Reference no: EM131281214
In the early morning hours of October 21, 1973, a truck collided with a power pole adjacent to a twolane asphalt highway outside the corporate limits of Bellaire, Ohio. The collision severed the pole in half, severely damaged the truck, and shut off electrical power in the vicinity. Alvin E. Mayer, a working foreman, and Kenneth Dawson, an area foreman, were reached at their home and together they traveled in one of the company's 35 ft. elbow trucks to the scene to restore electric service and to remove the pole butt which was then blocking the road.
Dawson and Mayer arrived upon the scene at approximately 1:30 AM and brought their truck to a halt in the eastbound lane of the road just west of the accident scene. Meanwhile word of the power failure had reached a striking employee, Joseph Campbell, who lived nearby. Campbell and two other striking employees, Larry Campbell and Gabriel Gasbarre, drove to the scene, arriving there in advance of the company truck bringing Mayer and Dawson. Shortly before, Joseph Campbell had an unsatisfactory telephone conversation with the dispatcher on duty in the company offices in an effort to find out what had happened and what was being done to correct the power shutoff.
The three strikers brought picket signs with them, but upon arrival, decided to leave them in the car.... According to Mayer, following a conversation between himself and Joseph Campbell in the middle of the road, Mayer turned toward the accident scene only to have Campbell grab him from behind and throw him to the ground, Mayer falling on his left side but sustaining only a scraped elbow and [a scraped] small finger. In contrast, Joseph Campbell claimed that the two men were talking when Campbell slipped down off the truck and collided "chest-to-chest" with Mayer, causing him to slip and fall on gravel which had accumulated on the pavement. Mayer and Dawson reported the incident to the company that night, and thereafter a letter was sent to Joseph Campbell notifying him that he was ischarged for an "act of unprovoked aggression against a supervisor."
The company contends that Campbell's conduct was sufficiently serious to warrant discharge. The company notes that it is undisputed that at the time when the repair truck arrived on the scene, Campbell left the group of onlookers and began talking to Mayer about how thin his patience was growing, and that the exchange between the two men was heated. Further ... it is undisputed that Campbell came down from the fender of the repair truck where he was sitting and collided with Mayer, knocking Mayer backwards and onto the ground. Further, Campbell thereafter attempted to interfere with efforts to remove the broken utility pole and reopen the blocked highway to traffic, until directed to refrain by a police officer at the scene. We begin our analysis by noting our standard of review ... on this point: [N]ot every impropriety committed during [Section 7] activity places the employee beyond the protective shield of the act.
The employee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain order and respect.... We have recognized in many cases that an employer is not required to countenance all misconduct by an employee, and we have carefully examined the acts of the employee to determine whether they are beyond the pale of protected activity under Section 7.... We conclude that Campbell's misconduct was sufficiently serious to justify his dismissal....
The supervisors were engaged in emergency repair work at approximately 1:30 AM. When the truck arrived, Campbell left the area where the other strikers and the onlookers were gathered and jumped up on the fender of the company's truck. The record indicates that at this point the two supervisors had just begun to survey the area where the accident had occurred, and did not as yet know whether there were any downed power lines or live wires. According to Campbell's own testimony, he began a discussion with Mayer stating how his patience was getting thin. Apparently, Campbell's statements angered Mayer because at this point Mayer came at Campbell and as Campbell arose from the truck, the two men bumped "chest-to-chest."
The force of the collision knocked Mayer back and he slipped onto the ground. He sustained slight injuries from the fall. Although there was no evidence that either man had to be restrained subsequent to the bumping incident, onlookers apparently considered the situation quite serious. Police Officer Warnock testified that immediately after Mayer fell, he came over to Campbell and told him to back away, so there would not be any trouble.... [The Court found that as a result, the Company was within its rights to discharge Campbell.] The facts leading to Larry Greene's discharge are in most respects undisputed.
On August 10, 1973, Greene and two other strikers were walking to picket the site of a repair job being performed by the company in Steubenville. As Greene and the others reached the southeast corner of the intersection of North and 4th Streets, a company truck which had just left the worksite stopped for a red light at the intersection. In it were line foreman Ross Lee Cunningham and working foreman Walt Williams. Cunningham was driving.
Greene yelled "Don't you know we're on strike?" and made some comments that the two non-union men were not observing safety rules. Greene then ran out into the intersection, grabbed Cunningham's cigar from his mouth and threw it to the ground. Based solely upon this incident, Greene was discharged. The conduct complained of was an isolated expression which did not upon the circumstances create a safety hazard jeopardizing either company equipment or personnel.
At the time of his discharge Greene was the Recording Secretary for the Union and the evidence suggests that the incident was exaggerated and that Greene's discharge for the alleged misconduct was pretextual.... [The Court held that] Greene's admitted misconduct was not so serious as to justify his discharge...
Case Questions
1. What balancing test does the court employ in determining whether an employee's act of violence justifies the employee's dismissal?
2. Why does the court find that Greene's dismissal was not justified?