Kallmann v. N.L.R.B.

• Decision Date: 30 March 1981
• Docket Number: P,Nos. 79-7595,80-7075,No. 62,62,s. 79-7595
• Citation: 640 F.2d 1094
• Parties: 107 L.R.R.M. (BNA) 2011, 91 Lab.Cas. P 12,678 Karl KALLMANN, d/b/a Love's Barbeque Restaurant,etitioner and Cross- Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1094

640 F.2d 1094

107 L.R.R.M. (BNA) 2011, 91 Lab.Cas. P 12,678

Karl KALLMANN, d/b/a Love's Barbeque Restaurant, No. 62 Petitioner and Cross- Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Cross-Petitioner.

Nos. 79-7595, 80-7075.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 13, 1980.

Decided March 30, 1981.

Van Bourg, Allen Weinberg & Roger, San Francisco, Cal., Naomi Young, Littler, Mendelson, Fastiff & Tichy, Los Angeles, Cal., for petitioner and cross-respondent.

Linda Dreeben, NLRB, Washington, D. C., for respondent and cross-petitioner.

David H. Rosenfeld, San Francisco, Cal., for intervenor, Hotel, Motel, Restaurant and Bartenders Union, Local 50.

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

Before GOODWIN and BOOCHEVER, Circuit Judges, and HARRIS ^*, District Judge.

BOOCHEVER, Circuit Judge:

Karl Kallmann, d/b/a Love's Barbeque Restaurant (Kallmann), seeks to review and set aside an order of the National Labor Relations Board (Board). The Board cross-petitions for enforcement of its order. The Board found that Kallmann was a successor to Love's Wood Pit Barbeque Restaurant (Love) and that Kallmann had violated section 8(a) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a), by refusing to hire the former Love employees because of their union affiliation and by harassing the former employees during their picketing of Kallmann's restaurant. Consequently, the Board ordered that all forty former employees be reinstated and given back pay. We affirm the part of the Board's order finding violations of the Act, but remand for further proceedings on reinstatement and back pay.

STATEMENT OF FACTS

The Hotel, Motel & Restaurant Employees & Bartenders Union (Union), intervenors in this suit, filed an unfair labor practice suit against Love and Kallmann. The following facts were presented at a hearing before an Administrative Law Judge (ALJ).

Love, a California corporation, operates and franchises restaurants. Love opened Love's Wood Pit Barbeque Restaurant (Restaurant) as a franchise. From 1973 until September 1977 Love operated it as a company-owned restaurant. In 1977, a collective bargaining agreement was in effect between the Union and Love.

In May of 1977, Ronald Mesker, Love's Vice President, spoke with Kallmann regarding the possibility of purchasing the Restaurant. Mesker informed him that Love had a collective bargaining agreement with the Union covering employees at the Restaurant. Franchising negotiations continued during the summer. Love closed the Restaurant at the end of the business day on September 25. The employees were first notified of the closure on September 26. On September 28, Kallmann and Love entered an agreement under which Kallmann became the owner of the Restaurant on a franchise basis.

While the Restaurant was being cleaned, Kallmann prepared to reopen. He rented two rooms at a hotel for interviewing job applicants and advertised at two local colleges and in two newspapers. He interviewed at the hotel for two and one-half days, commencing on October 12. Thereafter, he interviewed at the Restaurant and the advertisements were changed so that the name and address of the Restaurant were provided for the first time. Kallmann conducted all the interviews at the hotel, but David Sebben, assistant manager, conducted some at the Restaurant. ¹ Of the 200 applicants, 125 were interviewed. Before October 17, all available positions were filled.

Seven former employees of the Restaurant applied for positions, but none was hired. Each indicated on the employment application that he or she was a former employee. The seven were: Malone-Morris, Porter, Hansen, Boyd, Logan, Wadsworth and Bishop. ² Of these seven, four were interviewed.

Porter applied to be a waiter or cook (he had been the head cook). Kallmann testified that although he initially thought that Porter might be a good employee, he subsequently remembered the filthy condition of the kitchen and decided that he did not want that type of employee working for him.

Wadsworth and Logan applied for both dishwasher and cook jobs. Logan testified that after Kallmann read that Logan had previously worked at the Restaurant, Kallmann indicated that there were no positions open except possibly as a dishwasher. After Logan said that he would take a job as a dishwasher, Kallmann told him that he was pretty certain that it was taken. Wadsworth was offered a job as a busboy, but told Kallmann that he was not interested because his seniority warranted a better job. Hansen stated that after she told Kallmann that she had worked at the Restaurant, he exclaimed, "Oh, you were one of them." Kallmann said that he would check her qualifications.

