Uc hastings Inter-Journal Writing Competition Inter-Journal
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- Holling Press, Inc.
| **5 Our employment manual states:
“Certain actions or types of behavior may result in immediate dismissal. These include, but are not limited to: Failure to treat others with courtesy and respect.”
In light of the above, why this e-mail message was inappropriate How sending an e-mail message like this hurts the company How this matter should have been handled Markwitz continued: If your response is acceptable to me, you will post it by e-mail today to those who received your other message. If you decline to do so, or if your response is unacceptable to me, your employment will be terminated immediately. Otherwise, your employment will continue on a probationary basis for six months, during which time your employment may be terminated at any time and for any reason. Larry, I am very disappointed in you. At the hearing, Markwitz testified that what upset him about the document was its “tone”: it was a “slap in the face” of employees with good attitudes and a “personal attack” upon him. Leinweber testified that in his last meeting with Markwitz on December 5, they agreed to extend the memo deadline to 8 a.m. the next day. He further stated that he stayed up well into the morning as he attempted to compose an appropriate letter, but he was unable to come up with anything he deemed satisfactory. When the two men met at 8 a.m., and Markwitz asked if Leinweber had produced a memo, Leinweber said, “No, I couldn't really write anything incriminating, because it could be used against me later.” Markwitz wished him luck in his future endeavors and bade him farewell. **6 Later that day, Leinweber called his supervisor and asked for a discharge letter. The December 9 letter received by him cited as the “Reason [sic] for termination” two of the grounds for dismissal given in the employee manual: Failure to treat others with courtesy and respect Failure to follow instructions or to perform assigned work
II. DISCUSSION AND CONCLUSIONS Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employee's activity, the concerted activity was protected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity. Leinweber's e-mailings clearly constituted “concerted” activity as that term has been defined by case law. While Meyers II stated that the Board was “fully embracing” (281 NLRB at 887) the rule in Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir. 1964), in which the court held that “mere talk” could be found to be protected Section 7 activity only when it is “looking toward group action,” id. at 685,. The Board has repeatedly held that “the object of inducing group action need not be express. For instance, '[i]t is obvious that higher wages and better bonuses are a frequent objective of organizational activity, and discussions about wages or bonuses are necessary to further that goal.' Jeannette Corp. V. NLRB, 532 F.2d 916, 918 (3d Cir. 1976).” Whittaker Corp., 289 NLRB 933 (1988); U.S. Furniture Industries, 293 NLRB 159, 161 (1989). Plainly, in communicating with his fellow employees, Leinweber was attempting to correct any misimpression of the vacation proposal, such as Dutton's, and to arouse support for his own decision to oppose the proposal. Leinweber credibly testified that his purpose in circulating the e-mail was “because I understood everybody didn't understand and that they needed help in making an informed decision.” While his “object of inducing group action [was not] express,” Whittaker Corp., supra, it is manifest from the record. **8 Contrary to Respondent's contention on brief, this is a case of concerted activity for the “purpose of mutual aid or protection,” as required by Section 7 of the Act. Leinweber's effort to incite the other employees to help him preserve a vacation policy which he believed best served his interests, and perhaps the interests of other employees, unquestionably qualified his communication as being in pursuit of “mutual aid or protection.” Under the precedents, Leinweber's e-mail to Markwitz, with transmission to the other employees, was, in and of itself, concerted activity. The General Counsel also seems to argue that Section 7 was brought into play by the fact that Leinweber discussed with other employees the error in the December 1 memorandum prior to dispatching his e-mails. But some showing of employer knowledge of prior employee concert must be made and here there was no such showing. The only employee who reacted publicly to Leinweber's message was Dutton, and that was after the message was sent. In the present case, moreover, while Leinweber's testimony on this score is