{ "id": 8520293, "name": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA, Plaintiff v. THE STROH BREWERY COMPANY, Defendant", "name_abbreviation": "Brooks v. Stroh Brewery Co.", "decision_date": "1989-09-05", "docket_number": "No. 8821SC899", "first_page": "226", "last_page": "243", "citations": [ { "type": "official", "cite": "95 N.C. App. 226" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "478 U.S. 788", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6213232 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/0788-01" ] }, { "cite": "349 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "318 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736107 ], "year": 1986, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0421-01" ] }, { "cite": "354 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. 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(CCH) \u00b6 22,711", "category": "reporters:specialty", "reporter": "CCH OSHD", "year": 1977, "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 158", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "462 U.S. 393", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188804 ], "weight": 3, "year": 1983, "pin_cites": [ { "parenthetical": "burden shifts to employer in context of retaliatory discharge for union activities under 29 U.S.C. \u00a7 158(a)(3)" }, { "parenthetical": "burden shifts to employer in context of retaliatory discharge for union activities under 29 U.S.C. \u00a7 158(a)(3)" }, { "parenthetical": "burden shifts to employer in context of retaliatory discharge for union activities under 29 U.S.C. \u00a7 158(a)(3)" } ], "opinion_index": 0, "case_paths": [ "/us/462/0393-01" ] }, { "cite": "429 U.S. 274", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8150 ], "weight": 12, "year": 1977, "pin_cites": [ { "page": "285-87", "parenthetical": "shifting burden to defendant where protected activity implicated first amendment right to freedom of speech" }, { "page": "575-76", "parenthetical": "shifting burden to defendant where protected activity implicated first amendment right to freedom of speech" }, { "page": "482-84", "parenthetical": "shifting burden to defendant where protected activity implicated first amendment right to freedom of speech" }, { "page": "285-86" }, { "page": "575" }, { "page": "482-83" }, { "page": "285-86" }, { "page": "575" }, { "page": "483" } ], "opinion_index": 0, "case_paths": [ "/us/429/0274-01" ] }, { "cite": "611 F.2d 1", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 470355 ], "year": 1979, "pin_cites": [ { "parenthetical": "applying 29 U.S.C. \u00a7 660(c)" } ], "opinion_index": 0, "case_paths": [ "/f2d/611/0001-01" ] }, { "cite": "469 F. 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BROOKS, COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA, Plaintiff v. THE STROH BREWERY COMPANY, Defendant" ], "opinions": [ { "text": "PARKER, Judge.\nOn appeal plaintiff argues that the trial court erred in granting summary judgment on any one of the three grounds asserted by defendant in that (i) plaintiff forecast evidence showing a genuine issue of material fact as to defendant\u2019s motive in discharging Nettles, (ii) Nettles\u2019 acceptance of an arbitration award did not preclude the plaintiff from bringing this action, and (iii) plaintiff is not estopped by the Employment Security Commission\u2019s findings in Nettles\u2019 proceeding for unemployment benefits. We address separately each of plaintiff\u2019s contentions.\nI.\nGeneral Statute 95-130 sets forth the rights and duties of employees under the Occupational Safety and Health Act of North Carolina. The statute states, in pertinent part, the following:\nNo employee shall be discharged or discriminated against because such employee has filed any complaint or instituted or caused to be instituted any proceeding or inspection under or related to this Article or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Article.\nG.S. 95-130(8).\nThe Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq., is closely patterned after the Federal Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. \u00a7\u00a7 651 et seq., and G.S. 95-130(8) is virtually identical to the federal act\u2019s provision prohibiting retaliatory discharge. See 29 U.S.C. \u00a7 660(c). The primary purpose of both the Federal and State Occupational Safety and Health Acts is to assure safe and healthful working conditions for workers. See Marshall v. Intermountain Elec. Co., Inc., 614 F.2d 260, 262 (10th Cir. 1980). The primary purpose of both the federal and state provisions prohibiting retaliatory discrimination is to ensure that employees are not discouraged from reporting violations of the Act. See id.; Donovan v. R.D. Andersen Const. Co., Inc., 552 F. Supp. 249, 251, 66 A.L.R. Fed. 644, 647 (D. Kan. 1982); Marshall v. Springville Poultry Farm, Inc., 445 F. Supp. 2, 3 (M.D. Pa. 1977). North Carolina has received approval from the federal government to administer its own occupational safety and health program. See 29 U.S.C. \u00a7 667; 29 C.F.R. \u00a7\u00a7 1952.150-1952.155. Realizing the significant similarities between OSHANC and the federal act, this Court has, in the past, looked for guidance to federal court decisions interpreting OSHA. See Brooks, Comr. of Labor v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), disc. rev. denied and appeal dismissed, 313 N.C. 327, 329 S.E.2d 385 (1985). Since this is the first action brought by the Commissioner to enforce G.S. 95-130(8), we look to federal cases interpreting the analogous federal statute.