Phoenix Transit System
and
Amalgamated Transit Union,
Local Union No. 1433, AFL–CIO.
Case 28–CA–15177
2002 NLRB Lexis 170
337 NLRB No. 78
May 10, 2002
DECISION AND ORDER
By Chairman Hurtgen
and Members Liebman and Bartlett
On April 27, 2001, Administrative Law
Judge Frederick C. Herzog issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an answering 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 briefs 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.[1][1]
Specifically, we affirm the judge’s
finding that the Respondent violated Section 8(a)(1) of the Act by maintaining
a confidentiality rule prohibiting employees from discussing their sexual
harassment complaints among themselves.
As found by the judge, employees have a protected right to do so, and
Respondent’s confidentiality rule clearly restricted the exercise of that
right. Further, in agreement with the
judge, we find that the Respondent has failed to establish a legitimate and
substantial justification for its rule.[2][2]
Although
the rule was originally promulgated during the Respondent’s investigation of a
July 1996 complaint of alleged sexual harassment by a supervisor, the
Respondent’s investigation ended within 2 weeks of the filing of that
complaint, well before the events at issue in this case. Moreover, as noted by the judge, the rule
prohibited discussion even among the affected employees whom Respondent
initially assembled at a meeting to solicit information concerning the
complaint. In these circumstances, we
agree with the judge that the Respondent has failed to provide a sufficient
justification for maintaining its rule, and that it was therefore unlawful. Cf.
Caesar’s Palace, 336 NLRB No. 19
(2001) (employer did not violate Section 8(a)(1) by maintaining and enforcing
confidentiality rule during ongoing investigation of alleged illegal drug
activity, where confidentiality directive was given to each employee who was
separately interviewed, the investigation involved allegations of a management
cover-up and possible management retaliation, as well as threats of violence,
and the confidentiality rule was intended to ensure that witnesses were not put
in danger, evidence was not destroyed, and testimony was not fabricated).
We also affirm the judge’s finding that
the Respondent further violated Section 8(a)(1) by enforcing its
confidentiality rule in discharging employee, union officer, and newsletter
editor, Charles Weigand, in April 1998. However,
contrary to the judge, we do not rely on Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.1981), cert. denied
455 U.S. 989 (1982). The Wright Line analysis is appropriately
used in cases that turn on the employer’s motive. Here,
however, it is undisputed that the Respondent discharged Weigand because of the
articles he wrote in the union newsletter concerning the Respondent’s handling
of employee sexual harassment complaints.
The judge found and we agree that Weigand’s articles constituted protected
concerted activity. Thus, the only
issue is whether Weigand’s conduct lost the protection of the Act because, as
asserted by the Respondent, his articles disclosed confidential information or
otherwise crossed over the line separating protected and unprotected activity. See Felix
Industries, 331 NLRB No. 12 (2000), remanded 251 F.3d 1051 (D.C. Cir.
2001); NLRB v. Thor Power Tool Co.,
351 F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964); and Mast Advertising & Publishing, 304
NLRB 819 (1991). We agree with the judge, for the
reasons he states, that Weigand’s conduct did not lose the protection of the
Act. Accordingly, we agree that his
discharge violated Section 8(a)(1).[3][3]
Finally, we also adopt the judge’s
refusal to defer to the arbitrator’s award concerning Weigand’s discipline and
discharge.
ORDER
The
National Labor Relations Board adopts the recommended Order of the
administrative law judge as modified and set forth in full below and orders
that the Respondent, Phoenix
Transit System, Phoenix, Arizona, its officers, agents, successors, and
assigns, shall
1.
Cease and desist from
(a)
Maintaining or enforcing a rule which prohibits employees from
discussing among themselves their sexual harassment complaints.
(b)
Discharging or otherwise disciplining employees because they discussed
among themselves their sexual harassment complaints, including writing articles
in the union newsletter discussing Respondent’s handling of employee sexual
harassment complaints.
(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) Within 14 days from the date of the Board’s
Order, offer Charles Weigand 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.
(b) Make Charles Weigand whole for any loss of
earnings and other benefits suffered as a result of the discrimination against
him.
(c) Within 14 days from the date of this Order,
remove from its files any reference to the unlawful discharge and within 3 days
thereafter notify Charles Weigand in writing that this has been done and that
the discharge will not be used against him 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 Phoenix, Arizona, copies
of the attached notice marked “Appendix.”[4][4]
Copies of the notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s authorized representative,
shall be posted by the Respondent 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 April 1, 1998.
(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.
3.
