On Application for Enforcement of an Order of The National Labor Relations Board Case No. 82-2866.
Bauer and Coffey, Circuit Judges; Celebrezze, Senior Circuit Judge.*fn* Coffey, Circuit Judge, dissenting in part.
CELEBREZZE, Senior Circuit Judge.
The National Labor Relations Board (Board) seeks enforcement of its order against Harrison Steel Castings Company (Company) pursuant to 29 U.S.C. Sec. 160(e). The Board's order, which is reported at 262 N.L.R.B. 59 (1982), requires the company to remedy several unfair labor practices to cease and desist from any further unfair labor practices, and to post an appropriate notice in its plant. It also requires a second representation election to be held. Although the Board found that the Company committed multiple violations of the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., the Company challenges only a portion of the Board's order. Consequently, we relate only those facts which are necessary for discussion of the issues briefed by the Company.
The Company is a manufacturer of steel casting which is located in Attica, Indiana; its principal customer is Caterpillar Tractor, which purchases nearly 85 percent of the Company's output. The Company employs approximately 1,000 workers in its operations.
On March 7, 1979, the United Automobile, Aerospace and Agricultural Implement Workers of America (Union) notified the Company that the Union was attempting to organize the Company's production and maintenance employees. The Union filed a petition for a representation election with the Board on April 6, 1979, and conducted its first organizational meeting. In the month preceding the election, the Union and the Company presented actively their respective positions on unionization. The Company conducted, during working hours, several "captive audience" meetings for groups of employees. The Company also published a special election edition of the plant newsletter which detailed the Company's anti-union position. In this newsletter, the Company made the following assertions:
If you would be called out on strike by the Union during contract negotiations, such a strike is called an economic strike and all employees not reporting to work can be permanently replaced. A company cannot fire employees for striking but it can permanently replace them. Permanent replacements hired for strikers are allowed by law to keep the striker's job even after the strike ends. Thus, employees who go on strike and are replaced have no job to return to when the strike ends.
Some of the Harrison Steel Castings Company's competitors are non-union and some are located in the Southern part of the United States where wage rates are traditionally lower, and if we become union the Company may become non-competitive with a resulting loss of business and jobs. This loss of business could come about through increased cost of operation, not due to wage or benefit increases to employees but rather due to the inherent increased cost in operating a union plant. At union companies much time is spent on grievance processing, contract negotiations, and dealing with the Union, which add to the cost of operation, but do not put any benefits in the employee's pocket.
In a union company there is the ever present possibility of a strike. Our customers rely upon dependable delivery of goods and services, and the risk of a strike may force our customers into looking for alternative suppliers, which could lead to a loss of jobs at our plant. When you consider your vote for or against a union examine that choice in terms of your own personal best interests rather than what is good for the employer.
In addition to presenting its views on unionization, the Company also engaged in several instances of anti-union conduct which the Board found to be illegal.*fn1 On two occasions, the Company prohibited employees from distributing pro-union literature in public areas near the plant; distribution of pro-union materials was also prohibited during non-work periods in non-work areas of the plant. Company foremen also interrogated and threatened pro-union employees. Employees wearing pro-union buttons were denied regularly scheduled overtime and at least one active supporter of the Union was transferred from the day shift to the night shift in retaliation for supporting the Union. This employee eventually was discharged because of her unwillingness to work the night shift.*fn2
The Company also discharged three other employees: Debra Tornquist, Inez Tornquist, and Dan Watkins. The Tornquists were office employees who worked in the payroll department, and were not members of the proposed bargaining unit. On May 8, 1979, a "company appreciation" rally was conducted by employees who opposed the Union. One of the organizers, Sue Ward, canvassed the clerical employees to determine whether they planned to attend the rally. On Monday, May 7, 1979, she asked the Tornquists whether they would be attending; both Inez and Debra indicated that they would not attend because they had personal matters to attend to on Tuesday afternoon, when the rally was scheduled. The Tornquists worked the remainder of Monday morning, but did not return to work Monday afternoon. The Tornquists had informed Tom Gossett, their superior, that they would not be returning on Monday afternoon. They did not, however, inform the head of their department, Robert Blickenstaff, that they would not be returning in the afternoon. At approximately 4:30 p.m. on Monday afternoon, Blickenstaff called Inez Tornquist and indicated that she and Debra had been discharged.*fn3
Dan Watkins was employed by Harrison Steel as an electrician. Watkins was one of the leaders of the Union organizing effort, was a Union observer at the representation election,*fn4 and was involved in filing objections to the election with the Board. Watkins worked on the 11:00 p.m. to 7:00 a.m. shift as a maintenance man. He was responsible for repairing any equipment breakdowns; according to Watkins' foreman, Watkins and his co-worker, Grant Campbell, were free to leave the maintenance work area, if no breakdowns occurred, so long as they informed someone where they could be contacted.
On September 17, 1979, Watkins arrived for work at approximately 9:30 p.m.*fn5 On his way into the plant, he stopped to speak with the plant guard, Lillian Sexton. According to the credited testimony, Watkins punched his timecard at 9:42 p.m., when he saw his co-worker Campbell arrive. Within minutes, he also punched a card for Campbell and gave it to Campbell as he passed by the guardhouse. Watkins testified that he informed Campbell that he was available for work and could be contacted at the guardhouse if equipment repairs were necessary. Watkins apparently left the guardhouse at about 10:30 p.m.; he and Campbell were not needed for repairs until approximately 11:00 p.m.
Watkins was ill for several days, and did not report for work again until September 20, 1979. At the end of his shift, he was called into the office of the company president, Kenneth Freed; at that meeting, Watkins admitted that he had clocked in at the guardhouse rather than the maintenance department and that he had stayed at the guardhouse and talked with the guard for nearly an hour after he had punched his card. Later that day, Watkins was discharged.
The Union lost the election by a vote of 418 to 390. The Union filed objections to the conduct of the election, as well as several unfair labor practice charges. The Board's administrative law judge found that the Company was guilty of several unfair labor practices; specifically, it found that the statements made by the Company concerning the effects of unionization were unduly coercive, that the discharges of the Tornquists were the result of their refusal to attend the pro-company rally, and that the discharge of Watkins was the result of his pro-union activities. The Board accepted these conclusions, although it rejected the ALJ's rationale for finding the Company's public statements to be unduly coercive. The Company does not challenge, in this court, the remainder of the ...