*1 to a term of sentenced victions. Clark aggrava- for the crime imprisonment
life RELATIONS NATIONAL LABOR (7) BOARD, Petitioner, v. term of from seven and to a ted murder imprisonment for (25) years twenty-five robbery. He con- aggravated the crime of INDUSTRIES, INC., and DOWNSLOPE multiple punish- amounts to tends that this Industries, Inc., Greenbrier ment for the same crime. Respondents. disposition of In view of the Court’s No. 80-1237. concerning aggra appellant’s claim Appeals, United Court States conviction, may appellant vated murder Circuit. Sixth aggravated on the mur not be incarcerated unless the state elects to der conviction 2, 1982. Argued Feb. Appellant’s retry him. claim of double April 1982. Decided jeopardy petitioner is therefore moot. If again aggravated on the murder convicted
charge, oppor state court will have an jeopar
tunity appellant’s to consider double
dy light claim in of Whalen v. United
States, 1432, 63 445 U.S. (1980) prior sentencing. We
L.Ed.2d 715 appel
intimate no view on the merits of jeopardy claim.
lant’s double
Conclusion
The District is directed to order Court custody be Clark released from
aggravated murder conviction unless Ohio retry
chooses to him within a reasonable
time to be determined District Court. custody
Clark is also in on his conviction aggravated robbery. The District Court evidentiary hearing directed to hold an question appellant’s of whether state- police constitutionally
ments admis-
sible. Clark will remain incarcerated dur- period evidentiary hearing
pending the District If Court’s decision. police
Clark’s statements to were not consti- admissible,
tutionally the District Court grant aggravated
must the writ as to the
robbery conviction as well.
Accordingly, judgment of the District
Court is reversed and the case is remanded. *2 specifically credibility
AU has
based his
Respondents’
manage-
two
findings against
on his demeanor observa-
ment witnesses
Moreover,
independent analysis
an
tions.
evidentiary
confirms the in-
record
ferences which the ALJ has drawn
*3
record.
Respondents, from the evidence of
Moore, Deputy Associate Gen.
Elliott
corporations
Respondents,
with
two
B.,
Weiner,
Counsel,
N. L. R.
Christine
building
the same
headquartered in
offices
C.,
petitioner.
D.
for
Washington,
together
in
Jersey,
engaged
in New
Woicik, Con-
Henry
and
C.
Alan B. Pearl
production
the
of
of 1976 in
September
Jericho,
Consultants, Inc.,
N.
Corporate
sol.
commerce, in a two-
for interstate
garments
Y.,
respondents.
for
Knoxville,
building in
Tennessee.
story
Lane,
of a
the brother
Greenbrier
Robert
MERRITT,
and
Circuit
LIVELY
Before
of both cor-
principal, directed the activities
TAYLOR,
Judge.*
Judges,
District
and
(as
manager
Downslope
porations
plant
“consulting” plant manager for Green-
and
TAYLOR,
Judge.
District
ANNA DIGGS
brier)
office in which the
from a first-floor
Board
The National Labor Relations
prepared pay-
Downslope bookkeeper also
enforcement, pursuant
to Section
seeks
corporations.
rolls for both
Greenbrier’s
Act,
10(e)
the National Labor Relations
on the second
operations were conducted
seq.,
the order which
151 et
§
U.S.C.
first,
floor, Downslope’s
and the
on the
Respondents
Decem-
it entered
on
facility
loading
storage
basement
and
14, 1979,
at 246
reported
ber
and which is
shared.
132,103
(1979).
LRRM 1041
For
NLRB No.
ALJ re-
testimony
by the
credited
below,
Board’s
reasons discussed
13, 1976, David
September
veals that on
granted
part.
petition for enforcement
new
began work as Greenbrier’s
Jamison
production
manager
help
to
with
plant
that the factu
We find at the outset
under a contract
of chemical warfare suits
Board,
adopted
findings
which
al
Downslope
government.
federal
with the
Judge, are
of the Administrative Law
those
promoted
manager Robert Lane had
plant
supported by substantial evidence
operator
from machine
Helen Scarlett
whole, taking into
record considered as a
1976,
April,
of that contract
those
of record which fair
account
matters
twenty employees
had hired the
and she
are,
ly
findings
therefrom. Those
detract
engaged. Both Jamison
who were there
accordingly,
pursuant
to 29
affirmed here
the work of the seam-
and
directed
Scarlett
160(e).
