Dreis & Krump Mfg. Co. Inc. v. N.L.R.B.
| Decision Date | 03 November 1976 |
| Docket Number | No. 75-2068,75-2068 |
| Citation | 544 F.2d 320 |
| Parties | 93 L.R.R.M. (BNA) 2739, 79 Lab.Cas. P 11,711 DREIS & KRUMP MANUFACTURING COMPANY, INC., Petitioner-Appellant, v. The NATIONAL LABOR RELATIONS BOARD, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ronald Wilder, Chicago, Ill., for petitioner-appellant.
Elliott Moore, Deputy Associate Gen. Counsel, Charles P. Donnelly, Carl L. Taylor, Attys., N.L.R.B., Washington, D. C., for respondent-appellee.
Before SPRECHER and WOOD, Circuit Judges, and WOLLENBERG, Senior District 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, 1 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. 2 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 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:
personal view of the grievance. 3 The Union supported Mayer's contention that he had not been negligent, but the grievance remained unresolved
ATTENTION ALL WORKERS
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 self-help. 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. 4
The Board 5 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 6 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 of Mayer, as well as the payment to him of any damages necessary to make him whole for any loss of pay suffered as a consequence of the Company's discriminatory conduct.
The Company petitions this court for review of the Board's order and the Board cross-petitions for its enforcement.
As a preliminary matter, we note that the Company has not contested that portion of the Board's order declaring promulgation of the "no solicitation" rule an unfair labor practice under Section 8(a)(1) in either its brief or oral argument. On its face, the rule is unrestricted in its application to employee-related activities and is clearly susceptible of overbroad interpretation and enforcement. Accordingly, the Board's finding that maintenance of the "no solicitation" rule is an unfair labor practice is appropriate and we enforce it without further discussion. Riverside Press, Inc. v. N.L.R.B., 415 F.2d 281, 284-85 (5th Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94 (1970); N.L.R.B. v. Tennessee Packers, Inc., 344 F.2d 948, 949 (6th Cir. 1965).
We next consider the essential issue in this case: whether the record, considered as a whole, contains substantial evidence to buttress the determination of the Board that the discharge of Mayer contravened his Section 7 rights, 7 in violation of Sections 8(a)(1) and (3) 8 of the National Labor Relations Act. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The arbitrator's primary basis for sustaining Mayer's discharge was his finding that Mayer, in bypassing the established grievance procedure as a means of resolving his claim, violated the collective bargaining agreement. 9 The Board rejected his determination, concluding instead that Mayer sought "not to disparage the established procedure but to enhance it." The question of whether Mayer's activity is protected and concerted, as contemplated by Section 7, is therefore dependent in the first instance upon a determination of whether the leafletting served to augment or to abort the existing grievance procedure.
Section 7 affords employees basic rights of self-organization and self-determination in an industrial setting, through the means of selecting representation to participate in collective bargaining with their employer. Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 61-62, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975). The Act does not tender protection to activity by employees, albeit concerted, which abandons the principles of exclusive representation by circumventing established grievance procedures, and attempts instead to bargain with the employer regarding working conditions on separate terms. We do not disaffirm the existence of a national policy which favors resort to grievance procedures to settle labor disputes. However, an employee, on the basis of existing authority, can be charged with contravention of an established grievance procedure only where he deliberately spurns Union auspices and instead attempts to directly initiate negotiations with his employer regarding working conditions. Emporium, supra; Moore v. Sunbeam Corp., 459 F.2d 811 (7th Cir. 1972); United Parcel Service, Inc., 84 L.R.R.M. 1098, 205 N.L.R.B. 991 (1973).
This situation is not present in the instant case. Mayer's grievance was pending, in accordance with established contractual procedures, and, as the Board found, the message he distributed to his fellow employees was consistent with orderly resolution of that grievance. Mayer sought no separate pact or negotiations with his employer; rather, his activity was directed toward eliciting the support of his co-workers in the resolution of his grievance. Had Mayer not been discharged as a result of his leafletting activity, no reason appears, and none is advanced by petitioner, why processing of Mayer's grievance could not have progressed in an orderly manner to the next stage of the agreed-upon grievance mechanism.
By contrast, the employees in Emporium, supra, and Moore, supra, sought through the exertion of economic pressure to compel their respective employers to bargain separately with them. In both cases, the employees directed their activities toward their employers' customers through urging a boycott of the employers' products, and acted wholly contrary to the advice of the Union, their designated representatives in collective bargaining, concerning the merits of their specific grievances. Mayer attempted no commercial boycott of the Company's goods and directed his printed remarks solely toward his fellow employees. Further, Mayer enjoyed full Union support in the prosecution of his particular grievance.
It is urged by petitioner that the leaflet distributed by Mayer disparages the...
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