidents. [10] Likewise, as discussed more fully in the judge’s decision, prior to October 1991, nonemployees visited employees Delores Knighten, Burnette Glenn, and Bobbie Smith; these employees also were not disciplined. Many employees testified that nonemployees frequently visited the plant prior to October 1. Although Smith admitted that no employee had ever been warned for violations of its rule limiting nonemployee access to the plant prior to October 1, Smith also testified that he had previously ordered unauthorized nonemployees to leave the plant when he found them there.

The Judge’s Decision

The judge found that Wallace’s actions on October 1 were concerted activity within the meaning of Section 7 of the Act, but that they were not protected by the Act. In this regard, the judge found that Wallace encourage Jackson to proceed through the plant to the front office notwithstanding Smith’s directive that Jackson leave the plant by falsely stating that the visitor’s entrance was locked. [11] The judge further found that Wallace’s conduct in this regard was insubordinate and defiant of Smith’s authority. Balancing Wallace’s right to engage in concerted activity against the Respondent’s right to maintain discipline, order, and respect in its establishment, the judge concluded that Wallace’s encouraging Jackson to continue through the plant through the use of deliberate falsehoods in defiance of Smith’s directions was not protected by the Act and “clearly warranted Wallace’s termination.” [12] The judge also found that Wallace’s lying about her actions on October 1 in the October 7 interview with Felsenthal was unprotected as well.

The judge rejected the General Counsel’s contention that the Respondent had disparately enforced its policy against nonemployee access to the plant floor. Although acknowledging that there was contradictory evidence on this point and that the Respondent may not have policed the area as well as possible and may have occasionally failed to expel unauthorized nonemployees found on the plant floor, the judge concluded that none of those incidents rose to the “severity” of the October 1 incident. The judge also noted, in this regard, that the Respondent’s facility is a manufacturing plant which is not open to the public and that the entrance through which Jackson entered is marked for “employees only.”

The judge found that the Respondent terminated Wallace because of her unprotected activities and not because of her union activity. In this regard, the judge found that a prima facie case had not been established under Wright Line, [13] as the General Counsel had not demonstrated union animus on the Respondent’s part. Even if a prima facie case had been established, the judge stated that he believed that the Respondent had shown that it would have terminated Wallace even absent her union activity and any concerted protected activity in which she may have engaged.

Finally, the judge found that even if Wallace’s termination was found to be unlawful, she was not entitled to reinstatement because her conduct in connection with this proceeding rendered her unfit for further service. Thus, the judge stated that Wallace “admittedly” lied in her affidavit to the Board about having said that the door was locked, a matter which the judge viewed as “very significant” to the decision to issue a complaint in this case. The judge also stated that Wallace had lied in her testimony in this case and in a prior Board proceeding involving the Respondent.

The Exceptions

The General Counsel excepts to the judge’s dismissal of the 8(a)(1) and (3) allegations with regard to Wallace’s termination. In the General Counsel’s view, Wallace’s actions on October 1 were not so flagrant or extreme as to lose the protection of the Act. Thus, the General Counsel argues that the Respondent had not disciplined other employees for engaging in the same conduct both in other incidents where nonemployees entered the plant and in the case of the Jackson incident itself. Further, the General Counsel argues that the Jackson incident was no more than a brief, nonconfrontational encounter in a nonwork area during nonwork time, which did not warrant the extreme sanction of dismissal in light of the Respondent’s past practice. In this regard, the General Counsel asserts that the judge’s finding of no union animus is erroneous, noting in particular that the Respondent has committed many prior unfair labor practices and twice having terminated Wallace prior to this incident.

The Union’s exceptions also assert that the judge erred in failing to find that Wallace’s termination was unlawful.

Prior Decisions

On June 4, 1992, the Board issued its decision overruling the Respondent’s objections to the election held at its plant on October 25, 1991, and certifying the Union as its employees’ representative. In this regard, the Respondent’s objections were based in large part on the same events which were at issue in this case. In finding that the October 1 Jackson incident did not constitute objectionable conduct, the Board found that

Reverend Jackson’s unauthorized entry into the plant occurred during unit employees’ non-work time in a non-work area; lasted less than two minutes; ... and did not include any threats, violence or “shouting matches” between Smith and Jackson.

