Petition for Review of an Order of the National Labor Relations Board.
Before Swygert and Cummings, Circuit Judges, and Nichols, Associate Judge.*fn*
The National Labor Relations Board found that Pelton Casteel, Inc. had violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by discharging an employee and by conducting individual interviews of several of its employees during a union organization drive. Upon appeal, we fail to find substantial evidence in the record as a whole to support the Board's conclusions and therefore deny enforcement of the Board's order.
Pelton Casteel manufactures metal castings in two plants in Wisconsin. Approximately eighty of the company's two to three hundred employees work at the plant in Oak Creek, Wisconsin, which opened in April 1977. Employees in the finishing department normally work an eight-hour shift five days a week, but are at times required to work overtime. Although paid a minimum base rate, employees can make up to three times their base rate by earning additional percentage or incentive pay pegged for each type of metal casting actually worked on. Pelton has a progressive disciplinary system operating on a moving year basis. Only after a sixth instance of discipline within a twelve-month period is an employee subject to discharge.*fn1
John Seward, the employee whose discharge is at issue, was hired by Pelton in April 1963. He was transferred to the Oak Creek plant shortly after it opened, where he and four other employees each ground rough spots off small castings weighing up to thirty-five pounds.
Seward's disciplinary record was good through June of 1977. From 1963 through June 1977 Seward received only two verbal warnings and a one-week suspension and was absent six times without calling in to advise his supervisor. During this period, the United Auto Workers conducted two organizing drives among Pelton's employees. In the first, which culminated in a representation election that the union lost, Seward signed a union authorization card. In the second campaign, in 1975, which ended without the union petitioning the National Labor Relations Board for a representation election, Seward was more active, passing out union literature in front of the plant. None of the discipline imposed on Seward during this period is alleged to have resulted from his union activity.
During the nine months following July 1, 1977, however, Seward was disciplined on six different occasions and ultimately discharged. On July 7, 1977, Seward received a verbal warning for insufficient production on the larger castings, on which he had temporarily been working. On September 8, 1977, Seward received a verbal warning for being absent from his work station outside the authorized break period, an infraction he had allegedly committed often about that time. On October 12, 1977, Seward received another warning, this time for excessive absenteeism. On November 1, 1977, Seward's foreman, Jimmy Konieczka, issued a written warning to Seward, citing him for deficiencies in "his conduct, attitude, attendance and work record." Seward refused to sign the warning, as apparently was normal practice, because he claimed not to understand the language of the warning. On November 14, 1977, Seward was suspended for a week for walking off the job without authorization after working seven of the eight scheduled hours of Saturday overtime. On March 24, 1978, Seward allegedly did not call in, as company policy required, to inform the company that he was not going to be at work that day. After investigation of the incident and a review of Seward's record, Pelton officials fired him.
In the months preceding November 1977, Seward made various complaints about his working conditions. During the summer of 1977, Seward began complaining to Pelton officials about the rates being paid the five small-casting finishers for work done on a type of casting known as an "ajax." On one occasion three or four of the employees together told the general foreman, Herbert Ginner, that they felt that the ajax job rates were too low, with Seward becoming very argumentative. Ginner asked Seward to come to his office to continue the discussion, but Seward instead returned to work. Seward was never disciplined specifically for this incident, and Ginner testified that he forgot about the matter. There was also some evidence that Seward complained about the rates on other jobs and that a few other employees complained individually about rates on castings, including the ajax.
Seward also complained about working overtime, both Saturday work and extra hour during the week. There was testimony that some other Pelton employees also did not like overtime and that they complained separately to Pelton officials. In addition, Seward complained about the practice of rotating a small casting finisher to the large casting side when there were not enough small castings to keep all the small finishers busy for an entire day. Seward contended that, because of a high school injury, working on large castings hurt his back. Seward had a history at Pelton of taking sick leave status because of back problems, but never had produced a doctor's letter requested by Pelton indicating any physical limitations on the work that Seward could perform.*fn2
Between November 1977 and February 1978, a third UAW organizing drive occurred in which John Seward was the principal employee-organizer. According to Seward, he and some other employees decided sometime in October to try to organize a union. Seward called UAW headquarters toward the end of October and helped set up employee meetings with a UAW representative on November 15 and December 15. Union authorization cards were first passed out at the December meeting, and arrangements were made to funnel signed cards back to the union through Seward. Seward also talked to other employees during breaktime and called some of those attending the meetings at home. Seward testified that he continued to receive union cards in January and February, but was not sure that he received any in March. The union received only about two dozen authorization cards during the campaign from employees at both Pelton plants and never filed an election petition with the Board. The evidence was conflicting about when Pelton officials learned of the campaign and of Seward's role in it, and the Administrative Law Judge did not resolve the conflict.*fn3
The employee interviews, the other violation found by the Board, occurred during December. Foreman Konieczka had the approximately fifty employees under him come into his office one at a time. He showed them a union card, asked if they knew its significance, and requested that they read it carefully. During at least one of these interviews, Konieczka showed the employee a letter written by Pelton's president opposing unionization. Konieczka testified that he did not call in Seward because he knew that Seward was pro-union.
On the basis of this testimony, the Administrative Law Judge held that Seward's firing constituted a violation of § 8(a)(1) but that the employee interviews by Konieczka were merely a permissible attempt by the employer to present its position on the union organization campaign. On the discharge issue, the ALJ found that all aspects of Pelton's disciplining of Seward were permissible except its consideration of Seward's "poor attitude and conduct" at the time of the November 1 warning and again at the time of discharge. According to the ALJ, this phrase referred to Seward's protests and complaints throughout the summer of 1977 about the rates paid on the ajax casting and his resistance to mandatory overtime. On several occasions, he found, other employees joined in making protests about the rates. After noting without citation that the Board has held that an employee's protests about his wages and working conditions that are not only to his benefit but also to the common good of all employees are within his § 7 right to engage in concerted activities, the ALJ concluded that Seward's complaints about job rates and overtime were protected activities. These concerted activities were related to Seward's later union activities, according to the ALJ, because mandatory overtime and Pelton's unilateral setting of job rates motivated the ...