NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal
errors so that corrections can be included in the bound volumes.
Datwyler Rubber and Plastics, Inc. and Mononga Moore. Case
11–CA–21185
August 13, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and Walsh
On March 2, 2007, Administrative Law Judge Lawrence W.
Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 and brief and has decided to affirm the judge’s
rulings,
findings,
and conclusions and to adopt the recommended order as modified and set forth in
full below.
The judge found, among other things, that the Respondent
violated Section 8(a)(1) by discharging employee Mononga Moore for engaging in
protected concerted activity. For the
reasons set forth below, we agree with the judge that the Respondent’s conduct
was unlawful.
Background
The facts, as set forth more fully in the judge’s decision,
are as follows. Owing to production
demands, the Respondent implemented a 7-day workweek in fall 2005. Notwithstanding employee concerns about
physical exhaustion and the inability to attend church on Sundays, the 7-day
workweek continued into 2006. On January
5, 2006,
the Respondent held one of its monthly employee meetings. The purpose of these meetings, which are held
in the Respondent’s employee break room, is to facilitate discussion of
work-related issues. The January 5 meeting
was attended by all of the Respondent’s first-shift production employees.
The Respondent’s general manager, Willie Ruefenacht,
opened the meeting by telling the
employees that they needed to continue working hard to meet its customers’
tight production requirements. At some
point thereafter, employees began raising complaints, mainly about the
protracted workweek. Moore asked Ruefenacht when the Respondent
was going to discontinue the 7-day workweek, and Ruefenacht responded that he
did not see this in the future. Moore then stated that
the employees were tired, that the situation was unfair, that “God created the
world in six days and rested on the seventh day,” and that the employees should
also be permitted to rest on the seventh day.
Ruefenacht responded that God had nothing to do with the situation. Employee Carla Samuel then stated that “God
has everything to do with it, because if it weren’t for God, none of us would
be here.” Ruefenacht then told Moore that if she did not
like the situation, then she could turn in her badge and go “flip
burgers.” At this point, Moore called Ruefenacht a
devil and said that Jesus Christ would punish him and the Respondent for
continuing the 7-day schedule. Moore also asked whether
she was being fired, and Ruefenacht did not immediately respond. When Moore
repeated the question, Ruefenacht responded “no.” At some point during this exchange, Moore also told Ruefenacht
that others might be intimidated by him, but that she was not. Ruefenacht then ended the meeting, roughly
15-20 minutes earlier than scheduled.
After the meeting, Ruefenacht told Production Manager Mike Rogers that Moore “has got to
go.”
Thereafter, on January 11, Moore was called into a meeting with Rogers
and Human Resources Manager Richard Wysocki, where she was told that she was
being discharged. When Moore asked why she was being discharged,
Wysocki responded, “I don’t have to have a reason to fire you.”
The judge found that the Respondent violated Section 8(a)(1)
by discharging Moore for engaging in protected concerted activity, i.e., for speaking
on behalf of herself and other employees about their terms and conditions of
employment. The judge also found that
Moore did not lose the protection of the Act by telling Ruefenacht that he was a
devil, that Jesus Christ would punish him and the Respondent for requiring the
7-day workweek, and that she was not intimidated by him. In finding that Moore’s outburst did not lose the protection
of the Act, the judge cited the factors set forth in Atlantic Steel Co., 245 NLRB 814 (1979), but he did not analyze the
outburst under them. As explained below,
we find that application of the Atlantic
Steel factors to the foregoing facts demonstrates that Moore’s outburst did not lose the Act’s
protection. Accordingly, we find that
her discharge violated Section 8(a)(1).
Analysis
Where, as here, it is clear that an employee was discharged
for an outburst that occurred while engaging in Section 7 activity, the appropriate
inquiry is whether the outburst was so opprobrious as to remove the employee
from the protection of the Act. See,
e.g., Beverly Health & Rehabilitation
Services, 346 NLRB No. 111, slip op. at 4 (2006). To determine whether an employee loses the
protection of the Act due to the allegedly opprobrious conduct, the Board
considers the following factors set forth in Atlantic Steel: (1) the place of the discussion; (2) the subject
matter of the discussion; (3) the nature of the employee’s outburst; and (4)
whether the outburst was, in any way, provoked by an employer’s unfair labor
practices. Atlantic Steel Co., supra, at 816.
We find that each of these factors weighs in favor of Moore not losing the protection of the Act.
With respect to the first factor, the place of the discussion
weighs in favor of protection. Moore’s outburst occurred
during an employee meeting, where employees were free to raise workplace
issues. Further, the meeting was held in
the employees’ break room, a location that would not disrupt the Respondent’s
work process. See, e.g., Noble Metal Processing, 346 NLRB No. 78,
slip op. at 6 (2006) (place of discussion weighs in favor of protection where
outburst occurred during employee meeting held away from employees’ work area,
and thus did not disrupt the work process).
Addressing the second factor, we find that the subject
matter of Moore’s
discussion with Ruefenacht also weighs in favor of protection. Moore’s
outburst occurred during a discussion of employee complaints about terms and
conditions of employment, principally the 7-day workweek.
As to the third factor, we find that the nature of Moore’s outburst weighs in
favor of protection as well. Moore’s outburst did not
contain profane language, and it was spontaneous, brief, and unaccompanied by
physical contact or threat of physical harm.
See generally Beverly Health &
Rehabilitation Services, supra, slip op. at 5 (nature of
outburst—where employee told another employee to “mind [her] f--king business”
during discussion of grievance—weighed in favor of protection) (internal
citations omitted). While we recognize
that Moore’s statement could reasonably be
viewed as offensive, we find that the nature of the outburst, when viewed in
context of the protracted workweek and the employees’ related concerns, does
not weigh in favor of Moore
losing the protection of the Act.
Finally, we find that the fourth factor, whether Moore’s outburst was
provoked by the Respondent’s unfair labor practices, also weighs in favor of
protection. As noted above, after Moore raised the
employees’ concerns about the continuation of the Respondent’s 7-day workweek,
Ruefenacht told her that if she did not like the situation, then she could turn
in her badge and go “flip burgers.” The
judge found, and we agree, that Ruefenacht’s statement conveyed an unlawful
threat of discharge for engaging in protected activities. Thus, Moore’s
outburst was an immediate response to the unlawful threat. Indeed, the facts show that Moore was well aware of Ruefenacht’s threat
when the outburst occurred, as she immediately thereafter asked Ruefenacht
whether he was, in fact, discharging her.
Accordingly, we find that her outburst was provoked by the Respondent’s
unfair labor practice, and we thus find that this factor weighs in favor of
protection.
In sum, application of the Atlantic Steel factors to the instant facts establishes that Moore did not lose the protection
of the Act by her statements at the employee meeting. Therefore, we find, in agreement with the
judge, that the Respondent’s discharge of Moore
for engaging in that conduct was unlawful.
ORDER
The National Labor Relations Board orders that the
Respondent, Datwyler Rubber and Plastics, Inc., Marion, South Carolina,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with termination for making
statements concerning terms and conditions of employment at employee meetings.
(b) Threatening its employees with plant closure because
of their engagement in protected concerted activities.
(c) Discharging its employees because of their engagement
in protected concerted activities.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights guaranteed them by Section
7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Mononga Moore full reinstatement to her former position or, if that position no
longer exists, to a substantially equivalent position, without prejudice to her
seniority or any other rights or privileges she previously enjoyed.
(b) Make Mononga Moore whole for any loss of earnings and
other benefits she may have sustained as a result of her discharge, with interest
as set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of Mononga Moore and,
within 3 days thereafter, notify her in writing that this has been done and
that the discharge will not be used against her in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its agents, all
payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze the amount of
backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Marion, South Carolina, copies of the attached
notice marked “Appendix.” Copies of the notice, on forms provided by the
Regional Director for Region 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time since January 5,
2006.
(f) 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.
Dated, Washington, D.C. August 13, 2007
Robert J. Battista, Chairman
Peter C. Schaumbe, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor
Relations Board
An Agency of the United States
Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We will not
threaten our employees with termination for making statements concerning terms
and conditions of employment at employee meetings.
We will not
threaten our employees with plant closure because of their engagement in
protected concerted activities.
We will not
discharge our employees because of their engagement in protected concerted
activities.
We will not
in any like or related manner interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed them by Section 7 of the Act.
We will
within 14 days from the date of the Board’s Order, rescind the unlawful
discharge of Mononga Moore and offer her full reinstatement to her former position
or, if that position no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privileges she
previously enjoyed.
We will make
Mononga Moore whole for any loss of earnings and other benefits as a result of
her discharge, with interest.
We will
within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Mononga Moore and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and that the
discharge will not be used against her in any way.
Datwyler Rubber and Plastics, Inc.
Jasper C. Brown, Esq., for the General Counsel.
Daniel M. Shea, Esq. and Michelle W. Johnson, Esq., for
the Respondent.
DECISION
Statement of case
Lawrence W. Cullen, Administrative Law Judge. This case was heard before me on November 6
and 7, 2006, in Florence, South Carolina, pursuant to a complaint
filed with the National Labor Relations Board (the Board). The complaint is based on an amended charge
filed by Mononga Moore, an individual, with the Board against Datwyler Rubber
and Plastics, Inc., (the Respondent or Datwyler). The complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint is joined by the answer filed
by Respondent wherein it denies the commission of any violations of the Act.
On due consideration of the testimony and evidence received
in the case and the positions of the parties at the hearing and the briefs
filed by the parties, I issue the following
Findings of Fact
i.
jurisdiction
The complaint alleges, Respondent admits, and I find, that
at all times material the Respondent has been a South Carolina Corporation with
a facility located at Marion, South Carolina, where it is engaged in the production
of automobile parts, that during the past 12 months, a representative period, Respondent
sold and shipped from its South Carolina facility products valued in excess of
$50,000 directly to points outside the State of South Carolina and that
Respondent is now, and has been at all times material, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
ii. the
alleged unfair labor practices
The complaint alleges three areas of violations of the
Act. Paragraph 6(a) of the complaint
alleges that on January 5 and 6, 2006, Respondent’s general manager, Willie
Ruefenacht, threatened employees with termination for engaging in protected
concerted activities. Paragraph 6(b) of
the complaint alleges Respondent threatened employees with plant closure if
they selected a labor organization as their collective-bargaining
representative. Paragraph 7 of the
complaint alleges that Respondent terminated employee Mononga Moore on January
11, 2006, because of her engagement in protected concerted activities.
The following includes a composite of the credited testimony
of the events of January 5, 6, and 11, 2006.
These events began with a regular monthly meeting of the first-shift
employees on January 5, 2006, which had been called by Respondent Datwyler to
discuss various work related items.
Willie Ruefenacht is Datwyler’s general manager and the highest ranking
official at Respondent’s Marion,
South Carolina plant. Although Datwyler is a South
Carolina corporation, it is headquartered in Switzerland and Ruefenacht reports directly to
the Switzerland
headquarters. Present at the meeting on
behalf of Respondent’s management were Ruefenacht, Production Manager Mike
Rogers, Human Resource Manager Richard Wysocki and Supervisor Tim Davis. The meeting was attended by all of the
production employees on the first shift.
The employees were on paid time and it was management’s projection that
the meeting would last about a half hour with another meeting scheduled for the
second-shift employees shortly after the first meeting was conducted. It was also anticipated that management would
meet with the third shift. The meeting
was opened by Rogers
with Ruefenacht speaking first. There
were about 65 shift employees present at the meeting. Ruefenacht greeted the employees and thanked
them for a special effort they had made in responding to a customers’ shortage
of materials that had to be remedied. Respondent
is a second tier manufacturer and must meet very tight time constraints for
certain of its customers who must meet strict time constraints to their automotive
manufacturing customers. Of particular
concern at this time was Continental Teves, a large customer of Respondent that
had recently moved from Ashville, North Carolina, to Mexico and was experiencing substantial
delays which could result in severe monetary penalties to Continental Teves and
to Datwyler if they were unable to meet the automotive manufacturer’s
production schedule. Ruefenacht began to
speak to the employees and said that they need to work very hard to meet the
tight production requirements. At some
point shortly after Ruefenacht began to speak, employee Carla Samuel spoke up
and complained that she was being required to simultaneously operate two fast
presses and one slow press at the same time making it difficult for her to meet
her production requirements. She also
complained that she had been told to follow the chain of command but said that
nothing was being done by management to correct problems. At this point employee Mononga Moore spoke up
and asked Ruefenacht when the Respondent was going to stop working 7 days a
week. Ruefenacht said he did not see
this in the future. Moore complained that she was tired and that
it was unfair. She also said that God
created the world in 6 days and rested on the sevcnth day and that the employees
should also be permitted to rest on the seventh day. Ruefenacht told her that it did not matter as
he was in charge at the plant. Samuel
then spoke and said it did matter as, without God, none of them would be
there. Ruefenacht also told Moore that
he could not change this and that if she did not like it, she could turn in her
badge to Rogers and could go flip burgers.
Ruefenacht testified that at some point in this exchange, Moore called him a devil
and said that Jesus Christ would punish him and the Company for working the 7-day
schedule. Moore asked Ruefenacht if she was being fired
and when he did not answer her she asked again and he then said, “No.” Moore
also told Ruefenacht at this meeting that others might be intimidated by him
but that she was not afraid of him.
Moore and employees Cheryl Wilson, and Beverly Eaddy testified that Moore did not call
Ruefenacht a devil. Rogers
testified that Moore
did call Ruefenacht a devil. It is undisputed
that Moore did
not use any profanity, or engage in any kind of threatening behavior. Rogers
initially testified that Moore’s
tone of voice was loud and later on redirect examination testified she was
screaming. Rogers acknowledged that the 7-day workweek
was a matter of concern to employees who had initially enjoyed the extra money
but became tired mentally and physically.
The group meeting lasted only a total of about 15 minutes. Ruefenacht indicated to Rogers to end the meeting which he did. Ruefenacht testified that immediately after
this meeting, he told Rogers that “the lady” (Moore) has got to go. Rogers
agreed but suggested they cool down and speak to Human Resource Manager Wysocki
first which they did.
Former employee Cheryl Wilson testified as follows:
The group meeting had started when Moore spoke and complained about being required
to work seven days a week including Sundays.
Wilson testified that Moore said that even the Lord took one day
off to rest. Ruefenacht said that the
Lord didn’t have anything to do with this.
Employee Carla Samuel then said that the Lord had everything to do with
this. Moore spoke up again and told Ruefenacht that
everyone else might be intimidated by him but she was not. He then told her if
she didn’t like what was going on, she could leave. She asked if she was being fired. He did not reply and she asked him again and
he said “No.” Moore did not scream at the meeting. Nor did she use profanity. Moore
sounded like she was trying to get her point across. She was not disruptive. At that time they had been working seven days
a week for several months. The seven day
work week was a matter of concern for some employees but some liked the extra
money.
Employee Beverly Eaddy testified as follows:
The meeting began with Rufenacht speaking. He talked about sales and productivity and
said what he wanted to say and then Carla Samuel spoke and asked how long they
would be working seven days because that was too much. I do not credit Eaddy with regard to Samuel
having made this comment concerning the seven day week. Moore
spoke up and asked how long they would be working seven days. Moore
also told Ruefenacht he never talked to us.
Ruefenacht then said that if she didn’t want to work there, she could go
somewhere else and “flip burgers.” Moore then told him that
God made heaven and earth in six days and rested on the seventh day. Rufenacht
said God had nothing to do with it. He
then said the meeting was over. Eaddy
testified Moore
never used profanity, did not scream at Ruefenacht and did not call him a
devil. Moore’s tone of voice was loud enough to hear
but she was not screaming.
Employee Carla Samuel testified as follows:
Ruefenacht spoke first about production problems in the
plant. When he stopped talking she asked
about who to go to if they have questions.
Then Moore
said that even God rested a day.
Ruefenacht told her, God had nothing to do with it. Samuel then said God’s got everything to do
with it because if it weren’t for God, none of us would be here. Then Moore
said to Ruefenacht that she was not intimidated by him. Then Ruefenacht said that if she didn’t like
her job she could hand in her badge and also said something about flipping
burgers. Moore than asked whether he was firing
her. He said that he didn’t say
that. Moore’s tone of voice was not loud and she
did not scream or use any profanity.
Moore
testified that at this regular monthly meeting, she asked Ruefenacht when they
were going to stop the 7-day workweek and he said he didn’t see it anytime in
the future. She said God created the
world in 6 days and needed a rest on the seventh day and we were tired. Ruefenacht said God didn’t have anything to
do with it and he (Ruefenacht) had the last say and if she didn’t like it, she
could flip burgers and turn in her badge to Rogers.
She asked if she was fired and he did not reply so she asked again and
he said, “No.” Moore testified that in the monthly meeting
her tone of voice was the same as Ruefenacht.
It was normal. She did not
scream. She did not call Ruefenacht a
devil. She was speaking for the majority
of the employees and herself about the 7-day workweek. On cross-examination Moore acknowledged that she did raise her
voice in the group meeting.
Moore testified that in
October 2005, she had attended a meeting
with Rogers and Supervisor Tim Davis and that she had told them that some of
the employees wanted to go to church and were tired of the 7-day work weekand
that Davis said
he was tired also but there was nothing that could be done about it. I credit Moore’s
testimony concerning this meeting which is unrebutted as Davis
did not testify and Rogers
said a number of employees had complained to him about the 7-day workweek but
that he could not recall whether or not he was at this meeting.
Respondent called another meeting on January 6 to which
Moore and Samuel were summoned. Ruefenacht,
Rogers and Davis were also in attendance.
Ruefenacht spoke first at the meeting and according to the testimony of Moore, said Samuel was a
Judas Iscariot. Samuel did not testify
to this. Ruefenacht said to Moore that since she
believed in God so much, she should pray to God find her another job. Ruefenacht also said he had never been talked
to in that manner before in his career at Datwyler as he had been in the group
meeting. He then left the meeting. Moore and Samuel testified that he cut them
off without giving them a chance to explain their position. Ruefenacht testified that Moore did not want to reason. Subsequently on January 11, 2006, Moore was called into a meeting conducted by Wysocki with Rogers present. Wysocki told Moore she was being terminated. Wysocki indicated on the unemployment form
that she was laid off. Ruefenacht
testified her termination had been reported as a layoff to enable her to
collect unemployment benefits.
Following her termination Moore
began meeting with Respondent’s employees at her home and generated petitions
listing grievances and complaints of the employees which were submitted to both
Datwyler in Marion County, South Carolina, and its headquarters in Switzerland. Datwyler received a petition in May. On about May 22, 2006, Ruefenacht directed
Respondent’s finance manager, Barbara Driggers, to meet with the employees who
signed the petition and to report back to him, which she did. Barbara Driggers also has human resource responsibilities
which were given to her after Human Resource Manager Wysocki was laid off. Pursuant to this directive Driggers held five
separate meetings with the employees who had signed the petitions to discuss
their grievances and complaints. Barbara
Driggers and Sharon Driggers (who is not related to Barbara Driggers) met with
Samuel and employee Jackie Taylor on May 23, 2006. Sharon Driggers was there as a witness and
took some notes. Samuel testified that
at this meeting Driggers asked what is this about a union and then said you
know if you brought in a union, Switzerland
would shut the Marion
plant down. Taylor testified she could not remember any
details of the meeting except that Driggers told them where the rules were
located in the plant. Barbara Driggers
denied threatening the plant would be shut down if a union came in. Rather she testified that she had made a list
of six items that were on the petition rather than bring the petition to the
meeting. On item (6) she wrote “Raises
& Union - Mexico?” She testified she wrote this because they
were talking about raises and she told them that Respondent had not made any
money since its inception in 1996 and that Switzerland did not have any ties
with Marion County and if they did not show a profit that it may decide to
close the Marion facility and move it to Mexico but that this had nothing to do
with unions. Sharon Driggers is a human resource
and payroll clerk. She attended two of
the meetings of Barbara Driggers with the employees who had signed the
petition. She was there as a
witness. The first meeting was with
Carla Samuel and Jackie Taylor. These
employees brought up issues of raises, working 7 days and air conditioning in
the plant. When the issue of raises came
up, Barbara Driggers said that Datwyler had no ties in Marion County
and could move if they could not make a profit.
She testified that this had nothing to do with a union. Sharon Driggers took notes at the
meetings. The employees were brought
into the conference room and Barbara Driggers told them Respondent had received
the petition and wanted to talk about their concerns. Barbara Driggers testified that she did not
say anything to the effect that if a union came in, this would cause the plant
to move to Mexico. Barbara Driggers conceded that she had
mentioned a union in the meeting with employees Carla Samuel and Jackie Taylor,
because it was listed on their petition.
She asked them if they wanted to discuss a union and they did not respond. Barbara Driggers testified she sent reports
back to Ruefenacht as to what occurred in the meetings with the employees.
I credit Samuel’s testimony that Barbara Driggers threatened
plant closure that if a union were brought in, Switzerland would shut the plant
down. I find that Barbara Driggers was
an agent of Respondent under Section 2(13) of the Act, when she met with the
employees at Ruefenacht’s direction and when she conducted the meetings with
the other employees who had signed the petitions prepared by Moore and reported the information received
from the employees back to Ruefenacht.
Driggers was vested with apparent authority and would have been
perceived by the employees as an agent of Respondent by the threat issued by
Driggers to employees Jackie Taylor and Carla Samuel that Switzerland would shut the Marion County
plant down if the employees brought a union in.
Restaurant Horikawa, 260 NLRB
197, 203 (1982); Driggers issuance of the unlawful threat of plant closure was
violative of Section 8(a)(1) of the Act.
I find that even if Barbara Driggers’ version were credited, her testimony
that she threatened a shutdown of the plant by the Switzerland headquarters if
issues of wages were brought up, establishes a violation of Section 8(a)(1) of
the Act. I credit Samuel’s testimony
that Driggers did threaten plant closure if the employees brought a union
in. I find it is unlikely that Samuel
would have either intentionally or mistakenly made such a charge on her own as
a current employee of Respondent.
iii.
contentions of the parties
In his brief the General Counsel contends as follows: Respondent threatened Moore with termination
for engaging in protected concerted activities at the January monthly meeting
and Respondent also threatened employees with plant closure if they selected a
labor organization as their collective-bargaining representative in the meeting
held by Barbara Driggers in response to the petition filed by its employees
listing a number of concerns and requests.
Moore’s
conduct at the January 5 monthly meeting was protected concerted activity. An employee’s questions and comments in a
group meeting called by the employer concerning common conditions of employment
constitute concerted activity protected by the Act, citing Enterprise Products, 264 NLRB 946 (1982); Whittaker Corp., 289 NLRB 933 (1988). Other employees at a group meeting need not
accept an individuals’ invitation to group action in order for the invitation
to be concerted. El Gran Combo, 284 NLRB 1115 (1987); Mushroom Transportation Co., 142 NLRB 1150 (1963). The object of inducing group action need not
be express. Jeannette Corp., 207 NLRB 653 (1975). It is undisputed that Moore was discharged because of her conduct
in the group meeting. Moore’s request for relief from the 7-day workweek
was a matter of common concern for the employees and her comments were concerted
activity. These comments were reinforced
by Samuel who testified she told Ruefenacht that God had everything to do with
it in reference to the 7-day workweek.
The General Counsel contends further that Moore acknowledged she raised her voice at
the meeting but not to the level of a shout or scream. Nor did she use any profanity or engage in
any other disruptive behavior at the meeting.
Moore
specifically denied calling Ruefenacht a devil or stating that Jesus Christ
would punish Ruefenacht and the Company for requiring the 7-day workweek. Moore’s
testimony was corroborated by former employee Wilson and current employees
Samuel and Eaddy. Each of these
employees denied that Moore
had screamed or engaged in any disruptive behavior in the January monthly
meeting. Eaddy, a 6-year employee,
testified that Moore
did not call Ruefenacht a devil in the January monthly meeting.
Although Ruefenacht denied having threatened Moore with termination at
the monthly meeting and in the followup meeting the next day, he did acknowledge
however that he told employees at the January monthly meeting that “if you
cannot stand the manufacturing pressure here you’re always free to look for
another job and leave the company.”
Samuel, Eaddy and Wilson testified that Ruefenacht threatened Moore with termination in
the January monthly meeting. Samuel
testified that at the meeting the next day, Ruefenacht threatened Moore by stating, “if you
believe in God so much, you can pray to God to find you another job.” Accordingly the General Counsel contends that
Ruefenacht unlawfully threatened Moore with termination in the January monthly
meeting, and again in the meeting held the next day because of her engagement
in protected concerted activities citing Bill
Scott Oldsmobile, 282 NLRB 1073, 1073–1074 (1987).
The General Counsel argues that Respondent presented the
testimony of Production Manager Rogers and employee Sherry Stover to bolster
the credibility of Ruefenacht’s testimony concerning the monthly meeting. Stover testified that when Ruefenacht made
his introductory remarks, he was immediately interrupted by Moore, and that
Moore stated she did not want to work 7 days and that Moore tried to “over
talk” Ruefenacht. However Production Manager
Rogers testified that it was Carla Samuel who first addressed Ruefenacht in
that meeting rather than Moore. Stover could only recall that Moore said Jesus Christ would punish Ruefenacht for making
the employees work 7 days a week and that Moore
was not intimidated by him.
The General Counsel also points to conflicting testimony
on the part of Rogers. Rogers
testified that Moore asked Ruefenacht if she was
fired but did not recall what had prompted Moore
to ask this question and could not recall what Moore said before she allegedly called
Ruefenacht a devil. Rogers also vacillated as to the statement
that God would punish the Company and Ruefenacht. On direct examination and on
cross-examination Rogers said Moore
used the term “God” but on redirect exam, said Moore used the term “Jesus Christ” in this
threat. On direct examination Rogers said Moore’s
tone of voice at the January monthly meeting was loud. However, on redirect examination, he said she
was screaming. The General Counsel also
contends that Ruefenacht’s testimony was similarly inconsistent. He initially testified that Moore interrupted him at the beginning of the
January monthly meeting. However, Rogers testified it was
Carla Samuel who interrupted him at the beginning of the meeting. Most significantly, Ruefenacht stated at the
hearing that Moore screamed at him, called him a devil and threatened that
Jesus Christ would punish him and the Company for working 7 days. However, in a memo to Finance Manager Barbara
Driggers dated June 23, he stated his account of the January monthly meeting
and did not mention any of the statements allegedly made by Moore at the
hearing. He did not say Moore screamed at him, nor did he state she
called him a devil or that she threatened that Jesus Christ would punish him
and the Company for working 7 days. His
only comment concerning Moore
in the June 23 memo was, “Then came the ladies monologue,” in reference to
Moore and Samuel.
The General Counsel contends that Moore engaged in concerted
activity with the other employees in the January monthly meeting and notes that
the Board has found similar activity protected where two employees asked
questions and made comments at a group meeting called by an employer, citing Neff-Perkins, Co., 315 NLRB 1229, 1233
(1994). The “Then came the ladies
monologue” comment in the June 23, memo shows that Respondent lumped Moore’s
and Samuel’s actions together. Moore’s conduct thus
clearly comes within the definition of concerted activity under Board law,
citing United Enviro Systems, Inc.,
301 NLRB 942, (1991). The evidence
refutes Respondent’s contentions that Moore
was insubordinate. Moreover the Board
has permitted employees engaged in such concerted activity a wide latitude in
how they are required to conduct themselves including expressing themselves in
a loud and angry manner and the use of profanity, provided they do not engage
in flagrant misconduct so violent or of such character as to render the employees
unfit for further service. Postal Service, 250 NLRB 4 (1980). In United
Enviro Systems, Inc., supra and Neff-Perkins
Co., supra, employees who engaged in concerted activity were found not to
have lost the protection of the Act even though their conduct was rude, argumentative,
and profane. In the instant case Moore’s conduct did not
exceed the bounds of permissible concerted activity. She did not engage in any threatening acts,
nor did she threaten plant discipline.
She did not use any profanity. In
this case Moore’s
conduct was spontaneous but was a matter of common concern for all employees in
the plant.
The Respondent in brief contends as follows: It lawfully terminated Moore for insubordination because she
verbally attacked its general manager, Ruefenacht, at a meeting of all first-shift
employees. Moore’s outburst was neither protected nor concerted. Ruefenacht did not threaten any employees
with termination on January 5 or 6.
Ruefenacht’s comments on these dates related to the production pressures
at the plant and that he could not immediately change the work schedule. These statements could not reasonably be
interpreted as a threat. Barbara
Driggers never threatened to shut down the Marion plant if a union came in.
Respondent contends that Moore was terminated for legitimate
non-discriminatory reasons and not because of any protected concerted
activity. At the hearing Moore denied she had
called Ruefenacht a devil or stated that Jesus Christ would punish him and
Datwyler for requiring the 7-day workweek.
She admitted she was loud and told Ruefenacht that she was not afraid of
him. On cross-examination, Moore was unresponsive to
Datwyler’s attorney’s questions. See Parc Fifty One Associates, 306 NLRB
1002, 1007 (1992), rejecting testimony of an argumentative and evasive
witness. Respondent also contends that
other of the General Counsel’s witnesses were less than credible. Samuel admitted she was not sure about the
order of various comments at the January 5 meeting. Wilson
admitted she had been terminated from her job at Datwyler and told a supervisor
that Ruefenacht had not seen the last of her as she was leaving the plant.
Respondent contends further that Moore shouted insults and religious slurs
unrelated to any legitimate workplace concern.
It is unlikely that Ruefenacht, Rogers
and Stover would have all invented Moore’s
comment that “Jesus Christ” was going to punish Ruefenacht and Datwyler for
requiring her to work on Sundays. Moore’s “devil” comment was corroborated by Rogers. Respondent contends that Moore’s insults and religious slurs did not
relate to any term or condition of her employment and are similar to those held
unprotected in Media General Operations,
Inc. v. NLRB, 394 F.3d 207 (4th Cir. 2005), where one employee became
agitated in a meeting of pressmen and called his supervisor a racist and stated
that the newspaper was a racist place to work.
The Respondent contends that Moore
did not communicate legitimate workplace concerns when she called Ruefenacht a
devil. The Respondent also cites Boaz Spinning Co. v. NLRB, 395 F.2d 512
(5th Cir. 1968), (conduct of employee who interrupted meeting and accused plant
manager of being no different than Castro held unprotected). The Respondent contends further that Moore’s
personal attack on Ruefenacht was not concerted as she spoke only for herself
citing Meyers Industries, 281 NLRB
882, 885 (1986). Moreover her subsequent
conduct of religious slurs and insults was not concerted. HCA
Health Services of New Hampshire,
316 NLRB 919, 929–930 (1995). The test
for whether an employee’s actions have lost the protection of the Act is set
out in Atlantic Steel Co., 245 NLRB
814 (1979). The four factors to be
balanced are (1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst and (4) whether it was
provoked by an employer’s unfair labor practice. Moore’s
tirade occurred in front of the entire first shift with dozens of people
present and would reasonably tend to affect workplace discipline by undermining
the authority of Ruefenacht. Aluminum Co. of America, 338 NLRB 20
(2002); Waste Mgmt of Arizona, 345
NLRB No. 114, slip op. at 3 (2005). Moore’s offensive comments
were unrelated to her desire to work fewer hours.
iv. analysis
The statement made by Ruefenacht in response to Moore’s
complaints about being required to work the 7-day workweek, that she could turn
in her badge to production manger Rogers and she could go flip burgers,
constituted a threat of discharge issued to Moore in response to her complaints
about the 7-day workweek. I find that
this threat was violative of Section 8(a)(1) of the Act. It is also clear that Moore’s conduct at the regular monthly
meeting was protected concerted activity concerning the employees’ hours and
terms and conditions of employment. I
find that Moore
was engaged in protected concerted activities on behalf of herself and her
fellow employees when she spoke out at the meeting in opposition to the mandatory
Sunday work. It is undisputed that the
required Sunday work was a matter of concern to many of the employees. Production Manager Rogers testified that the
employees were all tired from the mandatory Sunday work which had been required
for a protracted period of time.
I also find that Ruefenacht’s statement to Moore on the next day in
the conference room was violative of Section 8(a)(1) of the Act. In this meeting Ruefenacht told Moore that since she
believed in God so much, she should pray to God to find her another job. This was clearly a threat of discharge in response
to Moore’s engagement
in protected concerted activity at the group meeting on the prior day.
Mononga Moore was discharged on January 11, 2006, for her
conduct at the group meeting. It is undisputed
that as Rogers
testified, the sole reason for her discharge was her conduct at the
meeting. Respondent defends its actions
in discharging Moore
as justified on the basis that she verbally attacked Ruefenacht and was insubordinate
and thereby lost the protection of the Act.
I find that Moore
made the statement attributed to her by Ruefenacht and Rogers, that Ruefenacht
was a devil and that God would punish him and the Company for making the employees
work seven days a week. In making this determination I have considered the
testimony of the witnesses, their relationship to management as employees in
the case of Eaddy and Samuel and their respective interests in the outcome of
this case particularly concerning Moore, Eaddy and Samuel, as well as the
interest of the Respondent’s management, Ruefenacht and Rogers, in responding
to Moore’s having spoken out. I am
convinced that Moore
did make the comment attributed to her.
I found convencing Ruefenacht’s open and steadfast testimony that Moore made the comment
about the devil. However I do not believe
that it was so egregious as to warrant discipline against Moore.
She basically spoke out at the Respondent’s meeting concerning the work
hours of the employees. However, she did
not threaten or engage in any profanity or threatening or violent behavior. I do not find that Moore’s spontaneous remarks constituted any
serious threat sufficient to undermine discipline at the plant. I do not find that it was so egregious as to
cause Moore the
loss of the protection of the Act. Moore spoke out spontaneously
at the meeting in protest on behalf of the employees, including herself, being
required to work the 7-day week. She
said she was tired. At the hearing she
testified that she told Ruefenacht, “we” were tired. In either event I find that she was engaged
in protected concerted activity about a matter of working conditions and hours
of employment namely, being required to work a 7-day week. There is no doubt that the 7-day workweek was
a matter of concern to many of the employees.
Production Manager Rogers, testified that the employees were tired. Moore
testified that Shift Supervisor Davis told her that he was tired also but there
was nothing he could do about it. Davis did not testify and Moore’s testimony is unrebutted in this
regard. When Moore spoke out at the meeting she did not
engage in profanity or threaten any violent behavior which would have made her
further employment untenable. It is
clear that Moore
was pursuing a complaint in opposition to maintenance of a seven day workweek. This complaint concerned her fellow employees
and was a complaint about “hours” and “terms of employment.” While her comments in pursuit of this
complaint may have been unpleasant for Respondent to hear, they were not so
egregious as to cause the loss of the protection of the Act. Postal
Service, supra; United Enviro Systems, Inc., 301 NLRB
942 (1991); Neff-Perkins Co., supra.
Conclusions of Law
1. The Respondent is an employer within the meaning of
Sections 2(6) and (7) of the Act.
2. the Respondent violated Section 8(a)(1) of the Act by:
(a) Threatening employees with termination for making
statements at group meetings concerning terms and conditions of employment.
(b) Threatening its employees with plant closure because
of their engagement in protected concerted activities.
(c) Its discharge of Mononga Moore.
3. The above- unfair labor practices in conjunction with Respondent’s
status as an employer affect commerce within the meaning of Sections 2(6) and
(7) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, it shall be ordered to cease and desist therefrom and take
certain affirmative actions designed to effectuate the purposes and policies of
the Act.
It is recommended that the Respondent offer immediate reinstatement
to employee Mononga Moore to her former position or to a substantially equivalent
one if her former position no longer exists.
The above employee shall be made whole for all loss of backpay and
benefits sustained by her as a result of Respondent’s discharge of her and its
failure to reinstate her. Respondent
shall also remove from its files all references to the unlawful actions taken
against her and advise her in writing that it has done so.
All backpay and benefits shall be computed in the manner
prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950) with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), at the “short
term Federal Rate” for the underpayment of taxes as set out in the 1986
amendment to 26 U.S. Code Section 6621.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended
ORDER
The Respondent, Datwyler
Rubber and Plastics, Inc., Marion,
South Carolina, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Threatening its employees with termination for making
statements at group meetings concerning terms and conditions of employment.
(b) Threatening its employees with plant closure because
of their engagement in protected concerted activities.
(c) Discharging its employees because of their engagement
in protected concerted activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Mononga Moore immediate and full reinstatement
to her former position, or to a substantially equivalent position if her former
position no longer exists.
(b) Make Mononga Moore whole, with interest, for any loss
of earnings and benefits she may have sustained as a result of her termination.
(c) Preserve and, within
14 days of a request, provide at the office designated by the National Labor
Relations Board or its agents, one copy of all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of the records if stored in electronic
form, necessary to analyze the amount of backpay due under the terms of this
Order. If requested, the originals of
such records shall be provided to the Board or its agents in the same manner.
(d) Post at its facility if it still exists, copies of the
notice “Appendix” consistent with the
terms of this Order immediately upon receipt thereof, and maintain them for a
period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted and mail a copy of the
notices to all employees who were employed at the facility during the period
October 1, 2005 to May 31, 2006.
Reasonable steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any material.
(e) Within 14 days from the date of this Order remove from
its files any reference to the unlawful actions taken against Mononga Moore.
(f) 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.
Dated at Washington,
D.C., February 27, 2007
APPENDIX
Notice To Employees
Posted by the Order of the
National Labor
Relations Board
An Agency of the United States
Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.
We will not
threaten our employees with termination for making statements at meetings
concerning terms and conditions of employment.
We will not
threaten our employees with plant closure because of their engagement in
protected concerted activities.
WE WILL NOT discharge our employees because of their
engagement in protected concerted activities under the Act.
We will not
in any like or related manner interfere with, restrain or coerce our employees
in the exercise of their rights under Section 7 of the National Labor Relations
Act.
We
will within 14 days from the date of the Board’s Order rescind the
unlawful discharge of Mononga Moore and offer her full reinstatement to her
former position or if the position no longer exists, a substantially equivalent
job, without prejudice to her seniority or any other rights or privileges previously
enjoyed.
We
will make Mononga Moore whole for any loss of earnings and other
benefits as a result of the discrimination against her, with interest.
We
will within 14 days from the date of the Board’s Order, remove from our
files any reference to the unlawful discharge and we will, within 3 days thereafter, notify her in writing that
this has been done and that the unlawful actions will not be used against her
in any way.
Datwyler Rubber and Plastics, Inc.
