NLRB v. Red Top, Inc.

• Decision Date: 01 February 1972
• Docket Number: No. 71-1228.,71-1228.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED TOP, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

455 F.2d 721 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RED TOP, INC., Respondent.

No. 71-1228.

United States Court of Appeals, Eighth Circuit.

February 1, 1972.

Judith P. Wilkenfeld, Atty., Eugene G. Goslee, Acting Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Atty., N.L.R.B., Washington, D. C., for petitioner.

Thomas M. Hanna, St. Louis, Mo., for Red Top, Inc.; McMahon & Berger, St. Louis, Mo., of counsel.

Before GIBSON, BRIGHT and ROSS, Circuit Judges.

GIBSON, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order¹ against Red Top, Inc., for § 8(a) (1) (29 U.S.C. § 158(a) (1)) violations in discharging certain employees. The Board found that respondent Red Top had violated § 8(a) (1) by discharging three employees, Delwin Svoboda, Carl Tyler and James Walton, and by refusing to reinstate another employee, James Barr, and thus terminating his employment. Red Top defended on the ground that the discharges were for cause and that Barr had quit. The Board ordered reinstatement and further that the employees be made whole for any loss of earnings during the period.

Red Top is a Nebraska corporation, with its principal office in Denver, Colorado. It is in the business of providing housekeeping or janitorial services to hospitals in various states. Archbishop Bergan Mercy Hospital in Omaha, Nebraska, is one of its customers and is the location of the unfair labor practice complaint in this case. The housekeeping operations there are performed by separate day and night shifts. An Advisory Committee is elected by each shift to represent the employees in any dispute with management which the employee is unable or unwilling to settle directly with management. The Advisory Committee for the night shift during the time in question of January to May 1969 was composed of Delwyn Svoboda, Chairman, Carl Tyler, Co-Chairman, James Walton, Secretary, James Barr, Treasurer, and Grover Henderson, Alternate.²

Beginning in January 1969 the Advisory Committee made numerous complaints about Red Top's local manager and appeared to be unduly disturbed when an unannounced inspection in mid-January of 1969 found the Hospital to be "in general dirty shape and especially the area served by the night staff." As a result of this inspection the employment of the night supervisor, Vern Hawkins, was terminated. A complaint was then made by the Advisory Committee about Red Top's local management of misusing funds, firing employees without consulting the Advisory Committee, lack of promotion from the ranks and the hiring of new personnel. In response to this complaint Denne of the home office flew to Omaha and met with the Committee on February 26. Local grievances were discussed and Denne specifically instructed the Committee members to deal first with Red Top's local management before contacting the head office. The local manager, Florian, was replaced on March 15, by Lassiter. Lassiter continued to insist on more competent cleaning practices and gave some demerits to Walton because his area had been found "cruddy." Walton responded by banging his fist on a chair and on Lassiter's desk and denied the "cruddy" charge. Walton was discharged for insolence on this occasion but reinstated after an apology two days later as recommended by the Advisory Committee. In the meantime Svoboda sent another notice to President Williams in Denver as follows: "Contact the Advisory Committee chairman in Omaha Bergan Mercy Hospital." As a result of this telegram Denne called Svoboda from Denver, asked what the problems were and criticized Svoboda for going over Lassiter's head despite the express instruction to take the problems up with Lassiter first.

On April 17, the Advisory Committee sent a letter to President Williams' attention requesting a meeting on or before April 25, stating it was unable to communicate with local management (Lassiter). Later, on April 21, Tyler told Lassiter to notify Denne by telephone to be in Omaha by April 25 or the Committee would take its complaints directly to the hospital administration. Denne made a conciliatory answer to the April 17 letter but noted the Committee's failure to refer to specific cases, and urged the Committee to prepare a list of grievances and take them up with Lassiter; further, that he would review them with the Committee when he was in Omaha and again urged the Committee to take up their problems with Lassiter.

