Brooks v. N.L.R.B.

Decision Date25 June 1976
Docket NumberNo. 75-1148,75-1148
Parties92 L.R.R.M. (BNA) 3420, 79 Lab.Cas. P 11,505 David E. BROOKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Bayliner Marine Corporation, Intervenor.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before MERRILL and WRIGHT, Circuit Judges, and CRARY, * District Judge.

PER CURIAM:

Petitioner seeks review of a portion of the Board's order, reported at 215 NLRB 11, which concluded that his discharge from employment was not motivated by anti-union animus and consequently did not violate §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158. The Board in reversing the administrative law judge's determination that a violation had occurred found that there was insufficient evidence to support the conclusion that at the time of the discharge the employer was aware of petitioner's union activity.

Petitioner asserts that the Board's order was erroneous because it improperly rejected the judge's credibility determinations. The judge, generally resolving credibility determinations in favor of petitioner, had concluded that the post-discharge rationales for its action offered by the employer were pretextual.

The Board did not disagree. Rather, it focused on the lack of evidence at the hearing to indicate that the employer was aware of petitioner's union activity. In the absence of such an awareness, the discharge could not have violated the Act. NLRB v. Klaue, 523 F.2d 410, 413 (9th Cir. 1975). Thus, the credibility determinations of the administrative law judge and the order of the Board are not, as petitioner suggests, incompatible.

Without rejecting his credibility determinations, the Board drew inferences from the facts contrary to those drawn by the administrative law judge. The record as a whole supports those inferences.

A reviewing court may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Our standard of review is not altered because the Board and the administrative law judge disagreed. NLRB v. Miller...

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5 cases
  • L'Eggs Products, Inc. v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 30, 1980
    ...employer knew about the employee's union activities is a prerequisite to a finding that a discharge violates § 8(a)(3). Brooks v. NLRB, 9 Cir., 1976, 538 F.2d 260, 261; NLRB v. Klaue, supra, 523 F.2d at 413. In this circuit, the test for determining whether a discharge violates § 8(a) (3) h......
  • Baylor University Medical Center v. N.L.R.B.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 14, 1978
    ...J., concurring); Winter, Judicial Review of Agency Decisions: The Labor Board and the Court, 1968 Sup.Ct.Rev. 53-69.17 Brooks v. NLRB, 538 F.2d 260, 261 (9th Cir. 1976); NLRB v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962).18 The amendments to the NLRA which brough......
  • N.L.R.B. v. Pacific Grinding Wheel Co., Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 4, 1978
    ...issue. The standard of review does not change simply because the Board has disagreed with the Administrative Law Judge. Brooks v. NLRB, 538 F.2d 260, 261 (9th Cir. 1976). We must still start with the finding made by the Board and accept it if it is supported by substantial evidence. NLRB v.......
  • N.L.R.B. v. Hospital and Institutional Workers Union, Local 250
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 3, 1978
    ...matter were before it de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Brooks v. NLRB, 538 F.2d 260, 261 (9th Cir. 1976). Where the ALJ relies on witness credibility in reaching a decision, this court will interfere only where the credibility de......
  • Request a trial to view additional results

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