Jefferson Electric Co.

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jefferson Electric Company, a Division of Litton Systems, Inc. and International Brotherhood of Electrical Workers, Local Union 1533, AFL- CIO-CLC. Case 19-CA-16403 7 March 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 8 June 1982 Administrative Law Judge John H. West issued a decision, finding that the Re- spondent's discharge of employee Yvonne Bonnie Hoskins violated Section 8(a)(1) and (3) of the Act. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. On 21 August 1984 the Board issued a Decision and Order' dismissing the 8(a)(1) allegation in light of its decision in Meyers Industries,2 and remanding the remaining 8(a)(3) allegation to the judge for analysis, decision, and recommended order consist- ent with the Board's decision in Wright Line.' On 19 September 1984 the judge issued the attached supplemental decision. The Respondent filed excep- tions and a supporting brief. The Board has considered the judge's original decision, as modified by the Board's prior decision herein, the judge's supplemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,4 and conclusions, as modified, and to adopt the recom- mended Order. In his supplemental decision, the judge reiterated his finding in his original decision that the General Counsel had established by a preponderance of evi- dence that unlawful reasons, i.e., union and protect- ed concerted activity, were motivating factors in Hoskins' discharge. He further noted that in its remand Order the Board determined that one of these, the filing of the state Occupational Safety and Health Administration (OSHA) complaint, did not constitute protected concerted activity, and thus the discharge on this basis was not unlawful. Citing the Supreme Court's decision in NLRB v. 1 271 NLRB 1084 (1984) 2 268 NLRB 493 (1984) 3 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Manage- ment Corp, 462 U S 393 (1983) 4 The Respondent has excepted to some of the judge's credibility find- ings 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 Cir 1951) We have carefully examined the record and find no basis for reversing the findings Transportation Management,5 the judge stated, "Re- spondent must demonstrate that it would have fired Hoskins for the [lawful] reason, even in the absence of Hoskins' protected activity." The judge then de- termined that because the Respondent had denied that Hoskins' OSHA activity was a reason for her discharge, the Respondent had not met its burden, and thus "bears the risk that the influence of legal and illegal motives cannot be separated." Relying on this language in Transportation Management, the judge found that the Respondent "has not shown that the illegal (union activity) and what is now not unlawful motive can be separated," and concluded that Hoskins' discharge therefore violated Section 8(a)(3). While we agree with the judge's conclusion that the Respondent violated Section 8(a)(3) by dis- charging Hoskins, we do so for the following rea- sons. Hoskins was discharged 28 January 1981 after she refused to work with a cleaning fluid while temporarily "on loan" to the final assembly depart- ment. Her sensitivity to the fumes emitted from the fluid was precipitated by an incident in April 1980 in which air vents at the plant became clogged and fumes from another chemical process were released in the plant. While hospitalized as a result of this incident, Hoskins filed a state OSHA complaint. Thereafter, the Respondent was cited for a safety violation and in late August 1980 paid a $240 fine. The union organizing campaign began during the summer of 1980, with the election held 23 October. The Union lost the election, and the Board issued a certification of results 21 January 1981. The judge found that the General Counsel demonstrated that Hoskins was an active and vocal union supporter, which support was known to the Respondent, and that she crossed swords with and embarrassed man- agement officials during the organizing drive. The judge found, and we agree, that the General Coun- sel established a prima facie showing that the union activity was a substantial motivating factor in Hos- kins' discharge. We further find that the record evidence does not demonstrate that the Respondent would have discharged Hoskins absent her union activity, but for reasons different than those relied on by the judge. In this regard, we note that during the months between her filing the OSHA complaint and her discharge, Hoskins was never disciplined by the Respondent in connection with her OSHA-related activities. Furthermore, on three occasions, in July, September, and October 1980, she was temporarily assigned to the final assembly department to do a 5 462 U S 393 (1983) 274 NLRB No. 104 JEFFERSON ELECTRIC CO 751 job using the cleaning fluid to which she had become sensitive. She discussed with the Respond- ent her sensitivity to the fumes, and in October se- cured doctors' notes to support her claim. On each of these three occasions she was