Earle Industries, Inc. v. National Labor Relations Board , 75 F.3d 400 ( 1996 )

___________
No. 94-3843
___________
Earle Industries, Inc., *
*
Petitioner, *
*
v. *
*
National Labor Relations Board, * On Petition for Review of
* an Order of the National
Respondent, * Labor Relations Board.
*
Southwest Regional Joint Board, *
Amalgamated Clothing and *
Textile Workers Union, AFL-CIO, *
CLC, *
*
Intervenor. *
___________
No. 95-1033
___________
Earle Industries, Inc., *
*
Respondent, *
*
v. *
*
National Labor Relations Board, * On Petition for Enforcement
* of an Order of the National
Petitioner, * Labor Relations Board.
*
Southwest Regional Joint Board, *
Amalgamated Clothing and *
Textile Workers Union, AFL-CIO, *
CLC, *
*
Intervenor. *
___________
Submitted: June 14, 1995
Filed: January 31, 1996
___________
Before WOLLMAN, FLOYD R. GIBSON and JOHN R. GIBSON, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Earle Industries, Inc. petitions for review of a National
Labor Relations Board order finding that Earle Industries committed
an unfair labor practice by firing Earley Mae Wallace. The
administrative law judge found that Earle Industries fired Wallace
for insubordination and dishonesty. However, the Board ordered
Earle Industries to reinstate Wallace with backpay, despite the
Board's adoption of the ALJ's credibility findings. The Board
cross-petitions for enforcement. We grant the petition for review
and deny enforcement of the order.
At the time she was fired, Wallace had worked for Earle
Industries for sixteen years. She had advocated unionization of
the company's workers for many years. The company had fired her
twice, first in 1977 and then in 1978. It reinstated her the first
time in settlement of an unfair labor practice charge, and the
second time as a result of a National Labor Relations Board Order.
See Earle Indus. Inc., 260 N.L.R.B. 1128 (1982).
On October 1, 1991, in the midst of a union1 organizing
campaign at Earle Industries, the Reverend Jesse Jackson came to
the plant to make a lunchtime speech in support of the union.2 A
1
The rally was held by the Amalgamated Clothing & Textile
Workers' Union, Southwest Regional Joint Board, which intervened
in this case.
2
We recounted the story of the rally and subsequent events
in greater detail in NLRB v. Earle Indus., Inc., 999 F.2d 1268
(8th Cir. 1993) (Earle I). In Earle I, we upheld the Board's
determination that any union misconduct did not materially affect
election results. Earle I did not involve Wallace's firing.
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television news crew captured the speech and the ensuing events on
videotape. The tape is in the record before us, and was the basis
for much of the detail in the ALJ's findings.
Jackson delivered his speech from the back of a flatbed truck
driven onto company property by a union representative. Local
police arrived on the scene and informed the union organizers that
they were trespassing on company property and asked them to leave.
The organizers did not leave voluntarily, so police arrested two
union representatives and put them in the back of a police car.
Police also drove the flatbed truck off company property.
Jackson then learned that the two union men were under arrest
and went to visit them at the police car, assuring them that he
would get them released. The videotape followed Jackson as he
walked toward the plant, surrounded by a crowd of admirers.
Jackson and the crowd went to the employees' plant entrance. Above
the door was a sign saying, "Employees Only."
After Jackson entered the plant, Wallace walked to the front
of the entourage and led the way toward the office. The personnel
manager, Gary Smith, stepped up to bar Jackson's way. Smith told
Jackson he was trespassing and asked Jackson to leave the plant and
return by the visitor's entrance in the front of the plant. As
this conversation was taking place, Wallace urged Jackson to walk
past Smith, saying "Front door locked, come on." Smith said to
her, "No ma'am." Wallace repeated her statement, and said to
Jackson, "Right over there," gesturing toward the office. Jackson
calmly told Smith he would go back out to the visitor's entrance if
Smith would go with him, which Smith refused to do. Jackson and
Smith repeated this exchange several times. Unable to turn Jackson
back, Smith gave up and retreated to the office, as the crowd
cheered.
Jackson, surrounded by the crowd and news cameras, walked on
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through the plant to vice president Peter Felsenthal's office.
Jackson left the plant after speaking with police inside, but
Felsenthal did agree to meet with Jackson. Jackson then entered
the plant through the visitor's entrance.
Felsenthal obtained a copy of the videotape of Jackson's
confrontation with Smith from the television station that recorded
it. After viewing the tape and seeing Wallace's prominent role in
the Smith-Jackson confrontation, Felsenthal decided to call Wallace
in for questioning. On October 7, Felsenthal interviewed Wallace,
with Smith and supervisor Louise Eskridge present. Unbeknownst to
Wallace, Felsenthal audiotaped the meeting. Wallace at first
refused to answer questions and demanded an attorney. Felsenthal
offered to let Wallace have a fellow worker with her in the
interview, but Wallace still repeatedly declined to answer his
questions. After Wallace said there was no point in questioning
her, since Felsenthal had seen the tape of the incident, Felsenthal
said: "I saw what was on T.V. and that was it. I don't know what
went on." In fact, Felsenthal had already seen the uncut news
station video, as well as the excerpts that appeared on the news.
The interview continued until Wallace finally began making
statements. Wallace eventually told Felsenthal that she "did not
indicate to anybody that the front door was locked" and did not
"motion or encourage" Jackson in his progress through the plant.
Earle Industries first suspended, then fired Wallace, citing
her conduct on October 1 and her failure to cooperate with the
company investigation on October 7.
The Union filed an unfair labor practice charge against Earle
Industries, alleging that, in firing Wallace, the company violated
sections 8(a)(1) and (3) of the National Labor Relations Act.3
3
Sections 8(a)(1) and (3), codified at 29 U.S.C. § 158
(1988), provide:
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Wallace filed an affidavit in which she described the October 1
incident. In the affidavit Wallace said that when Smith stopped
Jackson she had said, "[L]et's clock," and motioned to the other
workers to go to the time clock. She explained:
During the time that Jackson was in the plant talking to
Smith, I didn't have anything to do with what Smith and
Jackson were talking about--I was telling the girls to
"come on" to the clock--and I was motioning them to come-
-kind of whispering "don't forget to clock" at the same
time--they were talking. I can't remember saying
anything about a door being locked while Jackson was
coming down through the aisle in the plant. . . . I
don't have anything to do with the front door at all--the
front door is usually locked. . . . I was saying
"clock" not "lock."
After a hearing the administrative law judge recommended that
the Union's complaint be dismissed. The ALJ held that Wallace
forfeited the protection of the NLRA by her conduct. Specifically,
the ALJ found that Wallace intentionally lied during Smith's
confrontation with Jackson:
While it might be argued that the first time Wallace made
this statement ["front door locked"] it was spontaneous,
I do not believe that to be the case. There is no
evidence of record that the front door was locked. It is
normally left unlocked at this time of day. And there is
evidence that it was not locked on October 1. When
Wallace said that it was locked the first time it was a
misstatement. . . . Wallace was a totally unreliable
(a) It shall be an unfair labor practice for an
employer--
(1) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in
section 157 of this title . . .
(3) by discrimination in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor
organization. . . .
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witness. She lied before in a Board proceeding. She
lied in her affidavit to the Board in this proceeding.
And she lied while testifying herein. Wallace wanted
Jackson to continue walking through the plant
notwithstanding the fact that it would have been obvious
to a reasonable person that Gary Smith, Respondent's
personnel manager, by what he said and by his body
language, wanted Jackson to go back out the employee
entrance. . . . Jackson, relying on what Wallace was
saying, apparently believed he would be locked out of the
plant if they locked the employee entrance behind him.
. . . But for Wallace's statements, I believe that
Jackson would have gone, as he subsequently did, to the
front door. Wallace's first statement that the front
door was locked was not a spontaneous or impulsive
statement. Wallace impressed me as being a very
calculating individual. This was a calculated statement.
As she subsequently demonstrated, no matter what Smith
said or did Wallace wanted Jackson to proceed through the
plant and this was her way of achieving that.
Earle Indus., Inc., 315 N.L.R.B. 310, 347-48 (1994). The ALJ made
specific findings that Earle Industries fired Wallace because of
her insubordination and dishonesty, rather than because of her
union activity:
Was Wallace terminated because she was insubordinate and
she lied about it or was she terminated because of her
union activity? In my opinion it is the former. . . .
I believe that Respondent has shown that it would have
terminated Wallace absent her union activity and any
concerted protected activity she may have engaged in.
Id. at 348-49.
Despite the ALJ's recommendation, the Board found Earle
Industries had committed an unfair labor practice, issued a cease
and desist order, and ordered Earle Industries to reinstate Wallace
with backpay. Id. at 315-16.
