Uc hastings Inter-Journal Writing Competition Inter-Journal
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On August 27, 1974, Helen Fields, who had resigned from full-time employment with the Hospital in September 1973, interviewed with Ms. Margaret Hanley, director of nursing services. She told Hanley she was interested in returning to full-time employment with the Hospital. Hanley expressed surprise in view of “ ‘the letter5 *609 (Fields) wrote to the newspaper and (her) unhappiness with hospital nursing.’ ” Since Fields had neither resigned from her employment with a private medical clinic nor given notice of her intent to resign, Hanley declined to discuss the matter further. On the evening of August 27, between 40 and 50 of the Hospital's staff nurses held a meeting. Its purpose was to consider organizing a chapter of the Virginia Nurses Association to discuss salaries, benefits and grievances with the Hospital. Temporary officers were elected. Weinman was named chairman and Fields secretary. On September 24, 1974, Weinman and Fields were interviewed by a reporter from a local television station as part of a news story concerning dissatisfaction among the Hospital's nurses and organizational activities there. During the interview, Weinman made the following statement: There are times, especially the 3:00 to 11:00, and the 11:00 to 7:00 shifts, when there are not rn's to cover the whole medical-surgical unit of 40 patients. And this isn't just particular at our hospital alone in the valley . . . that's a known fact. And, you know, we feel very badly about this, we feel it is directly related also to the salary and benefits situation we're having, like Helen was saying earlier. The cost of living, according to the National Chamber of Commerce figures, that have come out, are just as high here in the Roanoke area as they are anywhere in the country. And yet our salaries in this area are like 60 to 80 cents an hour lower than they are anywhere else in the country. App. 39(a)-40(a).
Nature of Warning: Breach of hospital and professional ethics in broadcasting via the television news media her dissatisfaction with hospital working conditions regarding staffing and her demotion. Remarks: Further incidents of this nature would be cause for dismissal. App. 58(a). Weinman protested the issuance of this notice. On November 18, 1974, Fields had another interview with Hanley and asked to be transferred from the on-call list to a full-time staff nursing position. Hanley told her that she had been removed from the on-call list because she had not worked the required two weekend days per month. Fields protested that she had received no notice of that action, a fact that the Hospital does not dispute. Full-time employment was discussed further, and Fields' April 1974 letter to the newspaper was again mentioned by Hanley. On November 29, 1974, Fields and Hanley met. Hanley told Fields that she would not be reemployed “because of her prospective dissatisfaction with employment at Community Hospital based on publicly announced dissatisfaction and frustration with working conditions at Community Hospital.”6 II. 1It is for the Board to find facts and draw appropriate inferences. The Board found that: *610 The evidence . . . clearly reveals that the (Hospital's) true motivation was to channel or control its employees' organizing efforts It is also clear that the appearance of these two employee(s) (Weinman and Fields) . . . on the television news broadcast brought their cause to public attention and thereby triggered the (Hospital's) coercive conduct toward them. App. 24(a). 2This finding is supported by substantial evidence, and is buttressed by the chronology of events. Shortly after Weinman and Fields7 were publicly identified as leaders of employee organizational efforts in the Hospital, adverse actions were taken concerning them. And these actions were taken by individuals who had clearly demonstrated an antiorganizational animus. This circumstantial evidence, coupled with the Administrative Law Judge's credibility findings in favor of Weinman and Fields, requires that the determination of the Board be affirmed. 3As to Weinman, the Hospital argues that, regardless of its motivation, the warning notice could not constitute an unfair labor practice since her disparaging and disloyal statements were unprotected under NLRB v. International Brotherhood of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953). “Irene Weinman, either intentionally or negligently, disparaged and discredited the quality of nursing care available at the Hospital, to the point of insinuating that it was unsafe.” Brief for Appellant at 33. We conclude that Weinman's statements were not unprotected. As Hanley admitted, they were true, and unlike the statements found unprotected in Electrical Workers, supra, they were directly related to protected concerted activities then in progress. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962) (interpreting Electrical Workers ); NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029-30 (6th Cir. 1974). Having found the other assignments of error without merit, the Board's order will be ENFORCED.
