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Bridgestone Firestone
August 8, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and
Kirsanow
On May 4, 2005, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Charging Party filed exceptions and a supporting brief. The Respondent filed an answering brief to the Charging Party’s exceptions, cross-exceptions, and a supporting brief.[1]
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions[2] and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.
For the reasons stated by the judge, we find that
Bridgestone Firestone South
i. background
The Respondent manufactures tire products at a facility in
Two Graniteville employees, one of whom was Cockrell,
became interested in obtaining union representation and contacted the United
Steelworkers of America (the
The complaint alleges, and the judge found, that during the campaign the Respondent violated the Act in the following respects.
ii. management
letter to employees
The judge found that, by its June 1 letter to employees, the Respondent violated Section 8(a)(1) by creating the impression among its employees that their union activities were under surveillance.
Facts
On June 1, Plant Manager Michael Rose distributed a letter to all plant employees expressing his position on the union campaign. The June 1 letter, in its entirety, states as follows:
Over the last six years I have had the good fortune of being part of something special—assisting in the building and operating of Bridgestone Firestone’s Aiken tire plant. I am particularly proud of the culture we have developed together that puts the concern for our team members first. I believe we have created an environment in which we can openly and honestly speak to one another on any topic.
That is why I want to thank the many team members who have chosen to provide information to me regarding the recent attempt by the United Steelworkers to organize our facility. As I stated in the recent MAMM meeting, I do not believe we need a union to stand between us and I want you to know that I will continue to support a culture in our plant that allows open dialogue while insuring that our team members at all times are treated with respect and dignity.
In closing, I am very proud of the many successes we have shared and I know I can count on each of you to support me as we continue our journey in assuring the Aiken Facility’s place as the number one tire plant within the Bridgestone Firestone family without the assistance of a union.
The General Counsel alleged that, in the context of the Respondent’s antiunion campaign, employees reasonably would assume from this letter that their union activities were under surveillance and that Rose was encouraging employees to continue disclosing employees’ union activity. The judge agreed. Although he acknowledged that Rose merely thanked employees who had provided him with information, the judge concluded that “it is obvious that Rose was encouraging employees to keep him informed,” thus reasonably putting employees on notice that their union activities were under surveillance.
The Respondent excepts, contending (1) that the complaint did not allege that the Respondent unlawfully solicited employees to report the union activities of others, (2) that the letter did no more than express views protected under Section 8(c), and (3) that the existence of the organizing campaign did not render unlawful the statements in the June 1 letter.[4] We find merit in these exceptions.
B. Analysis
In determining whether an employer’s statement has created
an unlawful impression of surveillance, the test is “whether the employees
would reasonably assume from the statement that their union activities had been
placed under surveillance.” Flexsteel Industries, 311 NLRB 257, 257 (1993);
United Charter Service, 306 NLRB 150 (1992).
The standard is an objective one, based on the perspective of a
reasonable employee. Flexsteel,
supra. The General Counsel has the
burden of establishing, by a preponderance of the evidence, that the employer
unlawfully created the impression of surveillance.
Not all employer statements about employees’ union
activities are unlawful. An employer
does not create an unlawful impression of surveillance where it merely reports
information that employees have voluntarily provided. See, e.g. Rock-Tenn Co., 315 NLRB 670, 682 fn. 19
(1994), enfd. 69 F.3d 803 (7th Cir. 1995), and overruled on another point by Chelsea Industries, 331 NLRB 1648
(2000), enfd. 285 F.3d 1073 (D.C. Cir.
2002). As we recently reaffirmed in North Hills Office Services, “The
gravamen of an impression of surveillance violation is that employees are led
to believe that their union activities have been placed under surveillance by the employer.” 346 NLRB No. 96, slip op. at 6 (2006) (emphasis
in original). Thus, merely informing employees that their coworkers have
volunteered information about ongoing union activities does not create an
impression of surveillance, particularly in the absence of evidence that
management solicited that information.
Nor is an impression of surveillance violation established where the employer simply thanks employees for voluntarily disclosing information about union activities. Cf. Bancroft Mfg. Co., supra, 189 NLRB at 630 (employer did not create unlawful impression of surveillance by thanking employees for signing anti-union petition).
Reviewing the June 1 letter in light of this precedent, we find that employees would not reasonably assume from the letter that their union activities had been placed under surveillance by the Respondent. Here, as in the foregoing precedent, the Respondent relayed to employees only that certain coworkers had voluntarily provided information about the existence of the union campaign, and there was no evidence or implication that management had previously solicited or coerced that information from employees. Thus, reasonable employees would not discern from the letter that the Respondent learned of their activities through any program of unlawful surveillance.
Similarly, the fact that the Respondent thanked the employees for engaging in a dialogue with management about the campaign does not, in our view, establish that the Respondent was putting employees on notice, as the judge concluded, that management was monitoring their union activities. Read in context, the statement simply reaffirms the culture of openness established by the Respondent, through “which [employees and management] can openly and honestly speak to one another on any topic,” including unionization. Thanking employees for participating in that culture cannot reasonably be viewed as creating an impression of surveillance.
Finally, to the extent the General Counsel argues that the letter amounts to a solicitation that employees report on the union activities of their coworkers, no such allegation was alleged in the complaint. Moreover, Rose’s statement in the letter that he could “count on” the employees clearly refers to an appeal for their support in the Respondent’s opposition to unionization. The letter does not state, or reasonably imply, that employees should report on the union activities of their colleagues.
In sum, we conclude that the June 1 letter is protected by Section 8(c) and did not create an unlawful impression of surveillance.
iii. break
room incident investigation and discipline
The judge found that the Respondent unlawfully interrogated and threatened employee Jeffrey Cockrell in violation of Section 8(a)(1) of the Act, and then violated Section 8(a)(3) and (1) by disciplining him for his union activities. The Respondent has excepted to these findings, arguing that the Respondent did no more than conduct a proper investigation of Cockrell’s misconduct and discipline Cockrell pursuant to the Respondent’s established discipline system. For the reasons set forth below, we find merit in these exceptions and we dismiss these allegations.
A. Facts
On June 24, Cockrell initiated a conversation about the
The Respondent immediately commenced an investigation, telephoning all of the employees involved in the incident. By the morning of July 6, the Respondent had received statements from all of the employees. These statements confirmed that a heated conversation had taken place in the break room, that Cockrell had used profane language, and that Cockrell had engaged in threatening behavior.[5] The statements also indicated that profanity was used by other employees in the break room.
On July 6, Human Resources Manager Steve Sucher told Cockrell that a complaint had been made against him, and offered Cockrell an opportunity to explain what had occurred. Cockrell was asked to provide a written statement describing what had happened in the break room. Cockrell gave a short statement that read:
To Whom It May Concern:
On June 24th at around 5:00 a.m. a group of people were in the break room. A discussion was brought up concerning the union and the pros and cons about a union were discussed.
Sucher testified that he found this statement to be “very, very vague,” and asked Cockrell to rewrite it. Cockrell refused. On July 9, Cockrell met with Sucher, Human Resources Manager Dovie Majors, and Supervisor Bob Hamlin. Sucher again asked for a fuller statement about the break room incident and, in order to focus Cockrell precisely on the misconduct reported, presented Cockrell with a specific question to be answered:
Did you make a statement to the other Team members that if they wanted to “get fucked in the ass” everyday by the company here at work, they were fools and/or if they liked getting “fucked in the ass” everyday by the company then do not complain about it?
Sucher testified that he further told Cockrell that the substance of “what you discussed is irrelevant. What’s important is how did you discuss it. What language you used.” Cockrell again refused to respond to Sucher’s question. At that point, Majors testified that she told Cockrell that she “was required by law to protect our team members from harassment or threatening type work environment” and that if she did not get any information from him “that would suggest that these events did not occur” she was going to recommend his termination. Cockrell similarly testified that Majors told him that “in the event of my refusal to answer yes or no [to the question posed by Sucher], she said she was going to recommend my termination.” Cockrell still refused to answer. Later that day, Cockrell was informed that he would be disciplined.
Majors recommended termination to the managers responsible for imposing discipline, but they elected to impose a less-severe level III discipline. As a result of that discipline, the Respondent required Cockrell to affirm that he was willing to go through corrective coaching and counseling, and abide by plant policies. Cockrell signed a letter of commitment stating that he would conduct himself “in a clean and respectable manner” and that he understood that if he did not correct his actions he would be terminated.
B. Analysis
1. Alleged interrogation
In order to find unlawful interrogation, we look to see “whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. 760 F.2d 1006 (9th Cir. 1989). In the circumstances of this case, we find that no unlawful interrogation occurred. The Respondent had a legitimate basis for investigating Cockrell’s misconduct, and its investigation was entirely consistent with its policy prohibiting employees from using “profane, threatening or indecent language.” It was appropriate, as part of a full investigation, to ask Cockrell whether he made the statements attributed to him. Furthermore, the Respondent made reasonable efforts to circumscribe its questioning to avoid unnecessarily prying into Cockrell’s union views, and the limitations on its inquiry were clearly communicated to Cockrell. Thus, Human Resources Manager Sucher assured Cockrell that what was discussed during the incident was irrelevant; what was important was strictly the language used. Sucher further assisted in narrowing the area of inquiry by allowing Cockrell simply to answer “yes” or “no” to the question whether he had made the precise statement attributed to him. Moreover, although Cockrell was further questioned by Human Resources Manager Majors, this additional questioning was caused by Cockrell’s repeated frustration of the Respondent’s efforts to investigate the incident. In sum, we find nothing in the Respondent’s investigation of Cockrell’s misconduct that constitutes unlawful interrogation.
2. Alleged threat
The judge also found that Majors unlawfully threatened Cockrell by telling him on July 9, that she would recommend his termination based on the information she possessed about the break room incident. We disagree.
The Board will find a supervisory statement to violate Section 8(a)(1) of the Act where it “would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their rights under Section 7 of the Act.” Waste Stream Management, 315 NLRB 1099, 1100 (1994). Majors’ statement was not unlawful under this standard.
Majors’ statement to Cockrell that she would recommend his termination unless he answered Sucher’s question would not have reasonably been understood as a threat to discipline Cockrell because of his union activities. The meaning of the statement was plain: unless Cockrell denied that he had used the profane language attributed to him, Major would have no choice but to recommend his discharge. This meaning is especially clear given Majors’ accompanying statement that she was “required by law to protect our team members from harassment or threatening type work environment,” and the fact that the Respondent’s team member handbook specifically provided that employees using profane language were punishable by discharge.
The judge relied on Greenfield
Die & Mfg., 327 NLRB 237 (1998), to support finding the violation.
3. Level III discipline
The judge also found that the discipline imposed on Cockrell by the Respondent violated Section 8(a)(3) and (1). The judge applied a Wright Line analysis to find the violation. 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983). Although we agree with the judge that a Wright Line analysis is appropriate, we dismiss the violation.
To prove a violation of Section 8(a)(3) and (1) under Wright Line, the General Counsel must establish by a preponderance of the evidence that antiunion sentiment was a substantial or motivating factor in the challenged employer decision. The elements required to show discriminatory motivation are that the employee was engaged in union activity, employer knowledge of that activity, and antiunion animus by the employer. See, e.g., Sears, Roebuck & Co., 337 NLRB 443, 443 (2002). Once the General Counsel makes such a showing, the burden of persuasion “shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra, 251 NLRB at 1089.
It is clear that Cockrell was engaged in union activity and that the Respondent knew of this activity. But the judge failed to analyze whether the General Counsel established animus, and our review of the evidence indicates that no such showing has been made. First, we have found, for the reasons explained above, that the Respondent’s June 1 letter and the Respondent’s actions in conducting its investigation of Cockrell’s misconduct in the break room were lawful. Thus, there is no basis for inferring animus from either.
However, even assuming arguendo that a showing of animus had been made, and that the General Counsel met his initial Wright Line burden, we find that the employer has successfully demonstrated that a level III discipline would have been imposed on Cockrell even in the absence of any protected conduct on his part. The Respondent’s disciplinary system, its record of enforcement, and the severity of Cockrell’s break room statements and conduct lead us to this conclusion.
Employers may, of course, discipline employees for profane
language, provided such discipline is administered in a nondiscriminatory
fashion. See, e.g., Aluminum Co. of America, 338 NLRB 20 (2002) (employer lawfully
disciplined employee for saying “how is [the supervisor] going to fuck us now”);
Honda of
The judge found that Cockrell’s level III discipline amounted to disparate treatment, but this conclusion is not supported by the record. The Respondent’s treatment of Cockrell was consistent with its treatment of other employees who had used profane language at the work site.
For example, though employee Clarence Garrett received a level II discipline for using profane language, his conduct was not brought to the Respondent’s attention for 2 months. In determining the level of discipline, the Respondent took into consideration the fact that 2 months had elapsed and that there had been no reoccurrence of the misconduct. Garrett also subsequently received a level III discipline for being rude to a vendor’s employee.
Similarly, employee Terrence Brooks was fired pursuant to a level IV disciplinary action for using profane and threatening language. Although Brooks’ misconduct also involved a threat directed at a specific individual as opposed to the more generally threatening behavior of Cockrell, the Respondent’s established rules explicitly provide for level III discipline in the event of either profane or threatening language.
Furthermore, although the judge notes that other employees in the break room used profanity during Cockrell’s tirade, none of those employees engaged in conduct as extreme as Cockrell. Moreover, Cockrell was the only employee against whom a complaint was filed, and his stubborn refusal to participate in the investigation left the Respondent with few alternatives. Under these circumstances, we find that the level III discipline imposed on Cockrell did not amount to disparate treatment, and that the Respondent demonstrated that it would have imposed this discipline on Cockrell even in the absence of any protected conduct.
iv. parking lot incident
We agree with the judge that the Respondent did not violate Section 8(a)(3) and (1) by discharging Cockrell after he drove his automobile through the plant parking lot in a reckless manner designed to frighten other employees. We disagree with the judge’ finding, however, that the Respondent violated Section 8(a)(1) when Supervisor Bob Hamlin counseled Cockrell regarding this incident.
A. Facts
The relevant facts, described more fully in the judge’s decision, are as follows. On the morning of July 15, employee Elwood Parker, with whom Cockrell had had the disagreement in the break room, and employee Steven Hendren left the plant building and began walking towards Hendren’s vehicle in the employee parking lot. As they passed through the parking lot, they heard a loud noise and saw Cockrell’s car speeding toward them. According to the credited testimony of witnesses, Cockrell was traveling at least 30 miles an hour or faster in an area that has a posted speed limit of only 15 miles per hour. Based on the credited testimony, the judge found that Cockrell drove his car substantially over the mid point of the 25 foot driveway and within 2 to 5 feet of Parker and Hendren, while revving his turbo-charged engine.
When Cockrell returned to work that evening, he approached Supervisor Hamlin in order to talk with him about a rumor that Cockrell had intentionally attempted to run over an employee in the parking lot that morning. Hamlin suggested that they meet in the warehouse where it was quieter. Cockrell denied that he had attempted to run over anyone, and asserted that the company was out to get him. According to Cockrell, Hamlin replied by stating, “I know you are not stupid, but . . . is this really worth it.” Cockrell also testified that Hamlin stated that Cockrell should “think about his newborn baby.” Hamlin testified further regarding his response to Cockrell’s assertion that the company was harassing him:
I said the issue that’s at hand is your behavior, it’s not—it’s not the topic you’re discussing. That you can be talking religion, politics, whatever but it is the behavior that’s the issue and Jeff just continued to state that he was feeling harassed and it was because of his Union activity and I told Jeff it is not okay for anybody to be harassed, including him and if he wanted to make those allegations we would investigate that.”
The Respondent investigated the parking lot incident; it interviewed Cockrell, Parker, Hendren, and another employee who had been present in the parking lot, Chad Head. Cockrell also provided the Respondent with a detailed written statement. His version of the incident was contradicted by the other employees. On July 19, the Respondent sent a letter of termination to Cockrell.
B. Analysis
We agree with the judge that Cockrell’s termination did not violate Section 8(a)(3) and (1). As discussed above, the General Counsel failed to carry his Wright Line burden of establishing that the discipline was motivated by animus towards Cockrell’s union activities. But even if animus had been demonstrated, we agree with the judge that the General Counsel has failed to rebut the Respondent’s evidence that it would have discharged Cockrell even in the absence of protected activity. The primary impetus for Cockrell’s discharge[6] was his intentionally reckless and life-threatening driving. Under the Respondent’s established disciplinary policy, immediate termination is permissible for such a grave offense, and there is no evidence of disparate treatment. Moreover, the Board will not second-guess an employer’s efforts to provide its employees with a safe workplace, especially where threatening behavior is involved. See Tenneco Packaging, Inc., 337 NLRB 898 (2002), review denied 350 F.3d 105 (D.C. Cir. 2003); Clark Equipment Co., 250 NLRB 1333 (1980). Consequently, we affirm the judge’s dismissal of this allegation.
However, the judge also found that Hamlin’s counseling of Cockrell following the driving incident contained unspecified threats of reprisal for Cockrell’s participation in union activities, and therefore violated Section 8(a)(1). We disagree. There is nothing in Hamlin’s statements that “would reasonably tend to interfere with, threaten, or coerce employees in the exercise of their rights under Section 7 of the Act.” Waste Stream Mgmt., supra, 315 NLRB at 1100.
It was Cockrell who approached Hamlin. He did so for the apparent purpose of refuting the rumor that he had tried to run down an employee with his car, and to solicit Hamlin’s assistance in dealing with what Cockrell perceived to be harassment by the company. Hamlin was aware of the rumor that Cockrell had intentionally tried to hit someone with his car, and it was within that context that Hamlin warned Cockrell to think about whether such misconduct was “really worth it,” especially when he had a family to support. Hamlin also made an active effort during the discussion to assist Cockrell in understanding that it was important for him to focus on his behavior, and to separate that from the union issues that he was pursuing. Hamlin even offered to aid Cockrell by investigating any allegations that he was being harassed because of his union activities. In these circumstances, an employee would not reasonably believe that he was being threatened with reprisals based on his protected activities. Accordingly, we dismiss this allegation as well.
ORDER
The complaint is dismissed.
Dated,
Robert J. Battista, Chairman
Peter
C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Jasper C. Brown Jr., Esq., for the General Counsel.
Kathryn W. Pascover, Esq. and
Samuel H. Penn Sr., for the Charging Party.
DECISION
Statement of the Case
Upon
consideration of the testimony of the witnesses, the exhibits admitted at the
hearing and late filed Joint Exhibit 1,1
which is herein received in the case record evidence, and the positions of the
parties as argued at the hearing and as set out in their posthearing briefs, I
make the following
i. findings of fact 2
A. The Business of the Respondent
The complaint
alleges, Respondent admits, and I find, that at all times material herein,
Respondent has been a South Carolina corporation, with a plant located at
Graniteville, South Carolina, where it is engaged in the manufacture of tire
products, that during the past 12 months, a representative period, it sold and
shipped from its Graniteville, South Carolina plant, products valued in excess
of $50,000 directly to points outside the State of South Carolina and that
Respondent has been at all times herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
B. The Labor Organization
The complaint
alleges, Respondent admits, and I find, that at all times material herein, the
C. Background
Respondent’s
The issues as
framed by the complaint are:
1. Whether Respondent violated Section 8(a)(1)
of the Act by the acts and conduct as alleged in paragraph 6 of the complaint.
2. Whether Respondent violated Section 8(a)(3)
of the Act by its issuance of a level III written disciplinary warning to
employee Jeffrey Cockrell as alleged in paragraph 7 of the complaint.
3. Whether Respondent violated Section 8(a)(3)
of the Act by its discharge of employee Jeffrey Cockrell as alleged in paragraph
8 of the complaint.
D. The 8(a)(1) Conduct
1. Creating among its employees the impression
that their
union activities were under surveillance
On June 1,
2004, Plant Manager Michael Rose distributed a letter to all employees stating
his opposition to the
2. The interrogation of Jeffrey Cockrell regarding
his union activities
These
allegations are considered together since they derive from the same
discussions. Employee Jeffrey Cockrell
testified that on June 24, shortly before the end of his shift, he went to the break
room for his final break period. Several
other employees were seated around the break room table. He (Cockrell) initiated a discussion of the
union campaign by asking the employees what they thought about the
3. The threat issued to Cockrell because of his
engagement in union activities
Cockrell
testified that the following week he was informed by employee Curtis Jennings
that he (
To Whom It May
Concern:
On June 24th at around 5:00 a.m. a group of people were in the break room. A discussion was brought up concerning the union and the pros and cons about a union were discussed.
Jeffrey
S. Cockrell
On July 7,
Sucher called Cockrell again and told him he had received his statement but it
was not sufficient as he wanted to know what Cockrell had said in the break
room incident. Cockrell again asked him
what the allegations were and Sucher told him he did not have to tell him. He then told Cockrell to rewrite the
statement but Cockrell did not agree to do so.
Sucher then told Cockrell to come to human resources on Friday morning.
4. The issuance of a level
On Friday,
July 9, Cockrell met with Sucher, Reed, and Department Manager Dovie Majors and
Supervisor Bob Hamlin in the conference room of human resources. Sucher told Cockrell there had been some
serious allegations of inappropriate language and behavior made against
him. Sucher again told Cockrell that he
had received his statement and that it was not what he was looking for. He then told Cockrell he was going to give
him another chance to rewrite his statement.
Cockrell stated that what he had said in his prior statement was the
truth. After another request by Cockrell
as to what the allegations were, Sucher said he was not obligated to tell him
the specific allegations. Sucher then
showed Cockrell a statement and asked him to read it and whether he had made
the following statement:
Did you make a
statement to the other Team members that if they wanted to ‘get fucked in the
ass’ everyday by the company here at work, they were fools and/or if they liked
getting ‘fucked in the ass’ everyday by the company then do not complain about
it?
Cockrell told
Sucher that he gave his opinion the same way as everyone else in the break room. Sucher asked Cockrell if he wanted to rewrite
his statement or to maintain his position.
Cockrell said he would stand by his statement.
Sucher then
told Cockrell that Respondent would proceed with the investigation and the supervisors
left the room and returned about 20 minutes later. Department Manager Dovie Majors then told
Cockrell that because he refused to answer the question posed by Sucher, she
would recommend his termination to the “core group.” The “core group” is composed of various
department heads and other highly placed management personnel to whom all
disciplinary actions must be presented for approval by the head of the
department in which the particular employee is employed. Cockrell was then instructed to turn in his
badge, stamps and tools and was escorted from the plant.
Sucher
telephoned Cockrell about 11:30 a.m. on the same day and told him that the core
group had decided not to terminate him but to issue him a level
It is clear
from the record in this case that Respondent based its decision to issue the level
As part of its
investigation, Respondent’s management took statements from several of the
other employees who had been in the break room during the June 24 discussion
about unions. In his statement, Curtis
Jennings related that he overheard a debate about the pros and cons of union,
that the conversation got a little loud causing one team member to leave and
come back after it was over. “Elwood and
Jeff were talking mostly and I guess it got to Jeff. I remember Jeff saying that if we liked
getting fucked in the ass everyday by the Company then do not complain about
it.” Jeff got a little vocal during the
conversation and also used profanity.
Finally, break was over and I left because I do not see a need for a
union in our plant so I am not getting involved in all the union hype. Employee Robbie Rutland states in his
statement that he knew that Jeff, Steve, and Elwood were talking about
something but he wanted to rest his eyes and put his earplugs in and did not
know what they were talking about. He
stated that he did hear foul language but it did not offend him. He did not hear “anybody being cussed out.” “I would not remember what curse words were
said.” In his statement, employee
Michael Williams said “Jeff was talking about what the
Everyone was
sitting around the table and the conversation about the
In his
statement, employee Steve Lorick said that a discussion took place about a
pamphlet that was handed out. “Nothing
to my knowledge was said that made me feel uncomfortable by anyone” and “I
still remember bits and pieces and at no time did I think that this discussion
was any different than many other topics that we talk about” and “I was not in
the break room when any (heated or otherwise) topic took place.” Employee William Joyce, in his statement,
said as follows:
On
/s/ Will
Joyce
General
Counsel contends, and I find, that as a result of its review of the employee
statements, Respondent was well aware that Cockrell had not engaged in any
misconduct. Furthermore, Sucher admitted
at the hearing that there was no evidence of physical attack or threat of
physical attack by Cockrell and that Cockrell had not lunged at Parker nor made
any type of verbal threat toward Parker.
It is
undisputed that Respondent did not investigate and follow up on profanity used
by other employees in the June 24 discussion in the break room. Its focus was only on Cockrell, the
acknowledged leading union adherent. It
is also clear that Respondent had issued milder level I and level II warnings
to other employees for engaging in verbal altercations where profanity was used
rather than issue a level
I find that
Respondent violated Section 8(a)(1) and (3) of the Act by its issuance of the
level
E. The Discharge of Cockrell
Having been
returned to work by Respondent on July 13, Cockrell worked that date until the
morning of July 15 when he left work at the completion of his shift and exited
the parking lot. Elwood Parker and
employee Steven Hendren with whom Parker carpooled were walking to Hendren’s
vehicle on the edge of the two-way driving lane in the parking lot which has a
15 miles per hour speed limit. Parker
and Hendren testified that as they walked they were suddenly confronted with a
loud sound of a turbo charger as Cockrell’s blue Dodge Neon came dangerously
close to them.
Employee
Steven Hendren testified that he was involved in an incident in the parking lot
on July 15 as follows:
As me and
Elwood [Parker] were leaving the parking lot and going to my vehicle, just got
off of night shift, about half way across the parking lot, let’s see, I was on
the outside and he (Parker) was on the inside, all of a sudden there was a
turbo kick in on a car. The speed limit
is 15 [miles per hour] so within about a matter of seconds he was doing within
50 miles an hour plus. He came within
maybe two to three feet.
Hendren
testified he knew at the time that the person driving the car was Jeff Cockrell
as he “was the only one that just bought a brand new turbo Neon ‘04 Dodge.” He testified he actually saw Cockrell at that
time as “when the turbo kicked in, when I turned my head, he was pretty much
right there, the window was down.” He
testified further “Well hearing the sound, I knew what it was; but seeing the
vehicle and that close, it—it got me a little angry.” His normal shift at the time was 6:45 in the
evenings to 7:15 in the mornings. The
incident occurred in the morning at the end of his shift. Chad Head was further down the road from
where he and Parker were at the time of the incident.
Employee Chad
Head testified that he had been waiting for his sister in his truck and “I had
my radio on in my truck and my windows up and everything and I heard a car
speeding up, revving up, accelerating and I turned around to look and see what
it was. I was on the very front row and
it was coming behind my truck . . . and I seen the car coming and I noticed it
was a Neon . . . and I saw that it was Jeff Cockrell, and he sped on by, and
stopped at the end real quickly and went out of the parking lot and at the
time, I didn’t think anything of it, except that he was going mighty fast in
the parking lot.” He then saw Parker and
Hendren walking up to Hendren’s truck.
Parker asked if he had seen anyone in the parking lot and he told them
he had seen Cockrell. Head testified
further that he had not seen the incident himself. Head acknowledged that in a statement given
to Respondent’s representatives later that day (July 15) he had estimated the
vehicle “was going maybe 25 to 30 miles an hour or faster, more than you should
in a parking lot.”
Elwood Parker
testified concerning the parking lot incident that he and Hendren were walking
along the front of the parked cars to their vehicle as they carpool
together. “. . . all of a sudden I [Parker]
just feel and hear a car . . . just out of nowhere, and I’m jerking back and
kind of almost grabbing Steven and moving him and it was Jeff [Cockrell] flying
by. . . . I didn’t even hear him
coming. All I did was felt the car on my
chest. I felt the car and heard it and I
just had seconds to react . . . it scared me, shocked me and made me angry all
at once because, you know, he was very close, two to three feet, and he just
stayed and he stayed—his car was at full throttle all the way. Didn’t slow down, didn’t stop, nothing.” “I saw him [Cockrell] . . . looking back in
his rearview mirror. . . . [H]e was
already down at the end of the parking lot, slamming on his brakes.” Parker placed the speed of Cockrell’s vehicle
to have been traveling 45 to 50 miles an hour.
In an earlier statement to Respondent (GC Exh. 14) he stated that
Cockrell reached speeds of 30 to 35 miles per hour.
Cockrell was
questioned concerning the incident. He
told them that he had left the parking lot as he normally does. At the hearing, Cockrell testified that he
told Debra Reed:
I told her that I went to the front of the building, I clocked out, walked out the front doors, went across the circle in the center, walked to the left to where my car is at the far end of the building, and got in it, cranked it up and took a left hand turn and went straight down along the sidewalks, between the cars and the sidewalk, and headed all the way down and stopped, you know, to get into the traffic to get on the main drag to go out the front gate. Just the same way I’ve done for the last five years.
Cockrell also
testified that at the meeting of July 15, he was told by Reed that some
employees had stated that he had “exceeded the speed limit an excessive amount
that morning” and that he denied this.
Cockrell was discharged on July 19 for the parking lot incident. The termination letter also refers to the level
Cockrell
testified that on the evening of July 15, shortly after his arrival at work, he
met employee Robert Frietas who told him that Brad Carter, a member of the
antiunion committee was telling department employees that he (Cockrell) had
intentionally attempted to run over an employee in the parking lot that
morning. Cockrell immediately contacted
his supervisor, Bob Hamlin, and asked to speak to him about this matter. Hamlin suggested they meet in the warehouse
which is quieter. Cockrell told Hamlin
of the rumor and asked Hamlin about it.
Cockrell also told Hamlin that he had not tried to run over anyone. Hamlin told Cockrell this was out of character
for him. Cockrell told Hamlin that he
felt this was something the Company was doing to get him out of the plant and
that he (Cockrell) wasn’t stupid.
According to Cockrell, Hamlin then said “I know you’re not stupid; but .
. . is this really worth it?” Hamlin
also said, “think about your newborn baby.”
Cockrell told him that when he started the campaign, he knew there would
be risks but that once you start, you can’t stop it. At that point, Hamlin received a telephone
call from Reed and then told Cockrell that he was to escort him “up front.” Hamlin did not deny having made these
comments to Cockrell and testified that it was something he could possibly have
said to an employee who already had a warning and was now involved in another
matter. Hamlin also testified that he
already had been contacted and advised that he would be asked to escort
Cockrell to human resources to discuss the parking lot incident.
I find that
Hamlin’s question to Cockrell whether it was really worth it and his advice to Cockrell
that he should think about his newborn baby were clearly references to Cockrell’s
union activities and were clearly unspecified threats of reprisal for his
engagement in union activities. I find
that Respondent thereby violated Section 8(a)(1) of the Act.
In Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st
Cir. 1981), cert. denied 455
U.S. 989 (1982); approved in NLRB v.
Transportation Mgmt. Corp., 462 U.S. 393 (1983), the Board set forth its
causation test for cases alleging violations of the Act that turn, as does the
case herein, on employer motivation.
First, the General Counsel must persuade the Board that antiunion
sentiment was a substantial or motivating factor in the challenged employer
conduct or decision. Once this is established,
the burden then shifts to the employer to prove its affirmative defense that it
would have taken the same action even if its employee had not engaged in
protected concerted activity. See Manno Electric, Inc., 321 NLRB 278 fn.
12 (1996). Counsel for the General
Counsel must demonstrate by a preponderance of the evidence (1) that the employee
was engaged in protected concerted activity; (2) that the employer was aware of
the activity; (3) that the activity or the workers’ union affiliation was a
substantial or motivating reason for the employer’s action; and (4) there was a
casual connection between the employer’s animus and its discharge decision.
Applying the
foregoing test to the facts in this case, I find that Cockrell was a leading
union advocate, that the employer was aware of his union activity and that the
activity was a substantial motivating factor in Respondent’s decision to issue
the level
Once a prima
facie case of a violation has been found, it is incumbent on the employer to
demonstrate by the preponderance of the evidence that the adverse action such
as the level
I reach this
conclusion by the weight of the credible evidence that Cockrell drove his automobile
in a reckless manner designed to frighten Elwood Parker with whom he had had a
disagreement in the break room discussion and for whom he most certainly blamed
for the level
I find, in
agreement with Respondent in this case, that this conduct in the parking lot by
Cockrell could not be ignored and that Respondent was fully justified in discharging
Cockrell for this conduct. As noted in
Respondent’s brief, it is a necessity for businesses to respond promptly to
incidents of workplace violence as emphasized by Board Member Liebman in her concurring
opinion in Tenneco Packaging, Inc.,
337
Employers
justifiably are more concerned today than ever about workplace violence and
they must remain free to quickly address genuine threats. The Board’s sound policy is not to
second-guess well-intended employer efforts to provide a safe workplace.
In Clark Equipment Co., 250 NLRB 1333
(1980), the administrative law judge concluded that an employee who openly
supported a union, while operating his vehicle in the employees’ parking lot
had driven “hazardously close to striking” another employee with whom he had a
dispute.
Conclusions of Law
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The
3. The Respondent violated Section 8(a)(1) of
the Act by
(a) Creating
among its employees the impression that their union activities were under
surveillance.
(b) Unlawfully
interrogating its employee Jeffrey Cockrell regarding his union activities.
(c)
Threatening Jeffrey Cockrell with discharge because of his engagement in union
activities.
(d)
Threatening employee Jeffrey Cockrell with unspecified reprisals because of his
engagement in protected concerted activities.
4. The Respondent violated Section 8(a)(1) and
(3) of the Act by its issuance of a level III written disciplinary warning to
employee Jeffrey Cockrell because of his participation in protected concerted
activities.
5. Respondent did not violate Section 8(a)(1)
and (3) of the Act by its discharge of employee Jeffrey Cockrell.
6. The aforesaid unfair labor practices are
unfair labor practices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
The Remedy
Having found
that the Respondent has engaged in violations of the Act, it will be
recommended that Respondent cease and desist therefrom and take certain
affirmative actions to effectuate the purposes and policies of the Act and post
the appropriate notice.
It is
recommended that Respondent remove the level III written warning from the
employment records of Jeffrey Cockrell and advise him in writing of this and
that such warning will not be used against him in any manner in the future.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
The
Respondent, Bridgestone Firestone South
1. Cease and desist from
(a) Unlawfully
interrogating its employees regarding their union sympathies and activities.
(b) Unlawfully
threatening its employees with discharge because of their engagement in union
and protected concerted activities.
(c) Unlawfully
creating the impression of surveillance of its employees’ union activities.
(d) Unlawfully
threatening its employees with unspecified reprisals because of their
engagement in union and protected concerted activities.
(e) Unlawfully
issuing its employees disciplinary warnings because of their engagement in
union and protected concerted activities.
(f) Violating
the Act in any like or related manner.
2. Take the following affirmative action
necessary to effectuate the policies of the Act.
(a) Rescind
the level
(b) Post at
its
(c) Within 21
days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
It is further ordered
that the complaint is dismissed insofar as any violations are not specifically
found.
Dated,
APPENDIX