CONSOLIDATED DIESEL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, CDC Workers Unity Committee, Intervenor. National Labor Relations Board, Petitioner, CDC Workers Unity Committee, Intervenor, v. Consolidated Diesel Company, Respondent.
Nos. 00-2545, 01-1064.
United States Court of Appeals, Fourth Circuit.
Argued June 6, 2001. Decided Aug. 15, 2001.
263 F.3d 345
OPINION
WILKINSON, Chief Judge:
Consolidated Diesel Company challenges the National Labor Relations Board‘s decision that it violated
I.
A.
Consolidated Diesel maintains a harassment policy which provides that “[a]ny unwelcome action, intended or not, which is considered offensive to the receiver or a third party may be labeled harassment.” The policy also instructs that “[i]f you have been the recipient or the observer of a situation which appears to be harassment, . . . Human Resources should be notified immediately by either you or your manager.” The Human Resources Department allocates initial investigative responsibility to one of its employee relations representatives. The representative reports the results of her investigation to the employee relations manager, who determines whether the matter should be referred to its Performance Management Process Committee (PMPC). In attendance at the meeting of the Committee are the accused employee and his or her chosen employee-advocate, the employee who complained about or witnessed the alleged misconduct, the employees’ respective supervisors, the employee relations representative who initially investigated the incident, and the employee relations manager. The Committee decides what disciplinary action to take, if any, up to and including termination.
B.
As part of their effort to organize a union at Consolidated since at least 1992, the employees of CDC Workers Unity Committee periodically publish a leaflet entitled the Unity News. One way in which they distribute the newsletter is to leave copies in team rooms where employees take breaks and eat lunch.
1. Fernando Losada
On November 17, 1994, Fernando Losada and Watt Avent entered the upfit team room and began putting copies of a new Unity News in front of the members seated therein, one of whom was David Duke. When Losada offered him a copy, Duke said that “you‘re screwing with my lunch,” and told Losada to leave. As he walked towards the door, Losada commented that Duke‘s view appeared rather “one-sided.” Duke angrily replied that “we can make it two-sided,” and followed Losada to the door. Losada left the room with Avent.
Duke filed a charge of harassment against Losada with Employee Relations Representative Diane Whaley. He reported feeling harassed because he had been
Williams opened the PMPC meeting by stating the allegations and noting that the process could end in disciplinary action, including termination. During the meeting, Losada recognized that he could have handled the situation differently, and Duke confessed that he had probably “overreacted.” Duke dropped the harassment charge against Losada, and Williams said the Company would document in a separate file that charges had been filed and withdrawn. In the proceedings below, Consolidated conceded that it could reference and consider the documentation for disciplinary purposes if future charges were filed against Losada.
2. Jim Wrenn
On the same day as the Losada-Duke incident, Losada and Avent also distributed the Unity News in the paint team room. Jim Wrenn later entered that room, asking the team members present whether they needed any copies of the leaflet. When one said “no, but you can have this one,” Wrenn responded, “why are ya‘ll so blind,” and began arguing his point of view. Team member Kathy Mills told Wrenn that those present did not want to hear what he had to say. During the course of the incident, Wrenn referenced the teambased management system and claimed credit for introducing the Martin Luther King holiday at the plant. Tim Engleking, one of the team members present, believed Wrenn had gestured to him when Wrenn said that “they” did not want the Company to recognize the King holiday. Engleking believed Wrenn was trying to create racial tension within the team since Engleking was one of only two white males on an otherwise all-black team.
Engleking and Mills filed a charge of harassment against Wrenn with Employee Relations Representative Whaley. Engleking stated that Wrenn “should have asked if [it was] OK to talk about the union” and queried why Wrenn should “be able to approach people in their own team rooms.” Engleking and Mills asserted that Wrenn “should have left when [Mills] said, ‘[W]e don‘t want to hear this.‘” Without having interviewed Wrenn, Whaley gave their statements to Williams, who referred the matter to the PMPC on the ground that the complaining employees “were offended” by Wrenn‘s conduct.