245 NLRB No. 107 (N.L.R.B.), 245 NLRB 814, 102 L.R.R.M. (BNA) 1247, 1979-80 NLRB Dec. P 16338, 1979 WL 10011 NATIONAL LABOR RELATIONS BOARD (N.L.R.B.) Atlantic Steel Company and Kenneth Chastain Case 10-CA-13634 September 28, 1979
DECISION AND ORDER **1 BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On December 15, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings of the Administrative Law Judge, and to adopt his findings and conclusions only to the extent consistent herewith. Although an arbitrator had previously upheld the discharge of Kenneth Chastain for calling his supervisor a “lying s.o.b.,” the Administrative Law Judge found that the arbitrator confined his decision to legal issues arising under the contract and failed to consider whether the conduct amounted to an unfair labor practice. The Administrative Law Judge found that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Chastain because, at the time Chastain made the remark, he was discussing a grievance and therefore was engaged in protected concerted activity. Respondent maintains that Chastain was discharged for insubordination, and that the Board, under its Spielberg doctrine,1 should defer to the arbitrator's award which upheld the lawfulness of the discharge. We agree with Respondent. The facts, as found by the arbitrator, are relatively simple.2 Around 2 p.m. on November 3, 1977, employee Kenneth Chastain, during his regular work shift, approached his foreman in the production area, and asked him a question about assignment of overtime by seniority. Chastain was concerned that a probationary employee had worked overtime. Shortly thereafter, the foreman returned with an answer, also stating that he had asked all of the crew to take the overtime. Based on the testimony of four witnesses--two employees, the foreman, and Chastain--the arbitrator found that, as the foreman was walking away from the area, Chastain turned to another employee and either called the foreman a “lying son of a bitch” or stated that the foreman had told a “m--f--lie” (or was a “m--f--liar”) as to whether he had asked the entire crew to work overtime. The foreman heard his statement and told Chastain to go to the office. Chastain was suspended pending discharge and thereafter terminated. At the arbitration hearing. Chastain claimed that the foreman had been harassing him for circulating a petition concerning benefits, and that the discharge was part of that harassment. Other claimed harassment was the foreman's complaint that he was spending too long in the bathroom, and that the foreman had poked him in the chest with a finger, insisted that he wear his hardhat, and objected to his rejection of certain of Respondent's products as defective.3 The foreman denied all of these claims except the complaint about his going to the bathroom too frequently. In any event, the arbitrator found that Chastain had not been disciplined for any of these incidents, and that Respondent did not rely on them as grounds for the discharge. **2 The arbitrator also noted, as conceded by both Respondent and the Union, that Chastain was discharged on the basis of his entire record, and not solely because of the incident with the foreman. In the preceding 3 years, Chastain had been suspended twice and given two warning letters. The first suspension, for poor work performance which curtailed production, was grieved but not taken to arbitration. The second suspension--which occurred only 10 months before the final incident--was for cursing in the presence of female clerks in violation of a supervisor's directive not to use such language. This suspension was grieved and taken to arbitration, whereupon the same arbitrator who issued the instant decision upheld the suspension but reduced it from 2 days to 1 day. The arbitrator also observed in the present proceeding that Chastain had a poor attendance record--32 instances of tardiness, 1 of which concerned his leaving early with no apparent excuse, and 7 unexcused absences. Based on all of the above, the arbitrator concluded that Respondent had good cause for the discharge. He found that Chastain had properly questioned the foreman about overtime, and that the foreman had acted promptly to answer the question. The arbitrator, concluding that Chastain's obscene reaction to the supervisor was unwarranted insubordination, noted that: *815 If Mitchell [the foreman] was in error in stating the entire crew had been offered the overtime, a grievance was the proper way to correct the mistake. But the use of insulting, obloquous [sic] language to other employees about their supervisor in the hearing of the supervisor cannot be regarded as “mere disrespect.” On the contrary it shows a willful disregard for constituted industrial authority, a challenge to the dignity and character of the foreman, [and] a derrogation [sic] of the authority necessary to direct the working forces. Under any definition, this, in the setting it was found, constitutes insubordination. Furthermore, the arbitrator found that any alleged harassment by Respondent played no role in the decision to discharge, since these alleged incidents were not “a causitive [sic] factor for Grievant's utterance concerning Mitchell. Grievant's language was a reaction to information supplied by Mitchell at Grievant's request. In this there was obviously disagreement, but not provocation.”He also found that, while a supervisor once cursed an employee without being disciplined, that single event did not constitute a practice which would justify Chastain's language “in the circumstances where it was uttered.” Finally, the arbitrator concluded that the discharge was warranted because Respondent did not discharge Chastain because of one insubordinate act. Rather, the discharge was part of a pattern of progressive discipline by Respondent, which included a prior suspension for a similar act. We find that the Board should defer to the arbitrator's decision. In concluding that Chastain's statements were unjustified, the arbitrator also considered Chastain's allegation that he was discharged as part of a pattern of harassment for having circulated a petition concerning benefits. He rejected this claim and found that Chastain was discharged on the basis of his entire disciplinary record, including the uttering of the obscenities about the supervisor, and not as part of any campaign of harassment. We are satisfied that the arbitrator thoroughly considered all of the evidence and made factual findings that are clearly supported by the evidence. Accordingly, we defer to his factual findings.11 **5 The decision as to whether the employee has crossed that line depends on several factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice. To reach a decision, the Board or an arbitrator must carefully balance these various factors. Here the arbitrator considered the factors which the Board considers, and concluded that the employee's discharge was warranted and based on reasons not repugnant to the Act.16 He noted that the incident *817 occurred on the production floor during working time (not at a grievance meeting), that the employee's question about overtime expressed legitimate concern which could be grieved, and that the supervisor had investigated and answered his question promptly; but, nevertheless, the employee had reacted in an obscene fashion without provocation and in a work setting where such conduct was not normally tolerated. He further considered the employee's past record and concluded that, considered together, this record established a reasonable basis for the discharge.17 We find nothing in the arbitrator's decision that is repugnant to the Act. Indeed, a contrary result in this case would mean that any employee's offhand complaint would be protected activity which would shield any obscene insubordination short of physical violence. That result would not be consistent with the Act. Accordingly, we conclude that it will effectuate the purposes of the Act to give conclusive effect to the grievance award, and, on that basis, we shall dismiss the complaint in its entirety.