A meeting with Lassiter was held on April 23, at which time the Committee complained about Supervisor Hawkins' discharge in January and about an employee, Hernandez, discharged in March. Tyler said it was a good thing that Hernandez had not come back to the hospital because if he had he would have attacked Lassiter. Tyler also said that Lassiter's description of Walton's work area as "cruddy" could result in Lassiter's being attacked by Walton. When Tyler made this statement Walton shook his head in an affirmative fashion and smiled. Tyler denied making the statement, but, the Trial Examiner credited Lassiter's testimony.

The Trial Examiner, based on his personal observation of the demeanor of the witnesses and the inherent credibility of their testimony, generally credited the testimony of Red Top's witnesses over that of the General Counsel.³ The Trial Examiner found that the discharge of employees Svoboda, Walton, and Tyler, on April 29 was because of their aggravated and insolent conduct towards Lassiter and their failure to give due regard for the interest of their employer in threatening to make complaints and making complaints to the employer's customer, the Hospital.

The Trial Examiner also found that the course of conduct engaged in by the three discharged employees was for the purpose of securing the removal of Lassiter from the manager's post and installation of a more satisfactory replacement. He found:

"Indeed, as I view the record and as Respondent contends, the committee set out, from the time of Lassiter\'s promotion to the manager post, on an intensive and multiform program of harassment, the objective of which was to bring Lassiter down and somehow to install a manager of their liking, and which as its method of operation involved attacks of all sorts on Lassiter and other actions of the kind previously described. Plainly these tactics were designed to and did undermine Lassiter\'s authority as manager to such a degree as to require Respondent, clearly faced with the prospect of their continuation, to decide whether it would be Lassiter or the offending committee members who would remain in its employ at the hospital."

The Trial Examiner further found that the discharge of Barr for engaging in a sympathy walkout because of the firing of Svoboda, Walton, and Tyler was in violation of the employee's right to engage in "protected concerted activity" under § 7 and held that Barr was entitled to reinstatement upon request.

A three-member panel of the Board reviewed the Trial Examiner's findings, found no prejudicial error was committed, affirmed his rulings and adopted his findings, conclusions and recommendations but as modified by the Board's conclusion that the discharge of employees, Walton, Tyler and Svoboda, was based upon their concerted protected activities on behalf of the Advisory Committee. The Board viewed the issue as whether or not "the discriminatees engaged in such flagrant acts during their conversation with management that would justify their discharge" and properly pointed out that not any impropriety committed in the course of § 7 activity deprives the employee of the protective mantle of the Act, citing Bettcher Mfg. Co., 76 N.L.R.B. 526. The Board then stated the following principle, "Thus, where, as here, the improper conduct is closely intertwined with protected activity, the protection is not lost unless the impropriety is egregious." It perceived the alleged misconduct as "of a minor nature * * * the result of understandable anger in the course of disagreements over matters under discussion." Basically it viewed the discharges as "abrupt" and concluded the men were discharged "because of their continuing efforts to solve their problems at the hospital or, in effect, for engaging in a concerted activity protected by section 7 of the Act, and not for insubordination as contended by the respondent." It also approved the order to reinstate employee Barr, viewing his discharge as an "unfair labor practice" striker who was entitled to reinstatement upon an unconditional application for re-employment.

The findings of the Trial Examiner are not "as unassailable as a masters", Universal Camera Corp. v. NLRB, 340 U.S. 474, 492, 71 S.Ct. 456, 95 L.Ed. 456 (1951), and the Board has the final responsibility for the decision. Its findings of fact are conclusive if supported by substantial evidence on the record considered as a whole, 29 U.S.C. § 160(e); however, "evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board's than when he has reached the same conclusion." Universal Camera Corp. v. NLRB, 340 U.S. at 496, 71 S.Ct. at 469. This is even more the case where the matter to be resolved is one which depends on the credibility of witnesses. Universal Camera Corp. v. NLRB, 340 U.S. at 494, 496, 71 S.Ct. 456.

The only facts cited to support the Board's conclusion that the employees were discharged for engaging in protected activities are (1) that the discharges were "abrupt" and (2) that they occurred "soon after" a letter had been sent to the home office complaining about the local management. No effort was made by the Board to explain the reasons for rejecting the finding of the Trial Examiner that the employees were not engaged in a protected activity but in a conspiracy to undermine the local manager,...