Earle Industries, Inc. v. National Labor Relations Board

WOLLMAN, Before FLOYD R. GIBSON GIBSON, Judges. and JOHN R. Circuit GIBSON, Judge. JOHN R. Circuit Industries, petitions Inc. for review aof National Labor Relations Board order finding that Earle Industries committed an practice unfair labor Earley Mae Wallace. The administrative judge law found that Earle Industries fired Wallace for However, dishonesty. insubordination and the Board ordered Earle Industries to rein- backpay, despite state Wallace with adoption credibility of the ALJ’s findings. cross-petitions The Board for en- grant forcement. for review of the order. enforcement fired, At the time she was Wallace had worked for Earle Industries for sixteen years. She had advocated unionization of the company’s many years. workers for twice, company had fired her first in 1977 then in 1978. It reinstated her the first unfair time settlement of an charge, and time as a the second result of a Order. National Labor Relations him, go if would which Smith 260 N.L.R.B. Smith Earle Indus. repeated do. and Smith refused to Jackson WL 24347 exchange times. Unable to turn several in the midst of October On back, up gave retreated campaign at Earle Indus- organizing union1 office, to as the crowd cheered. the came to tries, Jesse Jackson Reverend the in speech make a lunchtime plant to the Jackson, by and the crowd surrounded A television news union.2 support the cameras, plant through the walked on news ensuing speech and the the captured crew president Felsenthal’s office. to Peter vice tape in the videotape. The on events plant speaking left the after with Jackson us, much the basis for was record before inside, agree to police did but Felsenthal findings. AL J’s of the detail entered with Jackson. Jackson then meet speech from the his Jackson delivered through plant the visitor’s entrance. the company- onto flatbed truck driven back of a copy a of the video- Felsenthal obtained by representative. union Local property with Smith tape of Jackson’s confrontation the and informed the police on scene arrived it. that recorded from the television station they trespassing were organizers viewing tape seeing the Wallace’s After asked to property and them company on con- prominent role in the Smith-Jackson organizers did not leave volun- leave. The frontation, Felsenthal decided to call Wallace tarily, represen- two union police arrested so questioning. in Felsenthal On October police of a put them in the back tatives and Wallace, supervi- Smith and interviewed off the flatbed truck ear. also drove Police Eskridge present. sor Louise Unbeknownst company property. Wallace, audiotaped to the meet- Felsenthal that the two union then learned Jackson ques- to ing. Wallace first refused answer and went to visit men under arrest were attorney. tions and demanded an Felsenthal car, assuring them that he police them at the have a to let Wallace fellow worker offered videotape The fol- get them released. would interview, with her the but Wallace still as he walked toward the lowed Jackson questions. repeatedly declined to answer his crowd of plant, admirers. surrounded point Wallace said there was no After employ- the the crowd went to Jackson her, questioning Felsenthal had seen since plant Above the door was ees’ entrance. incident, “I tape of the Felsenthal said: “Employees Only.” sign saying, was on it. saw what T.V. that was plant, After entered Wallace Jackson fact, don’t know what on.” In Felsen- went entourage front of the and led walked to the already had the uncut news station thal seen personnel The office. way toward video, excerpts appeared as well Smith, stepped manager, Gary up to bar news. until The interview continued way. Smith told Jackson he was Jackson’s finally began making Wallace statements. to trespassing and asked leave the eventually told Felsenthal that she Wallace plant the visitor’s entrance and return anybody not indicate to that the front “did plant. As this conversation front of was locked” and did not “motion or door urged taking place, Wallace Jackson to encourage” through progress Jackson in his locked, Smith, past saying “Front door walk her, come “No ma’am.” on.” Smith said statement, then suspended, Earle Industries first repeated and said Wallace, there,” Jackson, gesturing citing fired her conduct on October “Right over to- calmly cooperate ward and her failure to with the com- the office. Jackson told Smith investigation pany he out the visitor’s go back entrance on October 7. would Indus., Inc., (8th Cir.1993) (Earle Amalgamated rally held Cloth- Union, I, Region- I). Workers’ & Southwest upheld Textile Earle In Board's determina Board, intervened in case. al Joint which material tion union misconduct did not ly affect election Earle I did not involve results. rally story 2. We recounted the of the and subse- firing. Wallace’s quent greater events in detail NLRB v. plant notwithstanding an unfair The Union filed the fact Industries, alleging charge against Earle that it would have been obvious a rea- Wallace, that, violated person Gary Smith, Respon- sonable (3) 8(a)(1) and of the National Labor personnel sections dent’s manager, by what he said affidavit in Relations Act.3 Wallace filed an body language, wanted Jackson entrance____ 1 incident. which she described the October go back out the said that Jackson, affidavit Wallace when relying on what say- Wallace was said, clock,” stopped Jackson she had “[L]et’s ing, apparently believed he would be go and motioned to other workers locked out if locked the him____ explained: time clock. She employee entrance behind But During statements, the time that Jackson was for Wallace’s I believe that Smith, plant talking any- I have gone, didn’t Jackson would have he subse- thing quently did, to do what Smith and Jackson with to the front door. Wallace’s talking telling girls were about —I was first that statement the front door was I to “come on” to the clock—and spontaneous locked impulsive was not a or motioning whisper- them come—kind impressed statement. Wallace me as be- forget “don’t to clock” at the same ing very calculating individual. This was they talking. I remem- were can’t a calculated statement. As she subse- time — saying anything being ber about a door quently demonstrated, no matter what coming locked while down Jackson was said or did Wallace wanted Jackson plant____ I the aisle don’t proceed through and this was anything have to do with the front door at way achieving her that. locked____ usually all—the front I door Indus., Inc., 310, 347-48, Earle N.L.R.B. saying not “clock” “lock.” (1994). WL The ALJ made hearing After a law administrative specific findings that Earle fired Industries judge recommended that the com- Union’s Wallace because of her insubordination and plaint be dismissed. The ALJ held that Wal- dishonesty, than rather because her union protection lace forfeited the NLRA activity: Specifically,

