National Labor Relations Board v. White Oak Manor , 452 F. App'x 374 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2122
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
WHITE OAK MANOR,
Respondent.
On Application for Enforcement of an Order of the National Labor
Relations Board. (11−CA−21786)
Argued: September 22, 2011 Decided: October 28, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Application for enforcement granted by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Duncan and Judge
Davis joined.
ARGUED: Thomas Howard Keim, Jr., FORD & HARRISON, LLP,
Spartanburg, South Carolina, for Respondent. Nicole Lancia,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Petitioner. ON BRIEF: Kristin Starnes Gray, FORD & HARRISON,
LLP, Spartanburg, South Carolina, for Respondent. Lafe E.
Solomon, Acting General Counsel, Celeste J. Mattina, Acting
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha
Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Petitioner National Labor Relations Board seeks enforcement
of an order that it entered in this case. The Board’s order
adopted the findings of the administrative law judge (“ALJ”),
concluding that respondent violated the National Labor Relations
Act (“NLRA”) by terminating an employee for engaging in
protected concerted activity. Respondent contests petitioner’s
application for enforcement, challenging the Board’s ruling.
Because substantial evidence supports the ALJ’s findings as
adopted by the Board, we grant petitioner’s application for
enforcement.
I.
A.
Respondent White Oak Manor (“White Oak”) operates a long-
term care facility in Shelby, North Carolina. Nichole Wright-
Gore worked as a central supply clerk at White Oak until her
termination on November 16, 2007.
After receiving a “terrible haircut” and unable to “do
anything with [her] hair,” Wright-Gore wore a hat to work on
October 23, 2007. J.A. 66. She continued donning the hat while
at work for the next week, and no supervisors commented on her
dress. That changed on October 30, when Peggy Panther, White
Oak’s personnel director, explained to Wright-Gore that wearing
3
a hat violated the company’s dress code. Later that day, Tammy
Whisnant, White Oak’s assistant director of nursing, told
Wright-Gore to remove the hat, but she refused. Whisnant
reported Wright-Gore’s insubordination to Terry Fowler, the
director of nursing. Fowler called Wright-Gore to her office,
where Whisnant and Panther were waiting. Fowler told Wright-
Gore that White Oak’s dress code forbade employees to wear hats
and that Wright-Gore should go home if she refused to remove her
hat. Wright-Gore protested that other employees were allowed to
wear hats and singling her out was unfair. She declined to
remove her hat and left the facility for the day.
Wright-Gore returned to White Oak for work the next day,
when she and other employees wore costumes in celebration of
Halloween. She dressed as a race-car fan, and her costume
included a hat. Andy Nelson, the administrator of White Oak,
suggested that Wright-Gore remove the hat, and she complied.
Still concerned about Wright-Gore’s refusal to follow Fowler’s
orders the day before, Nelson met with both employees later that
day. Wright-Gore explained to Nelson that she felt that White
Oak was enforcing the dress code unevenly, but Nelson told her
to worry only about herself. As the meeting concluded, Nelson
handed Wright-Gore a written warning for insubordination.
In the days following her meeting with Nelson, Wright-Gore
paid particular attention to the clothing worn by fellow
4
employees. She noticed that several of her coworkers were
wearing hats and displaying their tattoos, in violation of White
Oak’s dress code. Management, however, failed to address these
obvious transgressions. Upset at the disparate enforcement of
the dress code, Wright-Gore began talking to female employees to
enlist their support. From around November 5 until November 12,
she spoke with roughly ten employees about the inequitable
implementation of the dress code. Wright-Gore’s coworkers
shared their own experiences with unequal enforcement of the
policy and expressed support for her grievance.
To bolster her complaint, Wright-Gore decided to document
dress-code violations. On November 12 and 13, she used her cell
phone to take pictures of employees dressed contrary to company
policy. Wright-Gore took pictures of four employees--Larry Shea
Roberts, David Layell, Harold Hopper, and Deborah Mitchell.