\nSummary judgment is appropriate only where the evidence presented to the court shows both a lack of genuine issue of material fact and movant\u2019s entitlement to judgment as a matter of law. Bank v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976); G.S. 1A-1, Rule 56(c). In ruling on a motion for summary judgment the court must closely scrutinize the movant\u2019s materials while it regards with indulgence the non-movant\u2019s materials. Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 148, 296 S.E.2d 302, 304-305 (1982), disc. rev. denied, 307 N.C. 468, 299 S.E.2d 221 (1983). In order to survive a motion for summary judgment, the Commissioner need only forecast evidence showing that he can make a prima facie case of retaliatory discrimination at trial. See Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981). Moreover, the non-movant need only present evidence sufficient to rebut the movant\u2019s showing of either an affirmative defense or nonexistence of an essential element of the claim. Id.\nAs a general rule summary judgment in favor of the party bearing the burden of proof is rarely proper. Blackwell v. Massey, 69 N.C. App. 240, 243, 316 S.E.2d 350, 352 (1984). See also Valdese General Hospital, Inc. v. Burns, 79 N.C. App. 163, 164-65, 339 S.E.2d 23, 25 (1986); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 578, 329 S.E.2d 417, 418 (1985). Additionally, defendant has a particularly difficult burden in establishing his right to summary judgment in a case in which plaintiff\u2019s claim is dependent upon proof that defendant acted with a particular state of mind. Burrow v. Westinghouse Electric Corp., 88 N.C. App. 347, 351, 363 S.E.2d 215, 218, disc. rev. denied, 322 N.C. 111, 367 S.E.2d 910 (1988); Valdese General Hospital, Inc. v. Burns, 79 N.C. App. at 165, 339 S.E.2d at 25; Edwards v. Bank, 39 N.C. App. 261, 269, 250 S.E.2d 651, 657 (1979).\nFor the court to hold that defendant has violated the statutory prohibition against retaliatory discrimination, the court must find (i) that the employee/complainant engaged in protected activity, (ii) that the protected activity was a substantial causative factor in the employee\u2019s termination, and (iii) that the employer has not shown by a preponderance of the evidence that it would have treated the employee/complainant in the same manner in the absence of protected activity. See Marshall v. Commonwealth Aquarium, 469 F. Supp. 690 (D. Mass.), aff\u2019d, 611 F.2d 1 (1st Cir. 1979) (applying 29 U.S.C. \u00a7 660(c)). At trial once the plaintiff has shown that the employee\u2019s activities were protected and were a substantial factor in the employer\u2019s decision, the burden shifts to defendant to show that the same decision would have been made if the employee had not engaged in the protected activity. Marshall v. Commonwealth Aquarium, 469 F. Supp. at 692. See also Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 285-87, 97 S.Ct. 568, 575-76, 50 L.Ed.2d 471, 482-84 (1977) (shifting burden to defendant where protected activity implicated first amendment right to freedom of speech), quoted in Marshall v. Commonwealth Aquarium, 469 F. Supp. at 692. Accord NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983) (burden shifts to employer in context of retaliatory discharge for union activities under 29 U.S.C. \u00a7 158(a)(3)). But see, Dunlop v. Bechtel Power Corp., 1978 O.S.H. Dec. (CCH) \u00b6 22,711 (M.D. La. 1977).\nIn the present case there is no question, and defendant has not contested the fact, that Nettles\u2019 23 April 1983 complaint to his employer and Nettles\u2019 filing of the OSHANC claim on 9 May 1983 were protected activities within the scope of the legislation. G.S. 95-130; 29 U.S.C. \u00a7 660. See also, e.g., Donovan v. George Lai Contracting, Ltd., 629 F. Supp. 121 (W.D. Mo. 1985) (OSHA complaint); Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985) (complaint to union); Donovan v. Freeway Const. Co., 551 F. Supp. 869 (D.R.I. 1982) (OSHA complaint); Donovan v. Commercial Sewing, Inc., 562 F. Supp. 548 (D. Conn. 1982) (OSHA complaint); Donovan v. R.D. Andersen Const. Co., Inc., 552 F. Supp. 249 (D. Kan. 1982) (conversation with reporter); Donovan v. Peter Zimmer America, Inc., 557 F. Supp. 642 (D.S.C. 1982) (OSHA complaint); Marshall v. Power City Electric, Inc., 1979 O.S.H. Dec. (CCH) \u00b6 23,947 (E.D. Wash. 1979) (oral complaint to employer); Marshall v. Commonwealth Aquarium, 469 F. Supp. at 690 (OSHA complaint); Marshall v.P & Z Company, Inc., 1978 O.S.H. Dec. (CCH) \u00b6 22,579 (D.D.C. 1978) (complaint to employer and outside agencies); Marshall v. Springville Poultry Farm, Inc., 445 F. Supp. at 2 (complaint to employer); Dunlop v. Hanover Shoe Farms, Inc., 441 F. Supp. 385 (M.D. Pa. 1976) (complaint about working conditions made to legal services attorney).\nThe question then is whether, on the undisputed facts in the record, defendant has demonstrated as a matter of law that Nettles would have been discharged even if he had not filed the complaint concerning the electrical panel with the Commissioner of Labor. During his shift on 18-19 January 1984, Nettles disregarded company safety policy thereby creating two potentially life-threatening situations. The first incident occurred when Nettles, who had been working on a motor on the #15 fermenting tank in the brewhouse, was called to a higher priority job assignment. At this time Nettles merely disconnected the wires from the motor and laid them on top of the fermenting tank. Company safety procedure required Nettles either to place a lock to secure the disconnection or to remove the fuses. The second incident occurred in the \u201cMurphy Products\u201d area of the plant, where employees frequently use water in proximity to the motors. Nettles temporarily hooked up a motor using only electrical tape, rather than securing the conduit with a locknut so that the conduit would be watertight.