On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Before Sprecher and Cudahy, Circuit Judges, and East,*fn* District Judge.
The Heist Corporation (Company) dismissed an employee, Michael Mitchell (Mitchell), who had been a union steward prior to and during a wildcat strike by certain employees of the Company. The Administrative Law Judge (ALJ), following a union charge of unfair labor practice against the Company, found that the Company's dismissal of Mitchell violated § 8(a)(3) and (1)*fn1 of the National Labor Relations Act, and ordered Mitchell's reinstatement with back pay. The Board, by a two-to-one majority, adopted without comment the findings and decision of the ALJ. 250 NLRB No. 185.
The Company seeks review of the Board's decision, and the Board cross-appeals for enforcement. We note jurisdiction under 29 U.S.C. § 160(f) and grant enforcement.
A rather extensive delineation of the pertinent facts is necessary in order to reach a proper disposition of the parties' contentions.
Mitchell went to work for the Company, which owns several plants, in 1976 and became a union steward in 1978. He filed numerous employee grievances during his tenure as a steward, but was no more active than previous stewards. Although Mitchell had locked horns with the Company's area representative, William Sheehan, on occasion, the ALJ found no lingering hostility from those incidents at the time of the strike.
In February of 1979, Sheehan posted on the bulletin board new seniority lists reclassifying and essentially demoting six plant employees in accordance with the Company's interpretation of the recently concluded collective bargaining agreement. Late that night an employee telephoned Mitchell at his home and informed him that several employees wanted to obtain from Mitchell a list of employee telephone numbers so that they could ascertain the feelings of the plant employees concerning the demotions. In response to a question, Mitchell indicated that he did not know the union's position on the matter because he had not yet conferred with the union's business agent, and urged the employees to do nothing until the union had been consulted. The employees insisted upon receiving the phone numbers, and Mitchell agreed to supply them. Shortly thereafter, the employees arrived at Mitchell's home and informed him they wanted to organize a "show of strength." Mitchell advised them, instead, to utilize the contractual grievance procedures. They persisted and Mitchell permitted them to phone the other plant employees from his home because, he told them, he "wanted to be in on it" and wanted "to know what was going on."
The next morning some 20 employees gathered at the plant to confront Sheehan. Sheehan called Mitchell into his office and told him that he would not meet with the employees unless they designated their assemblage as a "union meeting." Mitchell delivered that message to the workers, who agreed to the condition. Sheehan then appeared and Mitchell and several other employees presented their grievance. Sheehan responded that the demotion decision had been made at a higher level in the Company, and that it could not be changed at the plant level.
The next day several employees organized a meeting of the Company's workers for the purpose of conducting a strike vote. Mitchell attended the meeting, and when he was asked to state his views on the strike vote, urged the employees not to strike but to instead allow the union to handle the matter through the contractual grievance procedure. He also said that, at the least, the employees should obtain legal counsel before taking action on their own.
The employees voted to strike and, unaccompanied by Mitchell, went to the plant and set up a picket line. Later that night Mitchell went to the plant upon the request of a striking employee who told him that several employees and the police were already there. At the plant, Mitchell explained to an inquiring Sheehan that the employees had voted to strike.
The police, after turning down a Company foreman's request that they arrest Mitchell requested Mitchell to move the employees off the Company property. Mitchell complied.
The workers picketed the plant for two and a half days until the Company obtained an injunction ordering them back to work. Mitchell was present on the picket line "on and off" for about eight hours a day. During the strike, the Company and the union both communicated with the picketers through Mitchell. Mitchell received three calls from the union during the strike, and delivered the union's messages that the strike was illegal, in violation of the contract, and not sanctioned by the union. Mitchell also told the strikers that the union wanted them to go back to work and that they should go back to work so that they would not be discharged. They refused.
Mitchell and all of the picketers were requested individually by the Company to return to work, and they all refused. Mitchell delivered the same request to the picketers on behalf of the Company, and it was again refused.
At no time during the course of the strike did Mitchell urge the employees to remain on strike. Instead, he urged the employees to return to work ...