Although Roberts and Mitchell gave Wright-Gore permission to
photograph them, Hopper and Layell were unaware of Wright-Gore’s
actions. Wright-Gore enlisted the help of coworker Angela
Hawkins when she took a picture of Roberts.
Wright-Gore shared her pictures with several White Oak
employees. While showing the photographs to coworkers, Wright-
Gore explained that she had documented disparate enforcement of
the dress code. The employees generally expressed agreement
with Wright-Gore’s grievance. Again, Hawkins assisted Wright-
5
Gore, sharing a picture with coworker Crystal Henson and
declaring “look what we got.” Id. 289.
On November 15, Kathy Gunter, White Oak’s business office
manager, informed Nelson that Wright-Gore had been showing
coworkers pictures of employees violating the dress code. That
same day, Roberts complained that Wright-Gore had taken his
picture without permission. Nelson convened a meeting that
afternoon with Wright-Gore and Whisnant, where he confronted
Wright-Gore about the photographs. Wright-Gore explained to
Nelson that she had a problem with what she perceived as uneven
enforcement of the dress code. She told Nelson, when asked,
that she had received permission to take the pictures. Nelson
called her a liar. In response to Wright-Gore’s broader
grievance, Nelson wondered aloud whether she was “going to let a
hat come in between the food on [her] kids’ table.” Id. 114.
Following the meeting, Nelson initiated an investigation.
He was particularly concerned that Wright-Gore had violated
White Oak’s policy proscribing the taking of pictures inside the
facility without prior written authorization. He approached
employee T.C. Brooks, whom Gunter claimed Wright-Gore had
photographed. Brooks was unaware that Wright-Gore had taken a
picture of him, but he agreed to fill out a complaint form.
Nelson spoke with other employees, ultimately deciding to
discharge Wright-Gore.
6
The next day, November 16, Nelson called Wright-Gore to his
office and informed her that her employment had been terminated.
Nelson explained that his investigation had confirmed that she
had taken pictures of employees without their permission.
According to the termination report prepared by Nelson, Wright-
Gore had violated White Oak’s policy barring “[s]tealing or
misappropriating (misusing) property belonging to the facility,
residents, or other employees.” Id. 515. Elaborating on the
charge, Nelson wrote that Wright-Gore “took a picture of another
employee without his/her permission and in turn, showed it to
other employees.” Id. Nelson explained that he was discharging
Wright-Gore for taking a picture of Brooks.
White Oak had not established a precedent for disciplining
employees for photographing fellow employees absent their
permission. Indeed, Wright-Gore’s termination was the first
time that White Oak had enforced the policy. Employees
routinely took pictures of each other--at facility events or
while “goofing off” at work--and never asked for or received
permission. The staff freely shared these pictures, posting
them on facility bulletin boards or passing them around the
office.
Testifying at the administrative hearing, Wright-Gore
reflected on her efforts to document disparate enforcement of
the dress code. She explained that she spoke with other
7
employees “[t]o get their support so I could go to management
and say, you know, there’s [sic] other people that are agreeing
with me that, you know, the dress code is not being enforced
fairly.” Id. 131. Wright-Gore denied that she had taken action
solely for her own benefit, maintaining instead that she took
pictures to demonstrate to supervisors “that their dress code
wasn’t being enforced fairly for the entire facility.” Id. 170.
At bottom, she “wanted the dress code to be enforced equally and
fairly with everyone.” Id. 161.
B.
Wright-Gore responded to her termination by submitting a
charge to the Board, in which she claimed that White Oak had
violated the NLRA. The Board’s General Counsel, in turn, filed
a complaint with the Board, alleging that White Oak violated
section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), by
interrogating, threatening, and discharging Wright-Gore as a
result of her protected concerted activity. White Oak contested
the allegations, and the parties proceeded to an administrative
hearing.
The ALJ concluded that White Oak had violated section
8(a)(1) of the NLRA by discharging Wright-Gore for her protected
concerted activity. Viewing the evidence globally, the ALJ
found that “what had initially started as an individual
8
complaint by [Wright-Gore], that she was being treated unfairly
by being required to remove her hat, evolved into a campaign by
[Wright-Gore] to have the dress code enforced in a fair and
equitable manner.” J.A. 634. According to the ALJ, Wright-Gore
engaged in protected concerted activity by speaking with other
employees about disparate enforcement of the dress code and
documenting the problem through photography:
It is clear that [Wright-Gore] was addressing the
perceived unfair enforcement of the dress code and was
seeking to obtain the support of the female employees
to come together and make their positions known to
Respondent’s management and particularly Nelson, that
these employees wanted the Respondent to remedy the
unfair enforcement of the dress code. This
constituted a joining together of the employees for
their mutual aid and protection as the wearing of hats
and other items outlined in the dress code would
affect terms and conditions of employment.
Id. 636.
The ALJ reasoned that Hawkins’s assistance and Wright-
Gore’s conversations with other employees satisfied the NLRA’s
requirement that an employee be engaged in concerted activity.
The concerted activity was also protected under the NLRA, stated
the ALJ, because Wright-Gore “was engaged in a joint discussion
of the unfairness of the dress code, and . . . it was implicit,
therein, that she was seeking a change in the enforcement of the
dress code.” Id. Because Wright-Gore’s picture taking was
protected concerted activity and White Oak discharged her for
9
that activity, the ALJ determined that White Oak had violated
the NLRA.
Wright-Gore did not lose protection of the NLRA by
violating a White Oak rule prohibiting the taking of pictures of
other employees without permission, concluded the ALJ. He found
that employees freely took pictures of each other, without first
receiving permission, and often displayed these pictures
throughout the facility. Thus Wright-Gore’s purported violation
of White Oak policy was not so egregious as to strip her of the
NLRA’s safeguards.
The ALJ declined to carry out a dual-motive analysis under
Wright Line, 251 N.L.R.B. 1083 (1980). Because the reason for
termination was not at issue--all agreed that White Oak had
discharged Wright-Gore for photographing an employee without
permission--the ALJ concluded that Wright Line was inapposite.
The ALJ ordered White Oak to comply with the NLRA’s
provisions, post appropriate notice, offer Wright-Gore immediate
reinstatement, and give her back pay with interest.
The Board affirmed the ALJ’s findings and adopted his
recommended order. 1 The Board resisted White Oak’s challenges to
1
The Board initially affirmed the ALJ in a January 30, 2009
decision. White Oak responded by filing a petition for review
in the U.S. Court of Appeals for the D.C. Circuit. Before the
D.C. Circuit ruled on the petition, the Supreme Court issued its
decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635(Continued)
10
the ALJ’s credibility determinations, discerning no basis for
upsetting these findings. It also endorsed the ALJ’s conclusion
that Wright-Gore’s picture taking was not sufficiently egregious
to remove her from the NLRA’s protection. It found that White
Oak did not enforce its rule prohibiting photographing absent
permission, as employees routinely took and posted photographs
of each other. Moreover, the Board noted that the ALJ
determined that White Oak’s basis for terminating Wright-Gore’s
employment--that she photographed Brooks without his permission-
-was groundless, because Wright-Gore never took a picture of
Brooks.
The General Counsel’s application for enforcement of the
Board’s order is now before us.
II.
The thrust of White Oak’s argument against enforcement is
that Wright-Gore’s motives sounded purely in self interest,
precluding a finding that she engaged in protected concerted
(2010), which invalidated the Board’s two-member decisions. Id.
at 2644. Because only two Board members had participated in the
2009 decision, the D.C. Circuit vacated the decision and
remanded the case for further proceedings. White Oak Manor v.
NLRB, Nos. 09-1068, 09-1098, 2010 WL 4227419, at *1 (D.C. Cir.
Sept. 20, 2010). A three-member panel of the Board then decided
the case on September 30, 2010, reaffirming its 2009
conclusions. White Oak Manor, 355 N.L.R.B. No. 211 (Sept. 30,
2010).
11
activity. According to White Oak, the record establishes that
Wright-Gore complained about the dress code and documented its
uneven enforcement for her sole benefit, never intending to act
on behalf of a broader group of employees. Because the evidence
does not support a determination that Wright-Gore engaged in
protected concerted activity, White Oak insists that her
discharge did not violate the NLRA.
We disagree. Layers of deference inhering in the review of
Board decisions counsel hesitation before disturbing the ALJ’s
factual determinations. Substantial evidence in the record
before us supports the ALJ’s findings that Wright-Gore joined
with other employees to challenge White Oak’s uneven enforcement
of its dress code. Accordingly, White Oak violated the NLRA by
discharging Wright-Gore for engaging in this protected concerted
activity.
A.
Contrary to White Oak’s suggestion at oral argument, our
review of Board decisions is carefully circumscribed. “[W]e are
obliged to uphold the Board’s legal interpretations if they are
‘rational and consistent’ with the [NLRA].” Anheuser-Busch,
Inc. v. NLRB, 338 F.3d 267, 273 (4th Cir. 2003) (quoting Sam’s
Club v. NLRB, 173 F.3d 233, 239 (4th Cir. 1999)). The
substantial-evidence standard governs our review of the factual
12
findings made by the ALJ and affirmed by the Board. Id. at 273–
74. If findings of fact are supported by substantial evidence,
looking to the record as a whole, “we must uphold the Board’s
decision ‘even though we might have reached a different result
had we heard the evidence in the first instance.’ ” Medeco Sec.
Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (quoting
Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997)).
“Substantial evidence” means “ ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’ ” Anheuser-Busch, 338 F.3d at 274 (quoting NLRB v.
Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir.
1994)).
Critically here, the determination of whether an employee
was engaged in protected concerted activity is also reviewed
under the substantial-evidence standard. Alton H. Piester, LLC
v. NLRB, 591 F.3d 332, 337 (4th Cir. 2010).
B.
The NLRA confers on employees “the right . . . to engage in
. . . concerted activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
Section 8(a)(1) of the Act forbids “an employer to interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title.” Id. §
13
158(a)(1). Disciplinary measures are the very archetype of
coercion under the NLRA, and an employee may not be discharged
for engaging in protected concerted activity. See NLRB v. Air
Contact Transp. Inc., 403 F.3d 206, 213 (4th Cir. 2005).
By its plain terms, the NLRA protects employees in the
exercise of conduct engaged in “for the purpose of . . . mutual
aid or protection.” 29 U.S.C. § 157. “The ‘mutual aid or
protection’ clause . . . protects employees who ‘seek to improve
terms and conditions of employment or otherwise improve their
lot as employees through channels outside the immediate
employee-employer relationship.’ ” New River Indus., Inc. v.
NLRB, 945 F.2d 1290, 1294 (4th Cir. 1991) (quoting Eastex, Inc.
v. NLRB, 437 U.S. 556, 565 (1978)). An employer’s dress code is
one such “condition[] of employment which employees may seek to
improve,” and such efforts qualify as protected activity under
the NLRA. Id.Not only must the activity be protected, but it must be the
product of concerted action. See 29 U.S.C. § 157. We have
affirmed that the term “concerted activity,” as used in the
NLRA, “ ‘clearly enough embraces the activities of employees who
have joined together in order to achieve common goals.’ ”
Piester, 591 F.3d at 337 (quoting NLRB v. City Disposal Sys.
Inc., 465 U.S. 822, 830 (1984)). The inquiry is flexible, and
“employees need not ‘combine with one another in any particular
14
way’ ” to support a finding of concerted activity. Id. (quoting
City Disposal, 465 U.S. at 835). Indeed, “ ‘the lone act of a
single employee is concerted if it stems from or logically grew
out of prior concerted activity.’ ” Id. (quoting NLRB v. Mike
Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995)). Even “a
conversation involving only a speaker and a listener may
constitute concerted activity,” so long as “ ‘the conversation
was engaged in with the object of initiating or inducing or
preparing for group action or . . . had some relation to group
action in the interest of the employees.’ ” Id. (quoting Krispy
Kreme Doughnut Corp. v. NLRB, 635 F.2d 304, 307 (4th Cir.
1989)).
To qualify as concerted activity, an employee’s actions
need not spring from a formalized plan. For instance, a single
employee’s conversations with management about a condition of
employment may constitute concerted activity even if a broader
group of employees never appointed her spokesperson. Id.“[I]ndividual protests of a management decision may properly be
characterized as concerted action so long as those disagreeing
with the decision ‘considered that they had a grievance and
decided, among themselves, that they would take it up with
management.’ ” Id. (quoting NLRB v. Guernsey-Muskingum Elec.
Coop., Inc., 285 F.2d 8, 12 (6th Cir. 1960)).
15
That an employee’s self-interest catalyzed her decision to
complain about working conditions does not inexorably bar a
determination that her actions were protected and concerted.
Id. at 341 (construing Joanna Cotton Mills Co. v. NLRB, 176 F.2d
749, 753 (4th Cir. 1949), as “explaining that [an] individual’s
personal motivation for attempting to further group action does
not prevent the conduct from being protected”). Motives are
often not monolithic, and an employee may seek both to mitigate
a problematic policy affecting her and to improve the lot of her
coworkers. Though a speaker may articulate a grievance with
reference only to herself, such an activity is protected under
the NLRA so long as the sought-after remedy would necessarily
benefit other employees. Id. (“As for the fact that Chapman
stated his objections in terms of the effect that it was having
on his paycheck, that would at most show only that it was his
concern for his own finances rather than those of the group that
motivated his support for the drivers’ collective position.
There was no testimony that Chapman sought a personal exemption
from the surcharge change that would not have applied to the
other drivers as well.” (citation omitted)).
C.
With the foregoing principles in mind, we hold that
substantial evidence supports the findings of the ALJ that White
16
Oak discharged Wright-Gore for engaging in protected concerted
activity. As a preliminary matter, we note that the termination
of Wright-Gore’s employment most assuredly qualifies as
“coercion” proscribed by section 8(a)(1) of the NLRA, see Air
Contact, 403 F.3d at 213, a point neither party contests. Nor
do the parties dispute the grounds for Wright-Gore’s
termination--her taking and distributing a photograph of Brooks.
Thus our inquiry is limited to determining whether Wright-Gore’s
photographing of fellow employees--as part and parcel of her
larger grievance over dress-code enforcement--constitutes
protected concerted activity under the NLRA. We conclude that
it does.
Wright-Gore’s complaints about White Oak’s disparate
enforcement of its dress code are protected under the NLRA. See
New River, 945 F.2d at 1294 (holding that dress codes are a
“condition[] of employment which employees may seek to improve”
while receiving the safeguards of the NLRA). As part of the res
gestae of her overarching grievance about dress-code
enforcement, Wright-Gore’s documenting of the problem through
photography is similarly protected conduct. See Media Gen.
Operations, Inc. v. NLRB, 394 F.3d 207, 213 (4th Cir. 2005)
(endorsing determination that conduct that is part of the res
gestae of protected concerted activities benefits from the
NLRA’s safeguards).
17
Wright-Gore’s activities moreover were the product of
concerted action. Wright-Gore spoke with roughly ten employees
about uneven enforcement of White Oak’s dress code. Her
coworkers sympathized with her concerns, raising their own
independent complaints about dress-code implementation and
expressing their hopes for more equitable enforcement. At least
one employee, Hawkins, assisted Wright-Gore with her efforts to
document the problem, encouraging Roberts to pose for a picture
and sharing pictures with Henson. Indeed, Hawkins felt a sense
of ownership in the enterprise, remarking to Henson “look what
we got” when showing her a photograph. See J.A. 289.
Because Wright-Gore’s conversations were initiated to
induce group action--she explained that she spoke with other
employees “[t]o get their support so I could go to management
and say, you know, there’s [sic] other people that are agreeing
with me that, you know, the dress code is not being enforced
fairly,” id. 131--they constitute concerted activity. See
Piester, 591 F.3d at 337. To be sure, Wright-Gore’s fellow
employees did not formally appoint her spokesperson regarding
complaints over dress-code enforcement, but substantial evidence
supports the conclusion that the employees determined that they
had a collective grievance and resolved to “ ‘take it up with
management.’ ” See id. (quoting Guernsey-Muskingum, 285 F.2d at
12).
18
In an effort to resist the analysis outlined above, White
Oak maintains that Wright-Gore’s interest in benefiting herself
ineluctably precludes a finding that she was engaged in
protected concerted activity. But White Oak’s rigid
formulation--that an employee may not be motivated by both self-
interest and collective well being--finds support in neither
common sense nor precedent. White Oak’s position ignores
Wright-Gore’s consistent assertions that she “wanted the dress
code to be enforced equally and fairly with everyone,” J.A. 161.
Wright-Gore’s grievance may have started as an individual gripe
about being disciplined for wearing a hat, but substantial
evidence supports the ALJ’s determination that it “evolved into
a campaign . . . to have the dress code enforced in a fair and
equitable manner,” id. 634. 2
White Oak’s position similarly overlooks our precedent,
which does not find mutually exclusive an employee’s acting in
self-interest and her engaging in protected concerted activity.
2
White Oak repeatedly mentions Wright-Gore’s purported
“admission” that she was the only employee who wanted to wear a
hat. This myopic focus on hat wearing misses the forest for the
trees. Wright-Gore may indeed have been the only employee who
bristled at the dress code’s proscription on hat wearing, but
this has no bearing on the overarching complaint about uneven
enforcement of the dress code. Wright-Gore’s grievance--and
that of her coworkers--was not about the terms of the dress
code, but rather the disparate enforcement of those terms. That
no other employee wished to wear a hat to work does not in the
least detract from the force of this broader complaint.
19
Even if an employee’s grievance sounds entirely in self-
interest, it still constitutes protected concerted activity so
long as the remedy will benefit other employees. Piester, 591
F.3d at 341. Equitable enforcement of a dress code
definitionally benefits all. As such, Wright-Gore’s conduct was
protected concerted activity under the NLRA, even if she was
motivated by a sense that White Oak was both treating her
unfairly and unevenly enforcing the dress code. 3
III.
Even assuming that Wright-Gore engaged in protected
concerted activity, White Oak contends that her decision to
photograph other employees violated a valid company rule and
thereby authorized her termination. Because Wright-Gore took
pictures of employees without securing their permission, White
Oak maintains that it discharged her consistent with the
dictates of the NLRA. We disagree.
3
White Oak attacks the ALJ’s credibility determinations in
an effort to challenge the Board’s conclusions. “ ‘[W]hen
factual findings rest upon credibility determinations, they
should be accepted by the reviewing court absent exceptional
circumstances.’ ” NLRB v. CWI of Md., Inc., 127 F.3d 319, 326
(4th Cir. 1997) (quoting Fieldcrest Cannon, Inc. v. NLRB, 97
F.3d 65, 69 (4th Cir. 1996)). Cognizant that “ ‘[t]he balancing
of witnesses’ testimony is at the heart of the fact-finding
process,’ ” WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir. 2001)
(quoting Fieldcrest Cannon, 97 F.3d at 71), we find no
“exceptional circumstances” compelling us to disturb the ALJ’s
credibility determinations as adopted by the Board.
20
An employee, though otherwise engaging in protected
concerted activity, “can lose the [NLRA’s] protections if his
‘conduct is so egregious as to take it outside the protection of
the Act, or of such a character as to render the employee unfit
for further service.’ ” Anheuser-Busch, 338 F.3d at 280 (quoting
Consumers Power Co., 282 N.L.R.B. 130, 132 (1986)); see also
Stanford, N.Y., LLC, 344 N.L.R.B. 558, 558 (2005) (“When an
employee is discharged for conduct that is part of the res
gestae of protected concerted activities, the pertinent question
is whether the conduct is sufficiently egregious to remove it
from the protection of the [NLRA].”). To be stripped of the
safeguards of the NLRA, an employee’s conduct must meet a high
threshold of egregiousness. E.g., Media Gen. Operations, 394
F.3d at 213 (reaffirming that conduct “ ‘occurring during the
course of otherwise protected activity remain[s] likewise
protected unless . . . so violent or of such serious character
as to render the employee unfit for further service’ ” (quoting
Sullair P.T.O., Inc. v. NLRB, 641 F.2d 500, 502 (7th Cir.