Earle Industries, Case 26-RC-7346 (unpublished decision), slip op. at 4.

Subsequently, the Board’s certification of the Union was upheld in all respects by the United States Court of Appeals for the Eighth Circuit. Thus, the court of appeals agreed with the Board that

the actions of October 1, 1991, both inside and outside the plant, were restrained in nature. Neither Reverend Jackson nor other union agents made any threats of violence against Earle Industries’ management, employees, or property, either before or after Reverend Jackson entered the plant. The Board noted that Reverend Jackson’s exchange with Smith was “quiet and civil.”

Contrary to Earle Industries’ assertions, the evidence does not show that employees erupted into a frenzy or near-riot. Rather, the evidence supports the Board’s finding that most employees returned to their job stations on time at the end of the lunch period during which the rally occurred and that the few employees who returned late were tardy by only a few minutes. Manager Smith himself admitted that there were no threats or violence at any point during the union-sponsored activities.

NLRB v. Earle Industries, above, 999 F.2d at 1273.

Analysis

We agree with the judge that Wallace’s participation in the Union’s October 1 organizing rally, together with her actions in connection with Reverend Jackson’s entry into the Respondent’s plant, were concerted activity within the meaning of Section 7 of the Act and we note that no party has excepted to this finding. For the reasons that follow, however, we find, contrary to the judge, that Wallace’s actions on October 1, and during the course of her subsequent, related interrogation by the Respondent on October 7, were protected activity. Because the Respondent admits that it terminated Wallace based on those actions, we find that it thereby violated Section 8(a)(3) and (1) of the Act.

The standard for determining whether an employee’s actions are protected by the Act is well settled. As the Board observed in Health Care Corp., [1991-92 CCH NLRB ¶17,070] 306 NLRB 63, 65 (1992),

[t]he Board has long held that in the context of protected concerted activity by employees, a certain degree of leeway is allowed in terms of the manner in which they conduct themselves. The Board and the courts have found, nonetheless, that an employee’s flagrant, opprobrious conduct, even though occurring during the course of Section 7 activity, may sometimes lose the protection of the Act and justify disciplinary action on the part of an employer. Not every impropriety, however, places the employee beyond the protection of the Act.

See also Brunswick Food & Drug, [1986-87 CCH NLRB ¶18,868] 284 NLRB 663 (1987); Postal Service, 241 NLRB 389 (1979); Crown Central Petroleum, [1969 CCH NLRB ¶21,015] 177 NLRB 322 (1969), enfd. [63 LC ¶11,062] 430 F.2d 724 (5th Cir. 1970).

Applying this standard, we find that Wallace’s encouragement of Reverend Jackson to proceed to the front office falls within the degree of latitude which the Act affords employees in order to ensure that they may freely exercise their Section 7 rights. Consistent with the Eighth Circuit’s and the Board’s prior decisions involving this incident, we note initially that the entire incident on October 1 was a brief, quiet, civil, and nonthreatening encounter in a nonwork area of the plant during nonwork time which lasted less than 2 minutes. Wallace’s involvement in the incident was even briefer, as it consisted solely of her encouraging Reverend Jackson, once he was already inside the plant, to proceed to the Respondent’s front office and to meet with Felsenthal, and her indicating to Jackson where the front office was located. [14]

Concededly, Wallace’s actions were contrary to the Respondent’s clearly expressed desire that Reverend Jackson leave its plant and re-enter through the front door. However, and contrary to the judge, an employee’s actions do not lose the protection of the Act merely because they may be viewed as “insubordinate.” See Severance Tool Industries, [1991-92 CCH NLRB ¶16,535] 301 NLRB 1166 (1991); Burle Industries, [1989-90 CCH NLRB ¶16,284] 300 NLRB 498 (1990); F.W. Woolworth Co., [1980-81 CCH NLRB ¶17,600] 251 NLRB 1111 (1980), enfd. [92 LC ¶12,914] 655 F.2d 151 (8th Cir. 1981), cert. denied, [93 LC ¶13,389] 455 U.S. 989 (1982). [15] Moreover, the Respondent’s contention that Wallace’s conduct was “flagrant” and “extreme” is belied by the Eighth Circuit’s holding that the actions of October 1 were “restrained” in nature, and by the Respondent’s disparate treatment of other employees who similarly encouraged Reverend Jackson to ignore Smith and continue into the plant. Thus, both the videotape of the October 1 incident and the Respondent’s post-October 7 investigation clearly show that other employees applauded Reverend Jackson’s dialogue with Smith and even point toward the Respondent’s employee entrance in an effort to direct Jackson to Felsenthal. None of these individuals was disciplined. Indeed, with respect to many of the individuals identified as having engaged in conduct similar to Wallace’s the Respondent failed to show that it even conducted any investigation as it did with respect to Wallace.