Substitute the attached notice for that of the administrative law judge.
Dated,
Washington, D.C., May 10, 2002
Peter J. Hurtgen, Chairman
Wilma B. Liebman, Member
Michael J. Bartlett, Member
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 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
activities.
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 Board’s 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 Board’s 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.
DECISION
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
i. jurisdiction
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 12–month 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
A. Facts
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 Union’s financial secretary, and (most relevant
here), as the editor of the “Sun Traveler.”
On April 1, 1998, Respondent discharged
employee Charles W. Weigand.
Respondent’s 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.”
Respondent’s letter of discharge to Weigand went on to assert that Weigand’s
publications contained “public disclosure of private facts” and that Weigand’s
actions constituted “character defamation.”
Testimony
by Greathouse (Respondent’s Personnel Services Manager), and Ross (Respondent’s
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
Weigand’s articles, taken as a whole, amounted to “assault” as defined in the
Operator’s 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 Weigand’s 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 Weigand’s 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 who’d been interviewed about, or who had been
affected by, Crain’s 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 Crain’s
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 supervisor—the
scheduling supervisor—was continuing with the offensive behavior. Weigand accused management of covering up
the behavior.
There is no dispute but that upon
learning of Weigand’s 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 Weigand’s 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 Weigand’s 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 Weigand’s factual allegations were either
inaccurate or deliberately false.
Subsequently,
the issue of Weigand’s 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 Weigand’s
actions constituted union, or protected, concerted activities was either
presented or decided by the arbitrator.
In my review of the
arbitrator’s decision, it is clear that the conclusion therein rests not upon
any consideration of whether or not Weigand’s actions were protected, but,
instead, largely upon Weigand’s 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 Respondent’s 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
employer’s 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 Board’s Wright Line test in NLRB v. Transportation Corp., 462 U.S. 393, 399–403 (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, 542–543
(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, Weigand’s 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 Weigand’s commentary amounted to a verbal
assault upon his supervisor, Crain, seems to rest upon Respondent’s view that such
commentary somehow lessened Crain’s 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, Respondent’s 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 Weigand’s
choice of words was so extreme as to deprive him of the Act’s protections. As the Board has held, the use of rhetorical
hyperbole to emphasize disapproval of management does not remove such writings
from the Act’s protections. Postal Service, supra. My examination of
Weigand’s 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, Weigand’s 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 Board’s 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 Counsel’s 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 supervisor’s actions, I must find, as I do, that
Respondent’s 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 Respondent’s “confidentiality defense” is insufficient to overcome the
General Counsel’s prima facie case.
Respondent’s final defense concerns the
fact that Weigand’s 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 Counsel’s 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 Respondent’s defenses are insufficient to overcome
any aspect of it.
In
conclusion, I must reject Respondent’s argument that I should defer to the
arbitrator’s award concerning Weigand’s discipline and discharge. As shown above, the arbitrator’s 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 arbitrator’s 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, AFL–CIO, 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.
The Remedy
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).1 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 Respondent’s unlawful conduct will not be used as a basis for further
personnel actions against him.2
On
these findings of fact and conclusions of law and on the entire record, I issue
the following recommend3
ORDER
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.”4 Copies of the notice, on forms provided by
the Regional Director for Region 28, 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.
(e)
Notify the Regional Director in writing within 20 days from the date of this
Order what steps the Respondent has taken to comply.
[1][1] We shall modify the judge’s recommended Order in accordance with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container, 325 NLRB 17 (1997). We shall also modify the judge’s recommended Order in accordance with our recent decision in Ferguson Electric Co., 335 NLRB No. 15 (2001), and we shall substitute a new notice in accordance with our recent decision in Ishikawa Gasket American, Inc., 337 NLRB No. 29 (2001).
[2][2] Chairman Hurtgen does not pass on whether an employer can have a rule under which employees speak with confidentiality to their employer in the course of an investigation into alleged sexual harassment. However, the rule here forbids employees from speaking among themselves or to third parties about such complaints. In this respect, the rule is overly broad.
[3][3] In light of our finding that the Weigand’s discharge violated Sec. 8(a)(1), we find it unnecessary to decide whether it also violated Sec. 8(a)(3). See Mast Advertising, 304 NLRB at 820 fn. 7, and cases cited there.
[4][4] If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
1 See
generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
2 See Sterling Sugars, Inc., 261 NLRB 472
(1982).
3 All outstanding motions inconsistent with this recommended Order are hereby denied. In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.
4 If this Order
is enforced by a judgment of a United States Court of Appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall
read “Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board.”