The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNION CARBIDE CORPORATION,
Petitioner,
v. No. 00-1956
NATIONAL LABOR RELATIONS BOARD,
Respondent.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 00-2135
UNION CARBIDE CORPORATION,
Respondent.
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board.
(9-CA-36332)
Argued: September 25, 2001
Decided: December 14, 2001
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Petition for review denied and cross-application for enforcement
granted by unpublished opinion. Judge Gregory wrote the opinion, in
which Judge Luttig and Judge Williams joined.
2 UNION CARBIDE CORP. v. NLRB
COUNSEL
ARGUED: Roger Allen Wolfe, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Union Carbide. Joan Elizabeth Hoyte,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Leonard R. Page, Acting General Counsel, John
H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Dep-
uty Associate General Counsel, Frederick C. Havard, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
GREGORY, Circuit Judge:
Union Carbide Corporation ("the Company" or "Union Carbide")
challenges the National Labor Relation Board’s decision that it vio-
lated § 8(a)(1) of the National Labor Relations act by terminating a
newly-hired employee, Rex King, for engaging in concerted activity.
Upon the parties’ cross-petitions, we deny Union Carbide’s petition
for review and grant the Board’s cross-application for enforcement.
I.
King worked for Union Carbide from 1973 until 1994, when he
was laid off by the Company. Union Carbide re-hired King on June
29, 1998 as a mechanic in the maintenance department, representing
Union Carbide’s first hiring in more than 10 years at its Charleston,
West Virginia plant.
On his first day back at Union Carbide, June 29, a Union Carbide
administrator explained to King the benefits to which he was entitled.
The administrator explained that he would not receive a vacation for
UNION CARBIDE CORP. v. NLRB 3
six months, but was entitled to holidays during his 120-day probation-
ary period.1
On July 21, King learned that he had a "continuous service date"
of July 31, 1977. A continuous service date, or "CSD," is a date deter-
mined by Union Carbide that affects various employee benefits,
including an employee’s entitlement to retirement and vacation bene-
fits. Additionally, the collective bargaining agreement ("the Agree-
ment") in effect mandated that employees receive a paid CSD holiday
every year. J.A. 337, pp. 29-30, Article 11.1. Employees who worked
on their CSD would be paid at double-time-and-a-half.
Upon learning on July 21 that his CSD was July 31, King initiated
several conversations to determine whether, as a new employee, he
could take July 31 as a CSD holiday. Because Union Carbide had not
hired anyone in almost 10 years, the issue was relatively new to the
Company and, apparently, not easily resolved. First, King asked Der-
rick Peaks about his entitlement to a CSD holiday. Although Mickey
Garnes, who was Union Carbide’s General Maintenance Supervisor,
was King’s supervisor, Peaks filled in for Garnes while Garnes took
vacation. Peaks did not know the answer to King’s question, so he
spoke with Carla Abshire of Union Carbide’s Human Resources
department. Abshire told Peaks that she would investigate the matter.
Second, once Garnes returned from vacation, King asked him
about King’s entitlement to a CSD holiday. Like Peaks, Garnes called
Abshire, who told Garnes that she already was investigating the mat-
ter.
Third, King called Abshire several times before July 31 to discuss
the matter. She could not provide a definitive answer, stating that she
still was investigating the matter. Thus, without a definitive answer,
King worked on July 31.
Fourth, on August 3, King asked Danny Lawrence whether he was
entitled to a CSD holiday. Lawrence was King’s new supervisor after
Union Carbide assigned King to a project in another area of the facil-
1
According to the collective bargaining agreement in effect, all new
Union Carbide employees were placed on a 120-day probationary period.
4 UNION CARBIDE CORP. v. NLRB
ity. Like Garnes and Peaks, Lawrence called Abshire, who told Law-
rence that she was investigating the matter. Additionally, Lawrence
told King to "lay off this. Everyone in the Plant knows about it. Don’t
make no more trouble until you get a hundred and twenty days in."
Finally, once Union Carbide transferred King back to Garnes on
August 17, King told Garnes that the CSD issue had "gotten blown
out of proportion" and that he wanted the matter to settle down.
Garnes replied that King’s frequent questioning caused the matter to
be blown out of proportion and that King should have just "let the
system work." When Garnes accused King of raising the CSD issue
with Lawrence immediately upon his transfer, despite knowing that
Garnes already asked Abshire to investigate the matter, King called
Lawrence a "fucking liar."
