Columbia University

Columbia University and District 65, Distributive Workers of America. Case 2-CA 13225 June 8, 1978 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND) TRIiES)DAI. On May 22, 1975, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding.' Therein, the Board, in agreement with the Administrative Law Judge, found that Re- spondent had engaged in certain unfair labor prac- tices within the meaning of Section 8(a)(l) of the Act by discharging, then revoking the discharge and sus- pending, and finally discharging Drucilla Cornell. Contrary to the Administrative Law Judge, however. the Board found that Respondent's discharge of Mu- riel Hirschfeld was not violative of the Act. Thereafter, the Board filed a petition for enforce- ment of its Order of May 22, 1975, with the United States Court of Appeals for the Second Circuit and Respondent filed a cross-petition for an order deny- ing enforcement of said Order. On August 25, 1976. the court issued its opinion 2 declining to enforce the Board's Order and remanding the case to the Board for purposes of clarifying the basis for its decision and explaining the applicability, if any, of N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975), to the instant case. Thereafter, the Board accepted the remand and bN letter dated November 23, 1976, invited the parties to submit statements of position with respect to the is- sues raised by the court's remand. On January 3. 1977, Respondent filed its statement of position with the Board in Washington, D.C. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed its decision in the light of the court's opinion and Respondent's statement of position and has decided to adhere to its original de- termination, as modified below. Upon reconsideration of the Board's previous de- cision, we now conclude that it is unnecessary to reach the issue of the applicability of Weingarten to the facts of this case. As explained below, there is more than ample evidence on the record to sustain the Board's finding that Respondent violated Section 8(a)(l) by discharging Cornell because of her partici- '217 NLRB 1080. 2 N L.R.B v. Columbia U'niversity, 541 F 2d 922 COLUMBIA UNIVERSITY pation in protected activities relating to her interven- tion on behalf of a fellow emploee and her protest of said employce's and her own resultant discharge. and relating to the formation of a grievance commit- tee and associated employee concerns. Ihus. vwe now rely solely on the findings of the Administrative Law Judge. as previously adopted hby the Board and reit- erated below'. The record establishes that both Cornell and Hirschfeld were employed by Respondent in Novem- ber and December 1973. respectively. At least through the early part of January 1974,1 their work had been satisfactory as indicated by Chief Operator Lawton's remarks to them, before she left on vxaca- tion from December 21. 1973. to Janaury 2. 1974. that she knew that in leaving the telephone room in their charge it was in "good hands." Although I!aw- ton subsequently concluded that Hirschfeld did not fit in well with the other operators and on Januarx II decided to terminate her, there is no indication that Lawton had any problems with Cornell's work or with her relationship to other employees. In the latter part of January. several of the switch- board employees became dissatisfied with Lawton's supervisory policies and with recent changes in tele- phone-answering procedures. On January 21. while I.awton was absent from the office at lunch, several of the operators discussed the recent polic) changes and the possibility of forming a grievance committee. Cornell suggested that Lawton should be informed of the employees' feelings and it was agreed that Cor- nell would speak to Lawton. Cornell and Hirschfeld subsequently decided that Cornell would first ap- proach l.asvton, that Hirschfeld would follow to ex- plain that Cornell spoke on behalf of all the emploh- ees, and that if either were confronted xwith a "threatening situation" the other would act as a wit- ness on her behalf. pursuant to Respondent's grie-- ance procedure. Later that same day. following a ver- hal exchange between Hirschfeld and Lawton. Hirschfeld informed Cornell that she was going to speak with the supervisor and Cornell agreed to hack her up. Ilirschfeld then met with Lawton. explained that she felt l.awton's inconsistency was unfair to the operators. and complained about some of the new procedures. Lawton responded that she was the boss. that if Hirschfeld "didn't" like it she could quit. and concluded by say ing she was leaving and would con- tinue the discussion the next day. After Lawton left. the remaining operators discussed the esvents of the day, the new policies, and the possibility of forming a grievance committee which proposal elicited mixed reactions because of the possible consequences of such action. ( ornell and Hirschfeld indicated that i s\11 dale Hlereftcr refer to 1974. knic,- oltIlervie indicatied, 236 NLRB No. 84 793 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they would take the initiative and hold themselves responsible for any action taken. Cornell and Hirsch- feld then drafted the following notice and posted it on the bulletin board: Workers do have rights. We have the right to bring our grievances to the attention of our em- ployer. We have the right to organize to change our working conditions. We do not have to sit back passively and accept rules and regulations we think are unfair. Any group of us, chosen by election or directly, can represent the rest of the employees in designated bargaining unit, equal- ly as much so as an established union. The NLRB will protect any group of us equally as much as it will a union. There have been several precedent-setting cases in the last two years. The next day, January 22, Cornell and Hirschfeld met before reporting to work, discussed the events of the previous day, pledged to act as witnesses on be- half of each other should trouble arise, and decided to ask Lawton to hold a meeting with the other oper- ators to discuss the grievance matters or, at least, to speak with the other operators individually. Upon re- porting to work, the two employees noticed that their previously posted notice was not on the bulletin board. After greeting Lawton, Cornell told her that she and Hirschfeld had posted the notice the night before and that she thought Lawton's removal of it was illegal as there had been no prior restriction on posting notices. Lawton responded that as far as she knew Cornell was wrong in posting the notice and asked why Cornell had not come to speak with her individually. Cornell answered that Hirschfeld had tried to speak with Lawton on behalf of the other employees the night before and, since that had been unsuccessful, the employees now wanted a grievance committee. To Cornell's request that she have a meeting with the operators, Lawton responded that she would speak with them individually. Lawton then stated that she was aware "of a plot" against her and "didn't" trust anyone who worked for her, and Cornell responded that the employees were acting as workers for the benefit of the entire office and for better service for the customers. Cornell further in- formed Lawton of the National Labor Relations Act and, upon Lawton's request to see such a document, promised to provide Lawton with an adequate and easy summation of the law. Upon Cornell's request that Lawton continue her earlier discussion with Hirschfeld, Lawton replied she did not intend to do so, as she did not like Hirschfeld's attitude. Some- time during that same day Lawton, for the first time, told her secretary, Betsy Reed, that she was going to terminate Hirschfeld. Lawton then told Reed that, if Cornell did not watch her step, she would be the next to go. Later that evening, after Lawton had left for the day, the employees again discussed the events which had recently occurred, including Lawton's reaction to the notice posted the previous night. That night, before leaving work, Hirschfeld posted a notice, merely as a joke, which read: "Cows may come and cows may go, but the bull around this place goes on forever." The next morning, January 23, Hirschfeld and Cornell again met before reporting to work, re- pledged to support each other in the event of any difficulties, and obtained a summation of the Act from the library. They arrived at work some 10 min- utes early and Lawton approached them saying she wanted to see Hirschfeld in her office. Hirschfeld re- ported to Lawton's office, taking with her the sum- mary of the Act which she laid on Lawton's desk. With that, Lawton gave Hirschfeld a check and told her she was fired. Hirschfeld responded that she was not accepting the firing as she felt it was unfair and wanted to see someone with more authority, prefer- ably Lawton's superior, McGrady. Lawton then told Hirschfeld that if she did not "get the hell" out of her office, she was "going to lay her hands on her and hurt her." Cornell, overhearing this, decided that it was time to intervene as Hirschfeld's witness as she had promised. Entering Lawton's office, Cornell at- tempted to state that she was appearing as a witness under university policy. However, Lawton interrupt- ed, ordered her to leave the office, physically threat- ened her when she refused to exit, and finally stated "You're fired. You were next anyway." When both Cornell and Hirschfeld refused to leave the office, Lawton called the security guards for assistance. Af- ter discussing the matter with the two employees, the security personnel refused to remove them and told Lawton to call McGrady. McGrady appeared, and after the two operators explained what had hap- pened, told them there was nothing he could do. However, he did change Cornell's discharge to a sus- pension. Thereafter, Cornell and Hirschfeld asked for a hearing at the personnel department. After such hearing, on Friday, January 25, McGrady told Cor- nell over the phone that Hirschfeld's discharge was upheld and that Cornell's suspension had been limit- ed to 3 days. He also read the text of a letter actually received by her the following Tuesday, which stated as follows: This letter will