her conduct. the ALJ found Was Wallace terminated because she was intentionally during that Wallace lied Smith’s insubordinate and she it lied about or was confrontation with Jackson: she terminated because of her union activi- former____ might argued While it be first ty? my it opinion is the time [“front Wallace made this statement Respondent believe that has that it shown spontaneous, door it was I do locked”] would have terminated Wallace her absent believe that to the case. There is no activity any concerted evidence of record that door was the front activity may engaged have she in. normally locked. It is left at unlocked at Id. 348-49. day. time of And there is that it evidence recommendation, Despite the ALJ’s was not locked on October 1. When Wal- found Board Earle Industries had committed lace said that it was locked first time it unfair practice, an labor issued a cease and was a misstatement---- Wallace was a order, desist and ordered Earle Industries totally witness. lied before unreliable She backpay. Wallace at 315- reinstate with Id. proceeding. in a Board She lied her 16. proceeding. affidavit to the Board in this adopted And testifying Significantly, she lied while herein. Wal- the Board lace walking credibility wanted Jackson to continue ALJ’s determinations. Id. at 310 (3), (3) 8(a)(1) regard 3. Sections codified at 29 U.S.C. discrimination in to hire or (1988), provide: § 158 employment any tenure of term or condition (a) employment encourage discourage It shall be an unfair labor for an employer— membership organization.... (1) with, restrain, to interfere or coerce em- ployees guaranteed rights in the exercise of the in section this title ... 157 of nied, 989, 102 disagree did not 1. The n. Co., (1982); dis- was insubordinate and L.Ed.2d 849 Consumers Power ALJ Rather, 313-35. 312 n. WL Id. at 282 N.L.R.B. honest. legal analysis than a different used the Board The Board held that Wallace’s insubordina- that Wallace had ALJ held degree the ALJ. which fell “within the of latitude tion of section 7 of protection forfeited Act affords to ensure order and dishon- insubordination her NLRA4 may freely exercise their Section 7 The ALJ then used esty. 348. Id. at Indus., 315 at rights.” Earle firings. for mixed motive Wright test Line5 lies The Board found Wallace’s Line, if em- Wright an Id. at 349. Under steps precip- proceeding of this were various employee firing be- ployer is accused asking questions itated activities, the employee’s union cause asked: “Wallace well should employ- that the must show General Counsel compelled testimony conform her have felt by anti-union animus. The er was motivated proceeding the statements which in this can employer, which then on the burden is made the course of the coercive she by showing that it would itself exonerate interrogation____” Accordingly, Id. legitimate, for a have fired Wallace, the Board held that nondiscriminatory regardless of the reason (3) 8(a)(1) and violated sections of Industries activity. generally employee’s protected See (29 158(a)(1) (3)). § NLRA & Id. U.S.C. Employment of Labor and 1 ABA Section at 313. The Board ordered Wallace reinstat- (Pat- Law, Developing Law Labor 195 The backpay. at 315. ed with Id. 1992). ed. The et al. eds. 3d rick Hardin review, had not that the General Counsel ALJ found On for Earle Industries anti- Industries acted out of showed Earle argues it to that was entitled fire Wallace for Indus., 315 N.L.R.B. at union animus. Earle dishonesty. insubordination and Further, he found that Earle Indus- 349. fired it would have Wallace tries showed findings un review Board’s dishonesty regardless of and insubordination standard, der the substantial evidence mean activity. Id. her union findings ing that we will not disturb the if supported by are substantial evidence Board, hand, consid the other whole, taking on the record a into account as inapplicable Wright Line test to this ered the detracting findings. evidence irom the for which Earle the misconduct ease because NLRB, Corp. v. 340 Universal Camera U.S. occurred in the con fired Wallace Industries 488, 456, 474, 464, 71 L.Ed. S.Ct. 95 456 at activities. Id. 315 n. 19. text of concerted (1951). findings We examine the Board’s dishonesty like In even conduct such a ease when, here, critically more as the Board’s insubordination, justify fir which could and ALJ’s, contrary are to conclusions be test, Wright can into Line fall under part opinion cause the ALJ’s of the record “leeway,” protected a class of misbehavior NLRB, Corp. we must consider. GSX 918 necessary ac which the Board considers (8th 1351, Cir.1990); F.2d 1356 NLRB v. of the realities of industrial life. commodation Co., 1224, Co., 857 313-14; Hawkins Constr. F.2d 1226 251 Id. at see F.W. Woolworth (8th Cir.1988); (1980), 1111, Corp., 1980 12314 en see Universal Camera WL (8th Cir.1981), 496, forced, 151 de- at at F.2d cert. 340 U.S. 71 S.Ct. 655 NLRA, agreement requiring membership at in a 7 of the codified 29 U.S.C. an labor Section (1988), provides: § organization employment 157 condition as a of 158(a)(3) right self-organi- Employees to of this shall have authorized in section title. form, zation, join, organiza- assist to tions, bargain collectively through represen- 1083, (1980), 5. 251 N.L.R.B. 1980 WL 12312 choosing, engage own and to tatives of their (1st Cir.1981), enforced, 662 899 cert. de F.2d purpose of other concerted activities for nied, 989, 1612, 455 U.S. 102 S.Ct. 71 L.Ed.2d bargaining aid or collective or other mutual (1982), approved Transportation in NLRB v. protection, right and shall also 2469, Management Corp., U.S. except any or refrain from all of such activities 76 L.Ed.2d right be the extent that such affected argues trary employee’s Earle Industries conclusion that the miscon- protected to fire Wallace order maintain duct should be entitled under’ section 7. Indus., discipline argues 10-11; It at its Prescott at part group employees of who NLRB Red Top, assist 455 F.2d (8th Cir.1972); P.T.O., accompanied making ed accord Sullair Inc. v. Cir.1981). way through part where he had 641 F.2d manag personnel When the no be.6 The Board seeks to exercise its discretion Jackson, stopped er Wallace defied man by cutting a permissible wide swath mis- ager employees before a crowd did so occurring conduct any connection with by means of a false The ALJ statement. activity. sort of concerted The Board distin- calculated, found the false statement guishes only gradations between of offensive- impulsive, 315 N.L.R.B. at ness of the conduct. The conception adopted and the Board the ALJ’s credi “leeway” for misconduct is far too blunt bility findings, id. at 310 n. 1. applied instrument regard when without argues employee’s The Board if an to the situation in which the misconduct took simultaneously occurs misconduct place. past eases we have held the Board activity, employer of concerted sort must must take into account other factors in con- “flagrant” the conduct it is tolerate unless sidering protecting whether such conduct “opprobrious”, and cites instances goals self-organization serves NLRA’s equally bad behavior that the Board has representation. Top, See Red 455 F.2d past.7 (quoting Laugh- 725-26 NLRB v. & Jones Corp., 1, 45-46, lin Steel It is true the Board has the (1937)). 81 L.Ed. 893 heldWe power responsibility balance the Top conduct in Red to be 7 employee’s section interest the em unprotected protecting because the conduct ployer’s maintaining in discipline. interest Act; purposes did not the of serve the “We Co., NLRB See v. Prescott Indus. Prods. 500 do the approval not think of dis- conduct (8th 6, Cir.1974); 10 NLRB v. Thor F.2d by closed will encourage record harmo- (7th Co., 584, 351 Power Tool F.2d 587 Cir. labor-management relationships nious nor 1965). Though the Board’s decision is dis proper in the result consideration and reso- cretionary, beyond is review. Prescott legitimate grievances. Quite lution of to the Indus., at 500 F.2d 10. must en insolence, contrary, encourage it would in- forcement if the Board’s is determination subordination, at and intimidation.” Id. 728. arbitrary. And, illogical or Id. more to the balancing NLRA, point, that test be of purposes must anchored view the we policies recognized employer of the National Labor Rela have that an cannot in- tions Act. We have refused enforce in to Board sist on subordination the of bar- context grievance based on the gaining processes. orders unreasonable and arbi- or These are compares 6. Board The the Jackson incident 7. The also Board cites several cases which appeals past employees’ family United States courts of enforced Board which incidents in other NLRB, orders: Keokuk Gas Service Co. v. 580 plant by employees’ members entered the the 328, (8th 1978); F.2d 335 n. 17 Cir. Hawaiian Indus., door. Earle 315 at 314. The Serv., NLRB, 674, Hauling Ltd. v. 545 F.2d 675 argues that did not care - (9th Cir.1976), denied, & 8 76 n. cert. 431 U.S. rule, pretext about but used the rule as a for 965, 2921, (1977); L.Ed.2d 1061 53 firing videotape Wallace. of the Jackson NLRB, Corp. Crown Cent. 430 Petroleum F.2d people, including shows a of visit horde news (5th 724, 1970); 730-31 Cir. J.P. & Co. v. Stevens cameras, press, employees, walking other en NLRB, Cir.1976); (4th F.2d 547 793-94 masse crowd This scene is NLRB, Coors Container Co. v. 628 F.2d hardly analogous solitary to a visit husband Cir.1980). (10th 1288 group family say good byes. even a or come to grievance pro- The first four involved cases Therefore, reject id. at See we the Board’s strikes, captive ceedings, speeches, or audience past that contention these incidents show Earle all we of which discuss at 405-06. J.P. infra employee Industries' concern about use of specifi- Stevens and also involved conduct Coors pretex- entrance the Jackson incident was cally impulsive, to be unlike Wallace's found tual. conduct in this case. at infra 406 insubordinate, rude conduct equality Act aims nance in.these in which

