N.L.R.B. v. Brooks Cameras, Inc.

• Citation: 691 F.2d 912
• Decision Date: 04 November 1982
• Docket Number: No. 80-7563,80-7563
• Parties: 111 L.R.R.M. (BNA) 2881, 95 Lab.Cas. P 13,850 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKS CAMERAS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 912

691 F.2d 912

111 L.R.R.M. (BNA) 2881, 95 Lab.Cas. P 13,850

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROOKS CAMERAS, INC., Respondent.

No. 80-7563.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 9, 1981.

Decided Nov. 4, 1982.

Corinna L. Metcalf, Washington, D.C., argued for petitioner; Richard B. Bader, N.L.R.B., Washington, D.C., on brief.

E. Fredrick Preis, Jr., Kullman, Lang, Inman & Bee, New Orleans, La., for respondent.

Petition from the National Labor Relations Board.

Before POOLE and REINHARDT, Circuit Judges, and BURNS, District Judge. ^*

POOLE, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement, and Brooks Cameras, Inc. cross-petitions for review of a Board finding that Brooks violated section 8(a)(1), (3) and (5) of the National Labor Relations Act (Act). The Board's inquiry focused on the circumstances surrounding Brooks' interrogation of an employee and its termination of seven employees within four days of the demand for recognition by Warehouse Union Local 6.

Charles Wheeler, a Brooks warehouseman, spearheaded an effort to unionize Brooks' South San Francisco warehouse in May and June of 1978. By Friday, June 23, the union had secured authorization cards from fourteen of sixteen warehouse and service employees. ¹ The following Monday, June 26, Albert Lannon, the union business agent, went to Brooks' South San Francisco facility and conveyed a message to Joseph Dee, the company president, that the union represented a majority of the warehouse employees and to request that Brooks begin negotiations. Dee refused to see Lannon. Lannon left the premises and sent a telegraph reiterating the request to negotiate. By letter the same day, Dee challenged the union's majority status and refused recognition.

On Tuesday, Jerry Jaramillo, Brooks operations manager, learned of Wheeler's role in the union organization effort. He questioned Gary Hunter, warehouse assistant manager, with respect to warehouse union activity and Wheeler's involvement.

On Wednesday, the union filed a petition with the Board.

On Thursday, a crisis occurred. That morning, Dee held an employee meeting at Brooks' main store in San Francisco. There he expressed shock and surprise that the warehousemen wanted a union. Another mandatory meeting scheduled for the South San Francisco warehouse that same morning was cancelled. Steve Lane, a cash sales auditor, apparently inspired by the warehouse union activity, informed his department manager, Mark Gottlieb, that he intended to organize the clerical workers. Gottlieb hastily consulted with Vic Richmond, Brooks vice president of finance. Shortly thereafter, Richmond summoned Lane and told him, "You put me in a terrible dilemma." He advised Lane that he was scheduled for termination the following day as part of a permanent staff reduction implemented for "economic reasons," and told him that he was now compelled to fire him immediately because the firing would appear to be in retaliation for Lane's expressed intent to organize his department if it were delayed until the following day.

Jaramillo then summoned six warehouse employees, including Wheeler, and told them that they were being terminated "for economic reasons." Two other South San Francisco employees were also discharged, as was one employee from the San Francisco warehouse. Neither Lane nor the South San Francisco warehouse employees received either advance notice or severance pay, except payment for the following day, June 30, the last day of the pay period. ² On Friday, one warehouseman absent the previous day was given the same explanation and was also terminated.

The General Counsel commenced this action, alleging that the termination of Wheeler and other South San Francisco warehouse employees, and the interrogation of Gary Hunter, violated the Act. The administrative law judge found the interrogation of Gary Hunter to be the sole violation of the Act, and decided that a remedial order was not warranted. The Board disagreed. It found that the firings violated section 8(a)(1) and (3), that the interrogation violated section 8(a)(1) and warranted a remedial order, and that Brooks violated section 8(a)(1) and (5) by refusing to recognize and bargain with the union.

This enforcement petition raises two issues. First, is the Board's finding that the terminations constituted an unfair labor practice supported by substantial evidence in light of the administrative law judge's contrary determination? And, did the Board abuse its discretion in issuing a remedial order with respect to the unlawful interrogation? We answer both questions in the affirmative.

