holding that employee’s self-serving testimony was, standing alone, enough to allow an employee to prevail in an administrative proceeding when the employer only relied on their self-serving testimony to contradict the employee
How later courts described this case
- holding that employee’s self-serving testimony was, standing alone, enough to allow an employee to prevail in an administrative proceeding when the employer only relied on their self-serving testimony to contradict the employee
- finding that Rule 19 may be raised sua sponte though finding that a party was not indispensable
- Boggs, J., concurring in the portion of the opinion that approved of courts of appeal raising Rule 19 sua sponte
Written by the judges who cited it.
The opinion
BOGGS, Chief Judge,
concurring in part and dissenting in part.
CONCURRING IN PART, DISSENTING IN PART
I agree with the holding of the court with regard to Bowling’s violation of Hor *286 ton’s rights, and agree that we should enforce the NLRB’s order with respect to him.
I generally agree with the tenor of the analysis with respect to the other two workers, Ashby and Hanks, but I respectfully dissent because I do not think that their activities were “protected concerted activities” with respect to AK Steel.
In my view, what happened here was that the obnoxious behavior of these employees with respect to a customer meant that the same activities that would have been protected had they been directed toward the employer or his officials were not protected when directed at a customer.
By analogy, workers are fully protected in expressing their view that “the boss is a fink.” However, if in the course of making deliveries to a customer, they loudly opine to the same effect with respect to the boss of the customer, or picket the customer’s establishment during the lunch break, I see nothing in the NLRA that protects those activities from discipline, either in effect, by the customer declaring those persons to be personae non gratae, or by the employer, for the legitimate reason that they have made themselves obnoxious to a customer.
The majority is quite correct that the employer may not throw blame on a customer for actions that would otherwise be unlawful (see pages 17-18), with respect to, for example, such issues as illegal employment discrimination. Similarly, if there were any evidence that the employer were using the alleged customer complaint as a pretext for his own unlawful labor practices, I would have no objection to the majority’s analysis. Thus, if the workers picketed their own plant with signs “the boss (and Customer X) are finks,” and the boss then solicited the ire of Customer X, the majority’s analysis would be exactly correct.
However, as I read both the record and the NLRB decision, there is no indication that Rydberg, the manager of AK Steel, needed any encouragement to be legitimately incensed at a supplier’s employees, who came to his office deliberately bent on giving him “some hell” and complaining about the actions of their own bosses. The record is clear that Rydberg’s complaint to Bowling (and his edict that he would no longer countenance any dealings with those employees) was completely unsolicited.
Under these circumstances, I respectfully dissent from the portion of the majority opinion requiring the reinstatement and payment of back pay to Ashby and Hanks.