Kallmann initially hired approximately thirty employees, but no former employees were hired. Kallmann established new wage rates and other benefits for his employees. They were lower than those provided to the former employees.

On October 21, the day after the Restaurant reopened, the Union commenced picketing the Restaurant. Although the Union wanted to negotiate a contract, Kallmann declined to discuss the matter. Pingree, a former employee, testified that while she was picketing, Kallmann asked her to lay down her sign and come to work. He said that he would hire her at Union wages, "but it would not be Union."

After the picketing had concluded one day, Logan and Wadsworth were sitting in a car parked near the Restaurant. Sebben, the assistant manager of the Restaurant, testified that he took their picture because he saw the pair rolling what he believed to be marijuana cigarettes.

The ALJ concluded that: (A) by telling employees he did not intend to operate a unionized restaurant and taking pictures, without a valid reason, of employees who had been picketing, Kallmann violated section 8(a)(1) of the Act; (B) Kallmann was not a "successor" to Love; and (C) Kallmann had not violated sections 8(a)(3) and (5) of the Act. Both sides filed exceptions to the decision of the ALJ. The Board upheld the ALJ's decision that Kallmann had violated section 8(a)(1) by its actions during the picketing. It reversed the other findings and concluded that: (A) Kallmann was a successor employer, and therefore violated sections 8(a)(1) and (5) when he refused to recognize and bargain with the Union, and (B) by refusing to hire the former employees because of their Union affiliation, Kallmann violated sections 8(a)(1) and (3). Kallmann petitioned for review of the Board's order and the Board filed a cross-application for enforcement.

A. KALLMANN'S ACTIVITIES DURING THE PICKETING

Kallmann contends that his statement to Pingree and Turner, that he would hire Pingree under the same conditions as before but that the Restaurant "will not be Union," is not a violation of section 8(a)(1) ³ because it was one of fact and one expressing his view and opinion of the status at the time the statement was made. Section 8(c) protects such an expression if it "contains no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c).

Kallmann, however, was not merely expressing a view of the status at the time he made the statement. One reasonable inference from the remark is that the Restaurant would remain non-union in the future. Moreover, the statement promised Pingree that benefits (i. e., union wages) would be provided even without union protection. (S)tatements ... made to employees informing them that the company would never bargain with the union and that benefits would be given by the company even without the union .... violated section 8(a)(1) ....

Ingress-Plastene, Inc. v. N.L.R.B., 430 F.2d 542, 545 (7th Cir. 1970). There was sufficient evidence from which the Board could find a violation of section 8(a)(1). ⁴ Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951) (substantial evidence test for agency findings).

Kallmann next contends that Sebben's photographing of Logan and Wadsworth was not a violation of section 8(a)(1) because it was to show that they were rolling a marijuana cigarette, not to harass them for union activity. Neither the ALJ nor the Board, however, believed Sebben's testimony. Thus, there is no basis for overruling the finding that Sebben's actions violated section 8(a) (1). The Board reasonably concluded that such conduct subjected the former employees to harassment. ⁵

B. KALLMANN'S FAILURE TO HIRE ANY FORMER EMPLOYEES

The ALJ found that Kallmann did not deliberately refuse to hire the former employees because of their union affiliation. The Board, however, reversed this finding thereby concluding that Kallmann violated sections 8(a)(1) and (3). ⁶

Kallmann contends that the Board's finding is not supported by substantial evidence. Moreover, he contends that where, as here, the Board disagrees with the ALJ's findings the evidence supporting the Board's determination must be stronger. This court has rejected Kallmann's second contention.

The fact that the Board's findings disagree with those of the ALJ does not change this (substantial evidence) standard. The deference accorded to the findings runs in favor of the Board, not the ALJ. It is well settled that we may not substitute our choice between two fairly conflicting interpretations of the facts where the Board's choice is supported by substantial evidence. True enough, the ALJ's determinations on credibility "weigh heavily" in the court's review of the Board's findings contrary to the ALJ's. However, ... the Board is to be accorded special deference in drawing derivative inferences from the evidence.

N.L.R.B. v. Tischler, 615 F.2d 509, 511 (9th Cir. 1980) (citations omitted). ⁷

Even though the ALJ believed that "Kallmann was not a credible witness when testifying with respect to this very subject (the hiring procedure)," the ALJ found that Kallmann did not refuse to...