Intermountain Rural Elec. Ass'n v. N.L.R.B., 81-1228

• Decision Date: 16 April 1984
• Docket Number: No. 81-1228,81-1228
• Citation: 732 F.2d 754
• Parties: 116 L.R.R.M. (BNA) 2068, 100 Lab.Cas. P 10,954 INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 754

732 F.2d 754

116 L.R.R.M. (BNA) 2068, 100 Lab.Cas. P 10,954

INTERMOUNTAIN RURAL ELECTRIC ASSOCIATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1228.

United States Court of Appeals Tenth Circuit.

April 16, 1984.

Martin Semple, Denver, Colo. (Good & Stettner, P.C., Denver, Colo., were on brief), for petitioner.

David Marshall, Atty., N.L.R.B., Washington, D.C. (Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Miriam Szapiro, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., were on brief), for respondent.

Before HOLLOWAY, McWILLIAMS and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

Intermountain Rural Electric Association (employer) appeals from a decision by the National Labor Relations Board (Board) finding that it had committed numerous unfair labor practices. This case was tried before an administrative law judge (ALJ). The employer was found to have violated Sec. 8(a)(1), 8(a)(3) and 8(a)(5) of the National Labor Relations Act. 29 U.S.C. Sec. 158(a). The Board affirmed the ALJ's decision, 253 N.L.R.B. 1153, III R. 1290. The employer petitioned for review and the Board cross-petitioned for enforcement.

I

The factual setting

A. Unchallenged unfair labor practices

The Board affirmed the ALJ's rulings, findings and conclusions, and adopted his recommended order. III R. 1290. The ALJ discussed the employer's unfair labor practices, and we only summarily outline those that the employer does not challenge. The so-called outside or production and maintenance employees had a collective bargaining agreement with the employer. A dispute arose concerning the feasibility of the pension plan agreed on in the collective bargaining agreement. The ALJ found that the employer violated Sec. 8(a)(1) and (5) by unilaterally altering a mandatory bargaining subject during the term of a bargaining agreement, III R. 1263, ¹ and by failing to comply with the request for documents relevant to the duty of the International Brotherhood of Electrical Workers, Local No. 111 (Union) to represent its members. III R. 1264. ² During the imbroglio surrounding the pension plan, a campaign to organize the employer's so-called inside or clerical employees began. For its actions during this campaign, the employer was found to have violated Sec. 8(a)(1) by unlawfully questioning and intimidating one of its employees, and by permitting memoranda to reach employees which threatened to obstruct the exercise of their rights under the Act. III R. 12. ³ The employer has not petitioned for review of these findings. Opening Brief of Petitioner at 12 n. 2. Accordingly, they are entitled to summary enforcement. Retail Clerks Union Local 1401 v. NLRB, 463 F.2d 316, 320 (D.C.Cir.1972); Riverside Press, Inc. v. NLRB, 415 F.2d 281, 284-85 (5th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94 (1970).

B. Challenged unfair labor practices

The employer has challenged the findings that it violated Sec. 8(a)(1) and (3) when it suspended and subsequently discharged Katherine Tate (Tate), and reprimanded Kathleen Gunton (Gunton). Both Tate and Gunton were active in organizing the inside or office employees. The catalyst for the employer's disciplinary action against Tate and Gunton was an incident on July 5, 1979. The ALJ found the following facts.

On July 5, irate utility customers, whose power had been cut off, left a bag of spoiled food in the reception area. After the customers departed, there was much merriment surrounding the incident. Mr. Cronk, the employer's operating manager, had attempted to assuage the irascible customers' mood. Cronk was "seemingly a willing participant in the fun." III R. 1273. The spoiled groceries were near Tate who was operating the switchboard. When Cronk began to leave, Tate asked that he take the garbage with him; she said that if he did not she would put it on his desk. Cronk refused. When Tate said that she did not sit with trash, Cronk retorted "[g]o ahead and have a wildcat walkout." III R. 1273; see also I R. 122 (testimony of Tate). Upon hearing this, Tate picked up her belongings and began to leave the area. Before she had gone far, a call came through the switchboard. She returned to answer it, and finished out her shift. I R. 122 (testimony of Tate); I R. 555 (testimony of Cronk).

