Earle Industries, Inc. v. N.L.R.B.
| Decision Date | 31 January 1996 |
| Docket Number | CL,AFL-CI,Nos. 94-3843,I,95-1033,s. 94-3843 |
| Parties | 151 L.R.R.M. (BNA) 2300, 64 USLW 2488, 131 Lab.Cas. P 11,489 EARLE INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Southwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union,ntervenor. EARLE INDUSTRIES, INC., Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner, Southwest Regional Joint Board, Amalgamated Clothing and Textile Workers Union,ntervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. Gregory Grisham, Memphis, TN, argued (Jeff Weintraub and Elizabeth Holloway, Memphis, TN, on the brief), for petitioner.
David A. Fleischer, NLRB, Washington, DC, argued for respondent.
Rick W. Skelton, Little Rock, AR, argued (Scott C. Trotter, on the brief), for intervenor Amalgamated Clothing and Textile Workers Union.
Before WOLLMAN, FLOYD R. GIBSON and JOHN R. GIBSON, Circuit Judges.
Earle Industries, Inc. petitions for review of a National Labor Relations Board order finding that Earle Industries committed an unfair labor practice by firing Earley Mae Wallace. The administrative law judge found that Earle Industries fired Wallace for insubordination and dishonesty. However, the Board ordered Earle Industries to reinstate Wallace with backpay, despite the Board's adoption of the ALJ's credibility findings. The Board cross-petitions for enforcement. We grant the petition for review and deny enforcement of the order.
At the time she was fired, Wallace had worked for Earle Industries for sixteen years. She had advocated unionization of the company's workers for many years. The company had fired her twice, first in 1977 and then in 1978. It reinstated her the first time in settlement of an unfair labor practice charge, and the second time as a result of a National Labor Relations Board Order. See Earle Indus. Inc., 260 N.L.R.B. 1128, 1982 WL 24347 (1982).
On October 1, 1991, in the midst of a union 1 organizing campaign at Earle Industries, the Reverend Jesse Jackson came to the plant to make a lunchtime speech in support of the union. 2 A television news crew captured the speech and the ensuing events on videotape. The tape is in the record before us, and was the basis for much of the detail in the ALJ's findings.
Jackson delivered his speech from the back of a flatbed truck driven onto company property by a union representative. Local police arrived on the scene and informed the union organizers that they were trespassing on company property and asked them to leave. The organizers did not leave voluntarily, so police arrested two union representatives and put them in the back of a police car. Police also drove the flatbed truck off company property.
Jackson then learned that the two union men were under arrest and went to visit them at the police car, assuring them that he would get them released. The videotape followed Jackson as he walked toward the plant, surrounded by a crowd of admirers. Jackson and the crowd went to the employees' plant entrance. Above the door was a sign saying, "Employees Only."
After Jackson entered the plant, Wallace walked to the front of the entourage and led the way toward the office. The personnel manager, Gary Smith, stepped up to bar Jackson's way. Smith told Jackson he was trespassing and asked Jackson to leave the plant and return by the visitor's entrance in the front of the plant. As this conversation was taking place, Wallace urged Jackson to walk past Smith, saying "Front door locked, come on." Smith said to her, "No ma'am." Wallace repeated her statement, and said to Jackson, "Right over there," gesturing toward the office. Jackson calmly told Smith he would go back out to the visitor's entrance if Smith would go with him, which Smith refused to do. Jackson and Smith repeated this exchange several times. Unable to turn Jackson back, Smith gave up and retreated to the office, as the crowd cheered.
Jackson, surrounded by the crowd and news cameras, walked on through the plant to vice president Peter Felsenthal's office. Jackson left the plant after speaking with police inside, but Felsenthal did agree to meet with Jackson. Jackson then entered the plant through the visitor's entrance.
