Wilson Trophy Co. v. N.L.R.B.
| Decision Date | 18 May 1993 |
| Docket Number | 92-2275,Nos. 92-2163,s. 92-2163 |
| Citation | 989 F.2d 1502 |
| Parties | 143 L.R.R.M. (BNA) 2008, 124 Lab.Cas. P 10,622, 125 Lab.Cas. P 10,740 WILSON TROPHY COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. WILSON TROPHY COMPANY, Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael E. Wilson, St. Louis, MO, argued, for petitioner.
Michael Gan, NLRB, Washington, DC, argued, for respondent.
Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and STROM, * District Judge.
Wilson Trophy Company petitions for review of a decision and order of the National Labor Relations Board; the Board cross applies for enforcement of its order. We affirm the Board's decision and enforce its order.
Wilson Trophy Company (Wilson) manufactures and sells trophies and related products at its facility in St. Louis, Missouri. The facility includes an office area and a warehouse, which is divided into several departments. The office employees are not represented by any labor organization. The warehouse employees, on the other hand, are represented by the Leather Goods, Plastics and Novelty Workers' Union, Local 160 (the "union"). The contract between the union and Wilson provides that the minimum starting rate for full-time warehouse employees shall be $4.40 per hour. It further provides that after thirty days of employment, an employee's wage rate will be increased by a minimum of ten cents per hour.
In the spring of 1991, Wilson hired several new warehouse employees. By June, the warehouse was buzzing with the rumor that these new employees were earning more than $5 per hour. This rumor upset those employees who had started at $4.40 per hour and were still earning less than $5 per hour. When Jeff Shell, a clerk in the shipping and receiving department of the warehouse, heard this rumor, he asked his immediate supervisor, John Miller, whether he knew anything about the new hires' wages. Miller indicated that he did not. Later that day, Jeff visited his mother, Ruth Shell, who worked as an accounts receivable clerk in the Wilson office. While in her office, he informed her that some of the new warehouse employees were bragging about earning more than $5 per hour.
Kathy Miloshewski, Ruth Shell's immediate supervisor and officemate, overheard the Shells' conversation. She told Jeff that the wage rumors were untrue; everyone in the warehouse started at the union contract minimum of $4.40 per hour. After her conversation with Jeff Shell, Miloshewski spoke with controller Charles Martin, who supervised the accounting department, and warehouse supervisor David Wall. She informed them that warehouse employees were discussing wage rates and that the whole warehouse was getting "worked up."
Shortly after Jeff Shell had left his mother's office, John Miller also came to Ruth Shell's office to discuss the wage disparity issue. He too was upset about the rumor that the new hires were being paid more than he was. Martin observed their meeting and later that day asked Miller what he and Ruth Shell had discussed. Miller told Martin that they had discussed warehouse wage rates.
Jeff Shell next talked to Wall, who was in charge of hiring warehouse employees, about starting wage rates in the warehouse. Wall said that everyone he had hired started at $4.40 per hour and then moved to $4.50 per hour after thirty days of employment. Following his conversation with Wall, Jeff Shell learned that Wall had given another warehouse employee a different answer to a question about wage rates. Jeff told Ruth Shell about Wall's different responses.
While in the warehouse the next day, Ruth Shell spoke with Jeff, his supervisor Miller, and Bill Martin, another member of the shipping and receiving department. She informed them that they should discuss the wage issue with the union shop steward, Barbara McGee. As the department supervisor, Miller volunteered to speak with McGee. McGee told Miller that she needed proof that employees were being started at higher wage rates before she could pursue the matter. McGee also stated that she believed that Wilson had the authority under the union contract to hire employees at a wage above the $4.40 per hour minimum contract wage. Miller relayed McGee's comments to Jeff Shell and Bill Martin.
Unsatisfied with McGee's answer, Jeff Shell, Miller, Martin, and Bill Henry, the fourth member of the shipping and receiving department, again spoke with Ruth Shell about the wage issue. They asked her to call the union to find out if they could do anything about the wage disparity without proof. Ruth Shell agreed to do so.
On June 20, 1991, Ruth Shell called the union. Miloshewski overheard Shell's call and told Charles Martin about it. Almost immediately after Shell had called, Martin came into Shell's office and asked her why she had called the union. According to Shell's testimony, she responded that she wanted to know the proper procedure for handling the problem that existed in the warehouse. Martin asked what the problem was. Shell answered that her son Jeff had told her that some warehouse employees had been bragging about earning five dollars per hour. Martin pointed his finger at her and told her that she was After this reprimand, Shell's relationship with Miloshewski deteriorated to the point where they quit speaking to one another.
Around this same time, Martin circulated to all accounting personnel a memorandum about the July 4 holiday. As Shell read the memo, she highlighted three spelling errors. According to Shell, she had highlighted the errors before she realized that she had to sign the memo and return it to Martin. Having unsuccessfully attempted to cover up the highlighting of the errors, Shell returned the memo to Martin.
On the morning of June 25, Ruth Shell received a call from Norman Stinger, vice president and manager of Wilson Trophy Company of Ft. Worth-Dallas, one of Wilson's related companies, about an order he had received. Later that morning, Stinger called Martin and told him that Shell had been rude to him on the phone. According to Shell, however, Stinger was the one who had been rude.
When Ruth Shell returned from lunch that afternoon, Martin gave her a notice of termination. The notice reads as follows:
On Thursday, June 2, at 1:15 p.m., Mrs. Ruth Shell received a verbal warning from her supervisor, Charles R. Martin for her involvement in activities not related to the performance of her job. These activities served to increase an unnecessary disturbance in the workplace. She was told that any additional involvement in these activities would result in her termination from her position.
Since that time, Mrs. Shell's attitude continues to be a disruption in the workplace. She demonstrates an inability to cooperate and get along with her co-workers as evidenced by complaints received by management from other personnel in her department. This inability to cooperate and get along extends to management as well. An internal memo was recently circulated in the accounting department with instructions to sign the notice and return it to her supervisor. Mrs. Shell returned the memo with spelling errors highlighted. A complaint was also received from the manager of one of Wilson Company's related companies.
As management does not feel that the poor attitude demonstrated by Mrs. Shell will improve, it is in the best interest of the Accounting Department and the company in general that her employment with Wilson Company be terminated.
Upon receiving the notice, Ruth Shell briefly skimmed it as Martin watched. She told Martin that she did not have an attitude problem; she had been doing her work and had not been talking to anyone since her reprimand. Martin told Shell that not speaking was part of her attitude problem. He informed her that she had two days to sign the notice and then left her office.
On July 3, 1991, Ruth Shell filed a charge with the Board, alleging that Wilson had committed unfair labor practices under the National Labor Relations Act (the "Act"). Based on her charge, General Counsel filed a complaint against Wilson.
After Shell filed her charge, two wage-related incidents occurred in the warehouse. In July 1991, warehouse manager Wall held a meeting for the male warehouse employees. According to Jeff Shell and John Miller, Wall instructed the employees not to talk about wages in the warehouse and told them that they could be fired if they did. He then asked each employee, one by one, whether the employee understood him. Additionally, sometime in September 1991, Wall observed an employee opening his paycheck among a group of employees in the warehouse. Wall informed the employee that employees were not to open their checks in the warehouse and that they would be fired if they did so.
On October 2, 1991, an Administrative Law Judge ("ALJ") held a hearing. At that time, the ALJ permitted General Counsel to amend its complaint to include the two warehouse incidents that had occurred after Ruth Shell filed her charge. The ALJ heard additional testimony on December 9, 1991. The ALJ found that Wilson (1) had violated section 8(a)(1) of the Act by interrogating Ruth Shell about her call to the union, by prohibiting her from calling the union again, by reprimanding her for the call, and by discharging her; (2) had violated section 8(a)(3) by reprimanding and discharging Ruth Shell; and (3) had violated section 8(a)(1) by prohibiting its employees from engaging in wage discussions and from opening their paychecks in the warehouse. The ALJ ordered...
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