Ymca of the Pikes Peak Region, Inc. v. National Labor Relations Board

BALDOCK, Circuit Judge,

dissenting.

The court correctly holds that the YMCA was engaged sufficiently in interstate commerce to fall under the jurisdiction of the National Labor Relations Act, 29 U.S.C. § 160(a). I take issue, however, with the court’s conclusion that the YMCA violated the Labor Act when it discharged Rita Ague for harassing Marnie Duke. Although substantial evidence supports the Board’s determination that Ague’s call constituted concerted activity, the rude and insensitive manner in which Ague conducted her investigation placed her conduct outside the protection of Section 7, 29 U.S.C. § 157.

I.

Marnie Duke began working at the Garden Ranch YMCA in 1985 when she was fifteen years old. Rec. vol. I at 279-80. Duke’s first exposure to Wes Beal’s advances took place in September of that year:

I was cleaning in the lobby and he mentioned for me to come into the pool area. He had something to talk to me about. [H]e was sitting down in a chair and he pulled me over by my leg and he put his *1454hands in between my legs and he start[ed] up my thigh quite a ways.

Id. at 281-81. In the following months, Beal repeatedly and without permission played with Duke’s hair and rubbed her shoulders. Id. at 282-83. In January 1986, Duke was sitting next to the swimming pool with a towel over her lap. Beal sat down next to her, placed his hand underneath the towel and between her thighs. Id. at 284. Duke was frightened by the incident but declined to report Beal’s behavior because she believed (incorrectly) that the YMCA managers were friends of Beal. Id. Thereafter, Beal continued to take liberties with Duke’s person until March 1986 when she garnered the courage to report the harassment to Jim Klever, the regional president and chief executive officer. Id. at 288-89. Klever assured Duke that he would take care of the situation; Beal was discharged the following day. Id. at 290. Duke and her mother remained frightened that Beal would continue to harass her. Ray Weber, executive director of the Garden Center facility, assured Duke and her mother that the YMCA would do everything in its power to protect Duke from further harassment. Id. at 334, 390-91.

On the morning of March 18, Duke received a telephone call from Rita Ague requesting in a demeaning manner information on Beal’s firing:1

[S]he told me that she had a few questions to ask about Wes’s termination. And I told her that I did not have time to talk because I was going to school. She ignored that and she went on and she said that Wes does not know why the hell he was fired. She asked what I had said to get him fired, and I again just was ignoring. I was trying to get away from it. I was very nervous. I did not know what to say. She was an adult. I wasn’t. I was taught to respect adults. I felt that it was none of her business at this point. She continued and once more said Wes does not know why the hell he was fired. And I told her that I had to go to school. And she again — she said, T mean it wasn’t as if he asked you to go to bed with him or anything.’ Demeaning me, belittling me.

Id. at 295-96. Ague’s call had an intimidating effect upon Duke: “I felt like this was never going to end. I had adults coming on to me and I was only 16 years old and they were just really coming on to me strong.” Id. at 297-98.

Mrs. Duke was furious when she learned of Ague’s conversation with her daughter. Id. at 338. She contacted Weber at the YMCA and told him that “we were not going to tolerate that [sic] kind of actions against our daughter.” Id. at 338-39. Mrs. Duke demanded to know what the YMCA was going to do to protect her daughter from further harassment by Ague. Id. at 392. Weber discussed Ague’s phone call with Diane Sanford, Ague’s supervisor, expressing shock that a grown women would interfere in the private matter between Duke and the YMCA and would then press the matter once Duke stated repeatedly that she did not wish to talk to Ague. Weber told Sanford that the YMCA had a continuing duty to protect victims of sexual harassment. Id. at 456. Weber also discussed the situation with James Klever. Klever was appalled by Ague’s conduct and expressed concern that the YMCA could be subject to liability for not taking action in response to Mrs. Duke’s complaints. Id. at 525, 527-28.

The following day, Weber called Ague into his office and inquired about the telephone call. Ague stated that Duke did not understand what sexual harassment was, but did acknowledge making the telephone call and asking Duke specific questions concerning Beal. Id. at 396, 459. Later that day, Weber convened a second meeting with Ague whereupon he informed her that she was terminated for interfering *1455with the YMCA’s protection of sexual harassment victims. Id. at 402.

II.

