Hambre Hombre Enterprises, Inc. v. N.L.R.B.

• Decision Date: 12 July 1978
• Docket Number: No. 77-1613,77-1613
• Citation: 581 F.2d 204
• Parties: 99 L.R.R.M. (BNA) 2541, 84 Lab.Cas. P 10,743 HAMBRE HOMBRE ENTERPRISES, INC., d/b/a Panchito's, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 204

581 F.2d 204

99 L.R.R.M. (BNA) 2541, 84 Lab.Cas. P 10,743

HAMBRE HOMBRE ENTERPRISES, INC., d/b/a Panchito's, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 77-1613.

United States Court of Appeals Ninth Circuit.

July 12, 1978.

Rehearing Denied Sept. 5, 1978.

Ralph M. Segura, Walnut Creek, Cal., for petitioner.

Paul J. Spielberg (argued), Elliott Moore, Washington, D. C., for respondent.

Petition to Review Final Order of the National Labor Relations Board and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Before SNEED and TANG, Circuit Judges, and ORRICK, ^* District Judge.

ORRICK, District Judge:

In this case we are to determine whether there is substantial evidence on the record as a whole to support enforcement of an order of the National Labor Relations Board ("Board") which directs petitioner, Hambre Hombre Enterprises, Inc., d/b/a Panchito's ("Company"), to reinstate, with back pay, Michael Hull, and to recognize and bargain upon request with the Bartenders and Culinary Workers Union, Local 595 ("Union"). ¹ We find there is, and we enforce said order.

I.

In December, 1974, the Union commenced organizing the Company's employees who worked at the restaurant and bar called Panchito's, that was operated by the Company in Walnut Creek, California. Twenty-seven of the Company's forty-four employees signed authorization cards and the Union, after filing a representation petition with the Board, made demand on the Company for recognition and invited all the employees who signed cards to a meeting on January 4, 1975. At that meeting, Michael Hull, a bartender at Panchito's, objected to the presence of a supervisor on the ground that her presence was intimidating. There was argument between them before the Union's president decided that the supervisor would be permitted to stay. Two days later the same supervisor interrupted a conversation at the bar between Hull and another bartender and told Hull to stop talking to the help about the Union. Hull stated that he was just telling the other employee what had happened at the meeting and that he had a right to do so. Several hours later the supervisor reported this conversation to Arthur G. Lopez, a co-owner of the Company, and Lopez fired Hull. The Union thereupon filed an unfair labor practice charge against the Company claiming that Hull and another employee had been discharged because of their union activities. On January 13, a preliminary hearing on the representation petition was held, at which time Lopez testified that his dismissal of Hull was a result, in part, of the conversation with the supervisor.

On January 18, the Union held another meeting for the employees who had signed the cards. The owners of the Company sat in a parked car across the street from the meeting place as the employees were arriving and for some time thereafter. The Union thereupon amended its unfair practice charge to include this surveillance.

The first representation election was held on February 26, 1975, and the Union was defeated eighteen to ten. It filed objections to the election and those charges were consolidated with the previously filed unfair labor practice charges.

At the consolidated hearing on July 23, 1975, Hull did not testify because he was in Europe, and neither the supervisory personnel nor the owners testified as to any reason for discharging Hull. However, the transcript of the January 13, 1975, hearing, containing Lopez' statement, was admitted into evidence without objection, and the parties stipulated that if those witnesses were called to testify their testimony would be essentially the same as that contained in the transcript.

The administrative law judge found that the Company had violated Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by surveillance of the Union meeting and that this unfair practice invalidated the election of February 26. ² The administrative law judge also found that Hull and the other employee were not fired in retaliation for their union activities and that a bargaining order was not warranted. On review, the Board found that Hull was fired in retaliation for his union activities and ordered him reinstated with back pay. The Board also ordered a bargaining order.

II.

To establish that Hull's discharge was an unfair labor practice, the Board must show that the discharge was illegally motivated. NLRB v. Klaue, 523 F.2d 410 (9th Cir. 1975). The central question is what was the actual "motive" for his discharge? Santa Fe Drilling Co. v. NLRB,416 F.2d 725, 729 (9th Cir. 1969). In determining this question, the Board is entitled to rely on circumstantial as well as direct evidence, and its inference of discriminatory motivation must stand where it is reasonable and supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

A finding of the Board that the actual motive for Hull's discharge was the Company's hostility to his union activities is amply supported on this record. It is uncontroverted that Hull initially incurred the Company's ire by objecting to the presence of the supervisor at the Union's January 4 meeting and arguing with her about its intimidating effect; that two days later the supervisor retaliated by interrupting a conversation between Hull and another bartender, ordering Hull to stop talking to help about the Union; and that when Hull said he was merely telling the bartender what had happened at the meeting, which he had a right to do under federal law, ³ he was then promptly fired.

The...