Lead Opinion
Pеtitioner YMCA of the Pikes Peak Region, Inc., challenges a National Labor Relations Board order adopting the Administrative Law Judge’s ruling that the YMCA violated sections 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (4) (1988). The Board filed a cross-application for enforcement of the order. We have reviewed the arguments of the YMCA, and we hold that enforcement of the Board order is warranted.
I.
The YMCA of the Pikes Peak Region is a nonprofit, charitable, membership organization with two branches in Colorado Springs, a Downtown Center and a Garden Ranch Center. These facilities offer swimming pools, exercise equipment, weight rooms, tanning beds, meeting areas, and locker rooms, some of which are equipped with saunas, whirlpools, color television, and free toiletries and towels. The YMCA provides a range of health, educational, and recreational programs for children, adults, and senior citizens, including swimming instruction, yoga, aerobics, karate, weight reduction, and smoking cessation programs. The two facilities have a membership of approximately ten thousand.
Each member of the YMCA receives a card which has a statement of purpose on the back reading in part: “ ‘The purpose of the Y ... is to establish and maintain a fellowship of individuals and families of all faiths, and ... build a Christian society through activities and services which con
The YMCA’s membership dues and program fees constitute its principal source of income. During calendar year 1986, its gross revenues were $2,674,500, of which $56,700 went to purchase supplies and materials directly from suppliers located outside the State of Colorado. See rec., vol. II, g.c. ex. 2. The YMCA of the Pikes Peak Region is affiliated with the YMCA of the U.S.A., to which the local YMCA pays a percentage of its income in exchange for use of the logo, an employee retirement fund, and a number of other services. Local YMCAs must follow the constitution of the national YMCA, but their national affiliation does not require that they honor memberships from locations outside Colorado.
The YMCA’s Garden Ranch Center first hired Rita Ague in July, 1985, to work as a substitute on the аquatic staff. In September, she began working twenty hours a week on a regularly scheduled part-time basis. On October 6, during an informal meeting called by aquatic director Diane Sanford and consisting of the entire aquatic staff, Ague voiced concerns she and other employees held about pool safety, wage, and overtime pay problems. Ague suggested to those at the meeting that because of these concerns, the employees might want to consider bringing in a union, and she passed around an envelope for interested employees to sign. Ague and four other employees put down their names. Ague then contacted the Office and Professional Employees Union, Local No. 5.
The next day, Sanford and Fawn Kirkland, Ague’s immediate supervisor, reported to Ray Weber, the Garden Ranch Center executive director, that Ague had circulated the sign-up sheet. On October 8, Weber approached Ague while she was working in the pool area and asked her to come into his office. With Sanford present, Weber expressed his concern that Ague had not сome to him first with the problems she saw at the YMCA. According to Ague, Weber then asked her whether she had contacted the union, and when she said that she had, he asked her what specific person she had contacted. He also requested that Ague inform him of “any union activities that might be occurring, or would occur in the future.” Rec., vol. I, at 88. At some point in the conversation, they discussed the termination of an employee, whom Ague believed was fired for his union activities, but whom Weber asserted had resigned voluntarily. Within a few weeks of Ague’s conversation with Weber, YMCA employees and a union representative began to meet.
On October 14, Fawn Kirkland telephoned Ague to inform her that her hours “had been cut way back.” Id. at 91. Kirkland told her that there had, not been any problem with her work performance, but that Sanford had told Kirkland that Ague’s “hours were being cut back radically and that Ray Weber wanted to get rid of the troublemaker.” Id. at 92. Kirkland also told her that she had recently submitted her own resignation.
Ague confronted Sanford, who denied making the “troublemaker” comment. Ague informed her that she intended to сontact the union regarding her hours change, and she did so. According to Ague, Sanford then told her that “she was still in the process of reshuffling [the schedule], and she would get back to [Ague].” Id. at 94. The union sent the YMCA a letter dated October 24 expressing its intent to organize the YMCA workers, and noting that any change in Ague’s working conditions as a result of her organizing activities would violate section 8(a)(3) of the Act. See rec., vol. II, r. ex. 7. By the end of October, Ague’s hours essentially had been restored.
