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 the 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
We will not maintain or enforce a rule against employees that prohibits them from discussing among themselves their sexual harassment complaints.
We will not discharge or otherwise discipline employees because they have discussed among themselves their sexual harassment complaints, including writing articles in the union newsletter discussing our handling of employee sexual harassment complaints.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of the Boards Order, offer Charles Weigand immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
We will make Charles Weigand whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Boards Order remove from our files any reference to his unlaw-ful discharge, and we will, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way.
Phoenix Transit System
Liza Johnson and John Giannopoulos, Attys., for the General Counsel.
Thomas J. Kennedy, Atty. (Sherman & Howard), of Phoenix, Arizona, for the Respondent.
Fran Mullenix, Atty., of Phoenix, Arizona, for the Charging Party.
Statement of the Case
Frederick C. Herzog, Administrative Law Judge. This case was heard by me in Phoenix, Arizona, on September 13, 2000, and is based on a charge (later amended), filed by Amalgamated Transit Union, Local Union No. 1433 (herein called the Union), on May 8, 1998, alleging generally that Phoenix Transit System (Respondent), committed certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. §151 et seq.) (the Act). On March 31, 2000, the Regional Director for Region 28 of the National Labor Relations Board (the Board), issued a complaint and notice of hearing alleging violations of Section 8(a)(1) and (3) of the Act. Respondent thereafter filed a timely answer to the allegations contained within the complaint, denying all wrongdoing.
All parties appeared at the hearing, and were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and file briefs. Based upon the record, my consideration of the briefs filed by counsel for the General Counsel and counsel for Respondent, and my observation of the demeanor of the witnesses, I make the following
Findings of Fact
The complaint alleges, the answer admits, and I find that Respondent is an Arizona corporation, with an office and place of business in Phoenix, Arizona, where at all times material herein it has been engaged in the business of intrastate transportation of passengers in and around the Phoenix, Arizona metropolitan area; that during the 12month period ending March 31, 2000, in the course and conduct of its business operations, it derived gross revenues in excess of $250,000, and purchased and received at its facility mentioned above products, goods, and materials valued in excess of $50,000 directly from points outside the State of Arizona.
Accordingly, I conclude that Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. the labor organization
The complaint alleges, the answer admits, and I find that the Union is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act.
iii. the alleged unfair labor practices
The Union has had a collective-bargaining relationship with Respondent since approximately 1948. Their most recent agreement had a term from July 1, 1995 until June 30, 2000. It contained a standard grievance-arbitration provision.
For some time the Union has published a monthly newsletter. It is called the Sun Traveler. Its distribution is limited to the approximately 500 bus drivers (operators) employed by Respondent.
Charles W. Weigand served as an employee of Respondent until April 1, 1998, when Respondent fired him. Before that time, he was one of the bus drivers (operators) employed by Respondent. He also served as the Unions financial secretary, and (most relevant here), as the editor of the Sun Traveler.
On April 1, 1998, Respondent discharged employee Charles W. Weigand. Respondents stated reason for doing so was that Weigand wrote and published articles in the Sun Traveler which Respondent regarded as a verbal assault on a supervisor, and which Respondent claimed were inflammatory and extremely derogatory and disparaging. Respondents letter of discharge to Weigand went on to assert that Weigands publications contained public disclosure of private facts and that Weigands actions constituted character defamation.
Testimony by Greathouse (Respondents Personnel Services Manager), and Ross (Respondents General Manager), conceded that there was nothing in the articles written by Weigand, which specifically constituted an assault upon the supervisor in question. Yet, they contended that Weigands articles, taken as a whole, amounted to assault as defined in the Operators Handbook, at section 2.12.3. Ross explained that an assault (which is not defined in the handbook), is an action that is taken to injure a supervisor either physically or reputation [sic], in some way to diminish their capability to carry out their supervisory responsibilities. In their testimonies, both Greathouse and Ross testified that Weigands allegations in his newsletters went over the line, and further that he had violated instructions to keep the information secret during the pendency of an investigation concerning it by Respondent.
It is conceded that the most immediate cause leading up to Weigands termination began with his publication of two newsletters. In those newsletters he made a number of statements concerning perceived misconduct by Respondent, and one of its supervisors.
