Nat'l Labor Relations Bd. v. Manor
| Decision Date | 28 October 2011 |
| Docket Number | No. 10-2122,10-2122 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE OAK MANOR, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
On Application for Enforcement of an Order of the National Labor Relations Board. (11-CA-21786)
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Application for enforcement granted by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Davis joined.
ARGUED: Thomas Howard Keim, Jr., FORD & HARRISON, LLP, Spartanburg, South Carolina, for Respondent. Nicole Lancia, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. ON BRIEF: Kristin Starnes Gray, FORD & HARRISON, LLP, Spartanburg, South Carolina, for Respondent. Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
Unpublished opinions are not binding precedent in this circuit.DIAZ, Circuit Judge:
Petitioner National Labor Relations Board seeks enforcement of an order that it entered in this case. The Board's order adopted the findings of the administrative law judge ("ALJ"), concluding that respondent violated the National Labor Relations Act ("NLRA") by terminating an employee for engaging in protected concerted activity. Respondent contests petitioner's application for enforcement, challenging the Board's ruling. Because substantial evidence supports the ALJ's findings as adopted by the Board, we grant petitioner's application for enforcement.
Respondent White Oak Manor ("White Oak") operates a long-term care facility in Shelby, North Carolina. Nichole Wright-Gore worked as a central supply clerk at White Oak until her termination on November 16, 2007.
After receiving a "terrible haircut" and unable to "do anything with [her] hair," Wright-Gore wore a hat to work on October 23, 2007. J.A. 66. She continued donning the hat while at work for the next week, and no supervisors commented on her dress. That changed on October 30, when Peggy Panther, White Oak's personnel director, explained to Wright-Gore that wearinga hat violated the company's dress code. Later that day, Tammy Whisnant, White Oak's assistant director of nursing, told Wright-Gore to remove the hat, but she refused. Whisnant reported Wright-Gore's insubordination to Terry Fowler, the director of nursing. Fowler called Wright-Gore to her office, where Whisnant and Panther were waiting. Fowler told Wright-Gore that White Oak's dress code forbade employees to wear hats and that Wright-Gore should go home if she refused to remove her hat. Wright-Gore protested that other employees were allowed to wear hats and singling her out was unfair. She declined to remove her hat and left the facility for the day.
Wright-Gore returned to White Oak for work the next day, when she and other employees wore costumes in celebration of Halloween. She dressed as a race-car fan, and her costume included a hat. Andy Nelson, the administrator of White Oak, suggested that Wright-Gore remove the hat, and she complied. Still concerned about Wright-Gore's refusal to follow Fowler's orders the day before, Nelson met with both employees later that day. Wright-Gore explained to Nelson that she felt that White Oak was enforcing the dress code unevenly, but Nelson told her to worry only about herself. As the meeting concluded, Nelson handed Wright-Gore a written warning for insubordination.
In the days following her meeting with Nelson, Wright-Gore paid particular attention to the clothing worn by fellowemployees. She noticed that several of her coworkers were wearing hats and displaying their tattoos, in violation of White Oak's dress code. Management, however, failed to address these obvious transgressions. Upset at the disparate enforcement of the dress code, Wright-Gore began talking to female employees to enlist their support. From around November 5 until November 12, she spoke with roughly ten employees about the inequitable implementation of the dress code. Wright-Gore's coworkers shared their own experiences with unequal enforcement of the policy and expressed support for her grievance.
To bolster her complaint, Wright-Gore decided to document dress-code violations. On November 12 and 13, she used her cell phone to take pictures of employees dressed contrary to company policy. Wright-Gore took pictures of four employees--Larry Shea Roberts, David Layell, Harold Hopper, and Deborah Mitchell. Although Roberts and Mitchell gave Wright-Gore permission to photograph them, Hopper and Layell were unaware of Wright-Gore's actions. Wright-Gore enlisted the help of coworker Angela Hawkins when she took a picture of Roberts.
