CROWN CENTRAL PETROLEUM CORPORATION v. N. L. R. B.

GEWIN, Circuit Judge:

Crown Central Petroleum Corporation (hereinafter, the Company) seeks review of an order of the National Labor Relations Board finding that it violated § 8(a) (1)1 of the National Labor Relations Act by disciplining two of its employees, for statements they made during a grievance meeting. The Board cross-petitions for enforcement. We enforce the order.

The Company operates an oil refinery in Houston, Texas. Since 1945, Local 4-227 of the Oil, Chemical & Atomic Workers International Union AFL-CIO has been the certified representative of the refinery employees. Their collective bargaining agreement establishes a workmen's committee to participate in the disposition of employee grievances. The two disciplined employees, George S. Harris and Jack R. Gilliam, had worked for the Company for over twenty years. At the time of the critical events both were members of the Workmen's Committee, and Gilliam was its chairman.

On 29 March 1968, Fred Manly, Assistant Maintenance Superintendent, asked Harris why he had not been working overtime.2 Harris replied that he did not want to work overtime, which he understood was his option under the collective bargaining agreement. Manly and Harris then went to the office of Harry A. Taylor, Assistant Employee Relations Manager, where Harris repeated his position. At Taylor's suggestion, Harris left the office and returned with Union Committeeman William Loree. In the meeting that followed it was the Company's position that, absent excuse, overtime was required by the contract, while the Union representatives maintained that it was optional with the employees.

According to the testimony of Harris and Loree, Taylor stated that Harris would be required to work the overtime. They also stated that Manly then "requested" Harris to work the overtime, to which Harris replied that, if he were given a choice, he would not work. According to Harris and Loree, Manly then "ordered" Harris to work the overtime, and Harris replied that he would obey the order under protest. Manly testified in general agreement with the foregoing except that he denied having "ordered" Harris to work overtime. Thereafter, Harris filed a grievance alleging that the Company had violated the collective bargaining agreement by requiring the overtime work.

On 9 May 1968, the Workmen's Committee, chaired by Gilliam and including Harris and four other employees, held a grievance meeting with Company representatives. The Harris grievance was originally brought up during the morning session, but action was deferred until the afternoon so that Manly could be present. There is a wide variety of testimony as to the precise events during the afternoon session.3 It is clear, however, that under questioning from Gilliam, Manly denied having "ordered" Harris to work overtime. Harris then stated or implied that Manly's denial was a lie. Several witnesses testified that the allegation against Manly was accompanied by profanity. It also appears that Gilliam reminded Manly and the Company's representatives that they would be called upon after death and in the hereafter — in a bargaining session yet to come — to answer for their earthly prevarications. After Gilliam's remark the meeting was adjourned.

On 10 May 1968, Harris received a reprimand letter for "abusive and insubordinate language directed at supervisors" warning that any repetition would be dealt with more severely. Gilliam received a similar letter and a one day suspension for having tolerated and joined in Harris's conduct. This disciplinary action gave rise to the subject unfair labor practice charges.

The Trial Examiner held a hearing on the charges that the Company's action violated both §§ 8(a) (1) and 8(a) (3).4 He found the facts to be substantially as we have set them out above. The Trial Examiner recognized that under a line of prior Board decisions5 the present conduct would normally be held to be protected and beyond the reach of employer discipline. However, he observed that the balance in these cases must be made according to their particular facts, and found that there were special circumstances in the present case which required a different conclusion: (1) The Trial Examiner saw no distinction between an employee being "ordered" to do something and his being "requested" to do it, and concluded that this case was "illborn." (2) He found no justification for the remarks made by Harris and Gilliam especially in light of Manly's mild-mannered nature. (3) He found no evidence of union animus in this case or in the Company's labor history.

On review the Board found the Trial Examiner's distinctions unpersuasive. First, it felt the merits of the underlying grievance impertinent to the question of whether the employees were unlawfully disciplined. Next, the Board concluded that the Trial Examiner's finding that the remarks were not justified, even if correct, was not controlling. It stated, "The issue is not whether the statements by Harris and Gilliam were justified by either the Trial Examiner's standards or ours, but rather whether these statements were so opprobrious as to remove them from the otherwise protected nature of a grievance meeting." Finally, the Board observed that a finding of union animus was not a necessary element of an 8(a) (1) violation. It did not feel it was necessary to determine whether the conduct was inherently discriminatory, which would have permitted a finding of an 8(a) (3) violation absent evidence of union animus; but held that the conduct violated 8(a) (1).