Jeff Means, the Maintenance Superintendent, fired King on August
28. Means testified that he fired King for two reasons: (1) the purport-
edly disruptive manner in which King pursued the CSD issue, and (2)
King’s attitude toward safety issues and overtime. As to the second
proffered reason, Union Carbide specifically points to three warnings
King received during his first two weeks of employment about his
failure to wear safety glasses when required. Additionally, King pur-
portedly complained about Union Carbide’s overtime policy, stating
that he "might be stuck out there every night."2
Means also pointed to an earlier conversation King had with
Garnes as proof of King’s poor attitude. Before even beginning his
new job with Union Carbide, King complained to Garnes about the
Company’s purportedly low pay scale. When Garnes told King that
Union Carbide would not raise his pay scale, King complained that
Union Carbide was already "fucking" him. Garnes relayed this con-
versation to Means, who then sought to retract Union Carbide’s offer
of employment to King. Means changed his mind, though, upon the
advice of Union Carbide’s Human Resources department.
In March 1999, Union Carbide decided that it should have allowed
King to take July 31, 1998 as a CSD holiday or paid him double-time-
2
Nonetheless, King filled out overtime request forms.
UNION CARBIDE CORP. v. NLRB 5
and-a-half for working that day. Thus, it sent him a check covering
the unpaid amount.
Upon the institution of this action, an ALJ held that Union Carbide
committed an unfair labor practice by firing King. The Board adopted
the ALJ’s findings after receiving Union Carbide’s exceptions. The
Board rejected Union Carbide’s contentions that King was not engag-
ing in concerted activity and that, even if he was, the manner in which
he engaged in that activity stripped him of the protections of the
National Labor Relations Act ("NLRA"). The Board applied for
enforcement of its order and Union Carbide petitioned for review.
II.
A.
We must affirm the Board’s factual findings if they are "supported
by substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e); see also Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d
733, 742 (4th Cir. 1998); Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d
65, 69-70 (4th Cir. 1996). Substantial evidence is "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir.
1997) (internal quotation omitted). If such evidence exists, we must
uphold the Board’s decision "even though we might have reached a
different result had we heard the evidence in the first instance." Id. at
250 (internal quotation omitted). Moreover, we affirm the Board’s
interpretations of the NLRA if they are "rational and consistent" with
the NLRA. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,
787 (1990).
B.
Section 7 (29 U.S.C. § 157) of the NLRA guarantees employees
"the right to self-organization, to form, join, or assist labor organiza-
tions . . . and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection." Section
8(a)(1) (29 U.S.C. § 158(a)(1)) makes it unlawful for an employer "to
interfere with, restrain, or coerce employees in the exercise of the
6 UNION CARBIDE CORP. v. NLRB
rights guaranteed in section 7." An employer violates Section 8(a)(1)
if it terminates an employee for engaging in "concerted activity."
NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 833 n. 10 (1984);
NLRB v. Waco Insulation, Inc., 567 F.2d 596, 599-601 (4th Cir.
1977).
To establish a prima facie case of unlawful termination based on
concerted activity, the NLRB General Counsel bears the burden of
proving by a preponderance of the evidence "(1) that the employee
was engaged in protected activity, (2) that the employer was aware of
the activity, and (3) that the activity was a substantial or motivating
reason for the employer’s action." Medeco, 142 F.3d at 742. An
employer successfully may rebut the General Counsel’s prima facie
case with evidence that the employer "‘nonetheless would have taken
the same employment action for legitimate reasons.’" Id. (quoting
Ultrasystems Western Constructors, Inc. v. NLRB, 18 F.3d 251, 257
(4th Cir. 1994)). However, if the employer’s proffered legitimate rea-
sons are "non-existent or pretextual," the employer’s defense will fail.
USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir. 2000).
It is important to note that the NLRA "does not require that an
employer cease its legitimate business practices or suspend its proper
disciplinary prerogatives." Consolidated Diesel Co. v. NLRB, 263
F.3d 345, 352 (4th Cir. 2001). Rather, "[w]e must balance the
employees’ protected right against any substantial and legitimate
business justification that the employer may give for the infringe-
ment." Id. (quoting Medeco, 142 F.3d at 745). "[I]t is only when the
interference with § 7 rights outweighs the business justification for
the employer’s action that § 8(a)(1) is violated." Id. While there is
some "leeway for impulsive behavior," an employee’s concerted
activity loses the NLRA’s protection if the conduct is "flagrant,"
Dries & Krump Co. v. NLRB, 544 F.2d 320, 329 (5th Cir. 1976), or
"so egregious that it exceed[s] the scope of whatever protection it
might otherwise have been entitled to under the Act." Caterpillar
Tractor Co., 276 NLRB 1323, 1326 (1985) ("concerted activity loses
its protection under the Act when actions are malicious, defamatory,
or insubordinate"). See also City Disposal, 465 U.S. at 837 ("The fact
that an activity is concerted, however, does not necessarily mean that
an employee can engage in the activity with impunity. An employee
may engage in concerted activity in such an abusive manner that he
UNION CARBIDE CORP. v. NLRB 7
loses the protection of § 7"). Thus, the employer’s interest "in operat-
ing his business in a particular manner" must be weighed against the
employee’s right to engage in concerted activity. NLRB v. Erie Resis-
tor Corp., 373 U.S. 221, 227-29 (1963); NLRB v. Lester Brothers,
Inc., 337 F.2d 706, 708 (4th Cir. 1964).