excused from the work involving the fluid, with no mention of disci- plinary action. Thus, the Respondent never im- posed discipline on Hoskins either for her having filed the OSHA complaint or for her refusal to work with the cleaning fluid. Nor did the Re- spondent give any indication that future refusals to work with the fluid would result in any adverse action. We also note that after the April 1980 acci- dent that precipitated the OSHA complaint, two final assembly department employees who had al- lergic reactions to the cleaning fluid were allowed to transfer permanently to other departments, again without mention of discipline. Significantly, it was not until January 1981, subsequent to her union ac- tivities and within days after the certification of election results issued, that Hoskins was dis- charged, assertedly for refusing to perform the same job she previously had refused to perform. Thus, notwithstanding the judge's finding that the General Counsel established that Hoskins was discharged because of her OSHA-related activities, on the particular facts here we conclude that the Respondent has not demonstrated under Wright Line that it would have discharged Hoskins for her OSHA-related activities in the absence of her union activity. Accordingly, we find that the Respondent, by discharging Hoskins, has violated Section 8(a)(3) of the Act.6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Jefferson Electric Company, A Division of Litton Systems, Inc., Williamstown, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 6 In his final decision , the judge questioned the reasonableness of the Respondent's requiring its employees to work with and near the cleaning fluid because of the fumes In reaching our conclusion, we disavow any reliance on the judge's opinion in this regard SUPPLEMENTAL DECISION JOHN H. WEST, Administrative Law Judge. In my de- cision in this proceeding, issued June 8, 1982, the follow- ing findings were made: The grounds given by Respondent for [Yvonne] Hoskins' firing are pretextual. Since there was no le- gitimate business justification for the firing there was no dual motive and , therefore, Wright Line [infra] does not apply. Lacking a lawful reason for the firing, one is left only with unlawful reasons, viz , Hoskins' union ac- tivities and her concerted protected activities. Re- garding the latter, compare Alleluia Cushion Co., Inc, 221 NLRB 999 (1975) Hoskins' firing was in violation of Sections 8(a)(1) and (3) of the Act. The aforementioned concerted protected activities in- volved Hoskins filing a complaint with the Occupational Heath and Safety Administration (OSHA) section of the Kentucky Department of Labor over the inhalation of fumes on the job which resulted in over 10 employees seeing a doctor and 3 of these employees , including Hos- kins, being hospitalized . When Respondent failed to post the subsequent citation , an OSHA representative ap- peared at the involved plant and discussed that matter with Hoskins, among others On August 21, 1984, the Board issued its Decision and Order on Remand, containing the following. The judge concluded that Hoskins' discharge vio- lated Section 8(a)(1) and (3) of the Act. For the reason set forth below, we shall dismiss the 8(a)(i) complaint allegation The Board's Meyers Industries,' decision rejected the per se standard of concerted activity and over- ruled Alleluia Cushion Co., 221 NLRB 999 (1975). Meyers held that an employer's activity is concerted when "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."s There is no evidence that Hos- kins filed the state OSHA complaint with or on the authority of other employees. The record is similar- ly silent regarding employee involvement in Hos- kins' subsequent charge that the Respondent failed to comply with that agency's posting requirements. We therefore conclude that Hoskins' action does not fall within the Meyers definition of concerted activity. The judge found that Hoskins' discharge also vio- lated Section 8(a)(3), relying on Hoskins' role in the organizing campaign. The judge found that the Re- spondent's asserted reason for Hoskins' discharge- her refusal to work near the chemical that caused her illness-was pretextual. The judge also said, however, that Wright Line? "does not apply." We disagree. In Limestone Apparel"' the Board stated it "would apply the [Wright Line analysis] to all cases alleging violations of Section 8(a)(3) and (1) turning on employer motivation."9 The judge did not clearly delineate whether the Respondent discharged Hoskins because she com- plained to OSHA, because she engaged in union ac- tivity, or both. To the extent that Hoskins' dis- charge was motivated by her OSHA-related activi- ty the discharge is not unlawful. We shall therefore remand the 8(a)(3) allegation to the judge for analysis, decision, and recommend- 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed Order consistent with Wright Line and with this Decision and Order 5 Meyers Industries, 268 NLRB No 73 (Jan 6, 1984) 6 Id at slip op 12 1 