On November 13 and 14, James Klever, the YMCA’s president and chief executive officer, conducted mandatory meetings for all employees in order to discuss the current unionization efforts. At one point during a meeting at which Ague was present, Klever commented that “it took a hundred men to build a barn, but one jack
At a later meeting with Klever, Ague again stoоd up to explain why she favored unionization. She also stated her concern that “when employees had tried to organize ... they had been asked to resign.” Id. at 102. According to Ague, Klever then told her that “ ‘[i]f you knew what a limb you’ve climbed out onto, you’d have heart failure.’ ” Id. She replied, “ T don't threaten easily,’ ” and Klever responded, “ ‘Neither do I.’ ” Id. at 102-03.
During this time, efforts to organize the employees continued. One of the union activists, Bernadette O’Bryan, had a conversation about unionization with co-employee Dennis Schwed on November 15 while both were working in the physical services area. O’Bryan testified that she had asked Schwed, who is mildly retarded and has emotional problems, what he thought of the meetings concerning union organization efforts. He told her he wanted to talk to a friend about unions. O’Bryan suggested he also might want to talk to YMCA employees, and then she. mentioned she felt “really frustrated with the narrow-mindedness of the employees that have come to [her] over the years complaining about different policies at the Y and then not doing anything about it.” Id. at 222.
About a week later, O’Bryan’s supervisor, Jim Asleson, called O’Bryan into his office and handed her a letter. The letter was a warning to her that any similar discussion regarding union matters would result in her termination. Asleson told her that Schwed had been very upset after the conversation, and had claimed that O’Bryan had called him a coward. O’Bryan denied that she had referred to Schwed as a coward. She also testified that she had never been reprimanded in the past for conversations not related to work, nor had her coworkers ever been disciplined for solicitations relating to football tickets or restaurants, for example.
On December 19, the union filed an unfair labor practices charge with the Board. On February 14, 1986, the parties entered into a settlement agreement in which the YMCA promised not to threaten employees with a cut in hours or any other type of retaliation because of their union involvement. The YMCA also agreed not to forbid union solicitation where the YMCA did not forbid other types of solicitation, and to rescind and remove the warning letter from O’Bryan’s personnel file. See rec., vol. II, r. ex. 10(a).
After the settlement аgreement, the employees had further unionization meetings. Towards the end of February, just before Ague left on a vacation, a number of employees signed union authorization cards in Ague’s presence. One of these employees was Wes Beal. When Ague returned from her vacation, she discovered that Beal had been fired on March 5 for sexual harassment of Marnie Duke, a sixteen year-old high school student who worked at the Garden Ranch Center as a lifeguard and an instructor. Ague tried to get more information about the firing from other employees, but was unable to learn very much; her co-workers told her that she should talk to Duke if she wanted to learn more.
Ague testified she initially called Beal, who told her that he was “in a state of shock,” that “[h]e was extremely surprised at being fired,” and that he did not feel he had done anything to warrant the sexual harassment charge. Rec., vol. I, at 117. Ague asked him whether he thought his firing could be the result of union activities, and Beal responded that he may have aroused the hostility of YMCA management by defending Ague at one of the November meetings with Klever. According to Ague, she then “asked [Beal] if he
Ague contacted the union representative, and agreed to give an affidavit on March 19 to an investigating Board agent. Shortly before she was scheduled to give the affidavit, Ague testified that she tried to discuss Beal’s firing with Sanford, but Sanford told her she was too busy to talk to her. Ague stated that Sanford promised to get back to her later, but did not.
After unsuccessfully attempting to speak to Duke at the YMCA on March 18, Ague told Duke she would call her at home, and she did so on the morning of March 19. According to Ague, she began the conversation by emphasizing that she was opposed to sexual harassment, and then she asked “ ‘what in the devil did [Beal] do to you to cause you ... to file a [sexual harassment grievance].’ ” Id. at 124.