115 NLRB No. 255 (N.L.R.B.), 115 NLRB 1627, 38 L.R.R.M. (BNA) 1134, 1956 WL 14419 NATIONAL LABOR RELATIONS BOARD (N.L.R.B.) The Patterson-Sargent Company
United Gas, Coke & Chemical Workers of America, AFL-CIO,1and its Local 260 Case No. 8-CA-1042 June 22, 1956
DECISION AND ORDER **1 On September 6, 1955, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that these allegations in the complaint be dismissed. Thereafter, the Respondent, the General Counsel, and the Union as the Charging Party each filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, insofar as they are consistent with the Decision and Order herein. 1. We agree with the result reached by the Trial Examiner that the Respondent did not violate Section 8 (a) (3) of the Act, as alleged, in refusing to reinstate, following their unconditional application after the strike,2 complainants Poyle, Kost, Bakula, Vertosnik, Kordic, and Leitter. We find that the Respondent was justified in its decision to terminate these strikers because of their conduct during the strike in personally distributing to the Respondent's customers and the general public in front of retail hardware stores in the city of Cleveland which handled paint manufactured by the Respondent, the following handbill:3
THE EMPLOYEES OF THE PATTERSON-SARGENT COMPANY IN CLEVELAND WHO MANUFACTURE PAINT UNDER THE BRAND OF B.P.S., WERE FORCED ON STRIKE BY THE COMPANY. AS A RESULT, THERE IS NOT BEING MANUFACTURED ANY PAINT AT THE PATTERSON-SARGENT COMPANY IN CLEVELAND BY THE WELL TRAINED, EXPERIENCED EMPLOYEES WHO HAVE MADE THE PAINT YOU HAVE ALWAYS BOUGHT. THIS IS A WARNING THAT YOU SHOULD MAKE CERTAIN THAT ANY B. P. S. PAINT YOU BUY IS MADE BY THE REGULAR EMPLOYEES WHO KNOW THE FORMULAS AND THE EXACT AMOUNT OF INGREDIENTS TO PUT INTO PAINT. IF YOU SHOULD HAPPEN TO GET PAINT WHICH IS MADE BY ANY OTHER THAN THE REGULAR, WELL TRAINED, EXPERIENCED WORKERS, IT MIGHT NOT DO FOR YOU WHAT YOU WANT IT TO DO. IT COULD PEEL, CRACK, BLISTER, SCALE OR ANY ONE OF MANY UNDESIRABLE THINGS THAT WOULD CAUSE YOU INCONVENIENCE, LOST TIME AND MONEY. STOP! THINK! IS IT WORTH YOUR WHILE TO RISK SPENDING YOUR GOOD MONEY FOR A PRODUCT WHICH MIGHT NOT BE WHAT YOU ARE ACCUSTOMED TO USING? YOU WILL BE INFORMED WHEN YOU CAN AGAIN BUY B. P. S. PAINT WHICH IS MADE BY THE REGULAR EMPLOYEES IN CLEVELAND. **2 The Trial Examiner found that “the only reasonable inference that could possibly be drawn [from the handbill] by either the Respondent's customers or the general public in the Cleveland area was that the Respondent was about to, and in fact, already had foisted upon those who relied upon the 'B. P. S.' label, shoddy and inferior merchandise.” We are in substantial agreement with this view. We believe that the handbill was intended to, and did, publicly impugn the quality and usability of the Respondent's product. In this respect we view the conduct as quite distinguishable from the boycott of an employer's business and product which inheres in the usual strike situation. For such a boycott has for its purpose the publicizing of an existing labor dispute, separate and apart from the quality of his product. Cf. N. L. R. B. v. Electronics Equipment Co., Inc., 194 F. 2d 650, 653-654 (C. A. 2); The Hoover Company v. N. L. R. B., 191 F. 2d 380, 390 (C. A. 6). *1629 However, we consider it unnecessary to rely upon the Trial Examiner's findings that the statements contained in the handbill were false. For the truth or falsity of these statements, in our opinion, is not material, and not the test of their protected character.4Statements made by employees to the public which deliberately cast discredit upon their employer's product or service are no less disloyal and a breach of confidence because they are truthful. For, as the Supreme Court has recently observed in the Jefferson Standard case involving a situation of striking similarity, “There is no more elemental cause for discharge of an employee than disloyalty to his employer.”5 The essential question we must decide here is whether the handbill activity for which the employees were discharged was within the scope of protection provided employee concerted activities by Section 7 of the Act when undertaken as an implement to an otherwise lawful strike. In the Jefferson Standard case, supra, the Supreme Court held with the Board that the employer was justified in discharging certain of its technician employees who had prepared and distributed to the public a handbill strongly disparaging the quality of its television broadcasting service, but making no reference to any union, nor to the current labor dispute over contract negotiations then in progress.6 The Supreme Court agreed with