Corpo
U.S.C.
Universal Camera
stresses,
directly to Rob-
reported
and both
NLRB,
474,
456,
ration v.
U.S.
Lane.
ert
(1951).
U17 marriage, one: only Jamison s conduct had become denied black woman in the subject indignant Finally, herself, of wide and discussion group. Scarlett named plant Monday Jamison, re- by promptly in the and had been struck and was hustled victim, supervisees ported only by every not several of her to the machine shop building, regain each of the victims’ co- rear concerned Moreover, composure. Jamison ran by Monday, Supervisor down the workers. subjected departed stairs and soon been thereafter Scarlett herself had to con- premises city by Jamison, waiting siderable sexual harassment in- —and —without paycheck. for a cluding outright rape two threats and Sunday evening foot-in-door home visit. Mr. Lane arrived at building heard a Monday, September
On both
commotion
the second
He
floor.
Tuesday,
up
went
September
Supervisor
operation
the Greenbrier
Lane,
all
Manager
supervisees
went to Plant
found
told him
Scarlett’s
still
*4
desk,
consequent up- grouped
although
and
at the
Jamison’s conduct
the
Scarlett and
heaval and
Jamison
respective
concerns which had been
had made their
raised
exits.
women,
among
why
started,
the
He
no
and described
asked
work had
her own
and
complainants
each of
being
myself,
attempted
concern as
“not for
the
to de-
her
girls.”
experience
the
scribe
with
Lane refused to consider the
Jamison. After
occasions,
rebuffing
subject
complainants
on
the initial
telling
by reply-
both
Scarlett
“womanchaser,”
they
baby,”
that
were
big
that Jamison was a
“no
and
“a
girl,”
“only
everyone
human.”
he asked
Tuesday meeting,
After the
who did not want
reported to
to work for Jamison
they
her staff
that
to raise their hands.
themselves, Eight did so.
then
would have to talk with Lane
He
told them to work
appear
as he
not
“hit
anything
they
did
to believe
she
Jamison or
the clock.” As
confusion,
leaving,
had
were
some
Supervisor
said.
Scarlett and the two women who had ac-
22,
Wednesday morning, September
On
companied her
shop
the machine
twenty
all
supervisees (and
of Scarlett’s
emerged therefrom. Lane fired them each
persons
well)
from
departments
other
as
sight
explanation,
on
without
and herded
desk,
gathered
were
drinking
around her
them down the stairs
premises
and off the
usual,
as
prior
coffee
to the 7:00 a. m.
the
with
others.
occasion,
starting
however,
bell.
On
occurred,
When
hand-raising
the
had
subject
the
Jamison,
of discussion was
eight
supervisees
of Scarlett’s
had
indignation
their
returned
being subjected
to his
sewing
to their
machines and started work.
intrusions.
young
whom
woman
Jami-
One of those testified that she had to do so
son had laid off pending a better relation-
eight
because she had
children. The ma-
ship
check,
had returned to ask for her
operators working
chine
on another Green-
o’clock,
her
By
discuss
status.
seven
contract,
vests,
brier
for military ballistics
groundswell of
had
determination
devel-
throughout
had been
these events
oped (initiated
Hensley),
Ms.
by
the
on the same workfloor.
employees would not start work until Lane
protest
had listened to
their
the
group
eleven
Greenbrier dischar-
working condition of
Jamison’s
sexual
gees
the plant
request
returned to
their
harassment.
jobs
or their
slips that afternoon
day,
and twice the next
before the Down-
The seven
rang,
o’clockbell then
Jamison
slope payroll
prepared
clerk
their termina-
upstairs
came
why
and demanded to know
tion notices and distributed them.
started,
no work had
and Scarlett
told him
that the women
refusing
were
to work until
Respon-
It is clear on the facts that
they could discuss his sexual harassment
do
single employer,
dents
constitute a
with-
with Lane. He demanded to know
Act,
which in
meaning
by
as was found
women, whereupon
list,
she
recited
each the Board.
and Television
Radio
Broadcast
confirmation,
victim shouted he
Technicians Local Union
1264 v. Broad-
No.