1981))).
White Oak has failed to make the requisite threshold
showing of egregiousness. The company’s utter failure to
enforce its picture-taking policy militates against a finding
that Wright-Gore’s conduct removed her from the aegis of the
NLRA. Indeed, White Oak had never before disciplined an
21
employee for taking pictures of coworkers without first securing
their permission. Quite the opposite, the company had allowed
employees to freely take pictures of each other absent
permission, and to share the photographs and even post them on
facility bulletin boards. White Oak’s claim that Wright-Gore’s
conduct “ ‘is so egregious’ ” as to “ ‘render [her] unfit for
further service,’ ” Anheuser-Busch, 338 F.3d at 280 (quoting
Consumers Power, 282 N.L.R.B. at 132), thus rings hollow.
More fundamentally, the act for which Wright-Gore was
terminated never even occurred. Nelson stated that the sole
reason for Wright-Gore’s discharge was her photographing Brooks.
The ALJ and the Board concluded that Wright-Gore never took a
picture of Brooks. Because White Oak discharged Wright-Gore for
conduct in which she never engaged, it can find no refuge in the
egregiousness safe harbor.
IV.
Moving beyond the substance of the Board’s ruling, White
Oak lodges two procedural challenges. First, it argues that the
ALJ and Board were obligated to perform a Wright Line motive
analysis. Second, White Oak maintains that we must revise the
Board’s proposed notice to reflect that Wright-Gore has waived
reinstatement and settled her claim for back pay. Both
contentions are groundless.
22
A.
The Board in Wright Line crafted a test to employ in “dual
motive” cases--disputes in which there is “both a ‘good’ and a
‘bad’ reason for the employer’s action [that] requires further
inquiry into the role played by each motive.” 251 N.L.R.B. at
1084. We have clarified that invocation of the Wright Line
analysis is appropriate only in “situations where the employer’s
motive is at issue, such as cases where the employee claims that
the employer took action against him for engaging in protected
activity and the employer claims that it took action against the
employee for some other reason.” Air Contact, 403 F.3d at 215;
see also Allied Aviation Fueling of Dallas, LP, 347 N.L.R.B.
248, 248 n.2 (2006) (concluding that the Wright Line analysis
should not be used “where an employer admits that it discharged
an employee for engaging in protected activity”).
Because White Oak’s motive is not in dispute, application
of the Wright Line analysis is inappropriate. White Oak and the
Board agree that Wright-Gore was terminated for photographing a
coworker without his permission, in violation of a company rule.
The crux of this appeal is whether that activity, viewed as part
of Wright-Gore’s grievance about enforcement of the dress code,
constitutes protected concerted activity under the NLRA. This
is manifestly not a case in which the employer’s motive--i.e.,
its “real” reason for discharging the employee--is at issue, and
23
application of the Wright Line test is not warranted. See Air
Contact, 403 F.3d at 215.
B.
Finally, without passing on the merits of White Oak’s
challenge to the Board’s proposed notice, we simply conclude
that this appeal is not the proper proceeding in which to
resolve the dispute. The Supreme Court has long recognized that
a compliance proceeding, taking place after the merits have been
finally resolved, is the proper forum in which to adjudicate
disagreements over the proposed notice and attendant remedies.
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–99 (1984). White Oak
will have ample opportunity to press its arguments about the
proper “tailoring [of] the remedy to suit the individual
circumstances of [this] discharge” in subsequent compliance
proceedings. See id. at 902.
V.
Substantial evidence supports the ALJ’s conclusion that
White Oak discharged Wright-Gore for engaging in protected
concerted activity, in violation of the NLRA. Accordingly, we
grant the Board’s application for enforcement.
APPLICATION FOR ENFORCEMENT GRANTED
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