Moreover, the Respondent’s lax enforcement of its no-access policy in other, prior, cases, as noted above, further indicates that Wallace’s conduct was not so egregious as to lose the Act’s protections. The judge found that the evidence adduced by the General Counsel in this regard was unpersuasive because the prior incidents were not of the same magnitude as the October 1 incident. We disagree. Regardless of whether the prior incidents are sufficiently similar to support a finding of disparate treatment, the threshold inquiry is whether Wallace’s part in Reverend Jackson’s violation of the no-access rule is so extreme and flagrant as to lose the Act’s protections. We find that the Respondent’s failure to impose any discipline whatsoever for violations of this rule prior to October 1 undermines the Respondent’s characterization of the severity of Wallace’s conduct in the incident at issue here.

Indeed, the Respondent has punished much less severely an instance of “insubordination” of failure to “cooperate” with an investigation similar to that which it claims occurred here. In this regard, shortly after Wallace’s termination, employee Gary Hicks received a 3-day suspension for refusing to identify--in response to inquiries by his supervisor and by Smith--powder contained in a foil packet found at Hicks’ work station. [16] Moreover, Smith admitted that since 1989, no other employee has been terminated by the Respondent for failing to cooperate with an investigation.

We note additionally that the Respondent’s disparate treatment of employees engaged in concerted activities in this regard is entirely consistent with its previously demonstrated animus towards unions in general and toward Wallace in particular as reflected in a long history of engaging in unfair labor practices in response to union organizing drives. Thus, the Respondent unlawfully reacted to a 1963 union organizing campaign by threatening plant closure and other reprisals, purposely creating the impression of impending plant closure in the event of union success, interrogating employees, and attempting to force employees to wear “Note No” signs prior to the election. Earle Industries, [1964 CCH NLRB ¶12,995] 146 NLRB 536 (1964).

Subsequently, a week prior to an election held on November 29, 1977, the Respondent unlawfully terminated Wallace--a known union supporter and a member of the union’s organizing committee. The Respondent reinstated Wallace with backpay on October 25, 1978 in accordance with a settlement agreement resolving unfair labor practice charges filed concerning her termination. See Earle Industries, Case 26-CA-7174. However, only 1 month later the Respondent unlawfully terminated Wallace--along with four other union supporters--because of their union activities and in order to prevent them from voting in an upcoming Board election. Earle Industries, [1981-82 CCH NLRB ¶18,846] 260 NLRB 1128 (1982). Contrary to the judge, we find that the Respondent’s past history of unlawful activity--and its repeated terminations of Wallace herself--support a finding of union animus notwithstanding the passage of time between some of these events and the events at issue in this case.

Under all the circumstances of this case, we find that the General Counsel has shown that Wallace’s actions on October 1, on behalf of the union organizing campaign, constituted protected, concerted activity within the meaning of Section 7 of the Act. [17]

In light of this finding, it follows necessarily that the Respondent cannot rely on Wallace’s failure to “cooperate” in its October 7 interrogation concerning those activities, or any false statements which she made in response to Felsenthal’s questions, as a justification for her termination. [18] It is well settled that interrogating an employee about protected concerted activities is unlawful even though the activities in question were conducted openly. Farr Co., [1991-92 CCH NLRB ¶16,822] 304 NLRB 203, 216-17 (1991). As such, even though the Respondent’s October 7 interrogation was not alleged to have independently violated the Act, Wallace was under no obligation to “cooperate” with the Respondent’s coercive questioning or to provide the Respondent with the information it sought with respect to her protected concerted activities. In this regard, the interrogation at issue here was particularly coercive in that it was conducted in Felsenthal’s office by the Respondent’s top management officials and in light of this Respondent’s having previously unlawfully terminated Wallace. Moreover, we note that Wallace initially endeavored to merely refrain from providing any answer to these questions, and any false responses were made only after Felsenthal implicitly threatened her with discipline on the basis of her silence. Under these circumstances, we find that Wallace’s response to the questions put to her by the Respondent on October 7 were a continuation of her protected, concerted activities on October 1, and that the Respondent’s decision to terminate her on the basis of those responses, and on the basis of her other protected concerted activities on October 1 as set forth above, was unlawful. [19]

. . .