255,
pends
Mobile, Inc.,
upon the
reasonable inferences
cast
U.S.
Service
(1965);
employees
L.Ed.2d 789
NLRB v.
could
S.Ct.
draw from the lan
Inc.,
Stores,
guage
by
employer.
used
Winn-Dixie
NLRB v.
Cir.,
1222, 1224
Ridgeway Trucking
cert. den. 382 U.S.
S.Ct.
clear,
(1965).
1980);
Respondents employ claim that discharged. considered himself In a mass ees protesting hiring of Jamison employer, the motive of the not over Scarlett at the time of the employee, individual actions of the and that the accusations of sexual harass inquiry. the focus of the NLRB v. Waco *5 ment pretext disguise Insulation, Inc., were a to per (4th 600 Cir. grudge, sonal unprotected which is 1977). abruptness discharge of Lane’s activity. We note first that the ALJ timing and its indicate his squelch motive to management discredited witnesses protected activity. who NLRB v. Elias Brothers allegations claimed the Inc., of sexual Big Boy, (6th 1963). harass Cir. ment were uphold concocted and we Steadman, those The circumstances reveal that a findings Second, of credibility. participant freedom in the confrontation with Jami- from sexual working son, harassment is a reasonably condi inferred that the mass dis tion employees may which organize pro charge to included him. Lane’s motive was to tect under Section 7. As squelch stated in NLRB v. protected activity and his unlawful Arts, Leslie Metal spread F.2d net to include Thelma Steadman. 1975): Cir. Hoskins hearing was not at the the evidence was uncontradicted that she . . . pro- were entitled to be participated protest in the and was fired. tected physical threats of violence Her proper. reinstatement was also and other acts of harassment of a fellow employee creating a difficult condition of Respondent objects to the reinstate employment. Under such circumstances ment of Patricia Betty Hasty Murr and on they legitimately protest could by con- grounds that both were offered rein activity certed employ- the failure of the statement. An illegally discharged employ er appropriate to take action to correct or ee who unconditionally has been offered alleviate the situation. reinstatement, it, accepts quits and then activity Even if their pro voluntarily, rights loses his or her of rein tected, Respondents argue employ Insulation, Inc., that the statement. NLRB v. Waco voluntarily ees quit and were supra. conflicting not dis The evidence is charged by Lane. The AU held Betty Hasty that “hit record as to whether received AU, the clock” euphemism” however, was an “effective such an offer. The credited for employment. agree termination of Hasty’s uphold finding. We version and we Murr, that “work for proper. Jamison or hit the clock” is Her reinstatement was Ms. hand, tantamount to dismissal. The test of on on the other admitted the stand whether employee discharged an was de- returned work she to for Greenbrier discharge. dissipate within a month her Her rein- coercive effects of the em- statement, then, deny cannot stand and we ployer’s acts. Pioneer Drilling Co. v. part as to that of the enforcement Board NLRB,
order. Respondents cite NLRB v. Nevis Respondents that Pamela contend Industries, Inc., days
Richmond was fired two before support argument for of their rein discharge. pay for her mass She returned statement of Scarlett would contravene the day was check confrontation and of Congress employers intent to allow “speak up” one of female engage pro-union fire when Jamison asked who had been ha conduct. Nevis states that courts have Whether or not rassed. 8(a)(1) a violation of found and ordered others, simultaneous with the motive a supervisor only reinstatement of when behind Richmond’s the same. (a) disciplined refusing was: for Richmond had rebuffed Jamison’s advances an September day practice, (b) on commit unfair labor disci was told the next plined testifying that she was off Board, (c) laid “until the situation before straight.” chief, between us is received her a pretext She crew as a termination on the same day other dis termination of a crew. These charged employees We received theirs. heavy three situations have impact on agree finding with the Board’s that Rich employee rights and the broad remedial was temporarily September mond off laid powers 10(c) of the Board under § terminated, along with the other dissipate Act will be impact invoked to employees, September 22. Her rein by reinstating supervisors. It is unnec proper. statement was essary for us to decide whether rein power statement questions The more serious and limited these three closer presented may here because are whether the cases be reinstated Supervisor Scarlett was exception also violation under third crew chief —a reinstatement, the Act and whether her used as conduit to her crew. Board, which has been ordered can *6 Drilling NLRB, supra, Pioneer Co. v. be supported in law. the We answer both gave rise exception. to the “crew chief” in the affirmative. The court in that case enforced a Board Supervisors specifically are ex reinstating crew, order a driller and his from cluded the definition employee of in despite the super- fact that the driller was a the National Labor Relations Act and are may visor. The doctrine that drillers be beyond scope thus protec the of that Act’s outright pro-union activity fired was 152(3). Therefore, tion. 29 U.S.C. su to have held pervisor participates pro-union in ac application ... no here for the reason tivity may be fired