Jolliff v. N.L.R.B.
| Decision Date | 22 January 2008 |
| Docket Number | No. 06-2434.,06-2434. |
| Citation | 513 F.3d 600 |
| Parties | John JOLLIFF; Steven Daniels, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, TNT Logistics of North America, Inc., Respondent-Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Stacy Ann Hinners, Law Office of Marc Mezibov, Cincinnati, Ohio, for Petitioners. Jason Walta, National Labor Relations Board, Washington, D.C., for Respondent. Rhonda Wilcox, Fisher & Phillips, Atlanta, Georgia, for Intervenor. ON BRIEF: Stacy Ann Hinners, Christian A. Jenkins, Law Office of Marc Mezibov, Cincinnati, Ohio, for Petitioners. Jason Walta, Linda Dreeben, Meredith L. Jason, National Labor Relations Board, Washington, D.C., for Respondent. James M. Walters, Fisher & Phillips, Atlanta, Georgia, for Intervenor.
Before BOGGS, Chief Judge; GIBBONS, Circuit Judge; and BELL, Chief District Judge.*
John Jolliff and Steven Daniels petition for review of the Order of the National Labor Relations Board ("Board") denying their claims arising under § 8(a)(1) of the National Labor Relations Act ("Act"), codified at 29 U.S.C. § 158(a)(1). Administrative Law Judge ("ALF) William G. Kocol originally found in the employees' favor, holding that the employees had been terminated for engaging in an activity—writing a letter complaining about working conditions—that was protected under the Act. On review, the Board held that the employees' activities were stripped of the Act's protection because the letter contained a false statement made with actual malice. Jolliff and Daniels now petition for review. We grant their petition on the basis that the Board's decision was not supported by substantial evidence and remand the case to the Board.
John Jolliff, Steven Daniels, and Emerson Young were truck drivers for TNT Logistics of North America, Inc. ("TNT") at TNT's division at East Liberty, Ohio, until their termination on August 22, 2002. Young had worked as a driver since 1990; during his term of employment he received numerous awards for safe driving and professionalism. Prior to his termination, Young had never been disciplined. Daniels had been a TNT employee since 1994 and Jolliff since 1995; both of these drivers also had received safe driving and performance awards.
In January 2002, Young contacted the United Auto Workers ("UAW") about organizing a union at TNT. UAW officials advised Young to ready those workers who favored a union, but to wait until an organizing campaign at Honda, one of TNT's largest customers, became active. In May 2002, dock workers complained to Young about their working conditions and asked to go forward in the process of obtaining union representation. They also suggested sending a letter to TNT's higher management describing the conditions with which they took issue. Young testified that eighty to ninety employees, about two-thirds of the workers, discussed sending the letter. Because Young had previously contacted the Union, the group agreed to give him their grievances on paper and he would "pick[ ] from that and put the letter together." Jolliff and Daniels were among the group of workers expressing complaints. Because the workers were afraid of retaliation, the group decided not to sign the letter as individuals.
On August 12, 2002, Young sent the letter to TNT's corporate management in Jacksonville, Florida. He also sent a copy to Honda. The letter, which contains certain grammatical, spelling, and formatting mistakes and irregularities, proceeds as follows:
This letter is being sent to protest the management & managers at contracts. 006 & 001. We hope that our management at our home office will get an idea of how we the dock workers and truck drivers at these contracts are being treated & do something about it.
Some of the things listed in this letter are just some of the many wrong things we feel are mistreatment & discrimination against our work force here by managers Robert Wheeler and Jeff Basinger.
These are the poorest managers we have had in the history of these two contracts since our beginning in 1989.
Mr. Wheeler is hardly ever here to listen to our problems when we need advise [sic] on problem solving. He has lied to us on various occasions and we do not approve of this and many of his methods. We feel he should be a better leader and manager.
We have lost a lot of business under Mr. Wheeler's management. He has done some good things for us, but the loss of business and leadership looms big. Mr. Basinger came here with what appears to be his own personal gain for himself. He put up a wall to most people—mainly the drivers—under his contract. You do as I say or else.