III.
The Board held that (1) King engaged in concerted activity by
inquiring into whether he was entitled to a CSD holiday; (2) Union
Carbide knew that the CSD holiday was covered by the Agreement;
and (3) King’s concerted activity was a substantial or motivating rea-
son in Union Carbide’s decision to terminate him. On appeal, Union
Carbide challenges these findings on two grounds: (1) that King did
not engage in concerted activity, and (2) that, even if King engaged
in concerted activity, King’s conduct in pursuing the activity was so
egregious that it took him outside the scope of § 7. We reject both
arguments.
A.
In support of its first argument, Union Carbide argues that King
merely asked about his CSD in general, rather than about his entitle-
ment to a CSD holiday. This difference is critical, according to Union
Carbide, because a CSD is established by corporate policy, not by the
Agreement. Thus, any inquiries relating to the CSD could not be con-
sidered concerted activity. In support, CSD points to Article 15.1(C)
of the Agreement, which defines a CSD as "Company service time
utilized for benefits purposes as defined by [Union Carbide] Corpo-
rate Policy[.]" J.A. 337, page 42, Article 15.1(C).
However, the task of determining whether an activity is concerted
and protected lies with the Board in the first instance because the task
"implicated [the Board’]s expertise in labor relations." City Disposal,
465 U.S. at 829. Thus, we give considerable deference to the Board’s
finding that an employee engaged in such activity. Id.; NLRB v. Local
Union No. 103 Int’l Ass’n of Iron Workers, 434 U.S. 335, 350 (1978).
Substantial evidence exists to support the Board’s conclusion that
King did more than merely inquire about his CSD in general; King’s
queries focused on whether he was entitled to a CSD holiday on July
8 UNION CARBIDE CORP. v. NLRB
31. King’s inquiries to Peaks, Garnes, and Lawrence all centered on
that point.
Moreover, there can be no dispute that the Agreement, rather than
Union Carbide corporate policy, provided King with the entitlement
to a CSD holiday. Article 11.1 of the Agreement states that "[t]he fol-
lowing are recognized holidays: . . . Company Service Date." J.A.
337, page 30, Article 11.1(A). Accordingly, substantial evidence sup-
ports the Board’s decision that King’s conduct constituted concerted
activity.
B.
Next, Union Carbide claims that the manner in which King pursued
his concerted activity places him outside the scope of § 7. Union Car-
bide explains that,
[d]uring the course of events, King requested [that] no fewer
than three managers check into his CSD. Furthermore, he
himself called Carla Abshire, . . . three or four different
times to check on his CSD. Indeed, when all was said and
done, there were three Human Resources Liaisons and one
division head involved in the issue of King’s CSD. King
simply refused to cease agitating and let the system work.
Moreover, King twice lied about who he had approached
about the CSD issue and even called a supervisor a "fucking
liar." King had been repeatedly counseled by management
that he needed to pursue the CSD issue through the proper
channels, so as to avoid unnecessary disruption to produc-
tivity, yet he persisted in disregarding that instruction.
Appellant’s Br. at 27 (internal citations omitted).
As explained above, an employee can lose the protections of § 7 if
the manner in which he engages in concerted activity is flagrant, egre-
gious, or abusive. The Board held that King’s conduct did not rise to
that level because "there is no question in this case . . . that Mr. King
performed his job in a very satisfactory if not an outstanding manner"
and King’s language was "not language sufficient to remove him or
his conduct from the protections of the Act."
UNION CARBIDE CORP. v. NLRB 9
Neither King’s conduct nor choice of language rises to the level of
being flagrant, egregious, or abusive. King reportedly used foul lan-
guage only once while in the employ of Union Carbide. While King’s
choice of words on that occasion may have been poor, "an employ-
ee’s use of obscenity [is] protected where it constituted a spontaneous
outburst during the heat of a formal grievance proceeding or contract
negotiations, or was provoked by an employer’s unfair labor prac-
tice." Caterpillar, 276 NLRB at 1326. King’s offensive remark
occurred during a conversation with Garnes about his CSD holiday.
See also NLRB v. Waco Insulation, Inc., 567 F.2d 596 (4th Cir. 1977).
Additionally, King’s repeated attempts to determine whether he was
entitled to a CSD holiday were not so flagrant or egregious as to leave
him unprotected. King merely pursued, albeit aggressively, his right
to a CSD holiday at a time during which Union Carbide failed to pro-
vide him with a determinative answer.
IV.
For the foregoing reasons, we deny Union Carbide’s petition for
review and grant the Board’s cross-application for enforcement of its
order.
PETITION FOR REVIEW DENIED, AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED