NLRB v. Tom Johnson, Inc., 21027.

Decision Date17 May 1967
Docket NumberNo. 21027.,21027.
Citation378 F.2d 342
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. TOM JOHNSON, INC., Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Harold B. Shore, Attys., NLRB, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for appellant.

Peter I. Breen, Reno, Nev., for appellee.

Before POPE, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order. Two questions are presented. (1) Whether respondent violated section 8(a) (1) and (5) of the National Labor Relations Act as amended (29 U.S.C. § 158(a) (1) and (5)) by bargaining directly with certain of its employees and by unilaterally changing its employees' conditions of employment without consulting the union at a time when the union was the authorized bargaining representative, and by threatening the employees with loss of overtime employment, and (2) whether the respondent violated section 8(a) (3) and (1) of the Act (29 U.S.C. § 158(a) (3) and (1)) by discharging two employees because they sought union support for their grievances. We conclude that the order must be enforced.

Respondent is a painting contractor and had entered into a collective bargaining agreement with a local union of the Painters' Union which provided, among other things, that double time would be paid for work on weekends and holidays, with certain exceptions. While this agreement was in effect, the company's manager conducted a meeting of all of the employees. He told them that he had been informed by the owners of a concern with which respondent had a contract, on a cost plus basis, to do certain painting, paper hanging and other work, that the owner would no longer pay respondent double time for overtime work. The manager of respondent told the employees that if they wanted further overtime work they would have to sign an agreement stating that they would work for time and a half instead of double time, and that if they refused to sign, he would hire additional employees and thereby eliminate overtime. He circulated among the employees a statement to be signed by them whereby they agreed to work for time and a half instead of for double time. The Board concluded that this conduct on the part of respondent violated section 8(a) (5), that is, it was a refusal to bargain collectively with the representatives of the employees, and section 8(a) (1), that is, it was an interference with or coercion of employees in the exercise of their collective bargaining rights guaranteed by section 7 (29 U.S.C. § 157).

Respondent does not now deny that the events described took place. Its position is that its conduct was at most a breach of the collective bargaining agreement which might subject it to a suit under section 301 of the Labor Management Relations Act, (29 U.S.C. § 185). We think that respondent's position is contrary to the decision of the Supreme Court in NLRB v. C & C Plywood Corp., 1967, 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486. The cases are quite similar. There is a factual difference in that in the C & C Plywood Corp. case the employer unilaterally raised wages while a collective bargaining agreement was in effect, while in the present case the employer undertook unilaterally to lower them. This factual difference, however, does not in our opinion have any legal significance. If anything, this is a stronger case than the C & C Plywood Corp. case because here the employer not only attempted unilaterally to change the wage rates provided for in the agreement, but he also attempted to have the employees, individually, sign agreements with him embodying the change. If what occurred in the C & C Plywood Corp. case is a breach of the obligation to bargain, in violation of section 8(a) (1) and (5), then a fortiori, what happened in this case is such a breach.

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  • Penasquitos Village, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 30, 1977
    ...the Board's findings of fact if they are contrary to the administrative law judge's factual conclusions. NLRB v. Tom Johnson, Inc., 378 F.2d 342, 344 (9th Cir. 1967). This more rigorous review follows necessarily from the Supreme Court's statement in Universal Camera Corp. v. NLRB, supra, 3......
  • N.L.R.B. v. Florida Medical Center, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 17, 1978
    ...the evidence and findings of the Board more critically than it would if the Board and the ALJ were in agreement. N. L. R. B. v. Tom Johnson, Inc.,378 F.2d 342 (9 Cir. 1967). When the Board's decision rests primarily upon a divergent view of evidentiary facts rather than a difference in over......
  • Leeds & Northrup Company v. NLRB
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 20, 1968
    ...Co., 199 F.2d 713 (2 Cir. 1952); General Telephone Co. of Florida v. NLRB, 337 F. 2d 452 (5 Cir. 1964); NLRB v. Tom Johnson, Inc., 378 F.2d 342 (9 Cir. 1967). Similar cases and their varying views appear in Annot., Discontinuance of Previous Employee Benefits not Covered in Collective Barga......
  • NLRB v. Bush Hog, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 26, 1968
    ...& Metal Co., 142 N.L. R.B. 882, enforced as modified, 331 F. 2d 965 (5 Cir. 1964); Tom Johnson, Inc., 154 N.L.R.B. 1352, enforced, 378 F.2d 342 (9 Cir. 1967). Communicated through radio dispatch and letter: Red Top Cab & Baggage Co., 145 N.L.R.B. 1433, Posted in language other than English:......
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