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989, approved in NLRB v Trans- portation Management Corp, 103 S Ct 2469 (1983) 8 Limestone Apparel Corp, 255 NLRB 722 (1981) 8 Id In Limestone Apparel, supra, the Board concluded as follows. That decision [Wright Line] indicated that we would apply the analysis it set forth to all cases al- leging violations of Section 8(a)(3) and (1) turning upon employer motivation. However, we find it un- necessary formally to set forth that analysis in those cases where an administrative law judge's findings and conclusions fully satisfy the analytical objec- tives of Wright Line. We find that such is the case here. Thus, where an administrative law judge has evaluated the employer's explanation for its action and concluded that the reasons advanced by the employer were pretextual, that determination con- stitutes a finding that the reasons advanced by the employer either did not exist or were not in fact relied upon. [Footnote omitted ] No substantive objective is served by our reiter- ating and recasting an administrative law judge's finding and conclusions in order to achieve formal- istic consistency with Wright Line by inserting the term "prima facie showing" after the evidence which demonstrates the employer's wrongful motive on the record as a whole [footnote omitted] and then stating that "the employer did not meet its burden of demonstrating that the same action would have taken place even in the absence of the employ- ee's protected conduct" where the administrative law judge has concluded that the proffered explana- tion is pretextual. For a finding of pretext necessari- ly means that the reasons advanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel. We shall not, therefore, in any future cases in which we adopt an administrative law judge's find- ing of a pretext discharge point to any failure to make specific reference to Wright Line. Originally, the General Counsel succeeded in showing by a preponderance of the evidence that the unlawful reasons were the motivating factors in Respondent's action and Respondent's asserted lawful motive was a pretext; there were only unlawful motives for the dis- charge. Subsequently, the Board declared one of the un- lawful motives to no longer be unlawful at least as con- cerns the National Labor Relations Act (the Act). If the General Counsel succeeds by showing by a preponder- ance of the evidence that the unlawful reason was a mo- tivating factor in the Respondent's action, as he had done here,' but is unable to disprove the existence of any other motive which is not unlawful under the Act (obvi- ously he would not have had cause to even attempt such proof in view of the fact that at the time of the hearing herein the other motive was also unlawful) then the anal- ysis under Wright Line, supra moves to another stage. As pointed out by the Court in NLRB v. Transportation Management Corp, supra at 401: As we understand the Board's decisions, they have consistently held that the unfair labor practice consists of a discharge or other adverse action that is based in whole or in part on antiunion animus- or as the Board now puts it, that the employee's protected conduct was a substantial or motivating factor in the adverse action The General Counsel has the burden of proving these elements under Section 10(c). But the Board's construction of the statute permits an employer to avoid being adjudi- cated a violator by showing what his actions would have been regardless of his forbidden motivation. It extends to the employer what the Board considers to be an affirmative defense but does not change or add to the elements of the unfair labor practice that the General Counsel has the burden of proving under Section 10(c). And the Court concluded. The employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, be- cause he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing Accordingly, at this stage of the analysis Respondent must demonstrate that it would have dismissed Hoskins for the other reason, even in the absence of Hoskins' pro- tected activity But it was Respondent's position that it had no knowledge that Hoskins was responsible for the filing of the OSHA complaint, and that there was no evi- dence of animus regarding the filing of the OSHA com- plaint Since Respondent wa6 unwilling to concede that this was ever a motive, notwithstanding the fact that the Board has since declared such a motive to not be unlaw- ful under the Act, Respondent has not met its burden for as pointed out by the Court the employer bears "the risk i Hoskins' union activity was a substantial motivating factor for as found in my earlier decision General Counsel demonstrated that Hoskins was an obvious union supporter, a fact known to Respondent, and that she was not afraid to, and did, cross swords with management during the union orga- nizing drive It was not demonstrated that anyone else challenged and embarrassed Lee [a company representative of Litton Industries who flew to the involved Kentucky plant from