Electromec Design and Development Company v. NLRB

• Decision Date: 27 March 1969
• Docket Number: No. 22464.,22464.
• Citation: 409 F.2d 631
• Parties: ELECTROMEC DESIGN AND DEVELOPMENT COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

409 F.2d 631 (1969)

ELECTROMEC DESIGN AND DEVELOPMENT COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 22464.

United States Court of Appeals Ninth Circuit.

March 27, 1969.

R. L. Hofvendahl (argued), of Cottrell, Hofvendahl & Roessler, San Jose, Cal., for petitioner.

Leon M. Kestenbaum (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence M. Joseph, Atty., Washington, D.C., Roy O. Hoffman, NLRB, San Francisco, Cal., for respondent.

Before JERTBERG and CARTER, Circuit Judges, and BYRNE,^* District Judge.

JAMES M. CARTER, Circuit Judge.

Electromec Design and Development Co., Inc. (hereafter Electromec), petitions to review an order of the National Labor Relations Board, pursuant to Sec. 10(f) (29 U.S.C. § 160(f)), of the National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519), and the Board petitions to enforce the order under Sec. 10(e) of the Act, 29 U.S.C. § 160 (e). The Board's decision appears at 168 N.L.R.B. 107, 67 L.R.R.M. 1067 (1967).

THE QUESTIONS PRESENTED

Two questions are presented; (1) whether the four discharged employees, whose reinstatement was ordered by the Board, engaged in concerted action which was protected by the Act, and whether there was substantial evidence to support the Board's Findings of Fact, Conclusions of Law and Order; and (2) whether the denial of Electromec's motion to take depositions prior to hearing before the trial examiner, was a denial of due process and reversible error.

DISCUSSION

(1) Concerted action under the Act; the Board's Findings and Order.

In substance, the trial examiner found concerted action, but concluded it was not protected under Sec. 8(a) (1) of the Act, 29 U.S.C. § 158(a) (1). The Board approved the findings of the trial examiner as to the facts but concluded the employees' concerted action was protected under the Act, and that Electromec was therefore guilty of an unfair labor practice. Electromec was ordered to offer reinstatement to the four discharged employees and to tender back pay.

We have no trouble in determining that the findings were supported by substantial evidence. A summary of the facts follows:

Robert Saxer, Davy Mooney, Wilfred Gilbert and Charles Pickelman were tool and die makers employed by Electromec. During February 1966, a representation election was held in which a union was rejected. During March 1966, Pickelman, Davy Mooney and Gilbert, along with two other tool and die men met with the corporation's president, Padgett, and requested that Good Friday be treated as a holiday; the request was granted. Mid July 1966, Saxer asked the shop manager for a raise and received a 5 cent per hour increase; he expressed his dissatisfaction. A request six weeks later for a further increase was refused. Saxer then urged other workers to ask for raises. Davy Mooney, during September 1966, made a request for a pay raise. Shortly after Labor Day, Saxer asked the machine shop manager, Porschien, about the method of computing holiday pay for a worker named Ford. Porschien asked Saxer whether he was "some sort of committeeman or something for the group." Saxer replied, "I am trying to find out what happened — if what sic happens to one man in the shop sic can happen to another man. We want the policy."

About mid September, the employees of the machine shop met to discuss the formulation of demands to present to management. On September 21, the group met with president Padgett and vice president Vasta. Five demands were presented: (1) increased vacation pay; (2) improved hospitalization; (3) sick leave; (4) modification of holiday pay computation; (5) overtime pay for Saturdays. The president promised to consider the hospitalization demand, but rejected the other four.

About three weeks later on October 8, a Saturday, while the demands were still unanswered, Saxer approached the shop manager and asked for a raise; it was denied. Thereupon, Saxer gave notice that as of October 14, he would resign. Subsequently on the same day Saxer, Davy Mooney, Gilbert and Pickelman were granted permission to leave work at lunch time. Saxer told the other employees of his plan to quit; the group decided that it would be a good time to "wake up management." At 11:24 a. m. all the employees of the machine shop walked off the job.

During the remainder of Saturday and part of Sunday, personnel officials telephoned the men who had walked off the job in an attempt to determine their reasons for leaving. Various evasive reasons were given. However, three men stated reasons which related to the working conditions and unrest in the machine shop. Gilbert stated that he was unhappy with the 15 cent difference between his rate of pay and the top man in the shop. He refused on invitation to come to the plant to discuss the matter by stating, "I will see you tomorrow as a group sic." Bates, an employee not fired, stated that there was a "mishmash mess in the shop and that he was unhappy with the whole situation." He later stated at the plant office, after responding to an invitation to come in and talk about the matter with management, that he had to leave with the rest of the men since he had to live with them. Will Mooney, brother of Davy Mooney, stated that he had left because he "was tired of working overtime."

On Sunday evening, October 9, vice president Vasta and president Padgett, with general information of the walkout and the replies to the telephone calls in mind, decided to fire toolmakers Saxer, Dave Mooney, Gilbert and Pickelman. The men were informed the next day of the decision. These dismissals were the basis for the complaint which was subsequently filed with the N.L.R.B.

The scope of our review is limited to ascertaining whether substantial evidence exists in the record considered as a whole to support the findings and conclusions made by the Board. Conflict between the Board and the examiner is but another factor to be considered in determining whether the Board's findings and conclusions are supported by substantial evidence. "The significance of his the examiner's report, of course, depends largely on the importance of credibility in a particular case." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951). 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." N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 854, 7 L.Ed.2d 829 (1962); Universal Camera Corp. v. N.L.R.B., 340 U.S. at 488, 71 S. Ct. 456; accord, Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d 466, 469-470 (9 Cir. 1966); N.L.R.B. v. Holly Bra of Calif., Inc., 405 F.2d 870 (9 Cir. Jan. 16, 1969); N. L. R. B. v. Miller Redwood Co., 407 F.2d 1366 (9 Cir., 1969).

Here the Board and the examiner differ only as to the conclusions of law drawn from the facts, i. e. purpose of the walkout and knowledge on behalf of the employer. This type of determination can be made just as competently by the Board; the examiner's special acquaintance with the testimony is not the determining factor in deciding what legal result is to flow from the facts.

Spontaneous work stoppages by employees to protest grievances concerning working conditions are protected concerted activities within the scope of Sec. 7 of the Act, 29 U.S.C. § 157, Elam v. N. L. R. B., 129 U.S.App.D.C. 388, 395 F.2d 611, 613 (1968). Cf. Morrison-Knudsen Co. v. N.L.R.B., 358 F.2d 411, 413 (9 Cir. 1966); N. L. R. B. v. Phaostron Inst. & Elect. Co., 344 F.2d 855, 858 (9 Cir. 1965).

The fact that the employees here failed to present a specific demand at the time they walked out does not cause their walkout to lose its protected status. As the Supreme Court said in N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9, 14, 82 S.Ct. 1099, 1102, 8 L.Ed.2d 298 (1962):

"The language of § 7 is broad enough to protect concerted activities whether they take place before, after or at the same time such a demand is made."

Furthermore, the decision by the employees to walk out does not have to be the most...