Section 7 of the Labor Act guarantees workers “the right to join or assist labor organizations, to bargain collectively through representative of their own choosing, and to engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protec-tion_” 29 U.S.C. § 157 (emphasis supplied). “[I]n enacting § 7 ..., Congress sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment.” NLRB v. City Disposal Systems, 465 U.S. 822, 835, 104 S.Ct. 1505, 1513, 79 L.Ed.2d 839 (1984). Section 7 fundamentally seeks to protect workers’ freedom of association in attaining improved wages and working conditions. See Fried, Individual and Collective Rights in Work Relations: Reflections on the Current State of Labor Law and its Prospects, 51 U.Chi.L.Rev. 1012, 1028-29 (1984). While Section 7 does not define “concerted activity,” the term “clearly ... embraces the activities of employees who have joined together in order to achieve common goals.” City Disposal, 465 U.S. at 830-31, 104 S.Ct. at 1511.

In determining whether an employee’s action is “concerted,” the touchstone inquiry is whether the action “reflect[s] actual group will in the workplace.” JMC Transp. v. NLRB, 776 F.2d 612, 618 (6th Cir.1985). An individual acting alone engages in concerted activity when she acts on behalf of the workforce. See City Disposal, 465 U.S. at 831, 104 S.Ct. at 1511.2 A conversation between an individual worker and her employer therefore may be concerted activity, so long as the conversation is related to group action in the interest of the employees. NLRB v. Empire Gas, 566 F.2d 681, 684 (10th Cir.1977) (following Mushroom Transp. v. NLRB, 330 F.2d 683, 685 (3d Cir.1964)). On the other hand, personal, albeit work-related, complaints by an individual employee do not constitute protected Section 7 activity. City Disposal, 465 U.S. at 833 n. 10, 104 S.Ct. at 1512 n. 10.

Action on behalf of an individual grievance also may constitute concerted activity. See Intermountain Rural Elec. Ass’n v. NLRB, 732 F.2d 754, 763 (10th Cir.) (employee argued with employer on behalf of fellow worker), cert. denied, 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984). As Judge Learned Hand explained, the act of association, rather than the object of association, forms the basis of Section 7’s protections:

When all the other workmen in a shop make common cause with a fellow workman over his separate grievance ... they engage in a ‘concerted activity’ for ‘mutual aid or protection,’ although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are helping; and the solidarity so established is ‘mutual aid’ in the most literal sense, as nobody doubts.

NLRB v. Peter Cailler Kohler Swiss Chocolates, 130 F.2d 503, 505 (2d Cir.1942) (L. Hand, J.).

“The fact that an activity is concerted ... does not necessarily mean that an employee can engage in the activity with impunity.” City Disposal, 465 U.S. at 837, 104 S.Ct. at 1514. Section 7 does not protect concerted activity that is unlawful, violent, in breach of contract or otherwise indefensible. NLRB v. Washington Alu*1456minum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298 (1962); see also R. Gorman, Basic Text on Labor Law 302-07 (1976). An employer therefore may discipline an employee for uttering defamatory or otherwise inappropriate statements, even when those statements constitute concerted activity. See Old Dominion Branch No. 946, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 270-73, 94 S.Ct. 2770, 2774-76, 41 L.Ed.2d 745 (1974) (federal labor law does not pre-empt application of state libel law where statements uttered with knowledge of falsity or reckless disregard for the truth) (interpreting Linn v. Plant Guard Workers of Am. Local 114, 383 U.S. 53, 61, 86 S.Ct. 657, 662, 15 L.Ed.2d 582 (1966)).3 Neither do profane or otherwise intemperate expressions carry the protections of Section 7. See Timpte Inc. v. NLRB, 590 F.2d 871, 873 (10th Cir.1979) (circulation of letter disparaging employer in profane language).4 But not every impropriety committed during concerted activity places the employee beyond the protective shield of Section 7. NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.1965). “[Ljabor disputes are ordinarily heated affairs, and ... confrontations between management and employees cannot be held to the standards of cool, analytical impartiality characteristic of the debating society.” Boaz Spinning Co. v. NLRB, 395 F.2d 512, 514 (5th Cir.1968). The employee’s right to engage in concerted activity must permit some leeway for impulsive behavior. Thor, 351 F.2d at 587; see Coors Container Co. v. NLRB, 628 F.2d 1283, 1287 (10th Cir.1980) (vulgar language directed at security guard improperly interrogating employee’s “boycott Coors” sign protected).5

