604 F.2d 1180 (9th Cir. 1979), 78-3173, N.L.R.B. v. Apollo Tire Co., Inc.

Docket Nº:78-3173.
Citation:604 F.2d 1180
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. APOLLO TIRE CO., INC., Respondent.
Case Date:August 14, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1180

604 F.2d 1180 (9th Cir. 1979)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

APOLLO TIRE CO., INC., Respondent.

No. 78-3173.

United States Court of Appeals, Ninth Circuit

August 14, 1979

Page 1181

Elliott Moore, Patricia C. Matthews, NLRB, Washington, D.C., for petitioner.

Norman H. Kirshman, Kirshman & Rich, David L. Cohen, Kirshman & Rich, Marina Del Rey, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before WRIGHT and KENNEDY, Circuit Judges, and HALL, [*] District Judge.

EUGENE A. WRIGHT, Circuit Judge:

The issue is whether the National Labor Relations Board (the Board) erred in excluding evidence that the employees charging unfair labor practices by respondent Apollo Tire Co., Inc. (the company) are undocumented aliens not entitled to work and reside in the United States. We hold that employed aliens, regardless of whether or not they have working papers, are "employees" as defined in Section 2(3) of the National Labor Relations Act (NLRA). Consequently, we find no error and enforce the Board's order.

FACTS

In March, 1977, Hilda Niz, employee Lobos' mother, complained to company General Manager Bostanian that her son had not received overtime pay due him. She stated that, if Bostanian did not pay it, she would go to the "Labor Commission."

Shortly thereafter, Bostanian asked employee Figueroa, Niz' husband, if it was true that his wife had complained to the Department of Labor, and stated that if so, he would have her killed.

On April 18, Niz complained to the Wage and Hour Division of the Department of Labor. She received several complaint forms, printed in Spanish, to distribute to employees. Seven employees returned the complaints to the compliance officer, alleging failure to pay overtime.

Page 1182

On April 22, of the seven who filed complaints six were laid off. 1 The company cited a decrease in sales and consequent buildup in inventory as the reason for the layoffs. Manug, 2 the foreman, testified before the Administrative Law Judge that he chose to lay off those who were least productive, but then gave other reasons for selecting the six. Each laid off employee, except one who spoke little English, testified he was told, among other things, that he was being laid off because he signed papers for the "Labor Commission."

Within a few days, Bostanian decided the company could return to full production and on April 30 he sent letters to the laid off employees asking them to return to work. By May 3 two of the six had done so.

On May 4, the compliance officer from the Wage and Hour Division interviewed Bostanian. The latter made it clear that he knew which employees had complained. That day two more of the laid off employees reported for work but were told that it was too late to start and to report the following day. When they did so, Bostanian refused to rehire them.

The Board found violations of Sections 8(a)(1) and 8(a)(4) of the Act (29 U.S.C. §§ 158(a)(1) and (4)). Its order requires the Company to cease and desist from:

(a) laying off, refusing to reinstate, or otherwise discriminating against employees because they complained to the Department of Labor;

(b) telling employees they would be laid off or would not be rehired if they so complained;

(c) threatening physical harm to employees' relatives who assist in filing such complaints; and

(d) in any other manner interfering with, restraining or coercing employees in the exercise of their rights under Section 7 of the NLRA. 3

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