United States Court of Appeals,
Fifth Circuit.
No. 91-5057.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
MINI-TOGS, INC., Luv-N-Care, Inc., and Embroideries, Inc., A Single Employer, Respondent.
Jan. 12, 1993.
Application for Enforcement of an Order of the National Labor Relations Board.
Before POLITZ, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This National Labor Relations Board enforcement action arises from an effort by the United
Steelworkers t o organize Mini-Togs. In response to the union efforts, Mini-Togs mounted an
intensive counter campaign to defeat the union. In the course of campaign speeches and
conversations, many unlawful threats were alleged to have been made by Mini-Togs concerning the
consequences of unionization. Some union adherent s were laid off and some were fired outright.
Unfair labor practice charges were filed with the Board, and now we are presented with the remnants
of those charges—the rest have either been dismissed, settled, or not appealed. Today we address
whether substantial evidence supports the Board's findings that Mini-Togs violated sections 8(a)(1)
and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(3), by discharging Alice
Faye Washington and Eric Coler and by laying off Patricia Gayden and Karen Miller for their union
activities. We hold that the Board's findings as to Washington and Miller are not supported by
substantial evidence; we further hold, however, that the Board's findings as to Gayden and Coler are
supported by substantial evidence. Enforcement of the Board's order is therefore granted in part and
denied in part.
I
On September 8, 1988, a representative of the United Steelworkers of America, AFL-CIO-
CLC, met with approximately thirteen employees of Mini-Togs. Present at this meeting were Karen Miller, Patricia Gayden, and Alice Faye Washington. The thirteen employees formed an organizing
committee and signed union authorization cards. These and other employees then began regularly
attending union meetings.
On September 13, 1988, Miller, a snap machine operator, was laid off. Miller's supervisor
informed her that she was being laid off because of lack of work. The supervisor stated that Miller
was the logical person to be laid off because she had been absent from work with the flu two weeks
earlier. Later, the supervisor stated that Miller was chosen because she had an allergy or sinus
problem that was aggravated when Mini-Togs printed garments with dyes. Miller was told she would
be recalled when the work increased.
Later that same day, six sleeper line inspectors were discharged. Mini-Togs argued that these
employees were terminated because they were doing essentially the same task as other employees.
According to another employee, a supervisor in the cutting department noticed the six sleeper line
inspectors leaving the plant. This employee stated that the supervisor left and upon his return warned
cutting department employees not to talk about the union where they could be overheard and added
that these employees had been terminated because "they were talkin' union."
On Friday, September 16, 1988, Miller returned to the plant to pick up her paycheck and to
obtain employee signatures on union authorization cards. At this time, Eric Coler signed a union
card. A production manager subsequently took a union card from another employee and told Miller
and the others with her that they could not hand out literature in the parking lot because they were
no longer employed by Mini-Togs. Miller and the others left. Later that day the production manager
told Mini-Togs's president, Ed Hakim, that he had seen the other employee sign a union card; he
gave the card to Hakim. It was disputed, however, whether Hakim also learned that Coler had signed
a union authorization card. On Monday, September 19, Coler was discharged. Coler, who had been
employed by Mini-Togs for about one month, was terminated because he was harassing another
employee and calling her a "fat ass" and "fat doughnut." This employee was upset about these
comments and complained to Hakim. Hakim asked Coler if he had made these statements, and Coler
denied that he had. Hakim told Coler t hat if he would admit saying these things, no disciplinary action would be taken against him; however, if he denied them and an investigation determined that
he did say them, he would be terminated. Coler maintained that he had not made the comments. A
witness was interviewed, and her story matched the other employee's and indicated that Coler had
indeed harassed the employee. When Hakim asked Coler what he had to say about this, he simply
shrugged his shoulders. Hakim stated that he fired Coler for his harassment of the employee and that
he considered in his decision the fact that Coler had only been employed for one month.
On October 17, 1988, Hakim made a fiery speech against the union. During this speech, given
during working hours, Hakim made several references to employers who closed their businesses after
employees chose union representation; furthermore, he blamed "unionism" for causing steel mills to
close domestic plants and reminded the employees of how scarce employment was in this location.