uncontradicted, it is also vague, and indeed, he testified that he sent the December 5 e-mail to the other employees because they did not seem to understand the problem. It could be argued that once Dutton sent his e-mail, he was, to Respondent's knowledge, converting Leinweber's message into concerted activity. See A.N. Electric Corp., 276 NLRB 887, 888-889 (1985). However, on this record, I need not rely on any such theory in concluding that Leinweber's e-mail effort constituted concerted activity. While I have found that Markwitz was principally aggrieved by the tenor of Leinweber's e-mail and its perceived personal denigration of Markwitz, his December 9 message to employees establishes as well that a component of his anger was caused by the fact that Leinweber had attempted to enlist other employees in his cause. Although the law of “protected concerted activity” does not require the General Counsel to prove that the employer has disciplined an employee because he/she has engaged in concerted activity, but rather only requires that the employer knows that the conduct being disciplined is concerted, the evidence here shows that the concertedness of Leinweber's conduct also very likely infected Markwitz' decision to discharge.11 In considering the other elements of a prima facie protected concerted activity case, as outlined in Meyer I, supra, there is obviously no question that Markwitz was aware of the concerted activity, nor any doubt that it played the principal role in Leinweber's discharge.12 **9 The final question raised by the Respondent is whether Leinweber's December 5 message was “protected.” Some concerted conduct can be expressed in so intolerable a manner as to lose the protection of Section 7. While the legal description of the sort of behavior which withdraws the protection of the Act from concerted activity has varied, [c]ommunications occurring during the course of otherwise protected activity remain likewise protected unless found to be “so violent or of such serious character as to render the employee unfit for further service.” In applying the foregoing or similar standards, the Board has invoked a forfeiture of the protection of the Act only in cases where the concerted behavior has been truly insubordinate or disruptive of the work process. It has generally been the Board's position that *249 unpleasantries uttered in the course of otherwise protected concerted activity do not strip away the Act's protection. In Postal Service, 241 NLRB 389 (1979), a letter characterizing acting supervisors as “a-holes” was not beyond the pale. In Harris Corp., 269 NLRB 733 (1984), a letter describing management with such words as “hypocritical,” “despotic,” and “tyrannical” was not disqualifying, despite its “boorish, ill-bred, and hostile tone.” Id. at 738. In Churchill's Restaurant, 276 NLRB 775 (1985), where an employer discharged an employee who, he believed, was saying that the employer was “prejudiced,” which the latter considered an “insult,” the remarks were held not “so offensive as to threaten plant discipline,” id. at 777 fn. 11. A statement to other employees that the chief executive officer was a “cheap son of a bitch” was considered to be protected concerted activity in Groves Truck & Trailer, 281 NLRB 1194, 1195 (1986). It is clear from Markwitz' correspondence and testimony that his ultimate decision to discharge Leinweber was based on two aspects of Leinweber's conduct. The major reason was the tone of the letter and the specific remarks about Markwitz. As I have noted previously, it is also evident that Markwitz was displeased by the fact that Weber had communicated the message to the other employees,13 and that concern entwined with and aggravated, in Markwitz' mind, the first reaction. Markwitz, like any other employer, wants a friction free working environment. But, as the court of appeals pointed out in Thor Power Tool, supra, Section 7 activity may acceptably be accompanied by some “impropriety.” And, in Dreis & Krump Mfg. Co., supra, the court of Appeals laid down the rather stiff test of whether the questioned activity is “of such serious character as to render the employee unfit for further service.” Surely, the words and phrases used by Leinweber in his message were not that egregious. The Leinweber message has arrogant overtones, but the language is less assaultive than the “boorish, ill-bred, and hostile” wording found not be disqualifying in Harris Corp., supra. Indeed, Markwitz was prepared to retain Leinweber if he would submit some sort of apology, which he failed to do. I find that the message itself was not couched in language sufficiently serious to warrant divestment of Section 7 protection.