\nInitially, we recognize that there is a dispute in the evidence as to whether plant manager Wooten knew about Nettles\u2019 OSHANC complaint when he made the decision to terminate Nettles. Although Wooten denied that he knew that Nettles had filed the complaint, reports prepared during the investigation of Nettles\u2019 19 January 1984 safety violations contain a statement concerning Nettles\u2019 OSHANC complaint. Since Wooten was apprised of the information contained in these reports by Steele, the inference could be drawn that Wooten knew that Nettles had filed the OSHANC complaint in May 1983. Therefore, for purposes of summary judgment we must accept as true that Wooten knew that Nettles filed the OSHANC complaint. Similarly, based on the affidavits in the record, we must accept as true that other employees, with their supervisor\u2019s knowledge, had violated defendant\u2019s safety rules concerning lock-out and hold tag procedures and were not disciplined.\nEven accepting these facts as true, the record, in our view, still discloses that defendant has met its burden of showing that Nettles would have been discharged in the absence of his protected activity. The undisputed facts show that on the morning of 19 January 1984, Mann received a call from Buddy Amburn, an employee on first shift, who advised that a safety hazard had been created by the way the flexible conduit had been connected to the junction box on a motor that had been replaced on the third shift in the \u201cMurphy Products\u201d area. Nothing in the record in any way suggests that Amburn had been told to check or report on Nettles\u2019 work. From all that appears of record, Amburn\u2019s call to Mann was an unsolicited report of unworkmanlike work that had created an unsafe condition. The record also reflects that the first report of the failure to lock-out on the #15 fermenting tank was made by an employee, Wayne Myers, to Ted Holcomb, an electrical supervisor, who reported the incident to Mann. Although the record does suggest some friction between Holcomb and Nettles, the tension was in no way connected with Nettles\u2019 filing the OSHANC complaint. The record is devoid of any suggestion that these reports to Mann on 19 January 1984 were instigated by Mann or any other supervisor or were the product of any concerted effort to \u201cget\u201d Nettles in retaliation for filing an OSHANC complaint in May 1983.\nThe fact is undisputed that prior to filing the OSHANC complaint, Nettles had requested that he be transferred out of the brewhouse because he was not confident in his ability to handle the job. Although plaintiff implies that Nettles was transferred from the packaging division back to the brewhouse in retaliation for filing the OSHANC complaint, the undisputed evidence in the record is that Nettles requested that he be transferred back to the brewhouse so that he could obtain weekend overtime.\nThe record also discloses that Steele made the recommendation that Nettles be terminated after this recommendation was cleared with corporate headquarters. On deposition Steel testified:\nQ Why did you recommend that Mr. Nettles be terminated?\nA Essentially for two reasons: Number one, the gravity of his actions, the fact that he had, in fact, created not one, but two situations that were literally life threatening. And the second part was during all of the discussions that Harold and I had with Mr. Nettles, he never once admitted that he had done anything wrong, that his actions were totally proper and he would probably do it again the same way, and we couldn\u2019t live with that.\nQ Was Mr. Nettles \u2014 is it your understanding that Mr. Nettles was terminated solely for not following the lock-out procedure?\nA No, that\u2019s not my understanding.\nQ What is your understanding in that regard?\nA He was terminated for not following the lock-out procedure on the No. 15 fermenting tank, but his job performance and the way that he left the Murphy Products motor was also a very serious safety function.\nQ Did that Murphy Product situation involve the lockout procedure?\nA It was an issue during the time he was working, but it\u2019s when he walked away without telling me about it was the sin.\nThen on redirect examination by the Commissioner\u2019s counsel, Steele testified:\nQ If, in your opinion, Mr. Nettles had quote, \u201cadmitted doing something wrong,\u201d would it have changed your determination or your recommendation that he be discharged?\nA ' I don\u2019t know that it would have changed it from discharge, no, but his lack of admitting that he had done anything wrong sealed it.\nAt the 26 January 1984 meeting to review Nettles\u2019 indefinite suspension, at which company representatives and three union representatives were present, the following exchange took place between Steele and Nettles:\nNettles: I want to say I made that motor safe for me to work on. I put the wires up under the cat walk where nobody would mess with them.