for activity. such A the that Board found that Pioneer’s acts well-recognized exception developed has by were not motivated the ac- allow supervisor’s reinstatement when the tivity supervisors of by the of that part of an integral pattern of employees supervisors and thus the employer squelching pro conduct aimed at object became not the but rather con- employee activity. tected NLRB v. South employer’s of duit unlawful acts. land Paint 391 F.2d at The employer 963. of Pioneer The courts must statutory poli balance the easily supervisors his cy could use as conduits employer rights of loyalty to demand because the from their crews and their chiefs were of policy with A employee rights integral be units. crew from chief selected his shielded unlaw employer ful crew through discharged, acts funnelled su own and when he pervisor. situation, In the latter super crew was terminated. Justice dictates that may visor be necessary reinstated if that when: ers, morning Septem- incidents of the termi- supervisors-drillers
. . . the single confrontation. The coer- termination of 22 are a pretext ber nated as a employ- and the the violation of the crews cive union-interested effects activity, morning only then the rights union that can squelching of the ee’s Section consti- reinstating Supervisor of the crews dissipated by termination resultant be bar- collective of their tutes a violation Scarlett.1 the Act. rights under gaining Board order will be en- Accordingly, the Supervisor Scarlett 963. F.2d at exception sole of that forced in full with the supervise the chem- promoted specifically to ordering reinstatement of Patricia part selected her suit contract. She ical warfare Murr. several friends own crew and hired of sexu- a victim herself
relatives. She was LIVELY, concurring in Judge, Circuit inci- reported several al harassment and dissenting part. part and in harassment dents of sexual agree majority I with employer her employer. her told She as be enforced insofar order should Board’s herself, she but that she could take care pay of with back it directs reinstatement girls. ample This “her” was worried about unlaw- employees who were rank and file conclusion that supports the evidence However, from discharged. I dissent fully employer’s motive in the mass order enforce the Board’s the decision to a “conduit” to was to use as with reinstatement insofar as it directs squelch activity. protected Section Scar- It is clear pay back Scarlett. crew, was close to its mem- lett chose her pro- Congress not to extend chose bers, figure. protective was viewed as a supervi- Act to tection of 7 of the integral were an The crew and Scarlett the Board found sors. Yet in this case only way dissipate the coer- unit. The as “an to be unlawful of Scarlett cive is to rein- effect of the mass plan part Respondent’s overall integral supervisor. can state the crew and its Nor discourage employees engaging from accept Respondent’s argument we protected activity.” This rationale is not employ- was fired after the other language purpose supported ees and thus could not have been used as a law. the Act or case conduit. The had been told that part from Murphy Member dissented management com- had refused to listen to case, in this stat- the decision of the Board plaints par- of sexual harassment and had ing: ticipated in the confrontation with Jamison case, I fear that violence, By the decision in this culminating prior to their dis- long again taken a this Board has once charge. By punched Ja- the time Scarlett mison, impermissible step expanding toward writing was on the wall for *7 termination, Act to con- the National Labor Relations and the technicalities of Lane’s jurisdiction supervi- timing change pur- upon fer itself over do not the result. For finding poses invoking pow- precludes. the Board’s remedial which the Act In sors regarding chronological sequence questions a of events 1. The dissent our use of the terms grounds “crew because it found “irrelevant to the events here chief” and “conduit” examination, only employ the Board did not those terms in their under where a few minutes statements, separated decision and that the Administrative Law no interven- Lane’s Judge specific findings chronology any significance made of a events occurred.” preclude (Joint n.7). Appendix, p. events which would of the invocation Board, however, exception. conduit relied “integral pattern of conduct” Board’s Drilling argument on Pioneer in its that Scar- theory, appears test to include the “conduit” discharge through lett’s was the means which are em- the heart of which is that there some employer “sought strike ... at its em- to ployee employer units where the can “take ployees turning protected for their to activities advantage” relationship super- of the between discourage engaging or to their in such activi- rights employee trample employee visor and to (Joint Further, 803). Appendix, p. ties.” Pioneer, supervisor. supra, through at 963. dispute findings Board did not ALJ’s of fact
H21 However, explained as Supervisor vio- Scarlett’s Russell Sto- Candies, Act, NLRB, taking is Inc. v. majority lated ver (8th 1977): position super- a 206 anytime untenable Cir. proximity visor is with em- fired close supervisor of the [I]f
ployees who are found to have been un-
8(a)(1)
Act,
violates section
of the
lawfully discharged
the Act the
under
supervisor may be entitled to reinstate-
supervisor’s
protected.