Well it may be else as most people or drivers don't care for him. He believes he put. TNT on the map here, well we know better.
We the dock workers & drivers of 006 & 001 are tired of being treated the way these 2 managers are doing us. We want to have a good & decent place to work and have a good relationship with our management here.
We have a list of some of the things that both managers have imposed on both dock workers and drivers and hope you will step in and help us to have harmony again.
We are given points for going to the doctors and or dentist even if we have a written excuse. We thought the company TNT wanted us to take care of our health. Lots of workers are showing, up sick & then going home and getting 1/2 points so they don't get fired. Drivers are driving sick & tired and this is not safe or healthy. People are not taking care of or not given the time to see a dentist, this is totally uncalled for from managers. We bet you people don't have this problem.
People are given points when they attend family funerals. This is about as low as any company can get. This is dirty period. Any funeral outside of a family is another story—you should or can get a point for that, but not inside your own family.
Some drivers are being asked to fix their log books to make extra runs. These drivers are being asked by dispatchers and management to do these runs and either fix their log books or turn their heads on it.
Mr. John Cox once said he would not go to jail for fixing log books for anyone. Well Mr. Cox pack your suitcase, it has and is presently being done at 001.
Our present insurance is the worst we have ever had and we feel that TNT needs to make a change in that as soon as they can—it is lousy.
These are just a few of the nasty things that are going on at these contracts. We hope TNT will make management changes at these contracts.
We the dock workers & drivers feel this needs to happen and the point system modified for health, sickness, & funerals. We realize that there are some bad apples in every group—but don't punish good workers or their families, and don't let these managers dictate their lives. TNT says they are family orientedprove it.
We just held the drivers re-bid meeting on the new routes and this is what happened, to not one but several of the drivers. When drivers went to bid on our new runs. Mr. Basinger told these drivers these runs were already taken and he had other runs for them.
One driver asked who took the run he wanted and Mr. Basinger did not want to tell him who took it. But then asked again and Mr. Basinger told him who got it and it turned out to be one of his friends from a previous contract.
Mr. Basinger finally said he was entitled to take the route since he had seniority over his friend.
He in turn did get the route.
That is dirty of Mr. Basinger to keep trying to put his friends & buddies in our`jobs. We will not stand for this crap and you can count on that!!
One last thing on Mr. Basinger, a driver accidentally bumped into him in the office & Mr. Basinger told the driver to excuse himself and physically shoved the driver and hurt his shoulder & is having trouble with it, We all agreed that the driver should contact his attorney about this matter and take certain action against Mr. Basinger.
No one should have to be treated like this. This man is going to get hurt if he shoves the wrong person and it will be no ones [sic] fault but his own if he gets hurt.
We are 90% of the workers at these two contracts. We are together and have seeked [sic] outside help. We hope we can`prevent bringing in or having to be represented by an outside organization. But we will have no choice if this treatment continues.
Remove managers, Wheeler & Basinger. It is not all about money, as it is working conditions such as no heat on the dock in the winters. You put up a new office in Florida—we bet it is heated and cooled both.
We the dock workers and drivers hope you will step in and resolve this matter with the management problem at 006 & 001 East Liberty, Ohio.
We are sending copies of this letter to the following parties:
Dave Kulik, President—TNT
Jeff Hurley, V President—TNT
Copies and information to 2 television stations in Columbus Ohio to be aired at a later date if TNT Headquarters does not resolve this situation.
Because no employee wanted to sign individually, the letter indicated that it was sent from the dock workers and drivers at the East Liberty facility.
On August 21, 2002, the District Manager in charge of TNT's Honda operations, Robert Wheeler, called Young into his office. Wheeler asked Young if he had any problems with management; Young replied affirmatively and discussed his concerns about the company's recent route assignments and the disciplinary points assessed against employees. Wheeler told Young that there was nothing he could do about those issues because he had received the orders from "corporate."
The next day, Wheeler summoned Jolliff to his office. Kevin Schafter, a supervisor, was also present. Wheeler stated that a letter had been sent to corporate headquarters and to Honda. Wheeler...
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