He also reminded them that Mini-Togs had shut down an entire production line in 1983 in response
to an attempt by employees to unionize.
During his speech, Hakim also made specific reference to Alice Faye Washington, a leading
union adherent. Washington was a sewing machine operator who, at that time, had never been
disciplined during her twelve years of employment with Mini-Togs. In his speech, Hakim referred
to Washington by name and stated that she should remember the shutting down of the production line
in 1983 because she was in that line. He warned employees to be careful when they signed union
cards because Washington might be the union representative to whom they would eventually have
to answer. Hakim also told the employees that Washington had served time in prison.
After the speech was concluded, the employees were given forms addressed to the union
which stated, "I did not understand what the union card meant when I signed it. Please cancel my
union card and return it to me." The form suggested that, after signing it, each employee should give
a copy to his or her supervisor, who in turn would give a copy to Hakim. Hakim personally asked
Washington to sign the form. She refused.
On October 20, 1988, Washington, Miller, Gayden, and others distributed pro-union handbills
to employees arriving for work. The handbill included the signatures of Washington, Miller, Gayden,
and all other members of the organizing committee. Gayden's supervisor observed what she was doing. Approximately one hour later, the supervisor told her to clock out and go home. Gayden
testified that she was given no explanation as to why she was laid off. Another employee testified that
there was plenty of work to do. According to Mini-Togs, however, the decision to lay off Gayden
had been made as early as October 12. Gayden's supervisor announced that two shifts were being
combined and eight of the seventeen employees in this department would be laid off according to their
production. Gayden was told on October 12 that she was laid off. On this same day, however,
Gayden's supervisor told her that she wanted her temporarily to come back to work in the packing
department to help with shipment of a special order. Gayden returned and worked October 18 and
19, and was again sent home on October 20. Mini-Togs maintained that Gayden was laid off at this
time because the special order was ready to be shipped and she was no longer needed. Gayden
returned to work on January 3, 1989.
On Friday, October 28, 1988, Washington read an anti-union flyer that had been left on her
sewing machine. She loudly referred to the contents of the flyer as "a bunch of god damn lies" and
referred to the distributors of the flyers as "f-----g whores." Washington was overheard by another
employee who had recently revoked her union card and who had participated in distributing the
anti-union flyers. This employee reported Washington's statements to a supervisor. On Monday,
October 31, Hakim called Washington and six other employees to his office. In the office, Mini-
Togs's attorney separately questioned each of the employees regarding Washington's conduct on
October 28. Washington denied that any such incident had occurred and refused to answer any
questions. Washington was told to leave the premises until she decided to answer Hakim's questions.
On November 3, 1988, Hakim sent a letter to Washington stating that she was on indefinite
suspension for use of language that was profane, cursing, and defamatory in the presence of and
regarding other employees. Hakim offered to limit the suspension to thirty days if Washington would
apologize to the workers at whom she had directed her statements, after which she could return to
work on six-months probation. Washington was warned that if she rejected this offer, her indefinite
suspension would be converted to a discharge. On November 9, Washington wrote Mini-Togs and
rejected the proposal; in this letter she again denied that she had committed any misconduct. Hakim sent Washington a second letter and gave her an additional three days in which to respond. When
she failed to reply, she was terminated.
II
Based upon these facts, the Board concluded that Mini-Togs had violated section 8(a)(1) of
the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by (1) threatening employees with
discharge, layoff, or plant closure if they selected a union as their collective-bargaining representative;
(2) informing employees that other employees were discharged because of their union activities; (3)
imposing an overly broad no-solicitation rule applicable only to union solicitation; (4) interrogating
employees regarding their union activities; and (5) soliciting employees to withdraw their signed
union authorization cards. The Board further concluded that Mini-Togs had violated sections 8(a)(3)
and (1) of the Act, 29 U.S.C. §§ 158(a)(3) and (1), by discriminatorily laying off Gayden and Miller
and discharging Coler, Washington, and six other employees for the purpose of discouraging union
activities.
The Board issued an order requiring Mini-Togs to cease and desist from unfair labor
practices. The order required Mini-Togs to offer reinstatement to the discriminatorily discharged
employees and to make whole these employees and the laid-off employees. The Board is now before
this court seeking enforcement of its order.