Felsenthal obtained a copy of the videotape of Jackson's confrontation with Smith from the television station that recorded it. After viewing the tape and seeing Wallace's prominent role in the Smith-Jackson confrontation, Felsenthal decided to call Wallace in for questioning. On October 7, Felsenthal interviewed Wallace, with Smith and supervisor Louise Eskridge present. Unbeknownst to Wallace, Felsenthal audiotaped the meeting. Wallace at first refused to answer questions and demanded an attorney. Felsenthal offered to let Wallace have a fellow worker with her in the interview, but Wallace still repeatedly declined to answer his questions. After Wallace said there was no point in questioning her, since Felsenthal had seen the tape of the incident, Felsenthal said: In fact, Felsenthal had already seen the uncut news station video, as well as the excerpts that appeared on the news. The interview continued until Wallace finally began making statements. Wallace eventually told Felsenthal that she "did not indicate to anybody that the front door was locked" and did not "motion or encourage" Jackson in his progress through the plant.
Earle Industries first suspended, then fired Wallace, citing her conduct on October 1 and her failure to cooperate with the company investigation on October 7.
The Union filed an unfair labor practice charge against Earle Industries, alleging that, in firing Wallace, the company violated sections 8(a)(1) and (3) of the National Labor Relations Act. 3 Wallace filed an affidavit in which she described the October 1 incident. In the affidavit Wallace said that when Smith stopped Jackson she had said, "[L]et's clock," and motioned to the other workers to go to the time clock. She explained:
During the time that Jackson was in the plant talking to Smith, I didn't have anything to do with what Smith and Jackson were talking about--I was telling the girls to "come on" to the clock--and I was motioning them to come--kind of whispering "don't forget to clock" at the same time--they were talking. I can't remember saying anything about a door being locked while Jackson was coming down through the aisle in the plant.... I don't have anything to do with the front door at all--the front door is usually locked.... I was saying "clock" not "lock."
After a hearing the administrative law judge recommended that the Union's complaint be dismissed. The ALJ held that Wallace forfeited the protection of the NLRA by her conduct. Specifically, the ALJ found that Wallace intentionally lied during Smith's confrontation with Jackson:
While it might be argued that the first time Wallace made this statement ["front door locked"] it was spontaneous, I do not believe that to be the case. There is no evidence of record that the front door was locked. It is normally left unlocked at this time of day. And there is evidence that it was not locked on October 1. When Wallace said that it was locked the first time it was a misstatement.... Wallace was a totally unreliable witness. She lied before in a Board proceeding. She lied in her affidavit to the Board in this proceeding. And she lied while testifying herein. Wallace wanted Jackson to continue walking through the plant notwithstanding the fact that it would have been obvious to a reasonable person that Gary Smith, Respondent's personnel manager, by what he said and by his body language, wanted Jackson to go back out the employee entrance.... Jackson, relying on what Wallace was saying, apparently believed he would be locked out of the plant if they locked the employee entrance behind him.... But for Wallace's statements, I believe that Jackson would have gone, as he subsequently did, to the front door. Wallace's first statement that the front door was locked was not a spontaneous or impulsive statement. Wallace impressed me as being a very calculating individual. This was a calculated statement. As she subsequently demonstrated, no matter what Smith said or did Wallace wanted Jackson to proceed through the plant and this was her way of achieving that.
Earle Indus., Inc., 315 N.L.R.B. 310, 347-48, 1994 WL 582908 (1994). The ALJ made specific findings that Earle Industries fired Wallace because of her insubordination and dishonesty, rather than because of her union activity:
Was Wallace terminated because she was insubordinate and she lied about it or was she terminated because of her union activity? In my opinion it is the former.... I believe that Respondent has shown that it would have terminated Wallace absent her union activity and any concerted protected activity she may have engaged in.
Despite the ALJ's recommendation, the Board found Earle Industries had committed an unfair labor practice, issued a cease and desist order, and ordered Earle Industries to reinstate Wallace with backpay. Id. at 315-16.
Significantly, the Board adopted the ALJ's credibility determinations. Id. at 310 n. 1. The Board did not disagree with the ALJ that Wallace was insubordinate and dishonest. Id. at 312 n. 11, 313-35. Rather, the Board used a different legal analysis than the ALJ. The ALJ held that Wallace had forfeited the protection of section 7 of the NLRA 4 by her insubordination and dishonesty. Id. at 348. The ALJ then used the Wright Line 5 test for mixed motive firings. Id. at 349. Under Wright Line, if an employer is accused of firing an employee because of the employee's union activities, the General Counsel must show that the employer was motivated by anti-union animus. The burden is then on the employer, which can exonerate itself by...
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