Cronk returned to his office and "after a few minutes of contemplation" became upset with Tate. I R. 122 (testimony of Tate); I R. 555 (testimony of Cronk). He reported her action to Mr. Deans--Tate's immediate supervisor and the Director of Electrical Engineering. Deans told Tate that she might be suspended and to see him after work. Thereupon Tate asked Gunton to be present (which the employer strenuously denies) as a witness when she spoke with Deans.

After work, Gunton went to Tate's office work area. Two other clerical employees were there at the time. I R. 127, 131-32, 234. When Deans told Tate that she probably would be suspended, Tate looked out the door to Gunton. I R. 234. In response, Gunton entered Deans' office. Deans told Gunton to "get the hell out," and when she started to say something, he stood up and told her to get out. Gunton promptly left. For this incident she was given a written reprimand which went into her personnel file.

Tate was suspended for three days for her actions during the spoiled food incident. Upon her return, she showed Deans a note that she had from her doctor that "strongly" recommended that she be given a week off and that the company should not "underestimate the importance of this." Deans consulted Mr. Lewandowski, the employer's chief operating officer about Tate's requested leave of absence. Lewandowski phoned the clinic and learned that a doctor with the same name that appeared at the end of the letter was employed there. Lewandowski denied the request without any inquiry into the seriousness of Tate's health problem. I R. 444. ⁴

When Tate learned that her request for leave had been denied, she said that she had to follow her doctor's orders. Deans told Tate that if she were not at work she would probably be fired. Tate said she would return in a week and left. Tate was fired when she failed to appear for work.

As to Gunton the ALJ concluded, and the Board agreed, that by entering Deans' office on Tate's behalf and proposing that an attempt be made to reach Cronk for clarification of Tate's job status, Gunton had joined with Tate "for the purpose of ... mutual aid and protection," which was protected by Sec. 7 of the Act, so that the ensuing reprimand of Gunton violated Sec. 8(a)(1). Further, it was considered that the reprimand of Gunton, while triggered by Gunton's activities in aid of Tate, in fact was in recrimination for her union sympathies and activities, thereby violating Sec. 8(a)(3) in addition to Sec. 8(a)(1).

As to Tate the ALJ concluded, and the Board agreed, that the 3-day suspension and subsequent discharge of Tate in July 1979 were prompted by Tate's union sympathies and activities, in violation of Sec. 8(a)(3) and (1); that these conclusions were drawn because of common knowledge among management that Tate was prominently prounion; that the employer had been intent on building a case against Tate; that the spoiled-food incident was seized on as a convenient pretext for punishing Tate for her union involvement; that the reasons for denying her requested leave were unconvincing; and that the July 5, 1979 suspension and July 13 discharge of Tate were in violation of Sec. 8(a)(3) and (1). III R. 1278-79.

In addition the ALJ noted that despite recurrent determinations to the contrary in the representation case, the employer persisted in contending Tate was a confidential employee and, as such, was outside the protection of the Act. No findings were made on the factual nature of Tate's status as secretary to Deans, or whether Tate's position was such that she was a confidential employee assisting and acting in a confidential capacity to those handling management policies in the field of labor relations--thus having a "labor-nexus" under Board decisions. See NLRB v. Hendricks County Rural Electric Corp., 454 U.S. 170, 173, 102 S.Ct. 216, 220, 70 L.Ed.2d 323 (1981). Instead of making such findings, the employer's confidential employee defense as to Tate's charges was rejected by the ALJ and the Board by noting that the claim that confidential employees do not enjoy the protection of the Act is inconsistent with current Board law.

On the basis of the findings and conclusions made the Board ordered remedial relief for Gunton and Tate, as well as on the unchallenged violations. In this review proceeding the employer argues that (1) the Board erred by refusing to allow the employer to relitigate the question of Tate's status as a confidential employee and, on review of the record, the evidence supports a finding that Tate was such an employee; (2) the Board's finding that the employer violated the Act by dismissing Tate for taking an unauthorized leave of absence is not supported by the record; (3) the Board applied an incorrect standard in determining that Tate's discharge violated the Act, not applying the Wright Line test; (4) the Board erred in finding that Tate's suspension for leaving her work station violated the Act; and (5) the Board erred in finding that Gunton's interruption of a confidential interview was protected concerted activity.

II

Tate's suspension and discharge

The ALJ determined that, in violation of Sec. 8(a)(1) and (3), the employer suspended and subsequently discharged Tate because of her union sympathies and activities. III R. 1278. We must uphold findings of the Board if they are supported by substantial evidence, when viewed in the light that the record in its entirety furnishes. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct....