On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board, No. 14-CA-18644.
Cummings and Flaum, Circuit Judges, and Eschbach, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge
The petitioner-cross-respondent, Roadmaster Corporation ("Roadmaster"), seeks review of a National Labor Relations Board ("NLRB" or "Board") order finding Roadmaster in violation of § 8(a)(1) and (3) of the National Labor Relations Act ("NLRA"). Conversely, the respondent-cross-petitioner, the NLRB, seeks enforcement of its order. In its order, the NLRB determined that Roadmaster had discharged an employee, John David Gardner, for his union activities and not for his alleged violation of a company rule. It further determined that even if Roadmaster had fired Gardner for violating a company rule, he was still discharged for engaging in protected concerted activity. Therefore, the NLRB ordered Roadmaster to cease and desist from engaging in unfair labor practices, to reinstate Gardner with full back pay and seniority rights, and to post remedial notices. On appeal, Roadmaster makes three contentions. First, Roadmaster argues that the General Counsel failed to meet its prima facie burden of showing antiunion animus. Second, Roadmaster contends that it would have discharged Gardner regardless of any antiunion animus that may have existed. Finally, Roadmaster argues that the NLRB erred in finding that it discharged Gardner for engaging in protected concerted activity. For the reasons set forth below, we uphold the NLRB's determination that Roadmaster discharged Gardner for engaging in protected concerted activity. Therefore, without reaching the other two issues on appeal, we grant the NLRB's application for enforcement and deny Roadmaster's petition for review.
Roadmaster manufactures bicycles, tricycles, and other riding toys at its Olney, Illinois plant. Roadmaster's employees were originally represented by the United Employees Union ("UEU"), which had entered into a collective bargaining agreement with Roadmaster that was in effect from December 1, 1982, until February 28, 1986. In August 1985, however, Roadmaster's employees changed their union affiliation from the UEU to the Production and Maintenance Employees' Local 504, Laborers' International Union of North America ("Union"). At first, Roadmaster refused to recognize the Union or to process grievances under the Roadmaster -- UEU collective bargaining agreement. But on March 1, 1986, Roadmaster offered to meet with the Union and negotiate a new collective bargaining agreement. Although the parties negotiated, they failed to reach an accord.
Thus, on March 31, 1986, Roadmaster unilaterally implemented its final proposal. The implemented proposal slightly modified the multi-step grievance procedure that existed under the UEU -- Roadmaster collective bargaining agreement. Under step one, the employee had to meet with the supervisor involved and present his grievance verbally within three days of the disputed action.*fn1 The supervisor would then give the employee a verbal response at this meeting, or if more information was necessary, within one day. Under step two, if the grievance was not settled at the step one meeting, the employee had to present his grievance to the supervisor in writing, which was signed by the employee.*fn2 A meeting would then be held at which the employee, the supervisor, and representatives of both the Union and Roadmaster would be present. Roadmaster would then send the Union's president a written response to the grievance. Under step three, the Union could present the grievance to the Labor Relations Assistant at Roadmaster, and the grievance would be discussed at another Union-Roadmaster meeting. Finally, under step four, the grievance could be submitted to arbitration.
John David Gardner was the secretary-treasurer of the Union and a member of its executive board. One of his duties was to process grievances on behalf of Union members. In early 1985, Gardner sent a letter on UEU letterhead to the Federal Trade Commission ("FTC"), confirming an earlier phone call, in which he advised the FTC that Roadmaster may have been mislabeling its bicycles to make them appear as if they were manufactured domestically, instead of in Taiwan. Subsequently, another UEU member sent the FTC a similar letter which also alerted the FTC to potential safety problems with some of the imported bicycles from Taiwan. In September 1986, two newspapers, one in Olney, Illinois and the other in Evansville, Indiana, ran an article on this mislabeling controversy. Both articles referred to Gardner's letter as prompting an FTC investigation.
On September 25, 1986, Gardner, along with other Union representatives, attended a regularly scheduled meeting with representatives from Roadmaster. After reviewing the agenda, the Union's president, Terry Groves, asked why other items were not on the agenda. Roadmaster's plant superintendent, Howard Atkison, responded, "Well it seems like every time we say anything to you it appears on the Press [sic] or on television." Tr. at 81.
After the meeting, some reporters from a television station in Terre Haute, Indiana interviewed Gardner about the bicycle mislabeling controversy. His interview was shown that same evening. The next day, Gardner's supervisor told him that he had seen the broadcast. Additionally, at a meeting of Roadmaster's management, a videotape of Gardner's interview was shown. After the tape had been played, Roadmaster's president, George Nebel, stated that Gardner "was like a cancer." Id. at 20.
On October 6, 1986, shortly after Roadmaster became aware of Gardner's involvement in the bicycle mislabeling controversy, Gardner received a telephone call from Dennis Bishop, an ex-employee of Roadmaster. Roadmaster had discharged Bishop, and he was seeking assistance in getting reinstated. Gardner advised him to talk with his supervisor, which is required under step one of the multi-step grievance procedure. At this time, they did not discuss the possibility of filing a written grievance as required by step two.
That same evening, Gardner tried to speak with Bishop but he was not at home. The next day, Gardner again was unsuccessful in contacting Bishop. Gardner then decided to prepare a grievance and sign Bishop's name to it because he was worried that this grievance would be rejected by Roadmaster as being untimely and that the Union could possibly be sued for violating its duty of fair representation.*fn3 On October 8, 1986, Gardner filed Bishop's grievance with Roadmaster.
On October 14, 1986, Kathy Copper, the Labor Relations Assistant at Roadmaster, and foreman Russell Gentry informed Atkison that there was a problem with Bishop's grievance because Bishop did not know a grievance had been filed on his behalf nor did he authorize anyone to sign one for him. The next day Gardner was asked to report to Copper's office. Present at this meeting were Copper, Gentry, and Atkison. Gardner readily admitted that he had signed Bishop's name to the grievance and told them why. Gardner also acknowledged that he should have indicated on the written grievance that he was signing it for Bishop. Both Groves and Bishop were subsequently called into the meeting. Bishop stated that he had not authorized Gardner to file or sign a grievance on his behalf. Atkison then suspended Gardner pending further investigation. Roadmaster, however, reinstated Bishop as an employee the next day.
Following the meeting, Atkison asked Copper to pull the grievance files for 1986. An inspection of these files showed that on two other grievances Gardner had signed the names of employees and supervisors. On October 20, 1986, Gardner filed a grievance over his suspension and a second step meeting was held three days later. At the meeting, Atkison asked Gardner whether he had signed the employees' and supervisors' names on the two other grievances. Gardner refused to answer the question on the advice of counsel. Atkison stated that once an employee filed a grievance it became a company document, ...