In determining whether Section 7 protects concerted statements, courts must examine the overall context in which the statement was uttered, see NLRB v. New York Univ. Medical Center, 702 F.2d 284, 290 (2d Cir.), vacated on other grounds, 464 U.S. 805-805, 104 S.Ct. 53-53, 78 L.Ed.2d 73 (1983), balancing the employees right to engage in concerted impulsive behavior against the right of the employer to maintain order and respect, Thor, 351 F.2d at 587. Where a worker’s intemperate language is unrelated to any labor dispute, the concerted nature of those remarks does not invoke Section 7 protections. Compare NLRB v. Local 1299, Int’l Bhd. of Elec. Workers, 346 U.S. 464, 476-77, 74 S.Ct. 172, 178-79, 98 L.Ed. 195 (1953) (distribution of handbills attacking company not protected where handbills made no reference to labor dispute) with Sierra Publishing Co. v. NLRB, 889 F.2d 210, 215-16 (9th Cir.1989) (where letter by newspaper employees was directly related to labor dispute, distribution of letter to newspaper’s advertisers protected). Disparaging remarks by union activists engaged in concerted activity therefore are entitled to less protection when directed against casual third parties than when addressed to management or non-striking employees. Montgomery Ward & Co. v. NLRB, 374 F.2d 606, 608 (10th Cir.1967) (picketing employee's epithets toward customer crossing picket line unprotected).6

III.

In the instant case, Ague had at least some reason to conjecture that Beal had *1457been fired for his expression of union support. Although Ague’s telephone call, at least in Duke’s eyes, appears more officious intermeddling than union organizing, evidence in the record exists from which the Board reasonably could conclude that Ague was acting on Beal’s behalf when she made the call. Accordingly, given our highly deferential standard of review, Ague’s telephone call to Duke constituted concerted activity. See City Disposal, 465 U.S. at 829, 104 S.Ct. at 1510 (determination by Labor Board as to whether particular activity is concerted for purposes of Section 7 “implicates its expertise in labor relations.”).

The court states that although Ague’s telephone call was “somewhat imprudent and lacking in sensitivity,” Ct. op. at 1452, it did not “ ‘amount to egregious misbehavior that should rob this effort to assist fellow employee Beal of its protected character^]’ ” Id. (quoting rec. vol. Ill, doc. 4, at 3). The record reflects, however, that Marnie Duke suffered repeated humiliation at the hands of Wes Beal; only after much anguish did she garner the courage to report Beal’s conduct to his superiors. Duke remained afraid of retaliation and relied upon assurances by the YMCA that she would be protected from further abuse. Viewing Ague’s telephone call within the overall context of Duke’s relationship with the YMCA, see New York University, 702 F.2d at 290, and considering the disparity in age between Ague and Duke, Ague’s conversation falls within the category of expressions that this court held unprotected in Timpte, 590 F.2d at 873. Informing a sixteen year old victim of sexual harassment that “it wasn’t as if he asked you to go to bed with him or anything,” rec. vol. I at 296, after ignoring her repeated pleas to end the conversation is indefensible. For a stranger in this situation to subject a victim of sexual harassment to an explicit inquisition over precisely what formed the basis of her complaint when such information already had been provided to the YMCA and the victim clearly did not wish to discuss the matter is beyond acceptable discourse. See Washington Aluminum, 370 U.S. at 17, 82 S.Ct. at 1104. Ague’s insensitive attitude toward Duke is illustrated by her subsequent statement that Duke did not know what sexual harassment was. Rec. vol. I at 459. If Ague needed to know the details of Beal’s harassment of Duke, such information could have been elicited through a formal grievance procedure or an NLRB hearing. Her telephone call therefore was not merely “imprudent,” Ct. op. 1452; she addressed Duke “in such an abusive manner that [s]he los[t] the protection of § 7.” City Disposal, 465 U.S. at 837, 104 S.Ct. at 1514.