The Company initially contends that, inasmuch as the Board did not disturb the Trial Examiner's conclusion that the Company had no unlawful motive in disciplining Harris and Gilliam, its finding of an 8(a) (1) violation was unwarranted. The Company places its principle reliance on three cases decided by the Supreme Court in 1965. Textile Workers Union v. Darlington Manufacturing Co.;6 N.L.R.B. v. Brown;7 American Ship Building Co. v. N.L.R.B.8 However, these cases, as well as later Court decisions involving unlawful employer motive,9 dealt with alleged violations of § 8(a) (3) as well as 8(a) (1). Unlike § 8(a) (1), 8(a) (3)10 has been construed as requiring that the prohibited conduct must be for the purpose of encouraging or discouraging membership in a labor organization.11

It would thus appear that the exercise of such "management prerogatives" as going out of business13 or engaging in a lock-out of employees14 may not be judged initially by § 8(a) (1) and may only be held to violate that Section derivatively through a violation of 8(a) (3).15 The discussions of employer motive cited by the Company from these cases would then relate to the requirements of § 8(a) (1) only insofar as such a violation must be derived from an 8 (a) (3) violation.16

In the present case the Board did not sustain the charge under § 8(a) (3); it stated:

In our opinion, the disciplining of employees for insubordination, while certainly the right of management, is not such an inherent management prerogative as to be immune from challenge as a primary violation of § 8(a) (1). When thus considered, the motive behind an employer's conduct is not an element of the unfair labor practice charged.17 In Welch Scientific Co. v. N.L.R.B., the court stated:18

Under the facts and in the circumstances disclosed by the record before us the absence of a finding of unlawful motive is not fatal to the Board's conclusion that the Company violated 8(a) (1).

The question remaining is whether the Board properly concluded that the conduct of Harris and Gilliam was protected by the Act so as to make the imposition of disciplinary sanction violative of Section 8(a) (1). Initially, the filing and prosecution of employee grievances is a fundamental, day-to-day part of collective bargaining and is protected by Section 7.19 In a general sense, both employees were engaged in protected activity at the time the objectionable statements were made, but this does not dispose of the case. An employee may not act with impunity even though he is engaged in protected activity. His rights, derived from Section 7, must be balanced against the employer's right to maintain order in his business by punishing acts of insubordination.

In Boaz Spinning Co. v. N.L.R.B.,20 this court refused to enforce an order of the board which found that the company violated Section 8(a) (1) in discharging an employee for insubordinate conduct. There, the plant manager made a lawful persuasion speech to his assembled employees prior to a Board election. An employee tried, at several points, to interrupt the speech with pro-union statements. After being twice advised that the meeting was closed and that union advocates would no be allowed the floor, the employee called the plant manager a "Castro," stating that he ran his plant after the fashion of totalitarian dictators. In considering the finding that he was wrongfully discharged, this court stated:

"Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbitrary, ought not be disturbed."22 Reviewing the circumstances of the present case, we are convinced that the balance struck by the Board is authorized.23 On the employer's side of the scale lies the injury done the Company by intemperate and insubordinate remarks directed toward a supervisor during a grievance meeting and in the presence of four other employees.24 This deprives the present situation of any analogy to that found in Boaz, where all the plant employees were present and the employer had legitimately determined that competing views could not be aired.25

The Company emphasizes the lack of justification for the employees' statements and the coarse nature of their language. We agree with the Board that whether the remarks were by some standard "justified" is not controlling. Here the remarks were pertinent to a discussion of the grievance under consideration at the meeting. "[A]s long as the activities engaged in are lawful and the character of the conduct is not indefensible in the context of the grievance involved, the employees are protected under § 7 of the act."26 Neither do we think the language used by Harris and Gilliam was so opprobrious as to carry them "beyond the pale" of the Act's protection. It has been repeatedly observed that passions run high in labor disputes and that epithets and accusations are commonplace.27 Grievance meetings arising out of disputes between employer and employee are not calculated to create an aura of total peace and tranquility where compliments are lavishly exchanged. Adding our disclaimer to that of the Board, we do not condone the conduct of Harris and Gilliam in the meeting, but we do not feel that the interests of collective bargaining will be served by the external imposition of a rigid standard of proper and civilized behavior.

Of central importance to our view of the case, is the nature of the protected activity involved. Harris and Gilliam were participating in a grievance meeting, which by its very nature requires a free and frank exchange of views, and where bruised sensibilities may be the price exacted for industrial peace. As the Board noted, a grievance proceeding is not an audience, conditionally granted by a master to his servants, but a meeting of equals — advocates of their respective positions. Manly was not assailed with abuse on the floor of the plant where he stood as a symbol of the Company's authority; the characterization of the untruth came while he was appearing as a Company advocate during a closed meeting with Union representatives.

Quoting its decision in Bettcher Manufacturing,28 the Board stated:

We seek neither to rank improprieties or epithets, nor to unnecessarily generalize for a class of cases peculiarly tied to their facts. However, within the confines of a grievance meeting, it would require severe conduct indeed to convince us that the interests of fair give and take between equal parties to bargaining could be justifiably submerged.

For the reasons set out above, the order of the Board is enforced.