On Petition for Review and Cross-Application for Enforcement of An Order of the National Labor Relations Board.
Before SPRECHER and WOOD, Circuit Judges, and WOLLENBERG, Senior District Judge.*fn*
SPRECHER, Circuit Judge. The primary issue arising from this labor dispute involves the question of whether the record, considered as a whole, contains substantial evidence supporting the conclusion of the National Labor Relations Board (hereinafter referred to as the "Board") that petitioner Dreis & Krump Manufacturing Company, Inc. (hereinafter referred to as the "Company") engaged in an unfair labor practice in its action of discharging an employee. For reasons set forth below, we enforce the order of the Board in all respects.
The essential facts giving rise to this appeal are not in dispute. Joseph P. Mayer, a milling machine operator employed by the Company was assigned a job and given blueprints and pieces of metal with which to accomplish it by the shop foreman, who was also his immediate supervisor, Joseph Mirabella. Mayer located the tools he believed appropriate and spent between four and six hours setting up his machine, although this task can ordinarily be completed within 90 minutes. Mayer attributed his lack of facility with the machine to his inexperience,*fn1 and testified that although Mirabella walked past him several times and observed his difficulty in setting up the machine properly, the foreman offered neither aid nor instruction. Several cutting tools broke when Mayer turned on his machine. Mayer reported the damage to Mirabella and was given a written warning, e.g., a "pink slip," for carelessness.
The collective bargaining agreement in effect provided for the settlement of disputes through a four-step procedure which culminated in final and binding arbitration. On the day following the machine incident, Mayer and several Union shop officials conducted an informal meeting with Mirabella and requested that Mirabella expunge the pink slip from Mayer's record.*fn2 Mirabella agreed to "forget the issue," but stated he was unable to remove the pink slip. A formal grievance charging Mirabella with negligence in overseeing safety and production was filed by the Union on behalf of Mayer.
At a second-stage grievance meeting held several weeks later and attended by Company and Union representatives, Mayer read aloud and distributed copies of his personal view of the grievance.*fn3 The Union supported Mayer's contention that he had not been negligent, but the grievance remained unresolved.
The following morning, Mayer distributed copies of his grievance statement to Company employees and supervisors from a position at the entrance to the Company parking lot, along with an attached statement which read:
This case of J. Mayer v. J. Mirabella concerns ALL workers. We must not think that Mirabella is just peculiar. The Company knows what Mirabella does and supports him and all other foremen who act like him. WE DON'T HAVE TO TAKE IT!!!
Mayer ceased distribution ten minutes before the beginning of his shift. He was discharged within several hours for taking action interpreted as a bypass of the contractual grievance procedure, distributing a document to fellow employees which attacked a supervisor in derogatory and inflammatory terms and inciting fellow employees to engage in a walkout or slowdown.
A subsequent grievance filed by Mayer and the Union protesting the Company's decision was heard by an arbitrator, who determined that the discharge was supported by cause, since in distributing the materials to his fellow employees, Mayer had initiated an act of selfhelp. The arbitrator ruled that Mayer had thereby bypassed and aborted the grievance procedure, and forfeited his Section 7 rights. The arbitrator further noted that the critical tone of the language incorporated in the leaflet distributed by Mayer constituted a public attack upon a Company supervisor and exceeded the "bounds of fair comment," in contravention of a provision of the collective bargaining agreement which prohibited the posting of material derogatory to the Company or its employees.*fn4
The Board*fn5 refused to defer to the arbitrator's award, ruling that the Company violated Sections 8 (a)(1) and (3) of the National Labor Relations Act ("Act") in discharging Mayer for participation in the type of concerted activity protected by Section 7 of the Act. The Board also concluded that a "no solicitation" rule*fn6 promulgated by the Company and apparently acquiesced in by the Union was so unduly broad on its face so as to constitute an unfair labor practice under Section 8 (a)(1) of the Act. The Board issued an order directing the Company to cease and desist from the perpetration of these unfair labor practices and requiring the reinstatement ...