The next morning Weber, with Sanford, called Ague into his office to question her about the previous day's telephone conversation with Duke. Ague verified that she had asked Duke certain questions, and' she explained that she had been concerned that Beal was fired not for sexual harassment, but for his union activity. Ague also asked whether she could meet with Duke and Weber to discuss the charges. Weber told her that he would consider the matter and determine what action to take. Later that afternoon, Weber called Ague back into his office, where he told her she was being terminated for “gross interference in a sexual harassment complaint.” Id. at 134.
The union filed an unfair labor practices charge with the Board in which it alleged that the YMCA had discriminated against Ague by firing her because of her union activity, had coerced and restrained Ague because of her union activity, and had unlawfully discriminated against O’Bryan by issuing her a letter of reprimand. The administrative law judge ruled that the YMCA had violated sections 8(a)(1), (3), and (4) of the Act. In so doing, the AU set aside the settlement agreement because it found that the YMCA engaged in post-settlement unfair labor practices. The Board affirmed the findings and conclusions of the AU and adopted the AU’s order.
II.
The YMCA first argues that the YMCA’s impact on interstate commerce was insufficient to warrant the Board’s exercise of its jurisdiction. Board jurisdiction is of two types, statutory and discretionary. Statutory jurisdiction derives from section 10(a) of the Act, which grants the Board the power “to prevent any person from engaging in any unfair labor practice ... affecting commerce.” 29 U.S.C. § 160(a) (1988). Because Congress has vested in the Board “the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause,” NLRB v. Reliance Fuel Oil Corp.,
Although its statutory jurisdiction is quite broad and therefore is not challenged by the YMCA, the Board has limited its jurisdictional reach under its discretionary powers. The Board curtails its jurisdiction by adhering to self-imposed minimum jurisdictional guidelines based on dollar amounts, which enables the Board to distinguish between those enterprises essentially local in character and those with a pronounced impact on the flow of interstate commerce. See R. Gorman, Labor Law § 2 (1976). A business generally must meet one of two relevant dollar limitations before the Board will assert its jurisdiction. If a business is a retail enterprise, it ordinarily must have a gross annual business volume of $500,000 and must make substantial purchases from or sales to other states on a direct or indirect basis. The Board will generally assert jurisdiction over a non-retail establishment if the gross outflow or inflow of revenues across state lines is at least $50,000. See NLRB v. Marsden,
The YMCA raises several points in support of the argument that the Board inappropriately exercised its discretionary jurisdiction. First, the YMCA asserts that the AU incorrectly applied the retail standard to it. The basis for the YMCA’s argument is not altogether clear. It emphasizes its charitable character, and thus seems to equate retail with for-profit and non-retail with not-for-profit. As the AU correctly pointed out, however, it is the fact that the YMCA’s “services are directly to ultimаte consumers,” rec., vol. Ill, doc. 1, at 5, that makes it a retail establishment. See, e.g., Bussey-Williams Tire Co.,
The YMCA also argues that the Board should have asserted jurisdiction only upon finding that the YMCA had a “significant” impact on interstate commerce. Citing Ming Quong Children’s Center,
“[W]e see no reason to establish separate standards for institutions that seek to accomplish the same end but differ only in whether they are charitable or non-charitable. The sole basis for declining or asserting jurisdiction over charitable organizations will now be identical with those which are not charitable.”
That non-profit institutions should be analyzed for jurisdiction in a manner identical to that applied to their for-prоfit counterparts has been consistently reaffirmed. See NLRB v. Lighthouse for the Blind,
As with all organizations, charitable organizations must have a sufficient impact on interstate commerce for the Board to exercise its jurisdiction. See United Way, 127 LRRM at 1185. Because the YMCA has met the discretionary jurisdictional standards, see Greater Boston YMCA,
III.
The YMCA challenges the Board’s finding of unfair labor practices based on both pre-settlement and post-settlement conduct. With regard to pre-settlement conduct, the YMCA contends that the settlement agreement entered into by the parties precludes what in effect is relitigation of that earlier conduct. Even if the Board properly set aside the settlement agreement, the YMCA argues that the evidence is insufficient to find it committed unfair labor practices by interrogating Ague and reprimanding O’Bryan. It likewise argues that the evidence of post-settlement conduct is insufficient to support a finding that the firing of Ague constituted an unfair labor practice.