Specifically, in February (at pp. 5-7) and March (at p. 14) of 1998, Weigand wrote and published in the Sun Traveler articles concerning incidents which had occurred back in the Summer of 1996 concerning alleged sexual harassment by the supervisor of the scheduling department, Mike Crain.
The factual background for these articles is apparently not in dispute by the parties. Thus, summarizing in July of 1996, Weigand and other employees complained to Ross about conduct by Crain which they found offensive, generally involving Crain groping or rubbing himself in the area of his groin. Ross referred the matter to Greathouse. In turn, Greathouse assembled the affected employees and solicited their complaints. After doing so Greathouse told the employees that the meeting was confidential, and was not to be discussed, even among themselves. Greathouse gave no explanation for her instruction, and placed no time limit upon it. Greathouse concluded her investigation within 2 weeks, and concluded that Crain had indeed engaged in conduct which was offensive to subordinates. As a result, Crain was thereafter required to undergo counseling, which he concluded in November 1996.
However, notwithstanding the results of the investigation, neither Weigand nor the great majority of the employees whod been interviewed about, or who had been affected by, Crains behavior was ever informed of the outcome of the investigation, or even that it had been conducted or concluded. There is no evidence that employees were ever informed that any corrective action had been taken upon their complaint.
So, time went by.
However, during the period from April to September of 1997 an employee named Hall was assigned to the department supervised by Crain. After being in the department for some time, Hall reported to fellow employees, including Weigand, that he had concerns about Crains behavior. The actions were characterized as [Crain] always grabbing himself, which Hall found made him feel uncomfortable to observe or be around.
Still more time passed.
Eventually, in his articles published in the Sun Traveler in February and March of 1998, Weigand detailed the experiences of himself and other employees in reporting sexual harassment to Respondent in 1996, and reported that they had been instructed to not discuss the matter. He asserted that management had done nothing in response to their complaint, and that the offending supervisorthe scheduling supervisorwas continuing with the offensive behavior. Weigand accused management of covering up the behavior.
There is no dispute but that upon learning of Weigands articles Respondent took steps to discipline him, with Ross making the ultimate decision to terminate Weigand.
Thus, on April 2, 1998, Weigand was sent a letter by Respondent stating that Weigands articles constituted a verbal assault on the supervisor of scheduling, and were inflammatory, derogatory, and disparaging. The letter also recited as its basis for action that Weigands articles constituted public disclosure of private facts, as well as character defamation. Neither in this letter, nor in the trial, has Respondent ever asserted that Weigands factual allegations were either inaccurate or deliberately false.
Subsequently, the issue of Weigands discipline was submitted as a grievance, which ultimately proceeded to arbitration. The arbitrator decided against Weigand. However, there is no evidence that the issue of whether or not Weigands actions constituted union, or protected, concerted activities was either presented or decided by the arbitrator. In my review of the arbitrators decision, it is clear that the conclusion therein rests not upon any consideration of whether or not Weigands actions were protected, but, instead, largely upon Weigands obvious violation, (through his writings contained in the newsletters), of the instructions which he and others were given against discussion of the matters raised in Respondents investigation of their complaint concerning sexual harassment.
B. Analysis and Conclusions
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation.
1. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employers decision.
2. Second, upon such a showing, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.
The United States Supreme Court approved and adopted the Boards Wright Line test in NLRB v. Transportation Corp., 462 U.S. 393, 399403 (1983).
In this case I conclude that the General Counsel has made a strong case that Weigand was involved in protected activity preceding his discipline by Respondent. All the testimony shows that he repeatedly spoke in an effort to alert fellow employees of alleged misdeeds and injustices being practiced upon them by Respondent. Such speech is the common currency used to promote the cause of unionism with other employees. It cannot be argued that such conduct is unprotected.
For many years the Board has recognized, as enjoined by the Supreme Court, the great importance of employees freedom communication to the free exercise of organizational rights. Central Hardware, 407 U.S. 539, 542543 (1972).
The Board finds that the right of employees to organize for collective bargaining is a strong Section 7 right, at the very core of the purpose for which the NLRA was enacted. New Process Co., 290 NLRB 704, 705 (1988). In any litany of the ways in which employees organize themselves for collective bargaining, their day-to-day discussions and interchange of ideas must surely rank very high. For this reason it is regarded as protected activity. Thus, Weigands efforts to communicate with, and convince others of the validity of his ideas and feelings about the cause of unionism, and the injustices of their employer, must generally be regarded as protected as well.
