Petition of the National Labor Relations Board for enforcement of an order finding Columbia University to have been in violation of section 8(a) (1) [29 U.S.C. § 158(a) (1)] of the National Labor Relations Act by discharging its employee Drucilla Cornell, found to have been engaged in concerted activity protected by section 7 [29 U.S.C. § 157] of the Act; and cross petition by the University for an order denying enforcement. Enforcement denied. Case remanded to National Labor Relations Board for further consideration.
Lumbard, Waterman and Meskill, Circuit Judges.
This is a petition by the National Labor Relations Board for enforcement of its order of May 22, 1975, finding that the discharge by Columbia University of its employee, Drucilla Cornell, violated section 8(a)(1) of the National Labor Relations Act ("NLRA")*fn1 and mandating her reinstatement with back pay and full restoration of her employee rights. Columbia has filed a cross petition for an order denying enforcement of the Board's order.
Drucilla Cornell was hired by the University in November, 1973 as a telephone operator for employment in the University's central switchboard office. The following month, another employee, Muriel Hirschfeld, was hired for a similar position. Under University policy, each was to remain on probationary status for a period of 60 days after appointment. Each was given a list of operating procedures, prepared by their supervisor, Mrs. Onnie Lawton, as well as a personnel policies handbook which outlined a grievance procedure established by the University to enable non-Union employees, such as Cornell and Hirschfeld, to "solve any serious problems related to [their] work or relationship with the university." Under that procedure, the aggrieved employee was first to meet with his immediate supervisor, then with his department head, and, finally, with the Director of Personnel. At each step the employee was entitled to ask a fellow employee to accompany him to any conference at which his problem was to be discussed.
The events which culminated in the discharge of Cornell and Hirschfeld began in January, 1974 when, early in the month, Lawton decided that Hirschfeld did not fit in with the other office employees. Unfamiliar with the procedures to be followed in dismissing an employee, she contacted the personnel department and was informed that she could discharge Hirschfeld without prior notice as Hirschfeld was still a probationary employee. Lawton was advised that it was most convenient for bookkeeping purposes to terminate an employee at the end of a pay period.
Later in that same month, some of the employees of the central switchboard office became increasingly dissatisfied with Lawton's supervisory policies and in particular with a recent change in telephone answering procedures that she directed. Cornell felt that these grievances should be brought to Lawton's attention, and on January 21, she discussed with her co-employees, and particularly with Hirschfeld, the possibility of forming a grievance committee. There is some conflict in the record regarding the reaction of the other employees to this suggestion and to Cornell's proposal that she speak to Lawton as a representative of the group, but, in any case, it appears that no real objection was voiced to the idea. During their lunch hour on that day, Cornell and Hirschfeld agreed that the former would first approach Lawton alone and present the employees' grievances and that Hirschfeld would then follow to explain that Cornell was speaking not only for herself but for other employees as well. They also agreed that if either of them was confronted with a "threatening situation," they would follow the University's grievance procedure by each acting as a "witness" for the other.
During the next few days there ensued a series of confrontations with Lawton, and also various activities by Cornell and Hirschfeld directed at making known their grievances to the supervisor. On two occasions they posted notices on the office bulletin board, the first of which read:
Workers do have rights. We have the right to bring our grievances to the attention of our employer. We have the right to organize to change our working conditions. We do not have to sit back passively and accept rules and regulations we think are unfair. Any group of us, chosen by election or directly, can represent the rest of the employees in designated bargaining unit [sic], equally as much so as an established union. The NLRB will protect any group of us equally as much as it will a union. There have been several precedent-setting cases in the last 2 years.
After this notice was removed by another employee and given to Lawton, a second statement was posted, which read: "Cows may come and cows may go, but the bull around this place goes on forever!!" This, too, was removed and shown to Lawton. Hirschfeld and Cornell discussed their dealings with Lawton with the night shift switchboard employees, one of whom cautioned them that their activities were risky and could result in their being discharged. During one confrontation with Lawton, Cornell stated that the NLRA protected the employees' rights to organize and to present their grievances to their supervisor, and offered to obtain a copy of the Act for Lawton's perusal.
On the morning of January 23, the brewing controversy came to a head. Lawton called Hirschfeld into her office to advise the latter of her dismissal. Hirschfeld then apparently told Lawton that she thought the dismissal was unfair, and that she wanted to speak to someone of higher authority. An acrimonious exchange followed, and, hearing the commotion, Cornell entered Lawton's office. The substance of the conversation between the three is sharply disputed by the parties, but it appears that at some point Cornell made known to Lawton that she wished, in accordance with University grievance procedures, to be present as a witness for Hirschfeld. Lawton urged Cornell in no uncertain terms to leave the office, and when Cornell refused to leave, Lawton handed her her paycheck and told Cornell that she, too, as well as Hirschfeld, was fired. Security guards, and then Lawton's superior, James McGrady, were called in.
Later that day, Cornell and Hirschfeld, alleging that they had been unlawfully discharged because of their organizational activities, filed formal grievances with the personnel department. Following a meeting with the personnel director, accompanied by outside witnesses, they were advised that Hirschfeld's discharge had been upheld, but that Cornell would be suspended from work for three days only. In a letter Cornell received some days later, she was told that her suspension was necessitated by her ". . . uncalled for interference with the normal conduct of business by the chief operator and your refusal to desist with this interference when ordered to do so by the chief operator, your supervisor." It added: "You are, furthermore, warned that any repetition of the aforementioned conduct will result in the termination of your employment at Columbia University." Unwilling to accept the conditions placed upon her reinstatement and believing that the University grievance procedures justified her intervention on behalf of Hirschfeld in Lawton's office, Cornell advised McGrady that she would file a charge with the Board on behalf of Hirschfeld and herself. After her period of suspension expired, Cornell did not return to work; and McGrady spoke to her on the telephone and read to her a second letter which informed her that in view of her failure to report for work, the University had concluded that she had resigned.
A complaint was filed under section 8(a)(1) of the NLRA by District 65, Distributive Workers of America, on behalf of Hirschfeld and Cornell; and formal hearings were held before Administrative Law Judge Friedman. On July 31, 1974, he rendered a decision finding that the employees' grievance committee activities, and Cornell's intervention on behalf of Hirschfeld, were concerted activities protected by the NLRA, and that Columbia had committed an unfair labor practice in discharging the two employees.*fn2 He ordered, inter alia, that the University offer reinstatement to Hirschfeld and Cornell with ...