California to conduct meetings with employees on behalf of Respondent] the way Hoskins did And it was not demonstrated that any other union activist was willing to go so far as to graphically equate management's refusal to allow employees to ask questions at a meeting with communist tac- tics, and thereby embarrass management into allowing questions The involved election was lost by the Union by 3 votes, 74 to 71 The year before the Union lost by a 2-to-1 margin JEFFERSON ELECTRIC CO that the influence of legal and illegal motives cannot be separated." Here the Respondent has not shown that the illegal (union activity) and what is now not unlawful motive can be separated The existence of some evidence of a motive which is not unlawful under the Act still does not prove that the Respondent would have dis- charged Hoskins for the not unlawful (as far as the Act is concerned) reason in the absence of any protected ac- tivity. In view of the above, no purpose would be served in reopening the record All of the findings of fact in my decision of June 8, 1982, to the extent they are not in- consistent with the Board's decision of August 21, 1984, herein, are reaffirmed CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Yvonne Bonnie Hoskins because she joined, supported, or assisted the Union, and engaged in concerted activities for the purpose of collective bar- gaining. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommend that Respondent be ordered to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the pur- poses of the Act. Having found that Respondent discharged Yvonne Bonnie Hoskins in violation of Section 8(a)(3) and (1) of the Act, it is recommended that Respondent (a) offer Hoskins immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges and make her whole for any loss of pay she may have suffered as a result of the dis- crimination against her by payment to her of a sum of money equal to that which she would have earned as wages during the period from the date of her discharge to the date on which Respondent offers reinstatement less her net earnings, if any, during said period, with in- terest thereon to be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977),2 and (b) expunge from her personnel file all documents related to the un- lawful discharge 2 See generally Isis Plumbing Co, 138 NLRB 716 (1962). 753 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Jefferson Electric Company, A Divi- sion of Litton Systems, Inc, Williamstown, Kentucky, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Discharging employees because they have joined, supported, or assisted the Union, and engaged in concert- ed activities for the purpose of collective bargaining (b) In any other like or related manner interfering with, restraining, or coercing its employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Offer Yvonne Bonnie Hoskins immediate and full reinstatement to her former or substantially equivalent job and make her whole for any loss of earnings she may have suffered by reason of Respondent's discrimination against her in the manner and to the extent set forth in the section herein entitled "The Remedy." (b) Remove from Yvonne Bonnie Hoskins personnel file any reference to her discharge, and make whatever changes are necessary to negate the effect of these docu- ments and Respondent's unlawful actions. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at it facilities in Williamstown, Kentucky, copies of the attached notice marked "Appendix."' Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent'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 Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 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 " 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise punish you be- cause you have joined, supported, or assisted any union WE WILL NOT discharge you, or otherwise discrimi- nate in regard to your hire or tenure of employment or any terms or condition of employment, to discourage membership in the International Brotherhood of Electri- cal Workers, Local Union 1533, AFL-CIO-CLC. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights under the National Labor Relations Act. WE WILL offer Yvonne Bonnie Hoskins reinstatement to the job of which she was unlawfully deprived or, if such a job no longer exists , to a substantially equivalent job, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole, with interest, for any loss of pay she may have suffered by reason of her discharge. WE WILL notify Yvonne Bonnie Hoskins that we have removed from our files any references to her unlawful discharge and that the discharge will not be used against her in any way. Our employees are free to exercise any or all of these rights, including the right to join or assist the Interna- tional Brotherhood of Electrical Workers, Local Union 1533, AFL-CIO-CLC, or any other union . Our employ- ees are also free to refrain from any or all such activities. JEFFERSON ELECTRIC COMPANY, A DIVI- SION OF LITTON SYSTEMS, INC