Duffy, Senior Circuit Judge, Swygert, and Cummings, Circuit Judges.
This is a petition to review and set aside an order of the National Labor Relations Board (Board) issued on December 28, 1965.*fn1 In its answer the Board has requested that its order be enforced in full.
The Board issued a complaint against the Company alleging that employee Jerry Packard was discharged on November 14, 1964, for engaging in a protected concerted activity. It was alleged that by such conduct, the Company violated Sections 8(a) (1) and (3) of the National Labor Relations Act.
The Trial Examiner held the Company had not engaged in any unfair labor practice, and recommended the dismissal of the complaint in its entirety. The Board reversed the decision of the Trial Examiner holding that Packard's discharge was a violation of Section 8 (a) (1) of the Act. The Company was ordered to reinstate Packard with full pay.
Jerry Packard was hired by the Company in October 1962 at an hourly wage rate of $1.80. Two years later at the time of his dismissal, his wage rate was $2.418 per hour.
On November 9, 1964, the Company announced its annual wage and fringe benefit package to its employees by sending to all employees a letter signed by the Company's president, John Buehler. This package, to become effective on November 15, provided for hourly wage increases from two cents to sixteen cents, increased pension benefits, increased paid vacation time and provided other fringe benefits amounting to an additional five cents to six cents per hour.
Packard worked on the night shift. On November 13, at least partly on Company time, Packard cut out a number of cartoons from papers, attached them to yellow paper, wrote captions on them and then attached these cartoons to an overhead light in the gear laboratory where he worked. Most of the captions ridiculed the two-cent an hour increase. Some referred to president Buehler by name. One caption stated "I'll tell you where you can stick your two cents an hour."
The Trial Examiner found that the cartoons prepared and posted by Packard were pointedly aimed and directed at president Buehler, holding him up to contemptuous ridicule, and that they were insulting, sarcastic and malicious.
Charles Kinney, a day shift superintendent, saw the cartoons on the morning of November 14. He took them to the office of the Personnel Director. He and two Personnel Directors compared the captions with Packard's handwriting and concluded that the captions had been prepared by Packard.
Packard's record was examined. This disclosed that foreman Lee had warned Packard about disobeying instructions as to bringing a radio into the plant. Also, that he had warned Packard about his uncooperative attitude and not doing his share of the work. In August or September 1964, a night shift superintendent warned Packard for disobedience and swearing at a Company parking-lot guard, and warned that a repetition would result in "serious corrective action."
The record also disclosed that McCarty, the night shift assistant gear superintendent, warned Packard about leaving sarcastic notes for day shift employees. This warning was a result of a complaint from a day shift foreman. McCarty also warned Packard about his sarcastic manner toward his fellow workers on the night shift. In early October 1964, Lee again warned Packard about his excessive horse play and poor attitude. This warning was issued as a result of continuing complaints about Packard's work from other employees in the department. In late October 1964, Sprecher, a night shift employee in the gear laboratory, complained to the superintendent that Packard was "out fumbling" the other employees and was not doing his share of the work.
In a case like this where the Board has brushed aside the findings of the Trial Examiner, it is well to again consider the teachings of the landmark case of Universal Camera Corp. v. NLRB, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456. The decision in that case has been quoted often in cases where the facts are somewhat similar to those in the case at bar.
In Universal Camera, the Supreme Court stated that the findings of the Labor Board must be supported by substantial evidence on the record considered as a whole; that the findings of the Trial Examiner are a part of that record; and that evidence supporting a conclusion may be less substantial when an experienced Examiner, who has seen and heard the witnesses, reaches a conclusion contrary to that ...