confirm the verbal suspension given to you on January 23, 1974. This suspen- sion was necessitated because of your uncalled for interference with the normal conduct of business by the chief operator and your refusal 794 COLUMBIA UNIVERSITY to desist with this interference when ordered to do so by the chief operator, your supervisor. You are suspended from your position as tele- phone operator at Columbia University as of January 23, 1974. This suspension is for a period of 3 working days. You will be expected back at your work January 28, 1974. You are, furthermore, warned that any repeti- tion of the aforementioned conduct will result in the termination of your employment at Colum- bia University. On Wednesday, January 30, Cornell called McGrady and told him that she could not accept the conditions which they had given her for returning to work and asked for unconditional reinstatement. McGrady re- plied he could do nothing as the matter was out of his hands. A short time thereafter, McGrady again spoke to Cornell by phone and read her a second letter which stated that since Cornell had not re- turned to work on the date specified in the first letter, it was considered that she had resigned. On the basis of the foregoing facts, we agree with the Administrative Law Judge that Respondent vio- lated Section 8(a)(1) of the Act by discharging Cor- nell because of her protected concerted activities. McGrady's letter to Cornell, reducing the discharge to a suspension, clearly conditioned Cornell's contin- ued employment upon her abstention from engaging in concerted activities. McGrady's letter warned Cor- nell that she would be terminated if she repeated her "aforementioned conduct," which apparently re- ferred to her intervention on behalf of Hirschfeld. who had been discharged, and her protest of Hirschfeld's discharge and her own resultant termi- nation. Such conduct is protected by Section 7 of the Act.4 In this regard, it is significant that there was no recognized collective-bargaining representative at the university and that Cornell's conduct was clearly not indefensible.5 Moreover, in our opinion, Cornell's in- tervention and protest of Hirschfeld's discharge and her own "far outweighed any incidental and short- lived interruption of production . . . and far exceed- ed any action required to maintain plant disci- pline." 6 Accordingly, we conclude that McGrady's letter conditioning Cornell's continued employment 'See, e.g., AMP. Incorporated. 218 NLRB 33, 36 (1975); CGuerdon nldsr tries. 199 NLRB 937, 938-941 (1972), cases in which the Board found that an employee was unlawfully discharged for intervening on behalf of a fellss employee in protest of said employee's termination We base our conclhu,ion as to the protected nature of Cornell's conduct on the law enunciated hb the Supreme Court in N L.R.B. v. Washington Aluminul (io, 270 I S. 9(1921.) ands accordingly. as indicated above, find it unnecessary to pass ont the applicability of N.L.R.B. v. J Weingoaren. Ini., .rupra notwithstanding Ihe citation to that latter case in the prior Board decision herein. See Washingion Aluminum Co. supra at 14 17 .4 MP, supra at 36. violated the Act. since it was motivated by her pro- tected activity in protest of Hirschfeld's discharge and her own. However. assuming arguendo that McGrady's let- ter to Cornell did not clearly relate only to her activi- ties in protest of Hirschfeld's discharge and her own, but also referred to Cornell's activities regarding the formation of a grievance committee and related em- ployee complaints,7 we conclude that Respondent's discharge of Cornell nevertheless violated the Act, as discussed below. It is clear from the record that Cornell and Hirsch- feld discussed the need for a grievance committee and related problems concerning working conditions, both between themselves and with the other employ- ees, posted the notice on January 21, and spoke with Lawton regarding both the grievance committee and certain employee dissatisfactions with office proce- dures. With the facts in such posture. it cannot be disputed that Cornell's actions relating to the forma- tion of a grievance committee were protected con- certed activities inasmuch as they sprang from the wellhead of the employees' discontent and were di- rected towards the improvement of working condi- tions, matters clearly falling within the scope of Sec- tion 7 of the Act. Further, it is clear that Lawton was aware of Cornell's protected concerted activities in that Cornell told her that the January 21 notice had been prepared and posted by both Hirschfeld and herself. Cornell also informed Lawton that she and Hlirschfeld were acting on behalf of the other em- ployees in requesting that a grievance committee be formed and that the National Labor Relations Act afforded them protection in such activities. Apart from this direct evidence, there are additional cir- cumstances here which compel us to conclude that Lawton was fully aware of Cornell's concerted activi- ties. In this regard we rely, inter alia, on the small number of employees in the telephone room and on