A.
As a preliminary matter, we note that a court reviewing a Board order “should grant enforcement if the Board correctly interpreted and applied the law and if its findings are supported by substantial evidence in the record, considered in its entirety.” Presbyterian/St. Luke’s Medical Center v. NLRB,
B.
A settlement agreement is binding on all parties to it, but it “will be set aside if its provisions are breached or if postsettlement unfair labor practices are committed.” Lawyers Coop. Publishing Co.,
Because a finding of a post-settlement unfair labor practice or breach of a provision of the settlement agreement is necessary before the pre-settlement conduct can be re-examined, we turn first to the issue of Ague’s discharge, which is the basis оf her claim that the YMCA committed post-settlement unfair labor practices.
C.
The AU found that the discharge of Ague constituted an unfair labor practice in violation of sections 8(a)(1), (3), and (4).
Section 7 of the Act, 29 U.S.C. § 157 (1988), guarantees 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.” The AU, focusing on Ague’s telephone call to Duke, found that call to be “concerted activity” within the meaning of section 7.
The YMCA disputes the finding of concertedness. It asserts, for example,
The YMCA then contends that the AU had insufficient evidence to support her finding that the YMCA knew Ague’s telephone call to Duke was concerted activity protected under section 7.
The YMCA’s next contention is that Ague’s telephone call caused harm as defined by Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (1982), and created an intimidating and coercive environment for other employees in the exercise of their statutory rights. The call, according to the YMCA, therefore should lose the protection of the Act. In support of its argument, the YMCA engages in a lengthy discussion in which it emphasizes the potential liability it would face for any acts of retaliation against a sexually-harassed employee and for acts of sexual harassment of one of its employees by another. We agree with the AU that these arguments lack merit. Title VII makes it unlawful “for an employer to discriminate against any” employee who has complained of sexual harassment. 42 U.S.C. § 2000e-3(a) (1982) (emphasis added). Ague was neither the employer nor acting on her employer’s behalf. Unlike Arnold v. City of Seminole,
Finally, we must consider whether Ague’s concerted activity should lose the protection of the Act because it was otherwise “unlawful, violent, in breach of contract or ‘indefensible.’ ” Coors Container
The fourth and final factor we must consider is whether Ague’s discharge was motivated by her protected activity. The YMCA does not dispute that Ague’s telephone call to Duke to investigate Beal’s discharge, determined to be a concerted, protected activity, was the basis for her discharge. This alone would be sufficient for a section 8(a)(1) and (3) violation. But even if the telephone call itself were not protected, we agree that the YMCA failed to prove by a preponderance of the evidence that Ague’s discharge rested on her unprotected conduct, and not on her union activity. See NLRB v. Transportation Management Corp.,
“disparity and severity of the discipline accorded Ague is indicia of unlawful motivation, and warrants an inference that [the YMCA] seized upon this telephone conversation in order to rid itself of the leading union adherent; and that she would not have been discharged but for her union activities.”
Rec., vol. Ill, doc. 1, at 27-28 (citation omitted). The Board’s determination that the YMCA violated sections 8(a)(1) and (3) by discharging Ague is therefore supported by substantial evidence.
The AU also found that the YMCA, by discharging Ague because she gave an affidavit to a Board agent, violated section 8(a)(4), which prohibits discrimination against an employee who gives testimony in an unfair labor practices investigation. The YMCA contends that this finding is not supported by substantial evidence because there was no proof it had knowledge of Ague’s intention to give an affidavit, and because Ague was terminated solely for interfering with a sexual harassment investigation. As the AU noted, however, Duke told Weber of Ague’s intention to give an affidavit, and the unfair labor prac
D.