The Committee met three times concerning the harassment charge. As at Losada‘s PMPC meeting, Williams opened by stating the allegations and indicating the possible disciplinary actions that might be taken against Wrenn, including termination. Williams also notified all parties that this meeting was not an “educational forewarning,” which could serve as a basis for future discipline, but rather, a “documentation.” During the course of the first meeting, Engleking, Mills, and Wrenn gave their version of events. After a series of meetings, the Committee decided to document in a separate file that an allegation of harassment had been made and that no action had been taken. As in the case of Losada, Consolidated conceded in the proceedings below that it could reference and consider the documentation for disciplinary purposes if future charges were filed against Wrenn.
Several employees reported observing Consolidated‘s security guards confiscating copies of the Unity News that had been left for employees in team rooms. Ethel Jones testified that, in October or November of 1995, she saw a security guard take several copies of the leaflet from a team room. Callen Parker testified that, in October of 1995, he observed a guard enter a team room and collect union literature. Zachary Means testified that, in September or October of 1995, a security guard interrupted a team meeting and took the acting coordinator out into the hallway. He then re-entered the room and informed the members present that he “would have to pick up” all of the union newsletters on a table. In response to an employee‘s inquiry concerning his authority to collect the leaflets, the guard stated that any questions should be directed to the plant manager. The acting team manager subsequently told the employees that the guard had apologized, saying that he was not supposed to have picked up the literature.
D.
The Union filed multiple unfair labor practice charges against Consolidated between August 25, 1994 and February 6, 1996. An ALJ held a hearing on the consolidated complaint, subsequently finding that the Company had committed the unfair labor practices alleged. Consolidated filed exceptions with the Board, and the Union filed cross-exceptions.
A majority of the Board adopted the ALJ‘s finding that Consolidated violated
Consolidated petitions for review, and the Board cross-applies for enforcement of its order.
II.
A.
We must affirm the Board‘s factual findings if they are “supported by substantial evidence on the record considered as a whole.”
B.
Section 7 of the Act provides that employees “have the right to self-organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Soliciting support for a union and distributing union materials are among the core activities safeguarded by
If conduct protected by the Act is implicated, the test for a
Nevertheless, establishing the existence of coercive conduct is not by itself dispositive. The Act does not require that an employer cease its legitimate business practices or suspend its proper disciplinary prerogatives. Rather, “[w]e must balance the employee‘s protected right against any substantial and legitimate business justification that the employer may give for the infringement.” Medeco, 142 F.3d at 745. “[I]t is only when the interference with
III.
A.
We first determine whether activity protected by
Substantial evidence supports the Board‘s finding that Losada was engaged in protected activity. In the one and only incident at issue, Losada was distributing union flyers in a team room and talking with employees on break about the union when Duke apparently confronted him. At no time did Losada use abusive or profane language or threaten anyone with violence.
Similarly, substantial evidence supports the Board‘s finding that Wrenn‘s conduct was protected by
Consolidated does not contest the Board‘s finding that Losada and Wrenn were exercising their legitimate
As for Consolidated‘s characterization of its PMPC procedure, substantial evidence supports the Board‘s view that it is coercive. Losada and Wrenn were (1) subjected to it against their will; (2) required to defend themselves before it for doing nothing more than engaging in activity protected by
As for Consolidated‘s reliance on its harassment policy, where harassment charges relate to conduct protected by
Were we to conclude otherwise, the statutory guarantee would be eviscerated. There would be nothing left of
We emphatically do not hold that every purported exercise of
B.
Next we apply the test for a
Consolidated does not dispute that, on more than one occasion, it confiscated union literature that was placed in nonwork areas during nonwork time. Rather, it contends that the confiscations were merely housekeeping removals of discarded materials, or, alternatively, de minimis infractions that were subsequently cured.
Of course, Consolidated has every right to keep its workplace clean. However, substantial evidence supports the Board‘s view that cleanliness was not at issue here. The three incidents of confiscation took place within a month or so of one another. In one of them, a security guard even interrupted a team meeting, informed the members present that he “would have to pick up” all the union literature on a table in their team room, and said that they should direct any questions to the plant manager. This action cannot possibly be characterized as either innocent house
IV.
For the foregoing reasons, we deny Consolidated‘s petition for review and grant the Board‘s cross-application for enforcement of its order.
APPLICATION FOR ENFORCEMENT GRANTED.