Wright-Gore shared her pictures with several White Oak employees. While showing the photographs to coworkers, Wright-Gore explained that she had documented disparate enforcement of the dress code. The employees generally expressed agreement with Wright-Gore's grievance. Again, Hawkins assisted Wright-Gore, sharing a picture with coworker Crystal Henson and declaring "look what we got." Id. 289.
On November 15, Kathy Gunter, White Oak's business office manager, informed Nelson that Wright-Gore had been showing coworkers pictures of employees violating the dress code. That same day, Roberts complained that Wright-Gore had taken his picture without permission. Nelson convened a meeting that afternoon with Wright-Gore and Whisnant, where he confronted Wright-Gore about the photographs. Wright-Gore explained to Nelson that she had a problem with what she perceived as uneven enforcement of the dress code. She told Nelson, when asked, that she had received permission to take the pictures. Nelson called her a liar. In response to Wright-Gore's broader grievance, Nelson wondered aloud whether she was "going to let a hat come in between the food on [her] kids' table." Id. 114.
Following the meeting, Nelson initiated an investigation. He was particularly concerned that Wright-Gore had violated White Oak's policy proscribing the taking of pictures inside the facility without prior written authorization. He approached employee T.C. Brooks, whom Gunter claimed Wright-Gore had photographed. Brooks was unaware that Wright-Gore had taken a picture of him, but he agreed to fill out a complaint form. Nelson spoke with other employees, ultimately deciding to discharge Wright-Gore.
The next day, November 16, Nelson called Wright-Gore to his office and informed her that her employment had been terminated. Nelson explained that his investigation had confirmed that she had taken pictures of employees without their permission. According to the termination report prepared by Nelson, Wright-Gore had violated White Oak's policy barring "[s]tealing or misappropriating (misusing) property belonging to the facility, residents, or other employees." Id. 515. Elaborating on the charge, Nelson wrote that Wright-Gore "took a picture of another employee without his/her permission and in turn, showed it to other employees." Id. Nelson explained that he was discharging Wright-Gore for taking a picture of Brooks.
White Oak had not established a precedent for disciplining employees for photographing fellow employees absent their permission. Indeed, Wright-Gore's termination was the first time that White Oak had enforced the policy. Employees routinely took pictures of each other--at facility events or while "goofing off" at work--and never asked for or received permission. The staff freely shared these pictures, posting them on facility bulletin boards or passing them around the office.
Testifying at the administrative hearing, Wright-Gore reflected on her efforts to document disparate enforcement of the dress code. She explained that she spoke with otheremployees "[t]o get their support so I could go to management and say, you know, there's [sic] other people that are agreeing with me that, you know, the dress code is not being enforced fairly." Id. 131. Wright-Gore denied that she had taken action solely for her own benefit, maintaining instead that she took pictures to demonstrate to supervisors "that their dress code wasn't being enforced fairly for the entire facility." Id. 170. At bottom, she "wanted the dress code to be enforced equally and fairly with everyone." Id. 161.
Wright-Gore responded to her termination by submitting a charge to the Board, in which she claimed that White Oak had violated the NLRA. The Board's General Counsel, in turn, filed a complaint with the Board, alleging that White Oak violated section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by interrogating, threatening, and discharging Wright-Gore as a result of her protected concerted activity. White Oak contested the allegations, and the parties proceeded to an administrative hearing.
The ALJ concluded that White Oak had violated section 8(a)(1) of the NLRA by discharging Wright-Gore for her protected concerted activity. Viewing the evidence globally, the ALJ found that "what had initially started as an individualcomplaint by [Wright-Gore], that she was being treated unfairly by being required to remove her hat, evolved into a campaign by [Wright-Gore] to have the dress code enforced in a fair and equitable manner." J.A. 634. According to the ALJ, Wright-Gore engaged in protected concerted activity by speaking with other employees about disparate enforcement of the dress code and documenting the problem through photography:
It is clear that [Wright-Gore] was addressing the perceived unfair enforcement of the dress code and was seeking to obtain the support of the female employees to come together and make their positions known to Respondent's management and particularly Nelson, that these employees wanted the Respondent to remedy the unfair enforcement of the dress code. This constituted a...
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