N.L.R.B. v. Prescott Indus. Products Co.

• Decision Date: 16 July 1974
• Docket Number: No. 73-1777,73-1777
• Citation: 500 F.2d 6
• Parties: 86 L.R.R.M. (BNA) 2963, 74 Lab.Cas. P 10,190 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESCOTT INDUSTRIAL PRODUCTS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 6

500 F.2d 6

86 L.R.R.M. (BNA) 2963, 74 Lab.Cas. P 10,190

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PRESCOTT INDUSTRIAL PRODUCTS COMPANY, Respondent.

No. 73-1777.

United States Court of Appeals, Eighth Circuit.

Submitted May 13, 1974.

Decided July 16, 1974.

Joseph E. Mayer, Atty., N.L.R.B. Washington, D.C., for petitioner.

Walter B. Connolly, Jr., Asst. Counsel, Firestone Tire & Rubber Co., Akron, Ohio, for respondent.

Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, ^* Senior District Judge.

TALBOT SMITH, Senior District Judge.

The National Labor Relations Board (the Board) seeks enforcement of its order ¹ against Prescott Industrial Products Company (the Company) for violations of 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1) (1970), ² which it found the Company had committed by discharging L. H. Berry and by coercively interrogating Johnny Sorrells. The Company defended upon the ground that Berry was discharged solely for insubordination, and that Sorrells was never 'interrogated,' far less coercively so. The Board ordered the Company to cease and desist from the unfair labor practices found, to reinstate Berry and reimburse him for lost earnings, and to post the customary notices. The Company cross-petitions to vacate the orders of the Board. We enforce in part and deny enforcement in part.

The Discharge of Luke Berry.

It was the ruling of the Board that Berry's discharge was 'in violation of Section 8(a)(1) of the Act for engaging in protected activity.' ³ The Company argues to us, the Board contesting, that Berry's activities were not concerted but individual, that they were unprotected under the Board's own precedents, ⁴ and, moreover, that Berry's conduct, regardless of any other issue in the case, 'was grossly insubordinate and his egregious conduct was the cause of his discharge.' Since we regard the resolution of this latter issue as determinative of the case we will proceed directly to it.

The facts are relatively simple. We are dealing with an organizational drive by the Union ⁵ and the circumstances attendant thereon. The election was scheduled for June 15, 1972. The Company, opposing unionization, had held a number of meetings of its employees conducted by its plant manager, Thomas Krengel. On these occasions Krengel had permitted employees to ask questions. One such questioner had been employee Berry, who, the Administrative Law Judge found, 'had raised issues that had disclosed his prounion stand.'

On the day preceding the election, Krengel delivered what is conceded to be a lawful speech to a group of employees, pointing out the disadvantages of a union. This meeting was held upon Company premises and upon Company time. At or about the end of his prepared statement Krengel asked the employees whether or not the Union could give them a written guarantee of its promises, and stated that the Company could do so. He called upon the employees to step forward and receive their guarantees. As a few were so doing, Berry stood up and stated that he wanted to ask a question. 'It requires no great powers of deduction,' the Administrative Law Judge held, 'to conclude that the question Berry proposed to ask or statement to make was responsive to the speech he had just been required to hear and Krengel admitted that he believed Berry to be a union advocate. * * * Berry was about to ask a question or make a statement favoring the union organization.' Krengel stated that there would be no question and answer period ⁶ and requested, or ordered, Berry to sit down. Berry refused to do so. He remained standing, repeated that he wanted to ask a question, and asserted that he had a right to do so. He was again refused and told to sit down. This procedure, Krengel's request that Berry sit and Berry's insistence that he be permitted to speak, was repeated several times; ⁷ Krengel's 'request' finally developed into an order to leave the room. Berry was still standing in defiance of this order when a fellow employee took him by the arm and led him from the meeting; some twenty or twenty-five employees, over one third of the group, followed shortly thereafter. ⁸ It appears in the record, and we find no specific denials thereof, that Berry was loud and arrogant, pointing his finger at Krengel, at times 'blatant' and incoherent, all of this taking place in full view of the assembled employees. He did not, however, direct personally abusive language toward Krengel. Berry's discharge for insubordination followed. His version of these events, we note, was not placed in the record by deposition ⁹ or otherwise.