The YMCA argues that its post-settlement conduct was unrelated to the pre-settlement conduct, and that this conduct therefore should not be used to set aside the agreement. In support of its position, the YMCA cites to Deister Concentrator Co.,
The YMCA objects to four findings of the AU concerning the pre-settlement conduct. It contends that the Weber/Ague conversation did not constitute coercive interrogation; that Kirkland’s comments to Ague were not coercive; that Klever’s statements to Ague during the meeting were not coercive; and that the letter of reprimand to O’Bryan because of her discussion with Schwed did not violate sections 8(a)(1) and (3). We have reviewed the record as a whole with due regard for the ALJ’s responsibility to judge the demeanor and credibility of the witnesses. We are persuaded there is substantial evidence to support the AU’s findings.
We therefore grant enforcement of the Board’s order.
Notes
. Klever testified that he said “any jackass can tear down a barn, but it takes a craftsman to build one.” Rec., vol. I, at 498.
. Duke’s account differs somewhat: Duke testified that Ague ignored Duke’s protestations that she had to leave to go to school, and demanded that Duke tell her “why the hell [Beal] was fired.” Rec., vol. I, at 294. Duke also characterized Ague's questions as "demeaning” and “belittling,” and she stated that she was very upset by the conversation.
. Although we need not decide whether the YMCA has a charitable purpose, we agree with the ALJ that the statement of purpose notwithstanding, the YMCA is in many ways indistinguishable from a for-profit health club. See rec., vol. Ill, doc. 1, at 6.
. The YMCA makes one final argument. It contends that the Board’s exercise оf jurisdiction was inappropriate because the Board only adopted the AU’s opinion and did not articulate its own reasons for assertion of jurisdiction. This argument has no merit. We have long held that the Board need not restate the AU’s opinion in its entirety if the AU’s findings sufficiently inform the parties of the disposition of the arguments made. See The Artra Group, Inc. v. NLRB,
. The relevant portions of section 8, 29 U.S.C. § 158 (1988) read:
"(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization
(4) to discourage or otherwise discriminate against an employee because [she] has filed charges or given testimony under this sub-chapter_’’
. Ague was discharged for "‘gross interference with the YMCA's enforcement of anti-harassment, and intimidating and demeaning employees who have filed sexual harassment charges.’ ’’ Rec., vol. Ill, doc. 1, at 24. The AU analyzed the unfair labor practice charge by focusing on Ague’s phone call and using the four-part test. Although we will follow this approach in assessing the sufficiency of the evidence, we note the existence of alternative ways to structure the analysis. In NLRB v. Transportation Management Corp.,
. The YMCA also asserts that Local No. 5, the union Ague contacted, was not the official collective bargaining representative and was less interested in Beal than in pursuing its own agenda. The union’s status, of course, has no bearing on whether Ague herself was engaged in concerted activity, since section 7 protects employees who assist labor organizations or “engage in other concerted activities.”
. The YMCA does not contend that it lacked knowledge of Ague’s union organizational effort.
. We disagree with the dissent that this court’s decisions in Timpte Inc. v. NLRB,
. The Supreme Court in Transportation Management,
. The YMCA makes one additional argument that the six-month statute of limitations in section 10(b) of the Act, 29 U.S.C. § 160(b) (1988), bars reinstatement of the settled charge. That settled charge was timely filed, and we recognize the established doctrine that section 10(b) notwithstanding, the General Counsel may litigate matters embraced in a settlement agreement later validly set aside. See Hotel & Restaurant Employees Local 19,
Dissenting Opinion
dissenting.
The court correctly holds that the YMCA was engaged sufficiently in interstate commerce to fall under the jurisdiction of the National Labor Relations Act, 29 U.S.C. § 160(а). I take issue, however, with the court’s conclusion that the YMCA violated the Labor Act when it discharged Rita Ague for harassing Marnie Duke. Although substantial evidence supports the Board’s determination that Ague’s call constituted concerted activity, the rude and insensitive manner in which Ague conducted her investigation placed her conduct outside the protection of Section 7, 29 U.S.C. § 157.
I.
Marnie Duke began working at the Garden Ranch YMCA in 1985 when she was fifteen years old. Rec. vol. I at 279-80. Duke’s first exposure to Wes Beal’s advances took place in September of that year:
I was cleaning in the lobby and he mentioned for me to come into the pool area. He had something to talk to me about. [H]e was sitting down in a chair and he pulled me over by my leg and he put hishands in between my legs and he start[ed] up my thigh quite a ways.
Id. at 281-81. In the following months, Beal repeatedly and without permission played with Duke’s hair and rubbed her shoulders. Id. at 282-83. In January 1986, Duke was sitting next to the swimming pool with a towel over her lap. Beal sat down next to her, placed his hand underneath the towel and between her thighs. Id. at 284. Duke was frightened by the incident but dеclined to report Beal’s behavior because she believed (incorrectly) that the YMCA managers were friends of Beal. Id. Thereafter, Beal continued to take liberties with Duke’s person until March 1986 when she garnered the courage to report the harassment to Jim Klever, the regional president and chief executive officer. Id. at 288-89. Klever assured Duke that he would take care of the situation; Beal was discharged the following day. Id. at 290. Duke and her mother remained frightened that Beal would continue to harass her. Ray Weber, executive director of the Garden Center facility, assured Duke and her mother that the YMCA would do everything in its power to protect Duke from further harassment. Id. at 334, 390-91.
On the morning of March 18, Duke received a telephone call from Rita Ague requesting in a demeaning manner information on Beal’s firing:
[S]he told me that she had a few questions to ask about Wes’s termination. And I told her that I did not have time to talk because I was going to school. She ignored that and she went on and she said that Wes does not know why the hell he was fired. She asked what I had said to get him fired, and I again just was ignoring. I wаs trying to get away from it. I was very nervous. I did not know what to say. She was an adult. I wasn’t. I was taught to respect adults. I felt that it was none of her business at this point. She continued and once more said Wes does not know why the hell he was fired. And I told her that I had to go to school. And she again — she said, T mean it wasn’t as if he asked you to go to bed with him or anything.’ Demeaning me, belittling me.
Id. at 295-96. Ague’s call had an intimidating effect upon Duke: “I felt like this was never going to end. I had adults coming on to me and I was only 16 years old and they were just really coming on to me strong.” Id. at 297-98.
Mrs. Duke was furious when she learned of Ague’s conversation with her daughter. Id. at 338. She contacted Weber at the YMCA and told him that “we were not going to tolerate that [sic] kind of actions against our daughter.” Id. at 338-39. Mrs. Duke demanded to know what the YMCA was going to do to protect her daughter from further harassment by Ague. Id. at 392. Weber discussed Ague’s phone call with Diane Sanford, Ague’s supervisor, expressing shock that a grown women would interfere in the private matter between Duke and the YMCA and would then press the matter once Duke stated repeatedly that she did not wish to talk to Ague. Weber told Sanfоrd that the YMCA had a continuing duty to protect victims of sexual harassment. Id. at 456. Weber also discussed the situation with James Klever. Klever was appalled by Ague’s conduct and expressed concern that the YMCA could be subject to liability for not taking action in response to Mrs. Duke’s complaints. Id. at 525, 527-28.
The following day, Weber called Ague into his office and inquired about the telephone call. Ague stated that Duke did not understand what sexual harassment was, but did acknowledge making the telephone call and asking Duke specific questions concerning Beal. Id. at 396, 459. Later that day, Weber convened a second meeting with Ague whereupon he informed her that she was terminated for interfering
II.
Section 7 of the Labor Act guarantees workers “the right to join or assist labor organizations, to bargain collectively through representative of their own choosing, and to engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protec-tion_” 29 U.S.C. § 157 (emphasis supplied). “[I]n enacting § 7 ..., Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment.” NLRB v. City Disposal Systems,
In determining whether an employee’s action is “concerted,” the touchstone inquiry is whether the action “reflect[s] actual group will in the workplace.” JMC Transp. v. NLRB,
Action on behalf of an individual grievance also may constitute concerted activity. See Intermountain Rural Elec. Ass’n v. NLRB,
When all the other workmen in a shop make common cause with a fellow workman over his separate grievance ... they engage in a ‘concerted activity’ for ‘mutual aid or protection,’ although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are helping; and the solidarity so established is ‘mutual aid’ in the most literal sense, as nobody doubts.
NLRB v. Peter Cailler Kohler Swiss Chocolates,
“The fact that an activity is concerted ... does not necessarily mean that an employee can engage in the activity with impunity.” City Disposal,
In determining whether Section 7 protects concerted statements, courts must examine the overall context in which the statement was uttered, see NLRB v. New York Univ. Medical Center,
III.
In the instant case, Ague had at least some reason to conjecture that Beal had
The court states that although Ague’s telephone call was “somewhat imprudent and lacking in sensitivity,” Ct. op. at 1452, it did not “ ‘amount to egregious misbehavior that should rob this effort to assist fellow employee Beal of its protected character^]’ ” Id. (quoting rec. vol. Ill, doc. 4, at 3). The record reflects, however, that Marnie Duke suffered repeated humiliation at the hands of Wes Beal; only after much anguish did she garner the courage to report Beal’s conduct to his superiors. Duke remained afraid of retaliation and relied upon assurances by the YMCA that she would be protected from further abuse. Viewing Ague’s telephone call within the overall context of Duke’s relationship with the YMCA, see New York University,
By relying upon Coors,
III.
The court states that even if Ague’s telephone call to Duke was unprotected conduct, the YMCA seized upon the call as a pretext to rid itself of a union activist. Ct. op. at 1452. I disagree. A preponderance of the evidence supports the view that the YMCA’s discharge of Ague represented a legitimate effort to shield itself from Title VII liability from Marnie Duke and her parents. Even if the YMCA entertained some anti-union animus when it discharged Ague, the record shows that a well-grounded fear of Title VII exposure constituted an independent and legitimate basis for her discharge. As explained below, such fears were entirely reasonable given the current state of Title VII. See NLRB v. Transportation Management Corp.,
A plaintiff may maintain an action for sexual harassment under Title VII, 43 U.S.C. § 2000e-2(a), by showing that her employer created a hostile working environment. Meritor Sav. Bank v. Vinson,
In the instant case, Duke suffered repeated and uninvited sexual contact from YMCA employee Wes Beal. Once the YMCA learned of Beal’s conduct, it had an
The YMCA had actual knowledge both of Beal’s harassment and Ague’s intrusive telephone call. Indeed, following Ague’s telephone call, the YMCA was faced with a demand by Duke’s mother to protect her daughter from further harassment. Rec. vol. I at 338-39, 392. Had YMCA management not acted on these demands, the organization could have been exposed to Title VII liability on an agency theory. See Vinson,
The dismissal of Rita Ague by the YMCA did not violate the National Labor Relations Act. I respectfully dissent.
. Although Ague’s version of the conversation differs somewhat, her testimony confirmed Duke's in all important respects. Ague is not sure she used the term "why in the hell” suggesting instead that she said "why the devil.” She also denies using a condescending tone. Rec. vol. I at 180. However, Ague acknowledged asking Duke "a string of questions: ‘Did he touch you? Did he ... ask you to sleep with him? Did he say anything to you?’ ” Id.
. See, e.g., Ewing v. NLRB,
. See, e.g., Bowling Green Mfg. v. NLRB,
. See also Borman's Inc. v. NLRB,
. See abo NLRB v. Southwestern Bell,
. See abo Hotel Holiday Inn De Isla Verde v. NLRB,
. See also Andrews v. City of Philadelphia,
. The fact that in Duke’s eyes the conduct of Ague and Beal were part of the same pattern is illustrated by Duke’s comments to her mother after the phone call:
I told her that I was really tired of the whole situation. It was just continuing. And I told her that maybe it would have been best if I would have just quit at that time, before I had even said anything about Wes Beal. And then none of this would have happened ... She told me that, yes, that would have been the easy way out, but we both decided mutually that, no. Wes Beal and Rita Ague were both harassing people. They were bothering us. They had no right to do that, and I stood up for not only me, but other people too that would further along get the same treatment I had.
Rec. vol. I at 305.