343 NLRB No. 45 (N.L.R.B.), 343 NLRB 301, 175 L.R.R.M. (BNA) 1449, 2004-05 NLRB Dec. P 16766, 2004 WL 2368662 NATIONAL LABOR RELATIONS BOARD (N.L.R.B.) HOLLING PRESS, INC., AND BONCRAFT-HOLLING PRINTING GROUP F/K/A BONCRAFT, INC. AND
CATHERINE M. FABOZZI Case 3-CA-20229 October 15, 2004
CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER The issue before the Board is whether Catherine Fabozzi was engaged in activity encompassed by Section 7 of the Act when she solicited a coworker to be a witness in support of her sexual harassment claim filed with a State agency.2 We find that Fabozzi's conduct, though concerted, was uniquely designed to advance her own cause, and thus, that it was not engaged in for the purposes of mutual aid or protection. Accordingly, we find that she was not engaged in activity protected by Section 7 and that her termination was lawful.3
Background In early January 1996,4 Fabozzi, a 3-year employee of the Respondent— Holling Press, Inc., complained to her union steward that leadman John Leon was sexually harassing her. The Union looked into the accusation and concluded that it was unfounded.5Thereafter, in January or February 1996, Fabozzi contacted the New York State Division of Human Rights, claiming that she had been subjected to sexual harassment. In a letter dated March 7, the State agency directed Fabozzi to supply specific information so that a complaint could be prepared.6 In March, before returning from a routine layoff, Fabozzi raised the harassment issue with the production manager, and the Respondent met with her and union officials. Much of the meeting centered on whether Fabozzi had threatened Leon, and although Fabozzi's accusations were not substantiated, then-owner Brian Maher resolved that, to the extent possible, Fabozzi would not have to work alone with Leon. Thereafter, in May, Fabozzi asked employee Susan Garcia to testify before the State agency, saying that she (Garcia) could be “hit” with a subpoena in any event.7 At the time of Fabozzi's solicitation, Garcia had just informed her that Leon said he was wearing his “tight white pants” for Garcia. The Respondent suspended Fabozzi on June 26, and terminated her on July 2, for purportedly “attempt[ing] to coerce coworkers into corroborating an unsubstantiated charge of sexual harassment against one of [her] supervisors.”8 Analysis
*302 In order for employee conduct to fall within the ambit of Section 7, it must be both concerted and engaged in for the purpose of “mutual aid or protection.” These are related but separate elements that the General Counsel must establish in order to show a violation of Section 8(a)(1). In the Meyers cases,10 which refined the scope of conduct that constitutes concerted activity, the Board discussed and adhered to a longstanding distinction between concerted activity on the one hand and mutual aid or protection on the other. Thus, in Meyers I and II, the Board noted that earlier Board cases “had, with court approval, distinguished between the two clauses and regarded them as separate tests to be met in establishing Section 7 coverage.”11 The Board reaffirmed that concerted activity included “circumstances in which individual employees seek to initiate or to induce or to prepare for group action,”12 and “activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization,” so long as what is being articulated goes beyond mere griping.13 Consistent with treating the two elements as separate but indispensable requirements of Section 7, the Board in Meyers II then discussed mutual aid or protection separately, noting that “the Supreme Court regarded proof that an employee action inures to the benefit of all simply as proof that the action comes within the ‘mutual aid or protection’ clause of Section 7.”14 Accordingly, our analysis of Fabozzi's conduct follows this distinction. Where employees concertedly band together to seek from their employer an improvement in terms and conditions of employment, or protection against an adverse change in the same, they are engaged in Section 7 activity. That is, their activity is concerted, and it is for mutual aid or protection. However, in the instant case, the employee sought to pursue a personal claim before a State agency. When she sought other employees to help her, that conduct was concerted. But, inasmuch as the claim before the State was personal, that conduct was not for mutual aid or protection. Fabozzi was engaged in concerted activity because she appealed to other employees for help. We do not disagree that such a finding could be made on this record. To the extent that Fabozzi exhorted another employee, Garcia, to support her sexual harassment claim, Fabozzi was engaged in concerted activity within the meaning of Section 7. **3 However, with respect to mutual aid or protection, the record reveals that from the outset, Fabozzi charted a course of action with only one person in mind—Fabozzi herself. To begin with, Fabozzi's complaint was individual in nature. Believing herself to be a victim of sexual harassment, she complained to the State agency. It was the State agency that instructed Fabozzi to provide more information and, presumably, to identify potential witnesses. Thus, her apparent requests to coworkers to help her out with John Leon were not made to accomplish a