the employer that the handbill demonstrated such “detrimental disloyalty” as to provide cause for discharge. The Court's reasoning, as we construe it, was essentially as follows: (1) The technicians responsible for the handbill attack on the employer were at the time of the distribution in the active employment of, and receiving their regular pay from, the employer. These employees were therefore attacking the very interests which they were being paid to conserve and develop and the employer was not required to finance such activities. “An employee cannot collect wages for his employment and, at the same time, engage in activities to injure or destroy his employer's business.”7 (2) As the handbill did not relate itself to the then existing labor controversy, it was a “separable” attack on the employer's product and policies “as if the labor controversy had not been pending.” The attack was purported “to be made in the interest of the public rather than in that of the employees,” and was thus effectively separated from any concerted activity under which the protection of Section 7 of the Act might be *1630 invoked. (3) And finally, in language applicable to the facts before us in this case, the Supreme Court concluded that even if the attack were not treated as “separable” from the labor controversy, but instead were to be treated as a concerted activity of the kind intended to be embraced in Section 7, the means which were used by the responsible technicians (i. e., the public disparagement of the quality of the employer's product), “deprived the attackers of the protection of that section, when read in the light and context of the purpose of the Act.”8 **3 While the facts as to the handbill issue in the present case differ in certain respects from those in Jefferson Standard, we do not find these differences to be at all decisive. True, as our dissenting colleagues point out, the employees in the Jefferson Standard case were not on strike. But during their off-duty hours they were engaged in picketing the purpose of which was to publicize their disagreement with the employer over the current contract negotiations and to protest the employer's “unfairness” to them.9 Under such circumstances, it cannot be maintained that the offending conduct bore any less relation to an existing labor controversy in that case than does the conduct complained of here. Accordingly, we reach the same result on the same broad principle as did the Board and the Supreme Court in the Jefferson Standard case, namely that by the means employed here in the preparation and circulation of the handbill the strikers forfeited any right they may have otherwise had to the protection of the Act.10 For the foregoing reasons, therefore, we adopt the Trial Examiner's dismissal of the complaint as to the alleged discrimination against the 6 complainants, named above, who personally distributed the handbill. We reject the Respondent's contention that complainant Clossin should similarly be held responsible for the handbill activity because of his membership on the Union's executive committee. The record indicates that Clossin did not distribute, approve, or ratify the handbill, *1631 individually or as a member of the executive committee. Having found that the Respondent had sufficient cause for terminating the named complainants on the ground of their distribution of the handbill, we consider it unnecessary to pass upon the Respondent's further allegations of misconduct and the Trial Examiner's findings thereon with respect to the prestrike activities of these individuals, and their conduct during the course of the strike. 2. Like the Trial Examiner, we find that the Respondent did not violate Section 8 (a) (3) in refusing to reinstate Clossin. However, we base our finding upon the Murvine incident, fully described in the Intermediate Report, and do not pass upon Clossin's alleged abusive name-calling during the strike, nor upon his alleged prestrike misconduct. As did the Trial Examiner, we credit Murvine's testimony at the hearing that Clossin stopped him during the strike, accused him of delivering paint through the picket line, and told him in substance that “they have records and they know that I am taking paint, so I better look out or they will beat me up.” 3. We likewise agree with the Trial Examiner, for the reasons stated by him, that the Respondent violated Section 8 (a) (3) of the Act by discriminatorily refusing to reinstate complainant Basar upon his unconditional application after the strike. We find that Basar's alleged prestrike misconduct was, in any event, condoned by the Respondent. 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