\nSteele: But don\u2019t you see Ed, someone did mess with them. The mechanics handled the wires and put them in the motor.\nNettles: That\u2019s not their job.\nSteele: And because it\u2019s not their job they should die?\nNettles: If you go f_around in a panel you should die.\nSteele: This meeting is over if no one has anything else to say. If you think of anything, let me know.\nFurther, in his report the OSHD investigating officer, after opining that Nettles would not have been discharged in the absence of the protected activity, then stated: \u201cNevertheless, this investigation failed to produce any real evidence (time, place, etc.) like Nettles\u2019 case wherein an employee failed to follow the lock-out procedure placing himself or others in danger who was not punished after discovery by management.\u201d The investigator\u2019s report also indicates that, \u201cNettles\u2019 method of safeproofing against accidental electrical shock or electrocution was irresponsible and unacceptable with regard to electrical codes and federal/state safety regulations.\u201d\nFinally, the record reflects that Nettles was only an average electrician, requiring more assistance than most even after the normal training period. Nettles had also had at least one other disciplinary action, the nature of which is not disclosed in the record.\nThe test adopted in federal OSHA retaliatory discharge cases was enunciated in Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471, a case involving first amendment protected activity. Justice Rehnquist, delivering the opinion of the Court, stated:\nA rule of causation which focuses solely on whether protected conduct played a part, \u201csubstantial\u201d or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. The difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for the decision to rehire, and does indeed play a part in that decision \u2014 even if the same decision would have been reached had the incident not occurred. The constitutional principle at stake is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct. A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.\n429 U.S. at 285-86, 97 S.Ct. at 575, 50 L.Ed.2d at 482-83. This analysis, in our view, makes clear that the Supreme Court did not intend an employee who engages in protected activity to be immune from discipline or discharge arising out of unprotected activity or work performance. In an action under OSHANC the Commissioner stands in the employee\u2019s stead.\nEvaluated in light of this analysis, the undisputed facts in the case at bar would permit the court to conclude as a matter of law that Nettles would have been discharged notwithstanding the OSHANC complaint. The following factors support this conclusion: (i) the absence of any evidence of insidious intent on the part of the first-shift employees who reported the incidents on 19 January 1984, (ii) the lack of any connection whatever between these employees\u2019 reporting the incidents and Nettles\u2019 OSHANC complaint eight months earlier, (iii) the time lapse between the OSHANC complaint and the incidents precipitating Nettles\u2019 termination, (iv) the inability of the investigator, even after Nettles had returned to work, to find any evidence of a similar incident of equal seriousness where the employee had not been disciplined, (v) Nettles\u2019 refusal to acknowledge that the manner in which he had handled the job was not acceptable, (vi) Nettles\u2019 obvious hostile attitude toward his fellow employees who were endangered by his ineptitude or carelessness, and (vii) Nettles\u2019 average work performance in terms of his need for assistance and inability to handle the job.\nThese factors distinguish the case at bar from the cases relied on by plaintiff. For example in Donovan v. Freeway Const. Co., 551 F. Supp. 869 (D.R.I. 1982), the complainants were issued pink slips which were dated two days prior to the date the employer claimed the complainants voluntarily quit. These slips stated the reason for termination as lack of work, but the employer had told the complainants when they reported for work that they were through and had hired replacements who reported for work that same day. The termination occurred just two days after complainants filed their complaints with OSHA.\nIn Stafford Construction Company v. Stephen Smith, et al., 1983 O.S.H. Dec. (CCH) \u00b6 26,514 (F.M.S.H.R.C. 1983), a decision pursuant to the Federal Mine Safety and Health Act, the evidence showed not only concerted effort to identify the complainants, but a direct correlation between the employee\u2019s protected activity and discharge. Witnesses testified that the president of the company issued a directive that when the individuals who complained to the Mine Safety and Health Administration were identified, they were to be terminated immediately. Moreover, the evidence demonstrated that defendant\u2019s reasons for terminating one of the complainants, reduction in force, could not be substantiated by employment records which showed that the employment levels remained constant. The other claimant was discharged ostensibly for damaging a motorgrader. This action was inconsistent with treatment of other employees who were discharged only for gross negligence. Other testimony showed the management\u2019s animus in that the company president had referred to the employee as \u201cthe SOB who is causing us a lot of trouble.