By relying upon Coors, 628 F.2d at 1287, to support its holding that Ague’s telephone call was protected activity, the court ignores the crucial distinction between concerted language directed against employers and such conduct directed toward innocent third parties. Although the rancor which often accompanies labor-management disputes precludes the application of parlor etiquette to concerted activity, in Montgomery Ward this court held that a much higher standard of decency is required where concerted statements are directed at parties not involved in the dispute. 374 F.2d at 608-09. In Coors, course language was uttered during an argument between employees and company officials; we held the employees’ imprudent language to be an outburst subject to Section 7 protections. 628 F.2d at 1285-88. In contrast, Ague directed her derisive comments, not toward her employer, by rather toward a highly-reticent sixteen-year-old girl with no involvement in the unionization effort. Ague’s comments were not impulsive statements uttered in the heat of a dispute; she “thought long and hard” before calling Duke. Rec. vol. I at 181. The court’s reliance on Coors therefore is misplaced. This ease is controlled instead by our holding in Montgomery Ward where we held that an epithet voiced by a picketing employee toward a customer crossing the picket line was unprotected concerted conduct. 374 F.2d at 608-09. Just as we held the picketing employee’s conduct indefensible in Montgomery Ward, so should the court have held Ague’s conduct unworthy of the protections of Section 7.

*1458None of the policies underlying the relaxed standard for concerted statements are implicated in this case. Had Ague’s remarks been uttered in the context of formal grievance procedure where frank exchange is necessary to the successful resolution of disputes, her concerted statements might be protected under Section 7. See Crown Central Petroleum v. NLRB, 430 F.2d 724, 730-34 (5th Cir.1970) (because unfettered exchange necessary in resolution of grievances, employees’ intemperate remarks uttered during grievance committee meeting protected). However, Ague’s abusive comments were made on her own initiative in a private telephone conversation with no adjudicative function. There is no reason why such statements uttered in this private context are entitled to any of the protections guaranteed by Section 7.

III.

The court states that even if Ague’s telephone call to Duke was unprotected conduct, the YMCA seized upon the call as a pretext to rid itself of a union activist. Ct. op. at 1452. I disagree. A preponderance of the evidence supports the view that the YMCA’s discharge of Ague represented a legitimate effort to shield itself from Title VII liability from Marnie Duke and her parents. Even if the YMCA entertained some anti-union animus when it discharged Ague, the record shows that a well-grounded fear of Title VII exposure constituted an independent and legitimate basis for her discharge. As explained below, such fears were entirely reasonable given the current state of Title VII. See NLRB v. Transportation Management Corp., 462 U.S. 393, 397, 103 S.Ct. 2469, 2472, 76 L.Ed.2d 667 (1982) (where employer would have discharged employee for permissible reasons irrespective of union activity, improper motivation does not confer liability under the Labor Act).

A plaintiff may maintain an action for sexual harassment under Title VII, 43 U.S.C. § 2000e-2(a), by showing that her employer created a hostile working environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). A hostile working environment exists when sexual conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” Vinson, 477 U.S. at 65, 106 S.Ct. at 2404-05 (quoting 29 C.F.R. § 1604.11(a)(3)). To prevail on a hostile environment theory, a plaintiff must prove that the harassment was “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” Hicks, 833 F.2d at 1413 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Conduct need not be explicitly sexual to constitute sexual harassment under Title VII. Hicks, 833 F.2d at 1415.7 Rather, “an actionable harassment claim must establish by the totality of the circumstances, the existence of a hostile or abusive environment which is severe enough to affect the psychological stability of a minority employee.” Vance v. Southern Bell, 863 F.2d 1503, 1510 (11th Cir.1989) (emphasis in original). To determining whether an employer is liable for creating a hostile environment, we must “look to agency principles for guidance.” Vinson, 477 U.S. at 72, 106 S.Ct. at 2408; Hicks, 833 F.2d at 1417. “Thus, if a plaintiff proves that management-level employees had actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be liable.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir.1990); see Silver v. KCA, Inc., 586 F.2d 138, 142 (10th Cir.1978).

In the instant case, Duke suffered repeated and uninvited sexual contact from YMCA employee Wes Beal. Once the YMCA learned of Beal’s conduct, it had an *1459affirmative duty under Title VII to take prompt remedial action. Although Beal was promptly discharged, Ague's intrusive call inquiring into the intimate details of Duke’s problems with Beal over Duke’s repeated objections constituted further harassment. The court states that because Ague’s conduct was not explicitly sexual in nature, it could not fall under Title VII. Ct. op. at 1451. This ignores our earlier holding in Hicks that explicitly sexual conduct is not necessary to effectuate a hostile working environment under Title VII. 833 F.2d at 1483. Demanding another detailed account of Beal’s conduct in a belittling demeanor from a sixteen year old sexual harassment victim who did not wish to discuss the matter contributed to the hostile environment in which Duke was obliged to work. See Vinson, 477 U.S. at 65, 106 S.Ct. at 2404-05. Duke was not able to distinguish between Beal’s conduct and Ague’s conduct; they were all part of the same pattern.8 In determining whether the YMCA created a hostile working environment, a court therefore could look to the totality of the circumstances considering Ague’s telephone call along with Beal’s untoward conduct. See Vance, 863 F.2d at 1510.