the fact that Cornell was the most active and vocal employee in support of the institution of a grievance committee.' Not only does the record support our finding that ()n its face. Mc(iradsv', letter is not specifically limited to Cornell's pro- test acti sties of Januars 23 hut instead refers generally to the repetitlion of her "interference with the nnrlial condulct of business" bh Lawton A rea- sonable cornstruction thereof is that the warning referred not only to her efforts in protest of Hilrschfeld's discharge and her own. but also to her earlier acllsities concerning Ihe £riesance committee and associated em- plosee iconcerns Cornsell. as .a lilmian could .ustifiahls interpret the letter ill such a manner and refue to accept the offer of reinstatement under such conditions Moreoer. gisen the ambiguits of the suspension letter. we note p.ariicula.Iil the complete failure of Respondent's representative. Mc(irad!, to nmake ans effort to elucidate or clarify the nature if the letter's .warning during the tlo co.nsersatmirns on that sublect which he had wilh Cornell subsequent to her receipt of the letter \ hile (' ornell's response to the warn- ing vi,s to request speclflcatlls that her reinstatement he made unconditton- li. Mc(;radx Onls replhed thai he could doi nothing about it 'See It ', / PI,,, il e/l nl ( ,. In , 123 NI RB 616 11959) 795 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawton knew of Cornell's concerted activity, but it also establishes that she was concerned about that activity and was motivated in her actions thereby. On January 22, Lawton indicated to Cornell that she thought there was a plot against her and for that rea- son did not trust anyone who worked for her. That same day Lawton told her secretary that she was going to terminate Hirschfeld and that, if Cornell did not watch her step, she would be next. This theme was reiterated by Lawton during the confrontation on January 23, when she told Cornell "You're fired. You were next anyway." In light of these statements, it is clear that, despite Lawton's earlier satisfaction with Cornell's work, her attitude toward Cornell changed drastically after the advent of the concerted activities. Lawton's remarks, first to her secretary and then directly to Cornell herself, underscore the relationship between Cornell's concerted activities and her original discharge. Neither McGrady's reduction of the discharge to a suspension, nor the subsequent upholding of a 3-day suspension at the personnel department hearing, al- ters the discriminatory character of Respondent's ac- tion. Viewing McGrady's letter to Cornell-which confirmed her suspension, cites her "uncalled for in- terference with the normal conduct of business by the chief operator," and threatened her with termina- tion for any repetition of that conduct-in the above context, we find that such letter threatened her with discharge if she should again engage in protected concerted activities. Thus, we also conclude that Re- spondent's letter conditioning Cornell's continued employment was unlawful because it was motivated at least in part by her protected concerted activities relating to the formation of a grievance committee and related employee complaints. Therefore, inasmuch as we have found that Re- spondent conditioned Cornell's continued employ- ment on her abstention from concerted activities which are protected by the Act, we conclude, in agreement with the Administrative Law Judge, that Respondent's refusal to revoke Cornell's suspension and its warning with regard to her future conduct constituted a constructive discharge. On the basis of the discussion above and our re- view of the entire record, we reaffirm the findings, conclusions, and remedy provided in the Board's original Decision and Order, as modified above. In these circumstances, contrary to the implication in our prior decision, we find it unnecessary to decide whether Cornell's discharge also violated Section 8(a)(l) of the Act under the principles of N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby affirms as its Order the Order heretofore entered in this proceeding on May 22, 1975, except that the attached notice is substituted for the notice attached to our previous Order. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to reinstate any of our employees for engaging in lawful, protected, concerted activity such as forming grievance committees or discussing working conditions among themselves or intervening on behalf of another employee who has been dis- charged or protesting the discharge of any em- ployee. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to form, join, assist, or be represented by any labor organization, to bar- gain collectively with representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Drucilla Cornell immediate and full reinstatement to her former job or, if that position no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights or privileges, and WE WILL make her whole for any losses, plus interest, she may have suffered as a result of our unlawful action against her. COLUMBIA UNIVERSITY 796