Significantly, the Board adopted the ALJ's credibility
determinations. Id. at 310 n.1. The Board did not disagree with
the ALJ that Wallace was insubordinate and dishonest. Id. at 312
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n.11, 313-35. Rather, the Board used a different legal analysis
than the ALJ. The ALJ held that Wallace had forfeited the
protection of section 7 of the NLRA4 by her insubordination and
dishonesty. Id. at 348. The ALJ then used the Wright Line5 test
for mixed motive firings. Id. at 349. Under Wright Line, if an
employer is accused of firing an employee because of the employee's
union activities, the General Counsel must show that the employer
was motivated by anti-union animus. The burden is then on the
employer, which can exonerate itself by showing that it would have
fired the employee for a legitimate, nondiscriminatory reason
regardless of the employee's protected activity. See generally 1
ABA Section of Labor and Employment Law, The Developing Labor Law
195 (Patrick Hardin et al. eds. 3d ed. 1992). The ALJ found that
the General Counsel had not showed Earle Industries acted out of
anti-union animus. Earle Indus., 315 N.L.R.B. at 349. Further, he
found that Earle Industries showed it would have fired Wallace for
insubordination and dishonesty regardless of her union activity.
Id.
The Board, on the other hand, considered the Wright Line test
inapplicable to this case because the misconduct for which Earle
4
Section 7 of the NLRA, codified at 29 U.S.C. § 157 (1988),
provides:
Employees shall have the right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and shall also have the right to refrain
from any or all of such activities except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in section
158(a)(3) of this title.
5
251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.
1981), cert. denied, 455 U.S. 989 (1982), approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
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Industries fired Wallace occurred in the context of concerted
activities. Id. at 315 n.19. In such a case even conduct like
dishonesty and insubordination, which could justify firing under
the Wright Line test, can fall into a class of protected
misbehavior or "leeway," which the Board considers a necessary
accommodation of the realities of industrial life. Id. at 313-14;
see F. W. Woolworth Co., 251 N.L.R.B. 1111 (1980), enforced, 655
F.2d 151 (8th Cir. 1981), cert. denied, 455 U.S. 989 (1982);
Consumers Power Co., 282 N.L.R.B. 130 (1986). The Board held that
Wallace's insubordination fell "within the degree of latitude which
the Act affords employees in order to ensure that they may freely
exercise their Section 7 rights." Earle Indus., 315 N.L.R.B. at
313. The Board found that Wallace's lies in the various steps of
this proceeding were precipitated by the company asking her
questions it should not have asked: "Wallace may well have felt
compelled to conform her testimony in this proceeding to the
statements which she made during the course of the coercive
interrogation. . . ." Id. at 315. Accordingly, the Board held
that in firing Wallace, Earle Industries violated sections 8(a)(1)
and (3) of the NLRA (29 U.S.C. § 158(a)(1) & (3)). Id. at 313.
The Board ordered Wallace reinstated with backpay. Id. at 315.
On petition for review, Earle Industries argues that it was
entitled to fire Wallace for insubordination and dishonesty.
We review the Board's findings under the substantial evidence
standard, meaning that we will not disturb the findings if they are
supported by substantial evidence on the record as a whole, taking
into account the evidence detracting from the findings. Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). We examine the
Board's findings more critically when, as here, the Board's
conclusions are contrary to the ALJ's, because the ALJ's opinion is
part of the record we must consider. GSX Corp. v. NLRB, 918 F.2d
1351, 1356 (8th Cir. 1990); NLRB v. Hawkins Constr. Co., 857 F.2d
1224, 1226 (8th Cir. 1988); see Universal Camera Corp., 340 U.S. at
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496.
Earle Industries argues that it was entitled to fire Wallace
in order to maintain discipline at its plant. It argues that
Wallace was part of a group of employees who assisted and
accompanied Jackson in making his way through a part of the plant
where he had no right to be.6 When the personnel manager stopped
Jackson, Wallace defied the manager before a crowd of employees and
did so by means of a false statement. The ALJ found the false
statement to be calculated, not impulsive, Earle Indus., 315
N.L.R.B. at 348, and the Board adopted the ALJ's credibility
findings, id. at 310 n.1.
The Board argues that if an employee's misconduct occurs
simultaneously with any sort of concerted activity, the employer
must tolerate the conduct unless it is "flagrant" and
"opprobrious", and cites instances of equally bad behavior that the
Board has protected in the past.7
6
The Board compares the Jackson incident to past incidents
in which other employees' family members entered the plant by the
employees' door. Earle Indus., 315 N.L.R.B. at 314. The Board
argues that the company did not care about the rule, but used the
rule as a pretext for firing Wallace. The videotape of the
Jackson visit shows a horde of people, including news cameras,
other press, and employees, walking en masse through the plant.
This crowd scene is hardly analogous to a visit by a solitary
husband or even a family group come to say good byes. See id. at
340. Therefore, we reject the Board's contention that these past
incidents show Earle Industries' concern about use of the
employee entrance during the Jackson incident was pretextual.
7
The Board also cites several cases in which United States
courts of appeals enforced Board orders: Keokuk Gas Service Co.
v. NLRB, 580 F.2d 328, 335 n.17 (8th Cir. 1978); Hawaiian Hauling
Serv., Ltd. v. NLRB, 545 F.2d 674, 675-76 & n.8 (9th Cir. 1976),
cert. denied, 431 U.S. 965 (1977); Crown Cent. Petroleum Corp. v.
NLRB, 430 F.2d 724, 730-31 (5th Cir. 1970); J. P. Stevens & Co.
v. NLRB, 547 F.2d 792, 793-94 (4th Cir. 1976); and Coors
Container Co. v. NLRB, 628 F.2d 1283, 1288 (10th Cir. 1980).
The first four cases involved grievance proceedings, captive
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It is true that the Board has the power and the responsibility
to balance the employee's section 7 interest against the employer's
interest in maintaining discipline. See NLRB v. Prescott Indus.
Prods. Co., 500 F.2d 6, 10 (8th Cir. 1974); NLRB v. Thor Power Tool
Co., 351 F.2d 584, 587 (7th Cir. 1965). Though the Board's
decision is discretionary, it is not beyond review. Prescott
Indus., 500 F.2d at 10. We must deny enforcement if the Board's
determination is illogical or arbitrary. Id. And, more to the
point, that balancing test must be anchored in the policies of the
National Labor Relations Act. We have refused to enforce Board
orders based on the unreasonable and arbitrary conclusion that the
employee's misconduct should be protected under section 7. See
Prescott Indus., 500 F.2d at 10-11; NLRB v. Red Top, Inc., 455
F.2d, 721, 726 (8th Cir. 1972); accord Sullair P.T.O., Inc. v.
NLRB, 641 F.2d 500, 503 (7th Cir. 1981).
The Board seeks to exercise its discretion by cutting a wide
swath for permissible misconduct occurring in connection with any
sort of concerted activity. The Board distinguishes only between
gradations of offensiveness of the conduct. The Board's conception
of "leeway" for misconduct is far too blunt an instrument when
applied without regard to the situation in which the misconduct
took place. In past cases we have held the Board must take into
account other factors in considering whether protecting such
conduct serves the NLRA's goals of self-organization and
representation. See Red Top, 455 F.2d at 725-26 (quoting NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 45-46 (1937)). We held
the conduct of the employees in Red Top to be unprotected because
protecting the conduct did not serve the purposes of the Act: "We
do not think the approval of conduct disclosed by this record will
encourage harmonious labor-management relationships nor result in
audience speeches, or strikes, all of which we discuss infra at
11-12. J. P. Stevens and Coors also involved conduct
specifically found to be impulsive, unlike Wallace's conduct in
this case. See infra at 12.
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the proper consideration and resolution of legitimate grievances.
Quite to the contrary, it would encourage insolence,
insubordination, and intimidation." Id. at 728.
In view of the purposes of the NLRA, we have recognized that
an employer cannot insist on subordination in the context of
bargaining or grievance processes. These are situations in which
the Act aims for equality of bargaining positions between employer
and employee to permit meaningful negotiation. See Red Top, 455
F.2d at 728; Prescott Indus., 500 F.2d at 11; see also Chemvet
Labs., Inc. v. NLRB, 497 F.2d 445, 452 (8th Cir. 1974); see
generally NLRB v. City Disposal Sys., Inc., 465 U.S. 822, 835
(1984) ("[I]t is evident that, in enacting § 7 of the NLRA,
Congress sought generally to equalize the bargaining power of the
employee with that of his employer by allowing employees to band
together in confronting an employer regarding the terms and
conditions of their employment."). In Crown Central Petroleum
Corp. v. NLRB, 430 F.2d 724 (5th Cir. 1970), which the Board cites,
the Fifth Circuit focussed on the context of the misconduct as the
key to deciding whether the misconduct was protected by the Act.
There, the misconduct was protected because it occurred during
grievance proceedings:
Of central importance to our view of the case, is
the nature of the protected activity involved. Harris
and Gilliam were participating in a grievance meeting,
which by its very nature requires a free and frank
exchange of views, and where bruised sensibilities may be
the price exacted for industrial peace. As the Board
noted, a grievance proceeding is not an audience,
conditionally granted by a master to his servants, but a
meeting of equals--advocates of their respective
positions. Manly was not assailed with abuse on the
floor of the plant where he stood as a symbol of the
Company's authority; the characterization of the untruth
came while he was appearing as a Company advocate during
a closed meeting with Union representatives.
430 F.2d at 73l (emphasis added). Therefore, we have required
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employers to countenance insubordinate, rude conduct in these
contexts that might be cause for firing without the protection of
the NLRA.
Similarly, in the context of strikes, grievances, and captive
audience speeches, we have recognized that industrial conflict
tends to bring out less than admirable conduct. We have
acknowledged the need to excuse impulsive, exuberant behavior (so
long as not flagrant or rendering the employee unfit for
employment) as an inevitable concomitant of struggle. See Prescott
Indus., 500 F.2d at 10; Red Top, 455 F.2d at 728 ("It is of course
understandable that tempers may flare in the course of grievance
meetings and that harsh and rough words may be exchanged between
the parties without giving rise to a basis for discharge consistent
with the protections afforded under § 7 of the Act."). Conversely,
we have considered an employee's bad faith or calculated use of the
shelter of the Act in holding that section 7 did not extend its
protection to that employee's acts.8 See Red Top, 455 F.2d at 726
("[t]he question of whether or not the three employees pressed
their alleged grievances in good faith becomes vitally
important."); Prescott Indus., 500 F.2d at 10 ("[B]efore us we have
no situation of mere exuberant conduct."); cf. F. W. Woolworth Co.
v. NLRB, 655 F.2d 151, 154 (8th Cir. 1981) (excusing employee's
conduct as impulsive), cert. denied, 455 U.S. 989 (1982).
8
We believe that this concern about bad faith remains vital
after ABF Freight Sys., Inc. v. NLRB, 114 S. Ct. 835 (1994). ABF
holds that the Board may reinstate an employee who was wrongfully
discharged, but who lied to the employer and in Board
proceedings. In ABF the Supreme Court emphasized that though the
worker had lied, ABF fired him because of union activity and not
because of his dishonesty. 114 S. Ct. at 838. Therefore, the
question before the Court was whether the employee's abuse of
Board proceedings prevented the Board from reinstating him even
though the employer had committed an unfair labor practice.
Wallace's case and those we rely on here deal with the entirely
different question of when it is an unfair labor practice to fire
a worker for dishonesty and insubordination occurring in the
context of concerted activity.
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We have also weighed the effect of the employee's conduct on
the employer's authority in the workplace. Compare Prescott
Indus., 500 F.2d at 8-11 (permitting firing where walkout
undermined employer's authority) with F. W. Woolworth, 655 F.2d at
154 (not permitting firing where employee's conduct posed no threat
to employer's authority).
We also take into account whether the employer unlawfully
provoked the employee's misconduct. See NLRB v. Vought Corp., 788
F.2d 1378, 1384 (8th Cir. 1986); Wilson Trophy Co. v. NLRB, 989
F.2d 1502, 1509 (8th Cir. 1993). The ALJ specifically found that
Earle Industries did not provoke Wallace's defiant conduct during
the Jackson incident, Earle Indus., 315 N.L.R.B. at 348, a
conclusion the Board did not take issue with.
Here, the factors of context, impulsiveness and effect on
discipline all weigh against Wallace. Although the incident
occurred in the context of a union campaign, we cannot ignore the
fact that the nonemployee union organizers had basically moved
their rally onto the plant floor. When Smith tried to assert the
company's rights,9 Wallace defied him. If Wallace had not been
part of a group escorting Jackson through the employees' entrance,10
she would never have become involved in the standoff between
Jackson and Smith; the concerted activity underlying her misconduct
consisted of breaking a legitimate company rule with others. If we
hold that the concerted activity gave her the license to defy her
employer, we allow her to leverage her rights by wrongful conduct.
Thus, her case is fundamentally different from grievance or
9
See generally Lechmere, Inc. v. NLRB, 502 U.S. 527, 537
(1992).
10
The Board makes some issue about whether Wallace led
Jackson in the door. Earle Indus., 315 N.L.R.B. at 314 n.14. We
need not resolve that issue, since it is indisputable from the
videotape that Wallace was part of a large band of employees
escorting Jackson through the plant.
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bargaining cases where the employee misbehaved in conducting union
business that he had every right to pursue. Further, even if she
had not been breaking a company rule to begin with, Wallace defied
the personnel manager, not in the protected give and take of
negotiations or grievance, but "on the floor of the plant where he
stood as a symbol of the Company's authority." Crown Cent., 430
F.2d at 731. This context differs crucially from grievance and
bargaining settings where the NLRA frees the worker from
subordination the employer otherwise has the right to insist on.
Second, the ALJ found that Wallace deliberately lied to
Jackson to cause him to push forward instead of going back to the
visitor's entrance as Smith asked him to. The ALJ concluded the
misconduct was "calculated," not impulsive. Therefore, Wallace's
case differs from the cases where we excused impulsive or exuberant
conduct. Protecting her action would create a license for
manipulative dishonesty, surely not a goal of the Act. See Red
Top, 455 F.2d at 728.
Finally, Smith was humiliated in front of a crowd of workers
and news cameras, undermining his authority in the plant. The
crowd cheered as Smith gave up on trying to turn Jackson back to
the visitor's entrance and as Jackson and his entourage surged
toward the office. The Board's decision simply does not consider
the employer's interest in maintaining discipline.
By holding that Wallace's initial misbehavior in escorting
Jackson through the plant gave her a zone of safety for
insubordination on the plant floor, and that her insubordination
gave her a license for her later dishonesty in the interview, the
Board does not serve the purposes of the Act, but gives the Board's
imprimatur to industrial anarchy. We therefore hold the Board's
misguided application of its balancing test to be unreasonable and
arbitrary.
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There is not substantial evidence on the record as a whole of
an unfair labor practice. See Prescott Indus., 500 F.2d at 11.
We grant the petition for review and deny enforcement of the
order.
WOLLMAN, Circuit Judge, dissenting.
The court's opinion sets forth a most thorough review of our
decisions in cases of this nature, but it seems to me that the
opinion leads to the conclusion that the Board's decision must be
upheld.
In describing the events that occurred at Respondent's plant
on October 1, 1991, we pointed out that less than two minutes
elapsed from the time Reverend Jackson entered the plant to the
time he entered the front office; that the activities within and
without the plant were restrained in nature; that neither Reverend
Jackson nor any union agents made any threats of any kind against
Respondent's management, employees or property; that Reverend
Jackson's exchange with Gary Smith was quiet and civil; that the
employees had not, contrary to Respondent's assertions; erupted
into a frenzy or near-riot. N.L.R.B. v. Earle Industries, Inc.,
999 F.2d 1268, 1270, 1273 (8th Cir. 1993). Granted, the issue in
that appeal was whether the events of that day interfered with the
representation election held later that month, but our holding that
they did not supports the Board's holding that Ms. Wallace's
October 1, 1991, conduct fell within the zone of activities
protected by Section 7 of the National Labor Relations Act.
Given Reverend Jackson's short stay within the employees' area
of the plant, the restrained nature of his exchange with Gary
Smith, and his subsequent entry through the visitors' entrance, I
agree with the Board that Ms. Wallace's conduct in encouraging
Reverend Jackson to enter and proceed through the employees'
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entrance was neither flagrant nor extreme and did not differ in any
material way from the encouragement offered to Reverend Jackson by
other employees, none of whom was later disciplined by Respondent.
Likewise, although I join with the court in decrying
dishonesty and false statements by employees, I cannot say that the
Board abused its discretion in holding that Ms. Wallace's false
answers during the October 7 interrogation did not forfeit her
right to the protections afforded her by the Act. If false
testimony under oath before an administrative law judge does not
preclude reinstatement, see ABF Freight System, Inc. v. N.L.R.B.,
114 S. Ct. 835 (1994), neither do the false statements made by Ms.
Wallace in what the Board found was a coercive interrogation and
then only after she had initially exercised her right not to answer
any questions regarding her activities on October 1, 1991. Had I
been the administrative law judge in this case, I might well have
ruled as Judge West did, for I am no more tolerant of false
statements than are my colleagues. Employers are entitled to
honest employees, but where the false statements are made in the
course of protected union activity, it is within the Board's
discretion to fashion a remedy for a violation of that protected
activity that in effect does not penalize, and perhaps will be
viewed by some as rewarding, such statements.
I would deny the petition for review and would enforce the
Board's order of reinstatement.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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