[Dissent]

Member Cohen, dissenting: The judge found that employee Wallace engaged in insubordinate conduct on October 1 and that she intentionally lied in the process of doing so. The judge further found that Wallace again lied to Respondent on October 7, during the subsequent investigation of the incident. I would adopt the judge’s factfindings. Further, the judge concluded that the acts of insubordination and prevarication were unprotected. I would agree with that legal conclusion; my colleagues would not. Finally, the judge found that Respondent discharged Wallace for her misconduct. I would affirm this factfinding; my colleagues would not. For all of these reasons, I dissent from the decisions of my colleagues.

In brief, the evidence establishes that the Union was engaged in an organizational campaign among the Respondent’s employees. In connection therewith, Reverend Jackson (a nonemployee of the Respondent) made an unauthorized entry into the Respondent’s plant during a rally at which he spoke. The Respondent directed him to leave, although it was willing to permit his reentry through a visitor’s entrance. It is clear that the Respondent had a right to direct Jackson to leave. [20] It is equally clear that employee Wallace sought to thwart this lawful directive. According to the judge, she did so by falsely telling Jackson that the visitor’s entrance was locked and indicating that he should therefore continue his foray through the plant toward Respondent’s office. The judge also found that Wallace repeated the lie, even after Respondent’s agent truthfully said that the visitor’s entrance was unlocked.

Based on these facts, the judge found that Wallace was insubordinate and that she lied repeatedly in the process. I agree. Further, in agreement with the judge and contrary to my colleagues, I would not give statutory protection to such gross misconduct. [21]

In addition, when Respondent investigated this incident on October 7, Wallace made the following statements to Respondent: (1) she never spoke to Jackson in the plant; (2) she never told Jackson that the front door was locked; (3) once inside the plant, she did not show Jackson the way to the office; and (4) she never motioned or encouraged Jackson to enter the office. As found by the judge, and as graphically detailed by video-tape evidence, all of these statements were intentionally false. I adopt this finding. Further, unlike my colleagues, I would not afford statutory protection to such misconduct.

My colleagues say that Wallace simply failed to cooperate in the investigation. However, as shown, she did more--she lied. Even wider of the mark is my colleagues’ assertion that Respondent, by conducting the investigation, somehow caused Wallace to lie. Given the incident of October 1, Respondent clearly had a right to inquire; Wallace had a duty to answer truthfully. [22] Because she chose not to do so, she is responsible for the consequences.

Finally, the judge found that the Respondent discharged Wallace for the aforementioned misconduct. I agree. My colleagues argue that Wallace was discharged for antecedent protected union activity. In this regard, they assert that other employees engaged in comparable misconduct and that Wallace was singled out. The simple response is that no employee engaged in conduct that is even remotely comparable to that of Wallace. No employee engaged in the misconduct of being insubordinate, lying during the insubordination, and lying again thereafter. [23]

For the foregoing reasons, I would affirm the judge’s finding that the discharge was lawful. [24]

In addition, even if the discharge were unlawful, I would not award reinstatement and backpay. In support of that remedy, my colleagues rely on ABF Freight. [25] However, the circumstances here are far more egregious than those ABF. Here, Wallace lied repeatedly, as part of an act of insubordination. She repeated the lies during Respondent’s investigation of the matter. She also lied to the Board, both in the affidavit that she gave to the Regional Office and again in her testimony in this proceeding. In these circumstances, the grant of remedial relief has the effect of rewarding someone who has grossly abused Board processes. In addition, it requires Respondent to place back into service an insubordinate and lying employee. [26] Even if the Board chooses to award relief in ABF circumstances (a choice I would not make), it should not extend ABF to the more egregious circumstances here.