collective goal. Rather, their purpose was to advance her own cause. Significantly, Fabozzi testified, she asked Garcia to “help me follow through with charges [against Leon].” (Emphasis added.) Further, there is no evidence that Fabozzi offered or intended to help any employees as a quid pro quo for their support of her personal claim. Her goal was a purely individual one. In addition, there is no evidence that any other employee had similar problems—real or perceived—with a coworker or supervisor. In particular, there is no evidence Garcia took offense to Leon's comment, which she reported to Fabozzi, or sought Fabozzi's help. Nor did Garcia show any interest in assisting with Fabozzi's claim. Indeed, Fabozzi's request that Garcia become a witness was accompanied by the threat that she could force Garcia to testify by “hitting” her with a subpoena. Garcia's evident lack of concern regarding Leon's comment, her lack of interest in supporting Fabozzi, and Fabozzi's aggressive tactics with Garcia clearly establish the absence of any mutual purpose here. Thus, even though Fabozzi's exhortation to Garcia to testify on her behalf constitutes concerted activity, it was not made to benefit the group, but rather to advance Fabozzi's personal case. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), is not to the contrary. The employees there sought to gain support for their effort to oppose a “right to work” law and to protest a presidential veto of a minimum wage bill. Obviously, “right to work” vs. union security is an issue that is an important one for all union supporters within the unit. As they see it, the inability to collect dues from “free riders” creates a financial impediment to the union's role as representative for all. Equally obvious, *303 minimum wage laws are not personal to any particular employee.15 Our dissenting colleague asserts that nothing in the Court's language in Eastex implies that a single employee's resort to an administrative forum is protected only if she is not the sole immediate beneficiary of her action. By this, we understand our colleague to mean the Eastex does not require that for a single employee's complaint to be protected, the complaint must benefit other employees as well as the complainant herself. We read Eastex differently. Simply stated, Eastex (and Sec. 7) require concert plus mutual aid or protection. The element of mutual aid or protection was shown by the fact that, as set forth above, the group of employees had a common interest in the subject matter. In the instant case, we have the element of concert, but not the element of mutual aid or protection. In our view, our dissenting colleague is simply presuming from the concerted nature of Fabozzi's request to Garcia, that she assist her with her complaint, that Fabozzi's complaint was for the purpose of mutual aid or protection. This is contrary to the teaching of Meyers I and II, discussed above, which explain that the concepts of concertedness and mutual aid or protection are analytically distinct and must be analyzed separately. Thus, in Meyers I and II, the Board, declining to find concertedness from the object of the action taken, overruled its decision in Alleluia Cushion, 221 NLRB 999 (1975). In that decision, the Board had announced that it would presume that a lone employee's (Henley's) filing of a complaint with the California OSHA office constituted concerted activity because “it [was] clear from the nature and extent of the safety complaints registered that Henley's object encompassed the well-being of his fellow employees.” Alleluia Cushion, 221 NLRB at 1000-1001 (emphasis added). By her arguments here, our dissenting colleague now asserts, as it were, the “flip side” of the Alleluia Cushion analysis: that where activity is found to be concerted, the purpose of that activity must, in effect, be presumed to be for mutual aid or protection. We reject this argument as contrary to Meyers I and II. As explained above, Fabozzi's purpose in filing the charge was to benefit herself alone. The mere fact that Fabozzi subsequently enlisted Garcia to assist her with her complaint does not somehow expand the scope of the original complaint beyond its intended purpose of benefiting Fabozzi alone to one of benefiting others for mutual aid or protection. Nothing in Eastex suggests otherwise.16 In sum, our colleague suggests that, when one employee asks for the assistance of another, there is always mutual aid or protection, for there may come a day when the second employee asks for help. In our view, that approach obliterates the distinction between concert and mutual aid or protection. That is inconsistent with the principle that the two elements are separate and distinct. Our dissenting colleague overstates our position and then seeks to demolish (through statistics) the straw man that she had created. In fact, we do not “treat sexual harassment at work as merely an individual concern.” Such conduct can be, and often is, of concern to many persons in the workplace. Where the victims and their supporters protest that conduct, the protest can fall within the ambit of Section 7. However, where one employee is the alleged victim, that lone employee's protest is not concerted. And, even if the victim seeks support from another employee, and that seeking of