\u201d\nIn Donovan v. Peter Zimmer America, Inc., 557 F. Supp. 642 (D.S.C. 1982), the employees were fired less than a month after the complaint was filed with the State Department of Labor. They were fired for returning late from lunch. At the time, the company had no written rules concerning tardiness and absenteeism, and another employee who had been tardy numerous times, both before and after the complainants were terminated, was not disciplined. Even under new strict rules promulgated after the terminations, complainants would have received only a warning. The evidence also showed that the discharged employees were highly qualified and competent machinists whose work performance was excellent.\nSimilarly, in Marshall v. P & Z Company, Inc., 1978 O.S.H. Dec. (CCH) \u00b6 22,579 (D.D.C. 1978), the defendant\u2019s defense that the complainants\u2019 discharges were due to an accident was held to be a pretext. An almost identical accident occurred several weeks thereafter, but none of that crew was discharged. Moreover, there was also evidence that the superintendent had referred to complainants as troublemakers.\nThe direct causal connection between the protected activity and termination present in each of these cases is not evident in the case presently before the Court. This Court is not unmindful that circumstantial evidence is often the only evidence available to show retaliation against protected activity. Donovan v. Peter Zimmer America, Inc., 557 F. Supp. at 651; Marshall v. Chapel Electrical Co., 1980 O.S.H. Dec. (CCH) \u00b6 24,157 (S.D. Ohio 1980). Nevertheless, the causal connection must be something more than speculation; otherwise, the complaining employee is clothed with immunity for future misconduct and is \u201cbetter off\u201d for having filed the complaint rather than merely being no \u201cworse off.\u201d Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. at 285-86, 97 S.Ct. at 575, 50 L.Ed.2d at 483.\nThe seriousness of Nettles\u2019 safety violations and his manifest disregard for the safety of his fellow workers demonstrated during the suspension interview are, in our view, significant considerations in determining that defendant as a matter of law has met its burden of showing that it would have discharged Nettles even in the absence of his complaint to OSHD. Accordingly, we hold that on the undisputed facts in the record, defendant is entitled to summary judgment as a matter of law.\nII.\nWe turn now to examine what effect, if any, Nettles\u2019 acceptance of the determination made by the multiplant grievance committee has on plaintiff\u2019s action. After Nettles was terminated on 26 January 1984, he filed a grievance in accordance with the collective bargaining contract. A hearing on this grievance was denied by Don Steele. After denial of his grievance, Nettles\u2019 only recourse was appeal to a multiplant grievance committee. The multiplant grievance committee heard Nettles\u2019 complaint in February 1984 and reduced the termination to a six-month suspension without pay. Under the terms of this decision Nettles returned to work at the Winston-Salem Stroh plant in July 1984.\nPlaintiff contends that defendant is not entitled to summary judgment on the grounds that this action is barred by Nettles\u2019 accepting the six-month suspension in lieu of permanent discharge. Plaintiff argues that since this is a suit brought by the Commissioner of Labor to enforce a public right, the right of all employees to a safe and healthful working environment, the Commissioner should not be barred from bringing suit to enforce OSHANC\u2019s prohibition against retaliatory discharge merely because the employee pursued remedies available to him under a collective bargaining agreement.\nThe majority of federal courts addressing the issue have held that prior arbitration awards do not preclude the Secretary of Labor from bringing suit pursuant to 29 U.S.C. \u00a7 660(c)(1). See, e.g., Marshall v. N.L. Industries, Inc., 618 F.2d 1220 (7th Cir. 1980) and Brenan v. Alan Wood Steel Co., 1975-76 O.S.H. Dec. (CCH) \u00b6 20,136 (E.D. Pa. 1975). Relying primarily on Alexander v. Gardner-Denver, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), these courts have reasoned that the Secretary is asserting a statutory right independent of the arbitration process, that occupational safety and health legislation was intended to have a broad social, public policy impact that can only be satisfied in the judicial forum and that the enforcement of 29 U.S.C. \u00a7 660(c) is to benefit the public, not just individual employees. Marshall v. N.L. Industries, Inc., 618 F.2d at 1222-23. The scope of relief available in arbitration does not satisfy these goals. Id. at 1223.\nSome federal courts, however, have declined to accept the idea that the antidiscrimination enforcement provision contained in 29 U.S.C. \u00a7 660(c) has broad public interest impact in all cases. See Marshall v. General Motors Corp., 1978 O.S.H. Dec. (CCH) 5 22,532 (N.D. Ohio 1977). See also Donovan v. Diplomat Envelope Corp., 587 F. Supp. at 1420.