situations employer might between be cause for with- positions that bargaining contexts meaningful negotia- permit employee protection NLRA. out the 728; F.2d at Prescott Top, 455 Red tion. See strikes, griev Similarly, in the context of 11; Indus., see also Chemvet F.2d at ances, captive speeches, we audience (8th NLRB, Labs., 497 F.2d Inc. v. conflict recognized have that industrial tends Cir.1974); City NLRB v. Dis- generally see less than admirable conduct. bring out 822, 835, Sys., posal acknowledged the need excuse We have (1984) (“[I]t is 79 L.Ed.2d (so long as impulsive, exuberant behavior NLRA, that, enacting § 7 of the evident rendering unfit flagrant employee sought equalize the generally Congress employment) as an concomitant of inevitable power bargaining Indus., 500 F.2d at struggle. See Prescott allowing employees to employer (“It 10; Top, 455 F.2d at 728 is of course Red confronting employer an together band may tempers flare understandable of their and conditions regarding terms grievance meetings and harsh course of Central Petrole- In Crown employment.”). may NLRB, rough exchanged words between F.2d 724 Cir. Corp. v. um cites, the 1970), parties giving Fifth Cir- "without rise to a basis for the Board which miscon- on the context discharge protections cuit focussed consistent with the af deciding Act”). key whether Conversely, § duct as under 7 of forded protected the Act. misconduct employee’s bad faith we have considered protected There, because the misconduct use of shelter of the Act in calculated proceedings: during grievance it occurred not extend its holding that section 7 did our importance to view of the central Of protection employee’s acts.8 See Red case, activi- the nature of (“[t]he Top, question 455 F.2d par- ty and Gilliam were involved. Harris pressed or not the whether three meeting, ticipating grievance which grievances good faith alleged their be a free very requires and frank its nature vitally important.”); Prescott comes views, and where bruised sen- exchange of (“[B]efore us 500 F.2d at no price for in- be the exacted sibilities conduct.”); situation of mere exuberant cf. noted, peace. As the Board dustrial F.W. Co. Woolworth audience, proceeding is not an grievance Cir.1981) (8th (excusing employee’s 154 con conditionally by a his granted master to denied, 989, impulsive), duct cert. servants, equals meeting of but a —advo- 1613, (1982). 102 71 L.Ed.2d 849 positions. Manly respective their cates of weighed also effect of with abuse the We have the the was not assailed on floor symbol employer’s he stood as a plant employee’s the where conduct on the au- of of authority; the Company’s workplace. Compare the character- thority in the Prescott untruth came while he was Indus., ization the (permitting firing F.2d at 500 8-11 during Company advocate appearing as a employer’s where walkout undermined au- meeting representa- Union a closed Woolworth, thority) with F.W. 655 F.2d at tives. (not employee’s permitting firing 154 where added). posed employer’s no (emphasis conduct threat au- F.2d at 731 There- fore, employers required thority). we have to counte- Therefore, question concern about bad faith S.Ct. at 838. before the