Further, as pointed out by counsel for the General Counsel, this right to freedom of communication is not limited to organizational rights, for nonorganizational protected activities are entitled to the same protection and privileges as organizational activities. Container Corp., 244 NLRB 318, 322 (1979).
Of paramount importance in this matter, the sort of communication which takes place when articles are published in union newsletters has long been found to be protected, concerted activity. Postal Service, 241 NLRB 389 (1979).
Here my examination of the articles written by Weigand demonstrates them to have been no more than efforts by him to arouse consciousness and indignation among his fellow employees concerning perceived injustice by their employer, i.e., the apparent failure of management to take action for many, many months concerning employee complaints that sexual harassment had occurred.
Thus, where, as here, an employer disciplines an employee for his utterances in such a publication, the employer acts at its own peril.
As a consequence, I turn to an examination of the defenses offered by Respondent in order to determine whether or not it has met its burden under Wright Line.
First, the assertion by Respondent that Weigands commentary amounted to a verbal assault upon his supervisor, Crain, seems to rest upon Respondents view that such commentary somehow lessened Crains ability to supervise, and needlessly identified him as the object of a complaint concerning sexual harassment. I note, however, that when repeatedly invited at trial to define this offense, Respondents officials simply could not do so. In other words, it was clear that this alleged offense by Weigand is so nebulous, so ambiguous, that it can be said to exist only in the eye of the beholder. That, of course, is no standard at all. Certainly, it is insufficient to overcome the prima facie case established by counsel for the General Counsel.
Second, Weigand is accused by Respondent of having gone over the line. However, I cannot agree that Weigands choice of words was so extreme as to deprive him of the Acts protections. As the Board has held, the use of rhetorical hyperbole to emphasize disapproval of management does not remove such writings from the Acts protections. Postal Service, supra. My examination of Weigands writings fails to show how it even comes close to exceeding the standard of the Supreme Court, which holds that even the most repulsive speech enjoys immunity provided it falls short of deliberate or reckless untruth. Linn v. Plant Guards Local 114, 383 U.S. 53, 63 (1966). The views of workers and the union need not be expressed with any excessive regard for the niceties of courtesy, or in the politest of terms. It is recognized that Federal law gives license in the collective-bargaining arena to use intemperate, abusive, or insulting language without fear of restraint or penalty if the speaker believes such rhetoric to be an effective means to make a point. Letter Carriers Branch 69 v. Austin, 418 U.S. 264, 283 (1974). Clearly, Weigands writings did not exceed the limit.
As the Board has noted, the issue to be addressed is the question of whether or not the comments are related to concerted or union interests, and once the concerted nature of the words is established, the respondent has the burden to show that the words were published with knowledge of their falsity or with reckless disregard of whether they were true or false. Springfield Library & Museum Assn., 238 NLRB 1673 (1979).
In a case such as this, where it is undisputed that Respondent had utterly failed to let employees know what the outcome was of their complaint concerning sexual harassment, and such failure had gone on for over a year and a half, and new, similar complaints concerning the same supervisor had been voiced to Weigand by a new employee, it seems beyond argument to me that Weigand not only had no reason to believe that the words which he wrote were untrue, but also had well founded reason to believe them to be both accurate and true. Thus, it seems abundantly clear to me that his writings in the Sun Traveler, for which he was fired, never exceeded the Boards permissible limits, or lost their protections under the Act. Accordingly, I find and conclude that any defense by Respondent that Weigand had crossed some ambiguous line is simply false, and serves as no defense to the General Counsels prima facie case.
Regarding the issue of confidentiality, it must be conceded that employers often do have valid interests in the preservation of confidential materials. Thus, the Board has ruled that employers may validly instruct their employees to refrain from discussions concerning a myriad of matters. However, that is not to say that all such instructions are lawful. For example, an employer may not validly prohibit employees from soliciting one another to engage in union or protected, concerted activities under all circumstances and in all locations. For another example, an employer may not prohibit employees from disclosing certain types of information, such as their wage rates, to one another. Employees have a right protected by the Act to discuss among themselves their sexual harassment complaints. All American Gourmet, 292 NLRB 1111 (1989). Thus, where, as here, whatever information (even assuming that it was validly confidential), Weigand may have disclosed in violation of instructions given by Respondent, coming as it did over a year and a half after employees had languished in ignorance concerning the outcome of their protected activity in protesting their supervisors actions, I must find, as I do, that Respondents rule must give way to the rights of employees to concertedly seek and obtain redress for their grievances. It was simply too broadly interpreted and applied. And, to the extent that it was applied in such a way as to punish Weigand for communicating with his fellow employees concerning their grievances, it violated Section 8(a)(1) and (3) of the Act. Accordingly, I find and conclude that Respondents confidentiality defense is insufficient to overcome the General Counsels prima facie case.
