Famet, Inc. v. NLRB
| Decision Date | 06 February 1974 |
| Docket Number | No. 73-1832.,73-1832. |
| Citation | 490 F.2d 293 |
| Parties | FAMET, INC., Petitioner & Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent & Cross-Petitioner. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Herbert S. Matthews, South San Francisco, Cal., for petitioner & cross-respondent.
Elliot Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Regional Director, NLRB, San Francisco, Cal., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Charles I. Cohen, NLRB, Washington, D. C., for respondent & cross-petitioner.
International Ass'n. of Machinists & Aerospace Workers, AFL-CIO, Local #1327, Burglingame, Cal., for charging party.
Before ELY, HUFSTEDLER, and SNEED, Circuit Judges.
The Board's Decision and Order is reported at 202 NLRB No. 52. Famet, Inc. (hereinafter the "employer") has filed a Petition in which we are urged to review and set aside the Decision and Order, and the Board has filed a cross-application for the enforcement of its Order.
The controversy, as presented here, has been reduced to the question of whether the employer violated section 8(a) (3) and (1) of the National Labor Relations Act by discharging an employee, one Rutledge, because of his protected union activities.
We need not review the facts in detail, inasmuch as they are fully set forth in the Board's reported Decision. We shall, however, briefly restate such of the relevant circumstances as are essential to an understanding of the problem. Rutledge was discharged by one Katshen, who was the employer's plant manager, as well as its vice-president and majority stockholder. The employer is a relatively small enterprise, having, at the relevant time, approximately eleven employees. All of these employees worked during the same hours and had their break for luncheon at the same time. The employer's operations were conducted on two floors of a building, and work benches were located on both of the two floors. Katshen maintained an office on the second floor, but he also had a work bench on the first floor.
There was abundant evidence of the fact that Katshen was antagonistic to trade unions and their activity, and his union animus was clearly established.
The employer hired Rutledge as a machinist on April 1, 1969, and his discharge occurred on November 12, 1971. During this period of approximately two and one-half years, the employer had given several increases in pay to Rutledge so that his beginning wage rate of $3.25 per hour had, at the time of his discharge, been increased to the rate of $4.95 per hour.
In early November of 1971, Rutledge visited the headquarters of a certain union to discuss the possibility of that union's representation of him and his fellow employees. He was given certain information and supplied with a number of union authorization cards. Rutledge immediately went to his place of work and distributed a card to each of all of the employees, save one.
In the morning of November 12, 1971, Katshen, while distributing pay checks, observed Rutledge talking to an employee named Aiello. Katshen delivered to Rutledge and Aiello their pay checks but said nothing about having observed their conversation. During the following lunch period, however, Katshen directed a foreman, one Staudt, to notify Rutledge (and Rutledge only) that he, Rutledge, had been seen talking, rather than working. Katshen further directed the foreman to admonish Rutledge about this. As Rutledge was returning from his lunch, another employee warned Rutledge that he had learned from an employee named Beardslee that Katshen was aware that union activities were occurring within the plant. Shortly thereafter, when foreman Staudt conveyed Katshen's warning to Rutledge, Rutledge remarked "It's no longer a secret, and the cat's out of the bag." Rutledge also advised Staudt to take a neutral stand because "They have enough on Katshen", and "They were going to get him." Staudt then reported these remarks directly to Katshen and also told Katshen that two other employees, Stahl and Chasco, were also involved. Katshen made no inquiries of Staudt concerning the asserted involvement of Stahl and Chasco. Katshen then proceeded to Rutledge's place of work, asked Rutledge about his reported threat "to get me", and Rutledge denied having made such threat. Foreman Staudt was thereupon summoned to repeat that which he had previously reported to Katshen, whereupon Katshen discharged Rutledge, handing him two paychecks which he, Katshen, had evidently already caused to be prepared. The only additional relevant testimony of consequence pertained to certain of Katshen's activities subsequent to his discharge of Rutledge. This evidence was largely to the effect that Katshen had openly addressed the employees, stating inter alia, that he did...
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