Henning & Cheadle, Inc. v. N.L.R.B., s. 74-1756

• Decision Date: 16 September 1975
• Docket Number: Nos. 74-1756,74-1891,s. 74-1756
• Citation: 522 F.2d 1050
• Parties: 90 L.R.R.M. (BNA) 2381, 30 A.L.R.Fed. 618, 77 Lab.Cas. P 11,081 HENNING & CHEADLE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1050

522 F.2d 1050

90 L.R.R.M. (BNA) 2381, 30 A.L.R.Fed. 618,

77 Lab.Cas. P 11,081

HENNING & CHEADLE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 74-1756, 74-1891.

United States Court of Appeals, Seventh Circuit.

Argued May 22, 1975.

Decided Sept. 16, 1975.

Richard J. Walsh, Chicago, Ill., for petitioner.

Elliott Moore, Deputy Assoc. Gen. Counsel, Marjorie S. Gofreed, William F. Wachter, Attys., N.L.R.B., Washington, D.C., for respondent.

Before CUMMINGS, TONE and BAUER, Circuit Judges.

PER CURIAM.

This case arises on the petition of Henning & Cheadle, Inc. ("the Company") to set aside an order of the National Labor Relations Board issued on August 8, 1974. The Board has filed a cross-petition requesting enforcement of the order. Its decision and order, as well as that of the Administrative Law Judge, are reported at 212 NLRB No. 109.

The Board and the Administrative Law Judge found that the Company discharged employees Pat Barac and Pasquala Sosa in the mistaken belief that their November 14 and 15, 1973, absence from work was the result of a concerted work stoppage designed to protest "Respondent's (the Company's) supervisory policies." The Board found that if such a work stoppage had occurred, it would have been protected by Section 7 of the National Labor Relations Act (29 U.S.C. § 157) because the identity and capability of the supervisor had a direct impact on those employees' job interests. The Board concluded that the Company violated Section 8(a)(1) of the Act (29 U.S.C. § 158(a)(1)) by discharging the two employees because of the firing supervisor's mistaken belief as to the reasons for the employees' absence from work. Our task is to determine the propriety of the Board's findings and its resultant conclusion that the Company had committed an unfair labor practice.

The findings of the Administrative Law Judge were affirmed by a majority of the three member panel of the Board. The following summary of the evidence is drawn from his and the Board's findings:

On October 1, 1973, Henry Tanner was appointed Data Control Manager of the Company's 10000 Greenfield Street establishment in Detroit, Michigan. ¹ His responsibility included supervision of the data entry department involved here. That department employed about 18 full-time and three or four part-time office machine operators on two overlapping shifts between 8:00 a. m. and midnight. The department was then supervised by Valerie Grant, and cutoffs on its work occurred usually on the 14th and 30th of each month. The department had a deadline of noon the following day for completing its work. However, the department was frequently unable to meet those deadlines.

On Thursday, October 11, Tanner asked Grant whether her department would be able to meet the Saturday, October 13, deadline and was assured that the work was on schedule. However, the work was not completed until Monday, October 15. Apparently Tanner's criticism of this failure and of Grant's supervisory policies triggered her resignation on Monday afternoon, October 15, effective November 2.

On the afternoon of October 15, Grant told the employees in her department that she was resigning because of Tanner's attitude and because the Company had not acceded to her request for better wages and working conditions for the employees in her department.

On the morning of October 16, the employees in this department discussed the possibility of a protest walkout because of Grant's resignation and general conditions in the department. There was not enough support for a walkout, but the employees decided to seek a meeting with Tanner. At the meeting, he told them that he and Grant had discussed her production shortcomings and her failure to meet the October 13th deadline. He also told them that he had heard the department was not operating efficiently under Grant, that the employees did not keep regular hours, and that Grant was "too easy on them." The employees defended Grant and asked Tanner to persuade her to reconsider her resignation. However, he did not persuade her to stay.

On November 1st, Tanner hired Ginger Hammond as the new supervisor of this department. Hammond tightened up disciplinary procedures and told the employees they must meet the bi-monthly deadlines.

The first deadline for the department after Hammond's employment was November 15. In order to meet that deadline, Hammond requested volunteers to work overtime on November 14. One of the three volunteers, Pat Barac, offered to work four extra hours until midnight.