Respondents final defense concerns the fact that Weigands writings made it obvious that Crain was the alleged offender. That, of course, is regrettable. One can easily empathize with the sensibilities of anyone accused of any sort of sexual misconduct. Nevertheless, I know of no rule prohibiting such disclosures, especially where the disclosures are true. Thus, I find them to have been no defense to the General Counsels prima facie case.
In summary, I find and conclude that counsel for the General Counsel has made a strong prima facie case in each respect alleged, and that Respondents defenses are insufficient to overcome any aspect of it.
In conclusion, I must reject Respondents argument that I should defer to the arbitrators award concerning Weigands discipline and discharge. As shown above, the arbitrators award fails to consider or decide whether or not workers have a right protected by the Act to complain to their employer concerning perceived sexual harassment, or whether or not discussions between employees concerning such complaints, and their redress, are protected by the Act. Specifically, the arbitrator made no finding as to whether or not Weigand had a right to write and publish information in order to enlighten fellow employees concerning such complaints. Accordingly, I find and conclude that the arbitrators award fails to meet the standards for deferral announced in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).
Conclusions of Law
1. Respondent, Phoenix Transit System, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Amalgamated Transit Union, Local Union No. 1433, AFLCIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act by promulgating and enforcing a rule against employees discussing their wages, hours, and working conditions among themselves, and by discharging its employee, Charles Weigand, because he had engaged in protected and/or union activities.
4. The above unfair labor practices have an effect upon commerce as defined in the Act.
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having found that employee Charles Weigand was unlawfully discharged, Respondent is ordered to offer him immediate reinstatement to his former position, displacing if necessary any replacement, or to a substantially equivalent position, without loss of seniority and other privileges. It is further ordered that Charles Weigand be made whole for lost earnings resulting from his discharge, by payment to him of a sum of money equal to that he would have earned from the date of his suspension to the date of his return to work, less net interim earnings during that period. Backpay shall be computed in the manner prescribed by F.W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). Interest on any such backpay shall be computed as in New Horizons for the Retarded, 283 NLRB 1173 (1987).
It is further ordered that the Respondent expunge from its records any references to the discharge mentioned, and provide Charles Weigand written notice of such expunction, and inform him that the Respondents unlawful conduct will not be used as a basis for further personnel actions against him.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommend
The Respondent, Phoenix Transit System, located in Phoenix, Arizona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating or enforcing a rule which prohibits employees from discussing or publicizing among themselves their wages, hours, or working conditions, including their grievances and the outcome of prior grievances.
(b) Discharging, or otherwise disciplining employees, or otherwise restraining, coercing, or interfering with their exercise of rights guaranteed by Section 7 of the Act, because they have engaged in activities in support of a labor organization, or because they have engaged in acts which are protected by the Act.
(c) In any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Offer Charles Weigand immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him.
(b) Remove from its files any reference to the unlawful discharge, and notify Charles Weigand in writing that this has been done and that none of these records will ever be used against her in any way.
(c) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order.
(d) Post at its facility in Phoenix, Arizona, copies of the attached notice marked Appendix. Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondents 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.
(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.
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 the National Labor Relations Act and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To form, join, or assist any union
To bargain collectively through representatives of their own
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted
We will not discipline or discharge employees because they have engaged in activities protected by the Act, including serving as an editor of a union newsletter and publicizing disputes with the management of the company, or otherwise serving the Amalgamated Transit Union, Local Union No. 1433, AFLCIO, or any other labor organization, or filing a petition in civil court to secure the working conditions of employees.
We will not make or enforce any rule against employees discussing their wages, hours or working conditions among themselves, or publicizing employee grievances in the union newsletter.
We will not offer Charles Weigand immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed and We will make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest.
We will notify him that we have removed from our files any reference to his discharge, and that none of these records will ever be used against him in any way.
Phoenix Transit System