8. We believe that this Freight Sys., employee’s ABF was whether abuse remains vital after Inc. Court NLRB,-U.S.-, prevented proceedings 127 L.Ed.2d Board the Board from reinstating though employer that the rein- him even ABF holds Board had practice. employee wrongfully who dis- committed an unfair labor Wallace’s state rely employer charged, to the and in and those we on here deal with the but who lied case question proceedings. Supreme entirely is an In ABF Court different of when it unfair lied, dishonesty emphasized though the to fire a and worker had worker occurring activity context of union and not insubordination in the con- ABF fired him because of at-, activity. dishonesty. because of his -U.S. certed “calculated,” also take into account whether concluded We the misconduct was provoked employer unlawfully Therefore, impulsive. the em Wallace’s case dif- Vought NLRB v. ployee’s misconduct. See from impul- fers the cases where we excused Cir.1986); Corp., 788 F.2d or Protecting sive exuberant conduct. her Trophy Wilson Co. v. action would a for manipulative create license (8th Cir.1993). specifically The ALJ dishonesty, surely goal not a of the Act. See provoke did not found Earle Industries Top, Red 455 F.2d at 728. defiant conduct the Jackson Wallace’s Finally, Smith was humiliated front of a incident, Indus., 315 N.L.R.B. at a cameras, crowd of workers news under- conclusion the Board did not take issue with. mining authority his The crowd Here, context, impul factors gave up cheered as on trying to turn discipline weigh all siveness effect on back Jackson to the visitor’s entrance and as Although Wallace. the incident oc surged entourage Jackson toward the campaign, curred the context of a union simply office. The Board’s decision does not ignore cannot we the fact nonem employer’s consider the interest in maintain- organizers basically ployee union had moved ing discipline. rally plant onto their floor. When Smith By holding that Wallace’s initial misbehav- rights,9 company’s tried assert the in escorting through ior plant Jackson part him. If defied Wallace had been gave her safety a zone of for insubordination group escorting Jackson the em floor, plant and that her insubordina- entrance,10 ployees’ she would never have gave tion her a her license for later dishones- become involved the standoff between interview, inty the Board does not serve Smith; activity concerted Act, purposes gives but underlying her misconduct consisted of imprimatur anarchy. to industrial breaking legitimate company rule with oth therefore misguided We hold the Board’s activity If we ers. hold that the concerted application balancing of its test to be unrea- gave employer, her the her defy license to arbitrary. sonable and leverage rights by wrongful allow her to Thus, fundamentally conduct. her case There is not substantial evidence on the grievance bargaining different from cases practice. record as a whole of an unfair labor where misbehaved conduct See Prescott F.2d at 11. every business that had he grant review and Further, pursue. even if she had not been enforcement of the order. breaking with, begin rule to Wal personnel manager, lace defied the not in the WOLLMAN, Judge, dissenting. Circuit give negotiations take opinion The court’s forth a sets most thor- grievance, but “on the floor of the ough review of our decisions cases of this symbol he stood of the Company’s