During her November 14th supper break, Barac attended a party for former supervisor Grant at a nearby cocktail lounge. Pasquala Sosa was also present. They and several other employees had too much to drink. Sosa indicated that it was unlikely she would be able to report to work the following day. Barac and two other employees each bet Sosa two dollars that Sosa would show up the next morning, despite her condition at that moment. Barac did not return to work that night.

On November 15th, Sosa called in sick and Barac, who was not scheduled to arrive at work until 12:00 n., called in to find out whether she had won her bet. Later that morning, Barac also called in sick and was told by Hammond that she was fired. Hammond testified that she told Barac she was aware of the prior evening's bet and she knew Barac was not sick and that Barac was aware of the November 15th deadline. When Sosa called in sick again the following morning she was terminated by Hammond for the same reasons. ² When Hammond discussed the discharges with Tanner, she expressed the view that the employees were trying to get her to quit.

The Board held that whether the supposed concerted action of Barac and Sosa was considered as harassment by Hammond was unimportant because the evidence indicated that she also considered it a protest directed at her supervisory policies. Citing Dobbs Houses, Inc., 135 NLRB 885 (1962), the Board majority reiterated the view there expressed that concerted action by employees to protest an employer's selection or termination of a supervisory employee is protected action under the Act where "the identity and capability of the supervisor involved has a direct impact on the employees' own job interests" (135 NLRB at 888).

The Board also held that although the Company would have been entitled to dismiss Barac and Sosa for failing to report, respectively, on the evening of November 14 and on November 15, Hammond's decision to terminate them was caused by her belief that concerted activity had occurred. The Board correctly noted that the Act is violated if an employer acts against the employees in the belief that they have engaged in protected activities, whether or not they actually did so. See National Labor Relations Board v. Link-Belt Corp., 311 U.S. 584, 589-590, 61 S.Ct. 358, 85 L.Ed. 368; National Labor Relations Board v. Ritchie Manufacturing Co., 354 F.2d 90, 98-99 (8th Cir. 1965). If, however, the Company acts upon erroneous information that, if true, would justify its conduct, no violation of the Act occurs. See National Labor Relations Board v. Charles J. Kaye, 272 F.2d 112, 114 (7th Cir. 1959). The Board majority concluded as follows:

"We conclude, then, that employees Barac and Sosa were terminated because of Hammond's erroneous belief that they had engaged in a concerted work stoppage in protest over Respondent's supervisory policies, that the identity and capability of their supervisor had a direct impact on their conditions, and that such a work stoppage, had it actually occurred, would have constituted protected activity under Section 7 of the Act."

Member Kennedy dissented on the ground that the General Counsel of the Board had not established by substantial evidence that "Hammond Believed that the employees were engaged in protected concerted activity by not reporting back to work on November 14 and by not reporting for work on November 15, and that But for that belief the employees would not have been terminated."

Member Kennedy noted that in Hammond's statements about the firing of Barac and Sosa, Hammond had told them she knew they were not sick and that they were taking time off to keep the department from meeting its deadlines and to harass her to force her to quit. Member Kennedy closed his dissent by stating:

"It seems to me unrealistic speculation to say, as the majority does, in effect, that but for Respondent's belief that the girls were acting in concert to protest Respondent's supervisory policies they would not have been discharged for getting drunk and not reporting to work. I think most employers confronted with a similar situation would fire the employees. Before I would be prepared to affirm the majority's finding, I would have to see some evidence that Respondent previously tolerated such misconduct by its employees. I know of no such evidence in this case."

The actual activity of the employees was neither concerted nor done for the purpose of mutual aid or protection; thus it was not protected activity and under the Act they could be lawfully discharged for their conduct. ³ As both parties agree, the key question is what did supervisor Hammond believe about the purpose of the employees' conduct? The Company concedes that Hammond thought, albeit erroneously, that the employees had coordinated their activity, so that she thought their failure to appear at work at the designated times was concerted activity within the meaning of the Act. The question therefore becomes whether the admittedly concerted activity, had it actually occurred as Hammond perceived, would have been protected under the Act.

The parties disagree on the exact nature of Hammond's crucial beliefs. Assuming, as the Board found, that Hammond believed that the employees' actions were in protest of the Company's supervisory policies in substituting supervisors and the accompanying changes in the department and that...