Lippincott Industries, Inc. v. N.L.R.B.

• Decision Date: 09 November 1981
• Docket Number: 80-7573,Nos. 80-7476,s. 80-7476
• Citation: 661 F.2d 112
• Parties: 108 L.R.R.M. (BNA) 3050, 92 Lab.Cas. P 13,095 LIPPINCOTT INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 112

661 F.2d 112

108 L.R.R.M. (BNA) 3050, 92 Lab.Cas. P 13,095

LIPPINCOTT INDUSTRIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 80-7476, 80-7573.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1981.

Decided Nov. 9, 1981.

William R. Squires, III, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for petitioner.

Paul J. Spielberg, N. L. R. B., Washington, D. C., argued, for respondent; Elliott Moore, N. L. R. B., Washington, D. C., on brief.

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

Before WRIGHT and ANDERSON, Circuit Judges, and THOMPSON, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Lippincott Industries, Inc. (Lippincott) petitions for review of a decision of the National Labor Relations Board (Board), 251 NLRB No. 34 (1980). The Board cross-applies for enforcement of its order.

The Administrative Law Judge (ALJ) concluded that Lippincott violated Section 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. § 158(a)(1), by unlawfully interrogating three employees during the

union organizational campaign. The ALJ further held that Lippincott violated Sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by discharging one of those employees three hours before the representation election because of her known pro-union sentiment, and because her discharge would have a chilling effect on the other employees who would be voting in the election. The Board affirmed the ALJ's findings and conclusions. We enforce the Board's order.

EMPLOYEE INTERROGATIONS

Interrogation of employees is an unfair labor practice when, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employees in the exercise of their protected rights. Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1080 (9th Cir. 1977). The Board's determination on this issue must be upheld if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); NLRB v. International Medication Systems, Ltd., 640 F.2d 1110, 1112 (9th Cir. 1981).

The evidence of record sufficiently supports the Board's ruling that employee Peterson was subjected to interrogation(s) having a reasonable tendency to restrain or interfere with the exercise of protected rights, and Lippincott does not seriously contend otherwise. Rather, Lippincott challenges the ALJ's crediting of Peterson's testimony over the testimony of two of its supervisors. We may not reject the ALJ's credibility determinations unless a clear preponderance of the evidence shows they are incorrect. NLRB v. Carilli, 648 F.2d 1206, 1211 (9th Cir. 1981); NLRB v. Inland Empire Meat Co., 611 F.2d 1235, 1238 (9th Cir. 1980). The record in this case does not.

The unlawful interrogation of Peterson justifies the Board's order to cease and desist from such conduct. Accordingly, it is unnecessary for us to address the interrogations of former employees Carter and Hartman.

EMPLOYEE DISCHARGE

The Board concluded, in agreement with the ALJ, that Peterson was discharged because of her known pro-union sentiment and because her discharge would have a chilling effect on the other employees who would be voting in the representation election a few hours later. The Board found that the legitimate business reasons advanced by Lippincott were contrived to provide an excuse for the discharge.

The remedial order respecting this violation must be enforced if the Board correctly applied the law and if its findings of fact are supported by substantial evidence on the record viewed as a whole. NLRB v. Nevis Industries, Inc., 647 F.2d 905, 908 (9th Cir. 1981). Lippincott challenges the order on both counts.

We have carefully studied the parties' contentions regarding the applicable legal standard for determining whether a discharge is violative of the Act. The Board has characterized this as a "pretext" case. Lippincott describes it as a "mixed motive" case. We think that in terms of the proper legal standard to be applied, the difference between these two types of cases is of little importance.

Undoubtedly, the language in some of the cases has suggested a distinction. Compare, e. g., Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1083 (9th Cir. 1977) ("... the existence of a justifiable ground for discharge will not prevent such discharge from being an unfair labor practice if partially motivated by the employee's protected activity; a business reason cannot be used as a pretext for a discriminatory firing.") with Western Exterminator Co. v. NLRB, 565 F.2d 1114, 1118 (9th Cir. 1977) ("... where a discharge is motivated by both a legitimate business consideration and protected union activity, 'the test is whether the business reason or the protected union activity is the moving cause behind the discharge.' "). The perceived distinction, however, is more semantical than substantive. In either instance, the employer has asserted justifiable, legitimate business reasons for the discharge. The difference is that in a pretext case the employer's reasons are discredited or otherwise rejected, leaving only the impermissible reason, while in a mixed motive case the relative causative force of the employer's reasons is compared against the impermissible reason to determine whether the latter is the moving cause behind the discharge. Therefore, the primary distinction between the two cases rests upon the differing weight that is attributed to the employer's explanation when examining the motivations behind a discharge. Of course, this determination is made after the evidence is presented.

The artificial distinction existing between these two classes of cases was eroded in Ad Art, Inc. v. NLRB, 645 F.2d 669, 678 (9th Cir. 1980), where this court stated that, "(w)hen a discharge is conceivably motivated both by legitimate business considerations and protected union activity, the test is whether the business reason or the protected union activity is the moving cause behind the discharge." (emphasis added). Many of our more recent decisions have stated the test without reference to the employer's asserted legitimate reasons. See, e. g., NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1366-67 (9th Cir. 1981); NLRB v. Adams Delivery Service, Inc., 623 F.2d 96, 99 (9th Cir. 1980); Stephenson v. NLRB, 614 F.2d 1210, 1213 (9th Cir. 1980). Thus, the test is properly focused on the employer's impermissible motivation to determine whether anti-union animus was the moving cause, or but for cause, behind the decision to discharge an...