# Whirlpool Corp. v. National Labor Relations Board

> Court of Appeals for the Sixth Circuit · February 20, 2004 · 92 F. App'x 224

URL: https://www.frixlaw.com/law-library/cases/8423272

## Case

- **Full name:** WHIRLPOOL CORPORATION, Petitioner/Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** February 20, 2004
- **Citations:** 92 F. App'x 224
- **Precedential status:** Published
- **Opinion:** Concurrence by McKeague
- **Judges:** Martin, McKeague, Moore
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

McKEAGUE, District Judge,
concurring in the judgment.
While I concur with the judgment reached in the majority opinion, I write separately to highlight why the Board’s findings and application of law to particu *231 lar facts are supported by substantial evidence in the record as a whole. Additionally, I write to note that the remedial order sought to be enforced and which will be enforced with this court’s judgment is seemingly useless given the extensive delay that has occurred between the time the violations took place and now.
Though substantial evidence supports the Board’s affirmance of the ALJ’s finding that the counseling received by Pore and Hamilton constituted disciplinary action such that it affected a “term or condition” of employment under § 8(a)(3) of the NLRA, the ALJ did not simply fail to credit the testimony of Whirlpool’s supervisors in reaching the conclusion that the counseling sessions memorialized by the yellow cards correspond to the first step of Whirlpool’s formal disciplinary process and procedures as the majority concludes.
As the majority notes, the ALJ relied upon two distinctions in distinguishing the facts in this case from those of Lancaster Fairfield Community Hospital. First, the ALJ noted that the policy guidelines contained in the employee handbook corresponded to the first step of Whirlpool’s formal disciplinary process and procedure. In reaching this conclusion, the ALJ relied primarily on the fact that the employee handbook did not allow for distinctions between formal and informal counseling. Instead, the handbook simply listed six penalties that may be undertaken if a violation occurs. One of these penalties included counseling by the employee’s supervisor, the very counseling at issue in this case. Thus, while the ALJ did note in a footnote that a supervisor’s testimony provided support for Whirlpool’s position that counseling sessions and the yellow card entry procedure corresponded to informal discipline, the ALJ simply concluded that the language of the employee handbook was more persuasive than the testimony provided by a supervisor.
Additionally, the ALJ, in outlining the second, and as the majority notes, erroneous distinction between the facts of Lancaster Fairfield Community Hospital and the facts of this case, relied on the conflicting testimony provided by Whirlpool’s supervisors. While the ALJ used this testimony to buttress the conclusion that the yellow card entry could serve as a predicate for future adverse action, some of the testimony also appears to provide support for the ALJ’s position that the notation of counseling on the yellow card corresponds to the progressive disciplinary policy as set out in the employee handbook. For instance, the ALJ discussed the testimony of a supervisor from Whirlpool who indicated that the notation of counseling was kept on the yellow card in the event there was an escalation of the conduct. The ALJ concluded in a footnote that this testimony, describing the consequences of the counseling, was consonant with Whirlpool’s established progressive disciplinary process as set out in the handbook.
Finally, although the supervisors testified that the counseling memorialized by the yellow card entry constituted only informal rather than formal discipline, Whirlpool fails to provide a basis for its claim that both formal and informal disciplinary procedures exist at Whirlpool and the actions here involved only a type of informal discipline not covered by the handbook. While the ALJ could certainly have provided a clearer explanation as to why it placed greater reliance on the employee handbook than on the testimony of the supervisors in determining that the counseling sessions corresponded to the first step of the formal disciplinary process, the ALJ’s determination is supported by substantial evidence as found in the disciplinary system outlined in the employ *232 ee handbook, testimony from some of the supervisors, and Whirlpool’s failure to sufficiently establish the existence of an informal discipline system distinct from that outlined in the handbook. If the ALJ had completely failed to credit the testimony of Whirlpool’s supervisors and if Whirlpool had provided an adequate basis for its position, it might be arguable whether substantial evidence supported the ALJ’s decision and the Board’s affirmance of that decision, given that the ALJ relied primarily on an erroneous interpretation of Lancaster Fairfield Community Hospital, a case with substantially identical facts to this case, to reach an opposite conclusion.
Because substantial evidence supports the ALJ’s finding that the counseling of Pore and Hamilton constituted impermissible disciplinary action in violation of the Act, however, I reluctantly agree that the November 13th incident in which an employee was told that he could not distribute union literature also constitutes a violation of the Act. While this de minimus violation, in isolation, would not result in a violation of the Act, the November 13th incident, coupled with the disciplining of Pore and Hamilton, does support the Board’s finding of a pattern of unlawful conduct and thus establish a violation of the Act.
However, while precedent and substantial evidence would dictate upholding the Board’s findings in this case and granting the cross-petition for enforcement of the remedial order, use of the court’s authority to enforce a remedial order at this date seems largely indefensible when the purported purpose of such an order is to remedy a technical de minimus violation that occurred more than six years earlier. This is especially true when the delay between the time when the violations occurred and this decision is attributable largely to the NLRB. The court may have reached the correct judgment in this case but the result, at least with respect to the November 13th incident, seems pointless.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8423272. Public record. Not legal advice.