III
A
The Board argues that it is entitled to summary enforcement of its uncontested findings that
Mini-Togs violated section 8(a)(1) of the Act by numerous coercive acts, and its findings that Mini-
Togs violated sections 8(a)(3) and (1) of the Act by discriminatorily discharging the six sleeper line
inspectors. The Board also argues that substantial evidence supports its findings that Mini-Togs
violated sections 8(a)(3) and (1) of the Act by discriminatorily laying off Miller and Gayden and by
discriminatorily discharging Coler and Washington in retaliation for their union activities.
B
Mini-Togs only challenges enforcement of the Board's decision pertaining to Miller, Gayden, Coler, and Washington. Mini-Togs argues that the Board erred in rejecting its defense of
Washington's discharge and that Washington's comments were not protected elements of the res
gestae; therefore, Mini-Togs argues that the Board abused its discretion in ordering the
reinstatement of Washington. Mini-Togs also argues that the Board's inference of knowledge of the
protected union activities of Miller, Coler, and Gayden is not supported by substantial evidence.
Mini-Togs argues that the record does not offer substantial evidence that it knew of and was
motivated by protected activities when Miller was laid off and Coler was discharged. Finally, Mini-
Togs also argues that the Board's conclusion that Mini-Togs would not have laid off Gayden absent
discrimination is not supported by substantial evidence.
IV
In reviewing the Board's factual findings, this court must determine whether, reviewing the
record as a whole, those findings are supported by substantial evidence. 29 U.S.C. § 160(e). We
must look to the entire record and take into account whatever in the record fairly detracts from the
Board's finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed.
456 (1951). We are not, however, left to sheer acceptance of the Board's conclusions. Johns-
Manville Products Corp. v. NLRB, 557 F.2d 1126, 1132-33 (5th Cir.1977), cert. denied, 436 U.S.
956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978). In reviewing the Board's factual findings, we enforce
the Board's order if, after a full review of the record, we are able conscientiously to conclude that the
evidence supporting the Board's determination is substantial. NLRB v. Brookshire Grocery Co., 837
F.2d 1336, 1340 (5th Cir.1988). Suspicion, conjecture, and theoretical speculation register no weight
on the substantial evidence scale. TRW, Inc. v. NLRB, 654 F.2d 307, 312 (5th Cir.1981). The Board
and its ALJ are due deference when a finding of fact rests on resolution of witness credibility. OMNI
Int'l Hotels, Inc. v. NLRB, 606 F.2d 570, 573 (5th Cir.1979). If, however, the credibility choice is
based on an inadequate reason, or no reason at all, we are not compelled to respect it. NLRB v.
Moore Business Forms, Inc., 574 F.2d 835, 843 (5th Cir.1978).
Motive is a factual matter to be determined by the Board, and the Board reasonably may infer motive from the circumstances surrounding the employer's actions, as well as from direct evidence.
Marathon-LeTourneau Co., Longview Div. v. NLRB, 699 F.2d 248, 253 (5th Cir.1983). Where it
is shown that opposition to union activity was a motivating factor, the employer will be found to have
violated the Act unless the employer demonstrates, as an affirmative defense, that it would have taken
the same actions even in the absence of the protected conduct. NLRB v. Transportation Management
Corp., 462 U.S. 393, 401-03, 103 S.Ct. 2469, 2474-75, 76 L.Ed.2d 667 (1983). Reasonable
inferences or conclusions drawn by the Board from the facts must be upheld, even though this court
would justifiably make a different choice were the matter before us de novo. Universal Camera, 340
U.S. at 477, 71 S.Ct. at 459. Our task is to determine whether substantial evidence on the record as
a whole supports the Board's findings that the employer violated sections of the Act. NLRB v.
Brookwood Furniture, Div. of U.S. Ind., 701 F.2d 452, 464 (5th Cir.1983).
The Board found that Mini-Togs violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§
158(a)(1) and (3). Sections 8(a)(1) and (3), respectively, provide that it is an unfair labor practice
"to interfere with, restrain, or coerce employees" in the exercise of their rights to form, join, or assist
labor organizations or by discrimination in hiring or tenure or any term or condition of employment
"to encourage or discourage membership in any labor organization." Texas World Service Co., Inc.
v. NLRB, 928 F.2d 1426, 1434 (5th Cir.1991). The General Counsel makes a prima facie showing
of a section 8(a)(3) violation by demonstrating that anti-union animus was a motivating factor in an
employer's decision to terminate or lay-off an employee. Id. at 1435. At this time, the burden shifts
to the employer to establish that it would have taken t he same action even in the absence of the
employee's protected activity. Id. If the employer denies that anti-union animus motivated its
decision, the Board may rely on circumstantial evidence in determining the employer's actual motive.
NLRB v. Delta Gas, 840 F.2d 309, 313 (5th Cir.1988).
V
We first examine the evidence pertaining to the discharge of Alice Faye Washington. The Board affirmed the decision of the ALJ in finding that Mini-Togs seized on Washington's use of
obscene language as a pretext for ridding itself of an outspoken union advocat e, which violated
sections 8(a)(3) and (1) of the Act. The Board also affirmed the ALJ's decision that even if Mini-
Togs discharged Washington for her use of obscene language, the discharge would be unlawful under
section 8(a)(1) because her utterances were part of the res gestae of concerted protected activity.
For the reasons set forth below, we find that substantial evidence does not support the decision of
the Board.
Mini-Togs does not—as well it could not—deny knowledge of Washington's union activities.
Instead, it is the contention of Mini-Togs that Washington was discharged solely for directing profane
and defamatory language at other employees. The Board rejected this argument. It concluded that
Washington was the first employee disciplined for the use of profane or offensive language directed
at others when that language was not either directed at a supervisor or accompanied by actual or
threatened physical misconduct. The Board further concluded that Washington's remarks were not
in any sense a first step toward violence, nor did they involve physical misconduct, veiled threats, or
insubordination. We disagree with the Board's findings.
During his testimony, Hakim recounted eight separate instances where employees were
disciplined for abusive and profane language.1 Of these, three involved altercations between fellow
employees and, of these three, two did not involve physical violence. Hakim first discussed an
instance where a sewing machine operator called another operator a "whore." Both were disciplined
and sent back to work, but one of the operators subsequently stabbed the other one and both had to
be arrested. Hakim also related an instance where one employee called another employee a "bitch"
and told her to move her ass; Hakim called the two employees into his office and told the first
employee to apologize for her statements. After the employee apologized, both employees were
allowed to return to work. A third similar event related by Hakim involved an employee telling
1 Mini-Togs provided each employee with a rule book, and the rules were also posted. A written rule was that employees were prohibited from use of "provocative statements"; at the bottom of the list of rules was a statement that the breaking of a rule may warrant immediate termination. another employee to move her ass. Again, the employee was told to apologize to the other employee
for her remarks; after she did, both were allowed to return to work. From these events, it is clear
that Washington was not the first employee to be disciplined for remarks made to a fellow employee.
Furthermore, Hakim treated Washington no differently from the way that he had treated other
employees in similar situations.2 Hakim learned of Washington's outburst after another employee
complained to her supervisor. This employee was so upset by Washington's comments that she had
to leave the work area; furthermore, she stated that she felt Washington was directing the comments
at her, and that Washington had defamed her character. Hakim also stated that two employees
threatened to quit because of the names Washington had called them. Based upon this information,
Hakim called Washington into his office to question her about her statements. Washington denied
that she had made the alleged comments and refused to answer any questions. Hakim then told
Washington to leave until she was ready to answer his questions.
This procedure appears no different from the procedure Hakim had followed in the previous
three incidents he described. After the employees admitted making the statement, Hakim instructed
them to apologize and then they were allowed to return to work. This process is the same course of
action Hakim followed in Washington's case. Washington, however, refused to apologize or further
cooperate in the investigation. Accordingly, she was sent home. Soon after, however, Hakim wrote
her a letter and told her that if she would apologize to the ladies at whom she directed her comments,
she could return to work and be placed on six-months probation. Washington, however, refused the
offer. Hakim then extended the time period in which he gave Washington to apologize; he wrote her
a second letter and again told her that if she apologized to her coworkers she could return to work.
When Washington did not respond to this letter, she was terminated.
Based on these facts, the Board concluded that Mini-Togs's proffered reason for terminating
Washington was a mere pretext. We find that this conclusion is not supported by substantial
evidence. Hakim treated Washington no differently from other employees in the same situation.
Hakim gave Washington at least two opportunities to return to work. His condition that she
2 In fact, from the record it appears he may have actually treated Washington more leniently. apologize to her coworkers was not a sham invented for anti-union reasons: this procedure had been
the same one that he had followed in the past. Moreover, the requirement for apologies was not an
unreasonable policy to follow in order to maintain discipline and some degree of mutual respect for
each other among employees. We hold that Mini-Togs terminated Washington for a legitimate reason
and not for her protected union activities. In the vernacular of the workplace, "she fired herself"
when she refused Hakim's reasonable conditions for continued employment.
In a different twist, the Board further concluded that Washington's conduct was part of her
protected co ncerted activity and that her conduct did not warrant discipline because her use of
obscenities and profanity in expressing her disapproval of anti-union employee activities was not so
flagrant or egregious as to cost her the Act's protection. Again, we disagree. In Reef Industries, Inc.
v. NLRB, 952 F.2d 830 (5th Cir.1991), we discussed section 7 of the Act, which guarantees
employees the right to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection. We stated that the threshold question is whether an employee's activity is
"concerted," which means the activity is engaged in with, or on behalf of, or on the authority of other
employees, and not solely by and on behalf of the employee himself. Id. at 835; see also Prill v.
NLRB, 835 F.2d 1481, 1484 (D.C.Cir.1987), cert. denied, 487 U.S. 1205, 108 S.Ct. 2847, 101
L.Ed.2d 884 (1988) ("concerted activity" encompasses only "those circumstances where individual
employees seek to initiate or to induce or to prepare for group action, as well as individual employees
bringing truly group complaints to the attention of management"). Certainly Washington's behavior
does not meet our test. Her conduct was not engaged in with other employees nor was it on the
authority of other employees; instead, she made her comments for her own reasons and solely as an
expression on her own behalf. Washington simply lost her temper and shouted obscenities toward
other employees; this outburst is not protected speech under the Act.
We thus conclude that substantial evidence does not support the decision of the Board that
Washington was terminated in violation of sections 8(a)(3) and (1) of the Act. We therefore decline
to enforce the Board's order as it pertains to Washington.
B We now turn to the evidence regarding the lay-off of Karen Miller. In adopting the findings
of the ALJ, the Board concluded that Mini-Togs was aware of Miller's union activities and that her
lay-off was in reprisal for her union activity. The Board based its finding of knowledge by Mini-Togs
on a conversation that allegedly took place on the day Miller was laid off. This conversation
supposedly involved a supervisor and two employees. One of these employees, George Henry
Ponsell, testified that the supervisor, George Standifer, was talking with him and another employee,
Ed Knighten, when they noticed several employees leaving the workplace. According to Ponsell,
Standifer left to find out what was going on and when he returned he warned them that these
employees were being laid off because they were "talkin' union." Both Standifer and Knighten,
however, testified that this conversation never took place. Standifer stated that he saw employees
leaving that day, but he was unaware of any layoffs. Similarly, Knighten testified that he was not
involved in a conversation with Standifer and that he heard nothing about layoffs.
The record shows that Ponsell was in a bitter domestic dispute with his wife. He was angry
with management because he wanted them to lay off his wife, which management refused to do.
Ponsell had twice been disciplined by management for harassing his wife at work. Furthermore,
Ponsell's testimony was directly contradicted by the testimony of both Standifer and Knighten.3 It
is therefore questionable whether this conversation ever occurred and, if it did, what was actually
said. Even if this conversation actually took place, the three men witnessed the departure of the six
sleeper line inspectors; Miller had been laid off earlier in t e day. The connection between this h
alleged conversation and the lay-off of Miller is too tenuous to serve as the basi s for the Board's
conclusion that Mini-Togs had knowledge of Miller's union activities. If the Board's ultimate factual
conclusions rest on inferences from the evidence, we cannot uphold the findings if these inferences
are implausible. NLRB v. Ryder/P.I.E. Nationwide, Inc., 810 F.2d 502, 508 (5th Cir.1987). We find
that substantial evidence does not support the Board's conclusion that Mini-Togs had knowledge of
Miller's union activities. The General Counsel therefore failed to make out a prima facie case showing
3 The ALJ, however, questioned Standifer's reliability as a witness and discredited Knighten's testimony. that Miller's union activity was a motivating factor in her lay-off. Accordingly, we decline to enforce
the Board's order as it pertains to Miller.