support is concerted activity, the “mutual aid or protection” element may be missing. The bare possibility that the second employee *304 may one day suffer similar treatment, and may herself seek help, is far too speculative a basis on which to rest a finding of mutual aid or protection.17 We recognize that, in IBM Corp., 341 NLRB 1288 (2004), the Board said that the activity there was protected. The activity was one employee asking his employer for the assistance of another employee during an investigatory interview of the former, which interview could potentially lead to discipline. A Board majority concluded that the seeking of assistance was protected, although a different Board majority held that the employer did not have to grant the request. **5 We believe that IBM is distinguishable. In an employment context, discipline and the threat thereof are commonplace occurrences. Thus, employees have an interest in a regimen under which any one employee, threatened with discipline, can request the assistance of the another.18 There is a real possibility that, in the future, other employees will be subjected to an investigatory interview and will seek assistance at that time. By contrast, the claim here (before a State agency) was a private one to remedy alleged sexual harassment. Such claims are not a common everyday occurrence. Although there is a theoretical possibility that the solicited person may herself file a claim or suit some day and ask for assistance at that time, that possibility is far too remote and tenuous to support a conclusion that the request is for mutual aid or protection. The dissent argues, and we agree, that any workplace grievance can be the basis for Section 7 protection. However, our point is simply that some types of workplace matters are far more likely than others to involve mutual aid or protection. As noted above, it is a common practice for employers to investigate alleged employee misconduct at the workplace, and it is not uncommon for employees to seek the protection of each other during such investigations. By contrast, the filing of private lawsuits or charges outside the workplace is less common, and there is no showing that the plaintiffs in such cases seek mutual aid or protection in the prosecution of such lawsuits or charges.19 Finally, we do not think that Leon's comment to Garcia established mutual aid or protection. There are far too many assumptions that one has to make to support such a claim. For example, we would have to assume that Garcia was in fact the victim of sexual harassment and that the Fabozzi lawsuit would offer her protection. With particular respect to the latter point, there is nothing to suggest that Fabozzi's lawsuit would give any relief to Garcia. Accordingly, we find that the complaint was properly dismissed.
538 F.2d 607 United States Court of Appeals, Fourth Circuit. COMMUNITY HOSPITAL OF ROANOKE VALLEY, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 75-1971. Argued April 5, 1976.Decided July 1, 1976. CRAVEN, Circuit Judge: Community Hospital1 appeals the ruling of the National Labor Relations Board that it violated Section 8(a)(1) of the NLRA2 by interfering with its employees' exercise of their Section 7 rights. The Board found that the Hospital violated the rights of Nurse Irene Weinman by issuing a warning notice to her on September 26, 1974, in connection with comments she made concerning the Hospital on a television interview program. Nurse Helen Fields' rights were found to be violated by the Hospital's removal of her name from an “on-call” list3 on October 10, 1974, and the refusal of the Hospital on November 29, 1974, to reemploy her on a full-time basis. The Board4 found that these actions were taken as to both women because of their “bringing to public attention their efforts to organize for the improvement of their wages and working conditions through collective bargaining, which management was attempting to channel and control.” App. 25(a). It ordered that the warning notice issued to Weinman be rescinded and removed from hospital files. The Board further ordered that Fields' name be restored to the on-call list; that the Hospital offer her immediate full-time employment as a staff nurse or an equivalent position; and that it make her whole for any loss of earnings suffered as a result of the Hospital's unlawful conduct. On the Board's cross-application, we order enforcement. Directory: journals journals -> El Niño-Southern Oscillation and the seasonal predictability of tropical cyclones journals -> Guide to jmir online Interface (ppt to come) for help with using our online system journals -> Conceptualisation of Rights and Meta-Rule of Law for the Web of Data journals -> The End of Men is Not True: What is not and what might be on the road toward gender equality journals -> Object-Agent Oriented Programming journals -> And we need your turnover journals -> Anti-money laundering regulations and the effective use of mobile money in south africa – part 1 journals -> The effect of positive end-expiratory pressure on inflammatory cytokines during laparoscopic cholecystectomy: a randomised controlled trial journals -> Implicit Theories Running head: implicit theories Download 0.91 Mb. Share with your friends:
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