The employee terminations

The Board found that Brooks' discharge of the seven warehousemen constituted a violation of section 8(a)(1) and (3) of the Act. Section 8(a)(3) renders illegal the discharge of an employee for his protected union activity. ³ Section 8(a)(1) prohibits employer interference with an employee's right to organize and bargain collectively, ⁴ and a violation of (a)(1) may be predicated upon an (a)(3) violation.

Brooks argues that the disputed discharges were decided upon prior to its learning of the warehouse union activity, and were based on economic considerations. It submitted evidence before the administrative law judge that the staff reduction was in response to the company's financial difficulties.

When a discharge is motivated by both legitimate business reasons and anti- union animus, or when business reasons may be a pretext for a termination motivated by hostility toward the union, an unfair labor practice may only be found if the anti-union animus was the moving cause of the discharge. Lippincott Industries v. NLRB, 661 F.2d 112, 115 (9th Cir. 1981). The Board must make a showing that the union activity was a motivating factor; then the burden shifts to the employer to establish that the terminations would have occurred absent the protected union activity. NLRB v. Nevis Industries, 647 F.2d 905, 909 (9th Cir. 1981); Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Here, the administrative law judge found that the General Counsel had made a prima facie showing that the terminations were motivated by hostility toward the warehouse employees' union activity. He concluded, however, that Brooks had established that the warehouse terminations would have occurred absent the union organization efforts. The Board reached a contrary conclusion, which we believe was within its province.

This court must uphold the factual determinations of the Board if, considering the evidence as a whole, its findings are based upon substantial evidence. NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1363 (9th Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 137, 70 L.Ed.2d 115 (1981); NLRB v. Big Bear Markets, 640 F.2d 924, 928 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980). When the Board and the administrative law judge make contrary findings, this standard does not change; the deference accorded fact findings runs in favor of the Board, but the administrative law judge's findings as part of the record must be weighed along with other opposing evidence, against the evidence supporting the Board's decision. NLRB v. Tischler, 615 F.2d 509, 511 (9th Cir. 1980); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1076 (9th Cir. 1977).

In Penasquitos Village, Inc. v. NLRB, we examined at length the distinction between credibility determinations and derivative inferences, inferences drawn from the evidence. "Weight is given to the administrative law judge's determinations of credibility for the obvious reason that he or she 'sees the witnesses and hears them testify, while the Board and the reviewing court look only at cold records.' " 565 F.2d at 1078 (quoting NLRB v. Walton Manufacturing Co., 369 U.S. 404, 408, 82 S.Ct. 853, 855, 7 L.Ed.2d 829 (1962). See NLRB v. Tischler, 615 F.2d at 511. However, the Board is not required to accept an employer's self-serving declarations even when credited by the administrative law judge, but may draw its own inferences, giving such statements the weight it deems appropriate. NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1347 (9th Cir. 1978).

As to derivative inferences, our deference is to the Board and not the administrative law judge.

Board members are presumed to have broad experience and expertise in labor-management relations. See NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369 (9th Cir. 1969). Further, it is the Board to which Congress has delegated administration of the Act. The Board, therefore, is viewed as particularly capable of drawing inferences from the facts of a labor dispute.

Penasquitos Village, Inc. v. NLRB, 565 F.2d at 1079. And where, as here, the central issue is the employer's motive behind an employee discharge, "we must be mindful that the determination of motive is particularly within the purview of the NLRB." Lippincott Industries v. NLRB, 661 F.2d at 116 (citing Pay'n Save Corp. v. NLRB, 641 F.2d 697, 702 (9th Cir. 1981)).

The Board and the administrative law judge correctly found that the General Counsel had established a prima facie case of unlawful discharge. The company learned of the union activity on June 26 and the warehouse terminations-seven of sixteen employees-swiftly followed. ⁵ The warehouse manager, John Kretschmann, the repair department head, Michael Powers, received no advance notice of the terminations. Kretschmann, at the request of the Brooks executive committee, had prepared and submitted a warehouse reorganization plan that called for only two terminations, ⁶ and recommended a promotion for Wheeler to warehouse assistant manager following Hunter's anticipated departure. The staff reduction, as effected, contrasted sharply with Kretschmann's recommendations as well as...