By most accounts, security guard Michael Kemp did something at a suburban shopping mall here that was morally and legally correct, and may have even saved lives. But, in the end, Kemp got fired.
Kemp, a former U.S. Marine tank commander, objected to Jamestown Mall's new policy that security guards should escort drunken drivers off the mall grounds -- and onto the roadways -- without arresting them or alerting police.
Kemp vigorously protested what he and other guards thought was a dangerous, illegal policy. When his complaints failed, he took his story to the media, and news stories in 1982 prompted a public outcry. Kemp's boss then fired him -- for violating company policy by talking to the media.
Kemp's three-year struggle to win his job back through the National Labor Relations Board exemplifies the controversy that has surrounded the agency under the Reagan administration.
Critics assert that cases such as Kemp's show the current board's bias in favor of employers. Supporters say such rulings reflect a return to balance after a period in which the NLRB tilted too far in favor of workers and unions.
The question of whether whistle-blowers such as Kemp are protected by the National Labor Relations Act of 1935 is a hotly debated issue that probably will have to be resolved by the Supreme Court, according to management and labor lawyers.
"I find it amazing that a company in America could order someone to do things that are wrong, and get away with it. But they can," said Kemp, 26, who plans to reenlist in the military. "I'd like to appeal all this, but I can't afford to win" because of legal fees, he said in an interview.
"Everybody feels that the labor board is the ombudsman of the work place, and we are supposed to take care of every unjust thing in the work place," said Charles M. Williamson, chief counsel to NLRB Chairman Donald L. Dotson. "That would be an interesting concept if Congress set up such an agency with such powers, but it didn't."
Kemp, who did not belong to a union, took his own case to the NLRB in November 1982. Eight months later, NLRB administrative law judge Elbert D. Gadsden concluded that Kemp was wrongfully discharged by Center Ridge Co., which manages the mall. He ordered Kemp reinstated with full back pay.
The judge described Kemp as "a very conscientious security officer who took his job quite seriously. He apparently liked exercising authority, was zealous in carrying out his duties and was a stickler for precision when it came to rules."
According to NLRB proceedings, Kemp had met with two other concerned guards at a restaurant to discuss resisting the new rule and, after another guard suggested calling the media, Kemp took the initiative.
If Kemp had followed the mall's policy, the judge said, he would be "aiding and abetting the violation of law" and also would risk having St. Louis County police revoke his guard's license. His actions must be protected by the National Labor Relations Act, the ruling said, because they were "truthful and not intended to harass and disparage" his employer.
But his employer appealed, and the NLRB ruled last month that Kemp was not entitled to protection under labor law. By a 2-1 vote, the board upheld Kemp's firing because whistle-blowers are only protected if they engage in "concerted activity" with fellow workers -- not if they act alone.
The ruling by Dotson, a Republican, and Patricia Diaz Dennis, a Democrat, said that even though Kemp had discussed the protest with fellow workers, the case did not qualify as "protected concerted activity" because there was not sufficient proof that his employer knew it was concerted.
The October 1982 story in the St. Louis Globe-Democrat that prompted Kemp's firing mentioned two other unnamed guards. One described himself as "concerned about the new regulations" and the other said he could not talk because he was afraid he would be fired. The article was not part of the evidence.
The NLRB accepted the company's assertion that it did not know Kemp had discussed his concerns with other guards. Drawing on past NLRB rulings, the board said the firing, therefore, was legal.
Mall officials are declining comment on the case because Kemp is suing them in Missouri state court, their lawyer, John G. Young Jr., said.
In creating the NLRB, Congress intended to protect workers involved in concerted activity such as forming unions or protesting poor work conditions, whether in union or nonunion settings. "But the courts and the past labor boards have been all over the lot" in trying to define that, said John Irving, a management lawyer who was NLRB general counsel during the Ford and Carter administrations. "This is an issue the Supreme Court will have to resolve."
AFL-CIO lawyer David Silberman said the Kemp ruling "reveals how insensitive this board is to the policy of the National Labor Relations Act. Getting together with other employes to discuss problems in the work place is just the kind of activity Congress intended to protect. This kind of decision . . . says that if the employer claims blissful ignorance it gives the employer an easy way out."
But Irving said, "From outward appearances, it looks like this board is being hardhearted. But the board is saying there are other ways to rectify the situation and get justice," such as the state courts. "It makes great press to portray this board as coldhearted, but the board is saying that Congress did not go that far in extending labor law to this level of protection."
Williamson of the NLRB added that the Kemp case "should not be construed as saying the board necessarily approves morally and ethically of the employer's conduct. It is simply a statement about the legal requirements of evidence . . . . We aren't engaged in ruling on the moral behavior of the parties."
In a rare alignment, Republican NLRB member Robert P. Hunter disagreed with Chairman Dotson's ruling, citing in a three-page dissent the "special" circumstances of the Kemp case. The mall's blanket prohibition against contacting the news media cannot outweigh the right to engage in what Hunter called "protected concerted activity."
The final word in such cases, according to experts, may come from a controversial NLRB case called Meyers Industries, which involved truck driver Kenneth Prill, who was fired because he filed a complaint with the Tennessee Public Service Commission about unsafe brakes and steering on his truck.
The NLRB previously had ruled that one employe's safety complaint could be presumed to concern others and, therefore, could be protected concerted activity. But the Reagan board upheld the firing of Prill in 1984 and said it would no longer automatically presume that safety complaints are shared concerns.
The U.S. Court of Appeals here overruled the NLRB and ordered it to reconsider the Meyers case. That decision is pending