Taracorp Industries

TARACORP INC 221 Taracorp Industries, a Division of Taracorp Inc. and Fred Elmore. Case 14-CA-13551 12 December 1984 SUPPLEMENTAL DECISION AND , ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 31 July 1981 the National Labor Relations Board issued a Decision and Order' in this pro- ceeding, adopting, with minor modifications, an ad- ministrative law judge's findings that the Respond- ent violated Section 8(a)(1) of the National Labor Relations Act by conducting an investigatory inter- view of employee Fred Elmore after having denied Elmore's request for union representation at the interview. NLRB v. J. Weingarten, 420 U.S. 251 (1975). The Respondent was ordered to cease and deist from its unlawful activity and to take certain affirmative actions, including offering Elmore rein- statement and making him whole for any loss of earnings or benefits resulting from the unlawful interview. Thereafter, the Respondent filed a petition for review of the Board's Order with the United States Court of Appeals for the Eighth Circuit. Subse- quently, the Board moved the court for withdrawal of the record so that the Board could reconsider its Decision and Order. -The court granted the Board's motion. On 14 December 1981 the Board informed the parties that it had decided to reconsider sua sponte its decision and that they were entitled to file state- ments of position. The General Counsel and the Respondent filed statements of position. After reconsideration, we have decided to reaf- firm the Board's finding that the Respondent's interview of Elmore violated Section 8(a)(1). 2 We have further decided, however, that a make-whole remedy is inappropriate for this or any similar Weingarten violation. Accordingly, we shall vacate the Board's original order in this proceeding and issue a new order setting forth the appropriate remedy for violations of this type. ' 257 NLRB 463 . 2 In its statement of position, the Respondent again seeks reversal of some of the Judge's credibility findings The Board's established policy is not to overrule an administrative law Judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cu- 1951) We have carefully examined the.record and find no basis for reversing the findings As in our original decision, we do not rely on the Judge's finding that the Respondent developed a "new" theory at the hearing to explain its actions, nor do we draw any adverse inference from the Respondent's failure to call Manager Harper as a witness at the hearing, and we do not adopt the Judge's reference to possible "bargaining" during the interview, since no such Issue was presented here The pertinent facts are as a follows: Employee Fred Elmore worked as one of several "feeders" of used storage batteries to a moving belt. The belt was subject to frequent jamming; freeing it re- quired the feeders to pull the belt. On the day at issue here, the belt jammed and Foreman Greg Vaughn twice told Elmore to help .pull the belt. Each time Elmore replied, "It's not my job." Vaughn then told Elmore he was suspended and should report to Plant Manager Charles Harper's office. While Elmore was enroute to Harper's office, Vaughn telephoned Harper and described the inci- dent. Harper replied, "[I]f Fred Elmore refuses to do the job, that's termination." Once in Harper's office, Elmore asked for a union representative. Harper refused. Elmore then told Harper hi§ ver- sion of the incident, admitting that he had not obeyed Vaughn, but claiming that he had explained to Vaughn that he "couldn't pull on the belt. . . it was unsafe" and that it was not his job. At that point Vaughn was invited to join the interview. He recounted the incident as it is described in the pre- vious paragraph. 3 Harper then terminated Elmore. The judge found that the .Respondent violated Section 8(a)(1) by conducting an investigatory interview4 of Elmore after denying his request for union representation at the interview. The judge rejected, however, the complaint allegations that Elmore was discharged for requesting a representa- tive, for raising a safety complaint, or for engaging in any other union and/or protected concerted ac- tivity. The judge found that the Respondent dis- charged Elmore solely because of his conduct in the belt-pulling incident. As a remedy, the judge ordered Elmore's reinstatement and backpay. As noted above, the Board adopted the judge's deci- sion and recommended Order with minor modifica- tions. In its statement of position, the Respondent again argues that the remedy of reinstatement and back- pay is inappropriate because Elmore was dis- charged for just cause, i.e., insubordination. For the reasons set forth below, we agree with the Re- spondent. We find that this make-whole relief in the context of a Weingarten violation is contrary to the specific remedial restriction contained in Sec- tion 10(c), the general remedial framework of the Act, and, independent of those restrictions, consti- 3 The Judge credited Vaughn's'version of the incident 4 As noted in our original decision, the Judge found that the Respond- ent, prior to discharging employee Elmore, conducted an unlawful inves- tigatory interview Thereafter, he consistently denominated the interview as "investigatory" except in one part of the decision In the first Conclu- sion of Law the Judge inadvertently refers to a "disciplinary" interview As before, we hereby correct this inadvertent error and insert "investiga- tory" in place of "disciplinary " 273 NLRB No. 54 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tutes