On Petition to Set Aside an Order of the National Labor Relations Board
Before Tone and Wood, Circuit Judges, and Will, Senior District Judge.*fn*
Nacker Packing Company (Company) brings this petition to review a Decision and Order of the National Labor Relations Board (Board). The Board has filed a cross-application for enforcement of its order.*fn1 In its final decision and order, the Board determined that (1) the Company through a program of written and oral warnings and several suspensions had unlawfully harassed and discriminated against its employee, Everett Rekow, in violation of Sections 8(a)(3), (4) and (1) of the National Labor Relations Act (Act), subsequent to Rekow's reinstatement at the Company pursuant to an earlier unfair labor practice proceeding before the Board, and (2) that the Company had separately violated Section 8(a)(1) by threatening that reprisals would be taken against Rekow and other employees because Rekow had invoked the Board's assistance. For the reasons hereinafter stated, we grant the petition for review in part and deny the petition for review in part.
DISCRIMINATORY HARASSMENT OF EVERETT REKOW
The Company is engaged in the slaughtering of calves and the processing of veal at its plant located in Milwaukee, Wisconsin. The Company employs 10 production employees, four part-time truck drivers, and one clerical employee. The Company's owners, Ralph Gehrmann (President) and Roger Nacker (Vice-President), regularly participate in production work and, along with Nacker's son, John, and Larry Weslowski, supervise the employees.
In January, 1975, the Company was struck by the union which then represented its production employees. Among the participants in the strike was Rekow, who had been continuously employed by the Company since 1962. Rekow has also been continuously employed by the Company since March 28, 1977. The strike ended unsuccessfully in the spring of 1976. In late August 1976, the Company notified Rekow, who had secured other employment during the strike, that it had available a production position to which he could be reinstated. Rekow's efforts to secure reinstatement were subsequently rejected by the Company, however, and Rekow filed an unfair labor practice charge against the Company based upon its failure to reinstate him. Pursuant to a hearing on February 14, 1977, an Administrative Law Judge (ALJ) for the Board determined on March 11, 1977 that the Company had violated Sections 8(a)(3) and (1) of the Act by refusing to reinstate Rekow. The ALJ concluded that Rekow was entitled to reinstatement and back pay from August 31, 1976.
Rather than appeal the ALJ's decision to the Board,*fn2 the Company notified Rekow of its intention to reinstate him and Rekow was reinstated to his production position on March 28, 1977. It is the Company's treatment of Rekow after his reinstatement that the Board concluded was discriminatorily motivated and in violation of Sections 8(a)(3), (4) and (1), which conclusion the Company challenges in this petition for review.
Subsequent to his reinstatement on March 28, Rekow's work performance was carefully watched by Company supervisors and Rekow began to receive written warnings based on an apparently slow rate of production. Thus, on March 29, Rekow was called into the plant office and told that his production was too slow. A written memorandum of this discussion was prepared, which Rekow refused to sign, and was placed in the Company's personnel file on Rekow. He received similar notifications for lack of production or poor production quality on March 30 (twice), April 5 and April 7. On each of these occasions, Rekow was called into the office, and informed of the production problem.
During his lunch hour on April 7, Rekow cut his left hand and thumb while cleaning his tools. After bandaging his hand on the Company premises, Rekow remained at work, and continued working through April 11. On April 11, Rekow's slowness in production was again the subject of a written notation in Rekow's file. On April 12, Rekow entered the hospital due to a serious infection in his left thumb arising from the earlier cut.
Rekow remained in the hospital until May 3, and thereafter received physical therapy for his left hand. When Rekow ultimately returned to work on June 1, Gehrmann advised Rekow that "the honeymoon was over" and that the Company now expected Rekow to keep pace with the other production employees. Rekow's slowness in production was again written up on June 4 and June 7. On the afternoon of June 23, Gehrmann assigned Rekow to the job of calf-skinning, rather than to the gutting or boning jobs which Rekow generally performed. When Rekow stated that he could not hold his knife in his left hand well enough to enable him to skin the left side of the calf, Gehrmann instructed Rekow to skin the whole calf or go home. Rekow then left work early. He subsequently produced a doctor's examination report confirming the weakness and lack of agility in his left hand.
On July 1, Rekow was suspended one week for insubordination. On this occasion, contrary to at least one previous discussion which Rekow had had with Nacker in which he instructed Rekow to work on all carcasses in the boning cooler, Rekow passed over certain carcasses. Following this suspension, Rekow filed the unfair labor practice charges, the Board's decision on which gives rise to this petition.
Subsequent to Rekow's return to work after the week suspension, Rekow received further write-ups on July 18, July 19 and July 20. Finally, on October 24, Rekow was suspended for a portion of the afternoon for refusing to bone as directed by his supervisor.
After three days of hearings, the ALJ found that the Company had violated Sections 8(a)(1), (3) and (4) of the Act by issuing oral and written warnings to Rekow during a period between March 29, and July 1, 1977, by the one week suspension beginning July 1, and by the partial day's suspension on October 24. The ALJ concluded that the Company had
not purged the unlawful discrimination against Rekow during the period after the first unfair labor practice proceedings but persisted thereafter in a continuing pattern of discriminatory harassment evidencing its desire to circumvent its obligations under a remedial reinstatement order, ...