\nIn Alexander v. Gardner-Denver, supra, the Court held that arbitration under the antidiscrimination provision in a collective bargaining agreement would not preclude plaintiffs statutory right of action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. \u00a7\u00a7 2000e et seq. 415 U.S. at 59-60, 94 S.Ct. at 1025, 39 L.Ed.2d at 164-65. Plaintiff\u2019s action in Alexander, however, was not pursuant to the retaliatory discharge provision of Title VII, 42 U.S.C. \u00a7 2000e-3(a), but rather was for racial discrimination, the very conduct the Civil Rights Act of 1964 was enacted to eliminate. While 29 U.S.C. \u00a7 660(c) and G.S. 95-130(8) are statutory actions apart from any collective bargaining agreement, they are retaliatory discharge provisions, not the enforcement provisions directed at the substantive ill to be corrected by OSHA and OSHANC, namely, unsafe or unhealthy conditions in the workplace. This distinction, in our view, makes the underlying public policy argument against the preclusive effect of arbitration espoused in Alexander less persuasive in the antiretaliation context. Moreover, the Secretary of Labor\u2019s regulations applicable to 29 U.S.C. \u00a7 660(c), 29 C.F.R. \u00a7 1977.18(a)(3), adopting a policy of deferring to an arbitration award where possible, supports the position that enforcement under the federal statute is more individual than public in nature. Furthermore, some federal courts even after Alexander v. Gardner-Denver recognized that the acceptance of an arbitration award and settlement with the employer would preclude a claimant from proceeding against the employer for further benefits. In EEOC v. McLean Trucking Co., 525 F.2d 1007 (6th Cir. 1975), the Court stated:\nGardner-Denver did not hold that a grievant may accept an award of an arbitrator and settle with his employer, and thereafter sue his employer for additional benefits.\nId. at 1010.\nIn this State, G.S. 95-36.8 provides that arbitration awards pursuant to a collective bargaining agreement provision for arbitration to settle controversies shall be final and binding upon the parties to the proceeding. Relying on Shreve v. Duke Power Co., 85 N.C. App. 253, 354 S.E.2d 357 (1987), wherein an action for wrongful termination by an employee following arbitration was barred by the statute, defendant argues that plaintiff is barred in the present case. Plaintiff argues that this statute has no applicability to this proceeding because the Commissioner was not a party to the multiplant grievance procedure and because the multiplant grievance procedure was not final and binding arbitration. We agree with plaintiff that the multiplant grievance procedure was not arbitration contemplated by G.S. 95-36.8. Thus, the statute does not bar the Commissioner\u2019s action.\nThe question remains, however, whether Nettles\u2019 acceptance of the multiplant grievance committee decision rendered pursuant to the collective bargaining agreement bars this action. In our view, it does.\nThe limited scope of the benefits sought, namely back pay for the period during Nettles\u2019 suspension, makes this action one for private rather than public benefits. See Marshall v. General Motors, supra. No industry or company-wide relief from a pervasive discriminatory practice is being sought in this litigation; nor is any unsafe condition subjecting other employees to potential harm to be eliminated. Hence, the public policy supporting early resolution of controversies in the workplace to promote industrial peace outweighs any public interest reason for not according the multiplant grievance decision preclusive effect. The fact that the multiplant grievance proceeding was not arbitration does not alter the result. Under the collective bargaining agreement, the multiplant proceeding, held in Tampa, Florida, was an interim step in the grievance process. The committee consisted of six people, three from the company and three from the union. If this committee deadlocked, then the grievance went to full arbitration, but if the multiplant committee was able to render a decision, that decision was final and binding. As we noted earlier, the purpose of the antiretaliation statute is to avoid the chilling effect on employees\u2019 willingness to file complaints when those who do are disciplined or discharged under pretext. In our view, this chilling effect can be neutralized effectively by a collective bargaining agreement grievance procedure. Whether in a grievance proceeding or a judicial forum, the employer is at risk of having to reduce the penalty or reinstate the employee with or without back pay. Therefore, when the scope of the relief sought by the Commissioner is for private, individual benefit, we see no reason for the action not to be barred by the employee\u2019s acceptance of an award in the collective bargaining grievance process. Accordingly, we hold that summary judgment on this ground was proper.\nIII.\nWe now address plaintiff\u2019s contention that the trial court erred in granting summary judgment for defendant on the grounds that plaintiff was collaterally estopped by virtue of Nettles\u2019 claim before the North Carolina Employment Security Commission (ESC), which found that he was dismissed for misconduct. Plaintiff argues, first, that retaliatory discharge was never considered by the ESC and, second, that the Commissioner should not be precluded from maintaining this action even if Nettles would be collaterally estopped by the Commission\u2019s findings.