bad policy. Accordingly, we hereby overrule Kraft Foods, 251 NLRB 598 (1980), 5 and its prOge- ny6 to the extent inconsistent with this decision, and henceforth, we will not impose make-whole remedies for Weingarten violations. The Board possesses a certain latitude in fashion- ing remedies for unfair labor practices. Our discre- tion, however, is not absolute. Thus, we are bound by certain specific and general restrictions that limit our remedial authority. This is particularly true regarding our authority to impose a remedy of reinstatement and backpay. The clearest example of when a make-whole remedy of reinstatement and backpay is appropriate is where an employee is discharged or disciplined for engaging in union or other protected concerted activities. Such a remedy was imposed in the Board's first published decision 7 and, since that time, has become the traditional means by which the Board seeks to neutralize employer discrimina- tion. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). This is achieved by restoring the status quo ante, thereby placing the employee in the position enjoyed prior to the discriminatory conduct. Conversely, an employee discharged or disci- plined for misconduct or any other nondiscrimina- tory reason is not entitled to reinstatement and backpay even though the employee's Section 7 rights may have been violated by the employer in a context unrelated to the discharge or discipline. This principle is embodied in the remedial restric- tion in Section 10(c) of the Act, which provides: No order of the Board shall require the rein- statement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such indi- vidual was suspended or discharged for cause. Thus, when an employee is discharged for "cause" the Board, normally, is precluded from 5 Under the Kraft Foods test the General Counsel could make a prima facie showing that a make-whole remedy was appropriate by demonstrat- ing that a Weingarten violation was comniitted and that the employee subjected to the unlawful interview was disciplined for conduct that was the subject of the interview The burden then shifted to the Respondent, who could avoid a make-whole remedy by demonstrating that the deci- sion to discipline the employee was not based on information obtained at the interview 6 See, e g, Illinois Bell Telephone Co, 251 NLRB 932 (1980), Ohio Ma- sonic Home, 251 NLRB 606 (1980) Member Hunter notes that he agreed with the application of a Kraft Foods analysis in Chromalloy American Corp, 263 NLRB 244 (1982) Upon further consideration, however, and for the reasons set forth in today's decision, he believes that the 'remedy ordered in Chromalloy American Corp was erroneous 7 Pennsylvania Greyhound Lines, 1 NLRB 1, 51 (1935) 8 It is Important to distinguish between the term "cause" as it appears in Sec 10(c) and the term "just cause," which is a term of art traditional- ly applied by arbitrators in interpreting collective-bargaining agreements Just cause encompasses principles such as the law of the shop, fundamen- tal fairness, and related arbitral doctrines Cause, in the context of Sec imposing a make-whole remedy. Fibreboard Corp. v.- NLRB, 379 U.S. 203 (1964).9 . A third category of cases involving the issue of whether a make-whole remedy is appropriate arises where an employee is discharged or disciplined for what appears to be a legitimate reason, but further examination reveals that the discharge or discipline was the result of an act that was, itself, an unfair labor practice. That was the situation in Fibreboard, supra. There the employer discharged a group of employees pursuant to its decision to subcontract the employees' work, a seemingly legitimate basis for the discharges. Because, however, the employer failed and refused to bargain with the union over its decision to subcontract, the subcontrkting vio- lated Section 8(a)(5). The Supreme Court ruled that in such circumstances an order reinstating the discharged employees with backpay was appropri- ate, because the discharges stemmed directly from the unfair labor practice. 379 U.S. at 217. In other words, when the reason for the discharge is an unfair labor practice, a make-whole remedy is ap- propriate since the "loss of employment stems di- rectly from an unfair labor practice." Id." Applying these and related principles in the con- text of Weingarten violations, we are unable to jus- tify the imposition of a make-whole remedy where an employer's only violation is the denial of an em- ployee's request for representation at an investiga- tory interview. In this regard, we note that the courts of appeals have repeatedly refused to en- dorse the Board's previous efforts to impose a make-whole remedy for a Weingarten violation." In our view, these courts are correct. 10(c), effectively means the absence of a prohibited reason For under our Act Management can discharge .for good cause, or bad cause, or no cause at all It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification It may not dis- charge when the real motivating purpose is to do that which [the Act] forbids [NLRB v Columbus Marble Works, 233 F 2d 406, 413 (5th Cir 1956) ] 9 As the Court stated in Fibreboard "The legislative history of [Sec 10(c)] indicates that It was designed to preclude the Board from reinstat- ing an individual who had been discharged because of misconduct" 379 US at 217 '° The Board consistently applies make-whole remedies in similar situ- ations See, e g, Boland Marine Mfg Co, 225 NLRB 824 (1976) (employ- ees made whole where suspensions and discharges resulted from work rules imposed in violation of Sec 8(a)(5)) Even in those cases, however, a make-whole remedy is appropriate only for employees whose discipline resulted "solely" from the unlawfully promulgated work rules See also Alfred M Lewis, Inc , 229 NLRB 757, 759 (1977) " NLRB v Potter Electrical Signal Co, 600 F 2d 120 (8th Cir 1979), Montgomery Ward & Co v NLRB, 664 F 2d 1095 (8th Cir 1981), General Motors Corp v NLRB, 674 F 2d 576 (6th Or 1982) See also NLRB v Illinois Bell Telephone Ca, 674 F 2d 618 (7th Cir 1982) (remanding to the Board for determination of whether discharge was solely dependent upon evidence obtained at the unlawful interview), and NLRB v Southern Bell Telephone & Telegraph, 676 F 2d 499 (11th Cir 1982) (refusing to enforce a make-whole remedy on the facts while preserving the legal issue) TARACORP INC 223 Initially, it is plain that typical Weingarten cases do not present a situation where an employee is discharged for engaging in union or other protect- ed concerted activities. Rather, the employee is dis- charged for what the employer considers . miscon- duct. Indeed, this fact is recognized implicitly in the first step of the Kraft Foods test (see fn. 5 above) whereby the General Counsel must demon- strate that the employee. was denied his or her Weingarten rights and was disciplined subsequently "for the conduct which was the subject of the unlaw- ful interview." Kraft, 251 NLRB at 598 (emphasis added). Accordingly, Weingarten violations do not fit into the category of cases where a make-whole remedy traditionally is necessary and appropri- ate.12 Similarly, any attempt to fit Weingarten viola- tions into the 'Fibreboard line of cases that permit a make-whole remedy when the loss of employment stems directly from an unfair labor practice is una- vailing. In Fibreboard and cases that properly apply its doctrine (see fn. 10, supra), the reason for the discharge is itself an unfair labor practice: By con- trast, in Weingarten Cases, the reason for the .dis- charge is not an unfair labor practice, but some type of employee misconduct. In short, there simply is not a sufficient nexus between the unfair labor practice committed (denial of representation at an investigatory interview) and the reason for the discharge (perceived misconduct) to justify a make-whole remedy.' 3 Accordingly, we are compelled to conclude that Weingarten cases fall into the categorY of cases where a make-whole remedy is precluded by oper- ation of Section 10(c). Thus, when an employee is discharged or disciplined for cause," that employ- ee will not be entitled to reinstatement and back- pay simply because his or her Weingarten rights were violated. In addition to the remedial restrictions imposed by ,Section 10(c), we must recognize other limita- 12 A make-whole remedy can be appropriate in a Weingarten setting if, but only if, an employee is discharged or disciplined for asserting the right to representation See. e g, Garment Workers ILGWU v Quality Mfg Co. 420 U S 276 (1975) In such circumstances, the employee's em- ployment status is adversely affected because the employee engaged in protected concerted activity We will continue to apply our traditional make-whole remedy in 'such cases 13 As the court stated in Montgomery Ward & Co r NLRB, 664 F 2d 1095, 1097 (8th Cir 1981), when confronted with the claim that the dis- charge of employees for theft stemmed from the employer's denial of their Weingarten rights "[The employees effected their own discharge for stealing and the [Weingarten] violation was simply incidental to the investigation which preceded the firing" 14 We emphasize again that the Board will not seek to determine whether the asserted "cause" for the discharge was good cause or Just cause The extent of our authorized inquiry is whether or not the em- ployee was discharged for union or other protected concerted activity or whether the reason for the discharge was, Itself, an unfair labor practice See fn 8, supra tions placed on our authority by the Act. Thus, the Board may not order punitive remedies. Carpenters Local 60 (Mechanical Handling) v. NLRB, 365 U.S. 651, 655 (1961). Nor should our remedies serve as a windfall to employees or employers. Service Roof- ing Co.,- 200 NLRB 1015, 1017 (1972). Yet these are precisely the results of this Board's previous impo- sitions of make-whole remedies for Weingarten vio- lations. In those cases; employers had discharged employees for reasons wholly . independent of any unfair labor practice, yet were required to reinstate them with full backpay. Even if this Board were not bound by the ,vari- ous remedial limitations discussed above, we would find a make-whole remedy in Weingarten cases in- appropriate because we believe that past Board de- cisions have exceeded the intended scope and limi- tations found in the Supreme Court's Weingarten decision. What began as a limited protection of em- ployees and a potential guide to management in conducting fair and expeditious investigations of employee misconduct has become a labyrinth of rules and procedures analogous to the law of crimi- nal procedure. -As Member Hunter stated in a relat- ed context, the Board's expansionist policies in the Weingarten field have served "to encourage the transformation of investigatory, interviews into for- malized adversary proceedings, a result the Su- preme Court clearly wished to avoid." 5. We believe that the expansionist approach to Weingarten, including make-whole remedies, has served to assure that the adversarial nature and complexity of the investigatory process would in- crease until employers are tempted to forgo inter- views altogether. We believe that, in the long run, our refusal to grant make-whole remedies for Wein- garten violations will serve the interests of the entire labor-management community. In summary, we hold that we are without au- thority to order reinstatement and backpay as a remedy for a Weingarten violation. Accordingly, Kraft Foods, supra, and its progeny are hereby overruled to the extent inconsistent with this Sup- plemental Decision and Order. Finally, applying these principles to the instant case, we find that a make-whole remedy for Elmore is inappropriate. As indicated above, the only violation committed by the Respondent was a Weingarten violation. The record does not establish that Elmore was discharged for asserting his Wein- garten rights at the interview. On the contrary, it is undisputed that Elmore was discharged for what the Respondent determined to be a "refusal to per- ,• " Materials Research Corp, 262 NLRB 1010, 1021 (1982) (Member Hunter concurring and dissenting) 224 DECISIONS OF NATIONAL LABOR RELA [IONS BOARD form assigned , work." It -is also clear that the reason for his discharge was not, itself, an unfair labor practice. Thus, since Elmore was discharged "for cause" within the meaning of Section 10(c), the Board is without authority to require his rein- statement or the payment to him of any backpay. Accordingly, we shall vacate the Board's original Order and direct the Respondent to cease and desist from its unlawful activity and take other -ap- propriate remedial action. ORDER The National Labor Relations' Board orders that the Respondent, Taracorp -Industries, a Division of Taracorp, Inc., Granite City, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desistlrom (a) Depriving any employee of his right to union representation at an investigatory interview which the employee 'reasonably believes might result in disciplinary action. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following 'affirmative action designed to effectuate the policies of the Act. (a) Post 'at its Granite City, Illinois plant, copies of the attached notice marked' "Appenclix."6 Copies-of the notice, on forms provided by the Re- gional Director for Region 14, after being signed by the Respondent's authorized representative, shall be -posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the Board's Order reported at 257 NLRB 463 is vacated. IT IS FURTHER ORDERED that in all other re- spects the complaint is dismissed. MEMBER ZIMMERMAN, concurring. I join my colleagues in overruling Kraft Foods, despite my earlier approval of the remedy pre- sciibed in that case for violations of the Weingarten 16 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" rule.' As my colleagues point out, the courts of ap- peals have consistently refused enforcement of Board decisions imposing a make-whole remedy for a Weingarten violation where employees were clearly discharged for cause and not for attempting to assert their Weingarten rights. The Eighth Circuit in a decision rendered prior to Kraft Foods, refused to enforce the Board's order requiring a make-whole remedy in a case where employees, whose Weingarten rights had been violated, were discharged for participation in a fight which' stopped the production line. NLRB v. Potter Electrical Signal Co., 600 F.2d 120 (8th Cir. 1979). There, the court acknowledged the Board's broad authority to restore the status quo to remedy violations effectively, but held that where the discharges were the result of employees' mis- conduct Section 10(c) barred the Board from im- posing a make-whole remedy. Despite the subse- quent issuance of Kraft Foods, where the Board set forth a new standard for determining the propriety of a make-whole remedy-in the Weingarten context, the courts of appeals continued to reject the Board's analysis and relied instead on the 10(c) ar- gument espoused by the Eighth Circuit in the Potter Electrical decision. 2 Upon reviewing these decisions, I am persuaded that the initial approach of the Eighth Circuit in Potter Electrical is correct. I therefore join my colleagues in concluding that make-whole relief in the context of a Weingarten violation is contrary to the specific remedial re- striction contained in Section 10(c) of the Act.3 Accordingly, I concur in overruling Kraft Foods and its progeny. See, e g, Chromalloy American Corp, 263 NLRB 244 (1982) _ 2 See, e g , Pacific Telephone & Telegraph Co v NLRB, 711 F 2d 134 (9th Or 1983), Montgomery Ward & Co v NLRB. 664 F 2d 1095 (8th Or 1981), General Motors Corp v NLRB, 674 F 2d 576 (6th Cu' 1982) 3 Unlike my colleagues, I do not find that past Board decisions such as Materials Research Corp, 262 NLRB 1010 (1982), have exceeded the in- tended scope and limitations of the Supreme Court's Weingarten deci- sions Accordingly, I do not Join in that aspect of their opinion which holds that make-whole relief for Weingarten violations, independent of the restrictions of Sec 10(c), "constitutes bad policy" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT deprive any employee of his or her right to union representation at an investiga- TARACORP. INC 225 tory interview which the employee reasonably be cise of the rights guaranteed you by Section .7 of lieves may result in disciplinary action.. the Act. WE WILL NOT in any like or related manner „ , interfere with, restrain, or coerce you in the exer- TARACORP INDUSTRIES, A DIVISION OF TARACORP, INC.