ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD Board Nos. 6-CA-13048, 6-CA-13464 & 6-CA-13267
Before: HUNTER, GARTH,*fn* Circuit Judges, WEBER,*fn** District Judge
1. Champion Parts Rebuilders, Inc. ("the Company") has petitioned for review of an order of the National Labor Relations Board ("the Board").*fn1 The Board has filed a cross-application for enforcement of its order. We have jurisdiction pursuant to sections 10(e) and 10(f) of the National Labor Relations Act ("the Act"). 29 U.S.C. §§ 160(e), 160(f) (1976).For the reasons which follow, we will deny enforcement of part of the Board's order, enforce a part of the order, and remand a portion of the case in light of our decison in Behring International, Inc. v. NLRB, 675 F.2d 83 (3d Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. Sept. 13, 1982) (No. 82-438).
2. The Company engages in the manufacture, repair, and wholesale distribution of automobile parts. This proceeding involves three of the Company's plants in its Northeast Division, two located in Mill Hall, Pennsylvania, and one located in Lock Haven, Pennsylvania. The manager of the Northeast Division is James Cameron. Reporting to him are plant managers James Cottel, Bruce Williams, and Ron Rupert. Cameron reports to the vice-president of manufacturing, Donald Savini, and the Company's president, Charles Schwartz, both of whom are located at the Company's main office in Chicago.
3. The Company employs approximately 325 employees in its Northeast Division. Those employees have been represented by the International Brotherhood of Electrical Workers, Local 1592, AFL-CIO ("the Union") for the past 30 years. In April of 1977, the Union leadership was replaced with new union officers including Michael Smith, president, and Henry Longo, vice-president. As a result of that change in leadership, the relationship between the Company and the Union became considerably more hostile. For example, between 1969 and April of 1977, there were 53 grievances and no unfair labor practice charges filed against the Company. From April of 1977 until July of 1980, however, 210 grievances and 18 unfair labor practice charges were filed. App. at 506.
4. The petition for review and the cross-application for enforcement involve the Board's findings that the following actions were unfair labor practices under the Act: (A) the Company's discharge of employee Leona Peters, (B) the Company's issuance of warning notices to employees Henry Longo and Bertha Martin, (C) the Company's issuance of warning notices to chief shop steward Barry Hill, (D) incidents involving Union use of Company telephones and photocopying machines, and (E) the Company's unilateral change in its procedure for allowing employees to copy doctor's excuses on Company photocopying machines. We will consider each alleged unfair labor practice charge in turn. We must accept the Board's findings of fact if they are supported by substantial evidence on the record taken as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951), but we have plenary review as to questions of law, see Allied Chemical & Alkali Workers of America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182 (1971).
A. The Discharge of Peters
5. Leona Peters was hired by the Company in August of 1977. During her employment Peters filed five grievances and one unfair labor practice charge against the Company. Three of those grievances were directed against her supervisor Calvin Allen for using abusive language toward her, for harrassing her, and for issuing a warning notice to her for excessive absenteeism. In the instant case Peters testified that Allen had made numerous derogatory comments concerning her Union activities. For example, Peters testified that early in February of 1980, Allen asked her: "When are you going to wake up and quit filing so many grievances -- and wake up to what the company can do for you, instead of being so much for the Union?" App. at 239. She testified that Allen "told me that I would end up getting fired if I didn't." Id. Soon thereafter Peters filed her third grievance against Allen.
6. On February 20, 21, and 22, 1980, Peters was ill and did not report to work. There are two Company rules regarding absence from work because of illness. One plant rule states that employees who are ill may be discharged if they fail to call in on two successive days of absence. An addendum to the plant rules also provides as follows:
On the Employee's third day off work, he/she must call the Employee Service Clerk and request a Medical Leave of Absence. . . . Any employee not abiding by the above will be subject to disciplinary action, up to and including discharge.
7. Peters did call in on February 20 and February 22 to report that she would be absent from work. She did not, however, secure a medical leave of absence on February 22 as the Company's rule requires. When Peters returned to work on Monday, February 25, Allen told her that he thought she was terminated for failure to obtain a medical leave of absence. Allen and Peters went to Rupert's office. Although Rupert did not fire Peters at that meeting, later in the morning he did terminate her.
8. The Company maintained that it fired Peters because she violated the Company's written rule requiring employees to secure a medical leave of absence on their third day of absence from work. The General Counsel argued that the Company discharged Ms. Peters because of her Union activities in violation of sections 8(a)(1), 8(a)(3), and 8(a)(4).*fn2 The ALJ concluded that the General Counsel had failed to prove by a preponderance of the evidence that Peters was discharged in violation of the Act.
9. The Board reversed finding that the Company violated sections 8(a)(1) and 8(a)(3) of the Act.*fn3 Citing Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982), the Board concluded that the Company "has failed to meet its burden of establishing that Peters would have been discharged even in the absence of her protected activities." App. at 35.
10. We have rejected the Board's Wright Line formulation of the burden of proof in discriminatory treatment cases. In Behring International, Inc. v. NLRB, 675 F.2d 83 (3d Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. ...