\nAfter his discharge, Nettles filed a claim for unemployment compensation on 10 February 1984, stating only that he had been discharged for failing to follow company lock-out procedures. The claims adjudicator determined that since Nettles had been discharged for failing to follow posted safety procedures he had been terminated for \u201cmisconduct\u201d and was not eligible for unemployment benefits. On 1 March 1984 Nettles appealed the decision of the claims adjudicator, raising'the issue that the company was aware of his OSHANC complaint at the time he was terminated. Nettles\u2019 testimony at this hearing before the appeals referee was directed to the lock-out procedure and the events which immediately preceded his termination. Based on this testimony and a written statement from Don Steele, the referee concluded that the claimant\u2019s violation of the lock-out procedure evinced a willful disregard of the employer\u2019s best interests, that claimant was discharged from his job for misconduct, and that claimant was, therefore, disqualified from receiving unemployment benefits. Nettles appealed the decision of the referee to the full Commission. In his letter of appeal Nettles once again referred to his suspicion that his discharge was connected to his OSHANC complaint. Before the Commission reviewed the determination, it informed Nettles .that he could request a hearing for oral argument on points of law but that no evidence would be taken. On 11 May 1984 the full Commission affirmed and adopted the decision rendered by the appeals referee. Finally, Nettles appealed the decision of the full Commission to Superior Court, Davie County. Nettles appeared pro se until the appeal to Superior Court. After a hearing, the Court held that the evidence contained in the record of proceedings before the ESC supported the ESC determination.\nThe transcripts and documents related to all of these proceedings have been made part of the record on appeal in this Court. Having reviewed the transcripts and other documents connected with Nettles\u2019 ESC case, we are of the opinion that the ESC determination does not collaterally estop the Commissioner from bringing this suit against defendant for retaliatory discrimination.\nCollateral estoppel is a doctrine whereby \u201ca final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.\u201d Thomas M. McInnis & Assoc., Inc. v. Hall, 318 N.C. 421, 428, 349 S.E.2d 552-557 (1986). The North Carolina Supreme Court has set forth five prerequisites to the defensive use of collateral estoppel:\n(i) the prior suit resulted in judgment on the merits;\n(ii) identical issues are involved;\n(iii) the issue was actually litigated;\n(iv) the issue was actually determined;\n(v) the determination was necessary to the resulting judgment.\nId. at 429, 349 S.E.2d at 557. In the present case, although the issue of discriminatory treatment was raised in Nettles\u2019 letters of appeal to the appeals referee and the full Commission, the record shows that no evidence was presented on this issue and neither the ESC nor the Superior Court determined whether defendant had discriminated against Nettles. In fact there is no indication that the appeals referee even considered the question of retaliatory discharge.\nIn Donovan v. Diplomat Envelope Corp., 587 F. Supp. 1417 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985), an employee was discharged after he filed complaints with his union about fumes from a faulty gas heater. The employee filed a claim for State Unemployment Insurance benefits. The administrative law judge ruled that the employee was ineligible because he walked off the job. Subsequent to the adjudication of unemployment benefits, the United States Secretary of Labor brought an action against the employer for retaliatory discrimination in violation of 29 U.S.C. \u00a7 660(c). The employer moved for summary judgment on the basis that the Secretary was collaterally estopped from claiming retaliatory discharge where the State Unemployment Insurance Agency had determined that the employee was discharged for walking off the job. In denying the employer\u2019s motion for summary judgment, the court held that although by virtue of the agency\u2019s determination the Secretary would be collaterally estopped to deny that the employee was discharged for walking off the job, the agency\u2019s determination did not bar the Secretary\u2019s action for retaliatory discrimination because the agency determination was not dispositive of that question. Id. at 1421-22. Specifically, the court held that the agency\u2019s determination was unclear \u00e1s to whether the discharge would have taken place in the absence of a discriminatory motive. Id. at 1422. See also University of Tennessee v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986).\nOn the record before this Court on this appeal, summary judgment on the basis of collateral estoppel would not be proper.\nAny one of the grounds asserted by defendant would be determinative of the summary judgment, and we have ruled that defendant would be entitled to summary judgment on two of those grounds. Accordingly, the judgment of the trial court is\nAffirmed.\nJudges BECTON and ORR concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Rodney S. Maddox and Associate Attorney General Robert J. Blum, for plaintiff-appellant.", "Womble Carlyle Sandridge & Rice, by Mark N. Poovey, for defendant-appellee." ], "corrections": "", "head_matter": "JOHN C. BROOKS, COMMISSIONER OF LABOR OF THE STATE OF NORTH CAROLINA, Plaintiff v. THE STROH BREWERY COMPANY, Defendant\nNo. 8821SC899\n(Filed 5 September 1989)\n1. Master and Servant \u00a7 10.2\u2014 retaliatory discharge \u2014OSHANC complaint \u2014 summary judgment for defendant\nDefendant was entitled to summary judgment as a matter of law in an action in which the Commissioner of Labor alleged that defendant discharged an employee, Nettles, in retaliation for filing a complaint about an unsafe working condition with the Occupational Health and Safety Division of the N.C. Department of Labor. The undisputed facts would permit the court to conclude as a matter of law that Nettles would have been discharged notwithstanding the OSHANC complaint. N.C.G.S. \u00a7 95-130(8), N.C.G.S. \u00a7 1A-1, Rule 56(c).