where as a nature, opinion but seems to me that the Cent., authority.” Crown 430 F.2d at 731. leads to the conclusion that the Board’s deci- crucially grievance This context from differs upheld. sion must be bargaining settings where NLRA the worker from frees subordination the em In describing that the events occurred at ployer otherwise has the to insist on. 1, 1991, Respondent’s plant on October Second, than pointed out that less two minutes ALJ found that Wallace delib- erately elapsed lied to cause him from push Jackson to the time Reverend Jackson en- plant going forward instead of to the tered the to the time he entered back visitor’s office; entrance as Smith him to. asked The ALJ front that the activities within and Lechmere, generally 9. See v. We need Inc. U.S. N.L.R.B. at 314 n. 14. not resolve 527, 537, 841, 848, issue, 117 L.Ed.2d 79 indisputable since it from the video- tape large part of a that Wallace was band of through employees escorting The Board issue makes some about whether led Jackson in the door. Earle nature; employees, are entitled to honest but where restrained were without any union the false statements are made course Jackson nor Reverend that neither activity, any protected kind it is within the any threats agents made remedy management, to fashion a Board’s discretion Respondent’s exchange activity that protected Jackson’s of that Reverend violation property; civil; quiet that the Gary penalize, perhaps will effect does not with not, contrary Respondent’s by rewarding, such employees had viewed some as state- assertions; frenzy near- into erupted ments. Industries, v. Earle riot. I would for review and (8th Cir.1993). Grant- enforce the Board’s order of reinstate- would ed, appeal whether the in that the issue ment. repre- day interfered with the of that events month, later that but held election sentation supports did holding