discharge is also
supervisor
ment. The
protected
is not
doing, they
so
ex-
improvidently
In
are
right
in his own
basis for
relief
—his
tending
7 offers
protection
to
tendency
Section
that his
had a
with,
and un-
cover the concerted
interfere
restrain or coerce the
supervisors.
ion activities of
Whether
protected employees in the
exercise
not, I
rights.
this result is desirable or
believe it
7
proscribed
to be a
takes
one which
con-
Courts
used
have
reinstatement of a dis-
action,
fiat,
gressional
not decisional
charged supervisor
remedy sparingly
as a
achieve.
only narrowly
and in
defined circum-
ap-
stances. Reinstatement has been
(Footnotes omitted).
proved
remedy
supervisor
as
where the
My view
case coincides
for refusing to
his
aid
with that of the Fifth
N. L. R. B.
Circuit in
employer
committing
an unfair labor
Corp.,
v. Southern Plasma
fair labor indefensible, I Corp. outrageous v. N. L. hest, Stores Elder-Beerman (6th cert. B., Cir. comes within do not believe her R. denied, circumstanc- any “narrowly 397 U.S. defined Lowe, R. B. v. (1970); N. L. supervisor L.Ed.2d of a is es” where reinstatement 1969); giving for Cir. L. R. B. v. Plasma authorized. N. Southern employer at a to the testimony adverse 1295. I would Corp., supra, 626 F.2d at v. Lum L. R. B. Carter hearing, N. Board portion of the deny to that enforcement 1974). In ber, Inc., 507 F.2d respondent to rein- requires the order which Board ordered rein case pay. with back state Scarlett per supervisor who had a statement of management and complaint sonal joining protest discharged for with similar com
statutory of a
plaints. Reinstatement joining in the same
has been by rank and
concerted activities undertaken benefit employees for their mutual
file permissible. not CAMPBELL, Plaintiff-Appellant, J. Scott majority on what it terms relies v. citing Pioneer Drill- exception, “crew chief” COMPANY, B., UPJOHN ing L. R. Co. v. N. Defendant-Appellee. “crew chief” is not The term Drilling. What the court used Pioneer No. 80-1823. reinstating supervisors in that about said Appeals, Court United States activity case was that Circuit. employer to Sixth employees motivated the dis- super- thus “the charge supervisors, Argued Feb. 1982. object but rather a visors became not 29, 1982. April Decided employer’s conduit of the unlawful acts.” argue that Id. at 963. The Board did not was a “conduit” case. The administra- judge
tive law who heard this case found as chronological sequence here fact that “the Respondent
leads to the conclusion that the employees’
did not interfere with its rights by discharging . . . There seeking to
is no that Lane was- indication discharges by up’ employee terminat-
‘cover simply discharged every- He Scarlett. including engaged protest,
one who in the Scarlett, 789).1 along (App. p.
her.” employees,
with the rank and file was dis-
charged not a protesting. She was acts”; employer’s
“conduit unlawful individually object
she was an of the em-
ployer’s wrath and suffered the same fate employees. Pioneering Drilling
as the applicable.
not discourage disagree finding. 1. The Board did not with this of an overall protected part” plan legal It an test to the activity. applied impermissible firing integral facts —that Scarlett’s was “an