A proper evaluation of the incident requires some perspective. It is clear, as the Supreme Court has held, that

The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46, 57 S.Ct. 615, 628, 81 L.Ed. 893 (1937).

We have held, in NLRB v. Red Top, Inc., 455 F.2d 721, 726 (8th Cir. 1972), quoting in part NLRB v. Ace Comb Co., 342 F.2d 841, 847 (8th Cir. 1965) that

'It must be remembered that it is not the purpose of the Act to give the Board any control whatsoever over an employer's policies, including his policies concerning tenure of employment, and that an employer may hire and fire at will for any reason whatever, or for no reason, so long as the motivation is not violative of the Act.'

The Board's brief concedes that Berry's conduct 'was 'mildly disruptive' and 'insubordinate" but argues that it was not sufficiently flagrant to justify discharge, quoting Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir. 1968), that despite Berry's insubordination,

as a union activist making a pro-union speech, he can avail himself of the protective shield of section 7 so long as his insubordination was not so flagrant as to take him beyond the pale.

The Board's holding on the point was that:

Berry's conduct was not violent. There is no evidence it was engaged in for improper motives or in bad faith. Nor was Berry's activity of such a character as to render him unfit for further service. Berry's activity came after the speech while Employer was passing out 'guarantees' and at most can be characterized as mildly disruptive. Moreover, although Berry protested that he should be permitted to ask the question he did not attempt to do so in face of Krengel's instructions to the contrary. ¹⁰ Accordingly, we find that Berry's concerted activity was protected and therefore Respondent's discharge of Berry for that activity was unlawful.

The Company also relies on Boaz which presents a close factual analogy to the case at bar. ¹¹ A pro-union employee was discharged for insubordination arising out of an attempt to speak during a company 'captive audience' meeting. The discharge was upheld by the court against charges, and a finding by the Board, of the company's violation of 8(a)(1). The court, noting that '(the plant manager's) talk was clearly protected by the free speech provisions of the Act and conceded so to be by the Board,' 395 F.2d at 515, held:

(The employee's) deliberate, vigorous defiance in the presence of other employees put the employer in an untenable position. With other employees seated around him (the plant manager) was confronted with an employee who had twice disobeyed lawful instructions and on the second occasion had resorted to invective.

395 F.2d at 516. The court also observed, quoting NLRB v. Soft Water Laundry, Inc., 346 F.2d 930, 934 (5th Cir. 1965):

"If an employee is both inefficient (insubordinate) and engaged in Union activities, that is a coincidence that does not destroy just grounds for his discharge."

Id.

The Board's brief seeks to distinguish Boaz on the ground that the employee's added invective was personally offensive to the Plant Manager, but such lack in the case before us does not impeach the principles enunciated in the Court's refusal to enforce the Board's order.

The question before us, as was the case in Boaz, supra, 395 F.2d at 514, "is not the usual one of whether the Board's findings on disputed facts are supported by substantial evidence in the record as a whole, e.g., N.L.R.B. v. Brown, 1965, 380 U.S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839, but whether the inferences drawn by the Board * * * from the uncontroverted facts in this case are reasonable ones.' N.L.R.B. v. Suniland Furniture Co., 5 Cir. 1967, 387 F.2d 123 (Dec. 15, 1967).' Where, as here, an employee's pro-union activity is asserted to have interfered with management's right to maintain order and respect ¹² and its right to deliver an anti-union speech, ¹³ the Board must engage in what we have described as a 'balancing process.' ¹⁴ The employees' rights are to be weighed against the interests of management in the pursuit of its lawful objectives. This balancing process, resting initially with the Board, is not immune from judicial review. As the court held in NLRB v. Thor Power Tool Company, 351 F.2d 584, 587 (7th Cir. 1965):

The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect. N.L.R.B. v. Illinois Tool Works, 153 F.2d 811 (7th Cir. 1946). Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbitrary, ought not be disturbed.

We recognize, of course, with the Board, that under the tensions and exacerbations experienced during an organizing campaign...