On Petition for Review and Cross-Application for Enforcement of a Decision and Order of the National Labor Relations Board, (Board No. 4-CA-12826)
BEFORE: SEITZ, ADAMS, and STAPLETON, Circuit Judges
STAPLETON, Circuit Judge:
D & D Distribution Company (D & D) appeals an order of the National Labor Relations Board (Board) directing that employee Rick Hock be reinstated and compensated for any loss of earnings. The Board seeks enforcement of its order. The Board found that Hock was fired in retaliation for engaging in "concerted activities" and that D & D thereby committed an unfair labor practice under section 8(1)(a) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1) (1982). We hold that the Board's decision was supported by substantial evidence and is in accordance with the applicable law.
We have jurisdiction to review the Board's order under 29 U.S.C. § 160(f) (1982). Jurisdiction over the Board's application for enforcement is conferred by 29 U.S.C. § 160(e) (1982).
Factual determinations of the Board "if supported by substantial evidence on the record considered as a whole . . . [are] conclusive." 29 U.S.C. § 160(e) (1982). The Supreme Court addressed the meaning of "substantial evidence" in Universal Camera Corp. v. Labor Board, 340 U.S. 474, 477, 95 L. Ed. 456, 71 S. Ct. 456 (1951):
"substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 . Accordingly, it "must do more than create a suspicion of the existence of the fact to be established. . . . it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 83 L. Ed. 660, 59 S. Ct. 501 .
Review of the Board's application of legal precepts to facts is plenary. Allbritton Communications Co. v. NLRB, 766 F.2d 812, 817 (1985), cert. denied. 474 U.S. 1081, 106 S. Ct. 850, 88 L. Ed. 2d 891 (1986).
D & D contends that the Board's findings are not supported by substantial evidence. In particular, D & D challenges the Board's findings that: 1) Hock's actions were "concerted activities" under § 7 of the NLRA, 2) D & D had knowledge of Hock's protected activities, and 3) Hock's termination was motivated, at least in part, by retaliation for protected activities. D & D also argues that the Board erred when it declined to find that Hock would have been discharged for tardiness and absenteeism even if he had not engaged in protected activity.
The following facts were found by the Administrative Law Judge (ALJ) and accepted by a majority of the members of the Board. Chairman Dotson dissented, concluding that there was insufficient evidence to support the finding that D & D had knowledge of Hock's protected activities.
Hock was hired by D & D as a warehouse employee in January 1979. Beginning in early 1981, Hock's attendance and promptness record began to deteriorate. On March 24, 1981, after Hock had been late or absent on over half on the workdays during the first three months of the year. Donald Masemer, D & D's administrative director, specifically warned Hock about his habitual tardiness. Although Hock denied that such a verbal warning was issued, the ALJ credited Masemer's account. On November 16, 1981, after two absences and six late arrivals on eight consecutive days, Masemer issued another warning, this time having Hock sign a memorandum regarding promptness and absenteeism. The memorandum stated in part: "An improvement in your attendance is necessary. Otherwise appropriate disciplinary actions will need to be administered." [169a].
Masemer testified that he had issued verbal warnings to Hock on several occasions after the November written warning. Hock denied that these warnings were given, and the ALJ credited Hock.
Hock testified that in late January 1982 he was given a good job performance review by Masemer and was offered the position of assistant foreman which he declined to take. The ALJ credited Hock's description of this performance review and offer of promotion over the denials of the D & D company officials.
D & D's employer handbook contains a statement concerning absence and tardiness. It provides that, upon the first offense, a verbal warning is given. Upon the second offense, a written warning is issued. After the third offense, the employee is subject to immediate discharge. The ALJ found that in practice "the procedure was not so rigid." [173a] He noted that Masemer's November warning threatened "appropriate disciplinary actions" rather than termination.
Beginning in late 1981, Hock began to have conversations with two of his coworkers. Mike Zorbaugh and Troy Shenberger, concerning the adequacy of their wage rates. He complained that the twenty-five cents per hour raise given in April 1981 was too small and stated that they deserved a one dollar per hour raise in April 1982, when the wages would next be reviewed. Similar conversations among these three coworkers continued, and in March 1982, approximately one week before Hock was fired, Hock recommended that they contact a union representative in the event their April pay raise was not satisfactory. Foreman Schaefer was within earshot on the warehouse floor when some of these conversations took place, and ...