our holding that Ms. Wallace’s October zone of activi- conduct fell within the of the National

ties Section Act.

Labor Relations stay with- Jackson’s short

Given Reverend plant, the re- employees’ area Qital ABDULLAH, Hillum Safat exchange Gary with nature of strained Lee also known as Tommie Smith, entry through subsequent and his West, Appellee, entrance, agree with visitors’ encouraging that Ms. Wallace’s conduct proceed to enter Reverend Jackson GROOSE, Appellant. Michael entrance was neither employees’ No. 94-1783. flagrant not differ in nor and did extreme encouragement way material from the Appeals, United States Court of em- other offered Reverend Jackson Eighth Circuit. disciplined ployees, whom was later none of May 23, 1995. Submitted by Respondent. Decided Jan. Likewise, join court in although I decrying dishonesty and false statements say

employees, the Board I cannot holding

abused its that Ms. Wal- discretion

lace’s false the October 7 answers

interrogation right to did not forfeit her Act. If

protections false afforded

testimony before an administra- under oath preclude law judge

tive reinstate- does ment, Freight System, Inc. see ABF —

N.L.R.B., U.S.-, (1994),

L.Ed.2d 152 neither do the false in what

statements Ms. Wallace made interrogation

Board found was a coercive only initially

then her after she had exercised questions regarding not to answer Had I activities on October judge

been the administrative law

case, might I Judge West well ruled

did, am no more tolerant of false state- my colleagues. Employers

ments than are

Case Details

Case Name: Earle Industries, Inc. v. National Labor Relations Board

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 31, 1996

Citation: 75 F.3d 400

Docket Number: 94-3843, 95-1033

Court Abbreviation: 8th Cir.