On Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board
BEFORE: GARTH and SLOVITER, Circuit Judges and FiSHER, District Judge*fn*
This case is before us on a petition of Hanlon and Wilson Company ["H&W"] for review, and cross-application by the General Counsel for enforcement, of an order of the National Labor Relations Board ["NLRB" or "Board"] which found H&W to have committed unfair labor practices in violation of section 8(a)(1) and (3) of the National Labor Relations Act (as amended), 29 U.S.C. § 158(a)(1) & (3) (1976) ["Act"].
This appeal arises out of three unfair labor practice charges filed with the Board and consolidated for hearing. One of the charges concerns five employee terminations and two suspensions which occurred in November and December 1980 under H&W's absenteeism policy. The other two charges concern employee Mark Cole and involve incidents occurring in February and March 1981. Following four days of hearings, the Administrative Law Judge ["ALJ"] concluded that:
1. the discharge of Donald Rugito, Charles Pershing, and Gregory Krivakuca violated section 8(a)(3) and (1) of the Act because H&W showed "disparate treatment" of these three employees, discriminating against them because of their protected activities by rejecting "valid excuses" for multiple absences.
2. the suspension of Mark Cole violated section 8(a)(3) and (1) of the Act since he was suspended "because he had engaged in protected activities."
3. by creating the impression of surveillance of employees' union activities H&W violated section 8(a)(1) of the Act.
4. all other allegations in the complaint had not been substantiated.*fn1
(App. 27). By decision and order dated September 21, 1983, the Board affirmed the rulings, findings, and conclusions of the ALJ in all material respects.
Having carefully examined the entire record in this case, we conclude that there is substantial evidence to support the Board's findings as to the suspension of Mark Cole, improper surveillance, and the discharge of Donald Rugito, and we will enforce the Board's order as to Rugito and Cole*fn2 and the cessation of surveillance activities.As to Charles Pershing and Gregory Krivakuca, we conclude that there was not substantial evidence in the record to support the Board's findings and we will not enforce the Board's order as to Pershing or Krivakuca. Rather, we will grant H&W's petition for review as it pertains to those two individuals.
Petitioner H&W is a Pennsylvania corporation engaged in the manufacture and sale of aircraft exhaust systems and related products. As relevant to this appeal, the forty production and maintenance employees at H&W's Penn Township, Pennsylvania plant were represented for collective bargaining purposes by H&W Employees Union Local 711. The terms and conditions of employment for bargaining unit employees were governed by a collective bargaining agreement between H&W and Local 711 which became effective on February 8, 1980.The agreement was supplemented by H&W workrules and safety rules which have been in effect since 1966. The validity and effect of these rules is not in dispute. The rules were posted in the workplace and a copy given to each employee individually by the Personnel Director at the time of hiring. At the Union's request, these rules were reviewed by both parties at the time the latest contract was negotiated, and on February 8, 1980, the work rules were repromulgated and the Union was told that the rules would be thereafter enforced on a stricter basis (App. 539).
Of particular importance to this appeal is Rule 30, concerning progressive discipline for excessive absenteeism. Footnote 1 to Rule 30 explains the "Criteria for Habitual Absenteeism."*fn3 In the instant proceedings, we are primarily concerned with the provision of the work rules which provides for an employee's discharge if there has been an accumulation of nine unexcused absences within the calendar year. According to the unrebutted testimony of H&W Personnel Manager Betty Barron, "[w]e decided in the year 1980 we would clamp down on all phases of the work rules. And this included not only absenteeism, which was one of our problems." (App. 536). Her testimony indicated that H&W's absenteeism policy as outlined in Rule 30 is administered in a consistent, albeit somewhat informal, manner.*fn4 An employee's third unexcused absence triggers the disciplinary action, and there is usually a time lag between the third absence and the preparation of the disciplinary slip because it is H&W's policy to give employees a "reasonable time" (a "couple of weeks") in which to bring in an excuse for a given absence (App. 523), although ninety percent or more of the employees were said to bring in excuses the next day or the day after (App. 579).
This absenteeism policy and procedure provides the focal point of the majority of the unfair labor practice charges which make up the substance of this appeal. Following the resignation or dismissal*fn5 of four key Union officers in September 1980, the Union appointed temporary Union officials to file grievances on behalf of the discharged officers. The record reveals that all of those sought to be or actually appointed to Union office in the Fall of 1980 had serious absenteeism problems,*fn6 and two of them (Rugito and Krivakuca) had been terminated previously for absenteeism and eventually rehired. As relevant to this appeal, the General Counsel argued -- and the ALJ agreed -- that the subsequent terminations of Rugito, Krivakuca, and Pershing and the suspension of Cole which ...