\n2. Master and Servant \u00a7 10.2\u2014 retaliatory discharge \u2014acceptance of multiplant grievance committee decision \u2014 bar to action\nAn action by the Commissioner of Labor alleging retaliatory discharge for reporting an unsafe working condition to the occupational safety and health division was not barred pursuant to N.C.G.S. \u00a7 95-36.8 by the employee\u2019s acceptance of a multiplant grievance committee determination because the multiplant grievance procedure was not arbitration as contemplated by the statute. However, the limited scope of the benefits sought (back pay for the period of the employee\u2019s suspension) makes this an action for private rather than public benefits and the Commissioner\u2019s action is therefore barred; the purpose of the antiretaliation statute is to avoid the chilling effect on employees\u2019 willingness to file complaints when those who do are disciplined or discharged under pretext, and that chilling effect can be neutralized effectively by a collective bargaining agreement grievance procedure. Summary judgment for defendant on that ground was therefore proper.\n3. Judgments \u00a7 37; Master and Servant \u00a7 10.2\u2014 action for retaliatory discharge \u2014ESC determination of dismissal for misconduct \u2014 no collateral estoppel\nSummary judgment on the basis of collateral estoppel was not proper where the Commissioner of Labor brought an action for the retaliatory discharge of an employee for filing a complaint with the occupational safety and health division of the North Carolina Department of Labor; the employee had filed a claim for unemployment compensation which had been rejected based on a determination of misconduct in failing to follow posted safety procedures; and the record shows that no evidence was presented on the issue of discriminatory treatment, that neither the ESC nor the superior court determined whether defendant had discriminated against the employee, and there was no indication that the appeals referee had even considered the question of retaliatory discharge.\nAPPEAL by plaintiff from Rousseau (Julius A.), Judge. Judgment entered 28 March 1988 in Superior Court, FORSYTH County. Heard in the Court of Appeals 16 March 1989.\nThis action was brought by the Commissioner of Labor pursuant to the Occupational Safety and Health Act of North Carolina (OSHANC), G.S. 95-126 et seq., and arises from Edward Nettles\u2019 discharge as an employee of defendant The Stroh Brewery Company. Plaintiff contends that Nettles was discharged in retaliation for filing a complaint with the Occupational Safety and Health Division of the North Carolina Department of Labor (OSHD) about an unsafe working condition at defendant\u2019s Winston-Salem brewery.\nIn April 1983, Nettles, an electrician, complained to defendant\u2019s assistant manager for engineering, Harold Mann, concerning a safety hazard at an electrical control panel near a Dubru washer in the plant. These complaints were discussed with both the plant superintendent, Richard Graves, and the plant manager, Gray Wooten. Not being satisfied with the company\u2019s response, on 9 May 1983 Nettles filed a complaint with OSHD regarding the electrical control panel. On 26 May 1983 an OSHD inspector arrived at the brewery and inspected the electrical control panel. Subsequent to the inspection OSHD issued defendant a citation with a penalty relating to the electrical panel.\nIn November 1983 Nettles was transferred from the packaging plant to the brewhouse. On 19 January 1984, while working the third shift, Nettles failed in two separate situations to follow proper safety procedures in violation of defendant\u2019s safety policy. For these violations Nettles was placed on indefinite suspension on 20 January 1984. On 26 January 1984 a second level meeting was held to inquire further into the 19 January incident. At this meeting, which was conducted by Don Steele, manager of industrial relations, Graves, Mann, Nettles and three union representatives were present. After this meeting Steele met with plant manager Wooten to discuss the meeting and conferred by telephone with corporate headquarters in Detroit. Steele then recommended that Nettles be terminated. The final decision was made by Wooten. Nettles was terminated 26 January 1984. On 1 February 1984 Nettles filed a complaint with OSHD alleging retaliatory discrimination.\nBetween the time Nettles filed his complaint with the North Carolina Department of Labor and the time this action was filed on 13 January 1987, Nettles\u2019 termination had been reduced to six months suspension without pay through the collective bargaining agreement grievance process. Plaintiffs complaint asked the court to award back pay and lost benefits to Nettles and to enjoin defendant from discriminating against workers making safety complaints in violation of G.S. 95-130(8). In the court below summary judgment was entered for defendant.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Rodney S. Maddox and Associate Attorney General Robert J. Blum, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, by Mark N. Poovey, for defendant-appellee." }, "file_name": "0226-01", "first_page_order": 254, "last_page_order": 271 }