C
We now turn to the evidence co ncerning the lay-off of Patricia Gayden. Gayden was
originally laid off on October 13 with seven other pressers. Gayden, however, was told to return to
work on October 17 to help pack a large order. Gayden worked on October 18 and 19. When
Gayden arrived for work on October 20, she distributed pro-union handbills in the parking lot. After
she entered the building, she saw supervisors with copies of the handbill, and she testified that she
saw them looking at her. Approximately two hours later, Gayden was told to clock out and go home.
Based upon these facts, the Board concluded that Mini-Togs had knowledge of Gayden's union
Mini-Togs's proffered reason for laying off Gayden was lack of work. Although it may be
true that work involving the special packing assignment given to Gayden was completed, there was
testimony that there was plenty of other work to be done. Indeed, based on the fact that they did not
tell her in advance that October 20 would be her last day, it appears that Mini-Togs had decided to
find additional work for Gayden until she was seen distributing union handbills. Because there was
additional work to be completed that could have been assigned to Gayden, we conclude that the
Board's finding that lack of work was a pretextual reason and that Gayden was laid off in violation
of sections 8(a)(3) and (1) of the Act is supported by substantial evidence. We therefore affirm the
findings of the Board concerning the lay-off of Gayden.4
D
We now turn to the evidence concerning Eric Coler. Coler signed a union authorization card
on Friday, September 16, 1988; on Monday, September 19, Coler was discharged. The Board
concluded that Mini-Togs had knowledge of Coler's union activity based on a conversation that took
place between a supervisor and Hakim. The supervisor had, without question, witnessed another
4 We do not, however, comment on the extent of the damages to Gayden. Mini-Togs may, or may not, be able to demonstrate that Gayden could have worked only a limited number of days, in which case she would not be entitled to damages for the full amount of time she was laid off. employee signing a union card, and at least one employee testified that the supervisor also saw Coler
sign a union card. This supervisor admitted taking the card from the other employee and giving it to
Hakim. From this information, the Board inferred that the supervisor also told Hakim that Coler had
signed a union card. We find this inference to be reasonable.
Mini-Togs argues that Coler was terminated because of comments he made to a fellow
employee and that his union activities had no thing to do with the decision. An employee had
complained to Hakim that Coler had called her names, such as "fat ass" and "fat doughnut." Hakim
questioned Coler about these events and conducted an investigation. After Coler refused to admit
he made the comments, Hakim terminated his employment. Hakim testified that Coler was
terminated "because he was—he was—he was like badgering her, not for the—not really for the
abusive language. He was harassing her." The Board concluded that, based on the timing of the
discharge and Hakim's demonstrated willingness to resort to unfair labor practices, the General
Counsel had made out a prima facie case. The Board further concluded that Mini-Togs's proffered
explanation was an attempt to disguise the real reason for Coler's discharge. We think that it is rather
clear from the record that Coler engaged in the misconduct that his fellow employees charged against
him. However, we determine only whether the Board's finding that the termination was for union
activity is supported by substantial evidence. After reviewing the record below, we conclude that the
findings of the Board concerning the discharge of Coler are supported by substantial evidence. The
record in this case supports a view that except for the fierce anti-union sentiment of the company,
Coler would have been disciplined in a less harsh manner. Accordingly, we enforce this part of the
Board's order.
VI
For the reasons stated, we hold that the Board's findings regarding Washington and Miller are
not supported by substantial evidence. As such, we deny enforcement of this part of the Board's
order. We further hold, however, that the Board's findings of violations of sections 8(a)(3) and (1)
regarding Gayden and Coler are supported by substantial evidence. We therefore grant enforcement
of this part of the Board's order. ENFORCEMENT GRANTED IN PART and DENIED IN PART.