The YMCA had actual knowledge both of Beal’s harassment and Ague’s intrusive telephone call. Indeed, following Ague’s telephone call, the YMCA was faced with a demand by Duke’s mother to protect her daughter from further harassment. Rec. vol. I at 338-39, 392. Had YMCA management not acted on these demands, the organization could have been exposed to Title VII liability on an agency theory. See Vinson, 477 U.S. at 72, 106 S.Ct. at 2408; Hicks, 833 F.2d at 1417. Although the ALJ found that potential Title VII liability did not form the basis of the YMCA’s decision to fire Ague, this finding was based upon an erroneous understanding of the agency principles underlying Title VII. Accordingly, the AU’s finding that Title VII exposure was not a component of the YMCA’s decision to fire Ague was not entitled to deference by this court. See Pullman Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

The dismissal of Rita Ague by the YMCA did not violate the National Labor Relations Act. I respectfully dissent.

. Although Ague’s version of the conversation differs somewhat, her testimony confirmed Duke's in all important respects. Ague is not sure she used the term "why in the hell” suggesting instead that she said "why the devil.” She also denies using a condescending tone. Rec. vol. I at 180. However, Ague acknowledged asking Duke "a string of questions: ‘Did he touch you? Did he ... ask you to sleep with him? Did he say anything to you?’ ” Id.

. See, e.g., Ewing v. NLRB, 861 F.2d 353, 361 (2d Cir.1988); Rockwell Int'l v. NLRB, 814 F.2d 1530, 1534 (11th Cir.1987); Dayton Typographic Serv. v. NLRB, 778 F.2d 1188, 1191 (6th Cir.1985); JMC Transp., 776 F.2d at 618; Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 327-28 (7th Cir.1976); Randolph Div, Ethan Allen Inc. v. NLRB, 513 F.2d 706, 708 (lst.Cir.1975); Owens-Corning Fiberglas v. NLRB, 407 F.2d 1357, 1365 (4th Cir.1969); see generally Gorman & Finkin, The Individual and the Requirement of “Concert” Under the National Labor Relations Act, 130 U.Penn.L.Rev. 286 (1981).

. See, e.g., Bowling Green Mfg. v. NLRB, 416 F.2d 371, 375-76 (6th Cir.1969) (defamatory statements in radio interview during organizing campaign); Maryland Drydock Co. v. NLRB, 183 F.2d 538, 539 (4th Cir.1950) (distribution of "scurrilous and defamatory literature” during organizing campaign); NLRB v. Atlantic Towing Co., 180 F.2d 726, 726 (5th Cir.1950) (false accusation that employer committed unfair labor practice) (per curiam).

. See also Borman's Inc. v. NLRB, 676 F.2d 1138, 1139 (6th Cir.1982) (employee wore T-shirt emblazoned with profane anti-employer slogan); Boaz Spinning Co. v. NLRB, 395 F.2d 512, 515 (5th Cir.1968) (employee called manager “Castro” in open plant meeting).

. See abo NLRB v. Southwestern Bell, 694 F.2d 974, 976-78 (5th Cir.1982) (expletive uttered by shop steward in heated argument with supervisor over allocation of overtime work); Crown Central Petroleum v. NLRB, 430 F.2d 724, 730-31 (5th Cir.1970) (coarse language in course of grievance committee meeting).

. See abo Hotel Holiday Inn De Isla Verde v. NLRB, 723 F.2d 169, 171 (1st Cir.1983) (disparaging remarks to hotel guests by picketing employees not protected).

. See also Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir.1990); McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C.Cir.1985).

. The fact that in Duke’s eyes the conduct of Ague and Beal were part of the same pattern is illustrated by Duke’s comments to her mother after the phone call:

I told her that I was really tired of the whole situation. It was just continuing. And I told her that maybe it would have been best if I would have just quit at that time, before I had even said anything about Wes Beal. And then none of this would have happened ... She told me that, yes, that would have been the easy way out, but we both decided mutually that, no. Wes Beal and Rita Ague were both harassing people. They were bothering us. They had no right to do that, and I stood up for not only me, but other people too that would further along get the same treatment I had.

Rec. vol. I at 305.