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

• Decision Date: 08 June 1981
• Docket Number: No. 80-7131,80-7131
• Citation: 647 F.2d 905
• Parties: 107 L.R.R.M. (BNA) 2890, 91 Lab.Cas. P 12,802 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Stationary Engineers, Local 39, International Union of Operating Engineers, Intervenor, v. NEVIS INDUSTRIES, INC., d/b/a Fresno Townehouse, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 905

647 F.2d 905

107 L.R.R.M. (BNA) 2890, 91 Lab.Cas. P 12,802

NATIONAL LABOR RELATIONS BOARD, Petitioner,

and

Stationary Engineers, Local 39, International Union of

Operating Engineers, Intervenor, v. NEVIS INDUSTRIES, INC., d/b/a Fresno Townehouse, Respondent.

No. 80-7131.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1980.

Decided June 8, 1981.

Christine Weiner Peterson, Atty., Washington, D. C., for petitioner.

John C. Cook, Voltz, Cook & Orenstein, San Francisco, Cal., for respondent.

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

Before SKOPIL and FARRIS, Circuit Judges, and BELLONI, ^* District Judge.

SKOPIL, Circuit Judge:

INTRODUCTION

Nevis Industries, Inc. ("Nevis") petitions for review of a decision of the National Labor Relations Board ("the Board"), 246 NLRB No. 167, 103 LRRM 1035 (1979). The Board cross-applies for enforcement of its order.

FACTS

In April 1977 Nevis acquired the Fresno Townehouse hotel. Prior to the acquisition, the Townehouse's engineering employees were represented by Stationary Engineers, Local 39, ("Local 39"). The other service employees were represented by Motel Service Employees, Local 62 ("Local 62").

Nevis did not retain the engineers, including the supervisor, Brewer. Nevis refused to bargain with Local 39 regarding employment of the engineers. Nevis retained most of its other employees. It allegedly conditioned retention of one employee, Alford, on his resignation from Local 39. Nevis allegedly attempted to persuade the employees represented by Local 62 to withdraw from that union.

PROCEEDINGS BELOW

The Administrative Law Judge ("ALJ") concluded that Nevis violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a) (1), by attempting to convince its service employees to withdraw from Local 62, and by conditioning Alford's retention on resignation from Local 39. The ALJ held that Nevis violated section 8(a)(1) by refusing to retain Chief Engineer Brewer, and sections 8(a)(1) and (3) by refusing to retain the four engineers because they were members of Local 39. The ALJ held that Nevis violated section 8(a)(5) by refusing to bargain with Local 39.

The Board affirmed the ALJ's findings and conclusions. Two members of the Board dissented, and one member concurred specially, in the conclusion that Nevis violated section 8(a)(1) by refusing to retain Chief Engineer Brewer.

The Board issued a cease and desist order. It affirmatively directed Nevis to make the engineers whole for lost wages, to offer them immediate reinstatement, and to bargain with Local 39.

ISSUES

1. Does substantial evidence support the Board's finding that Nevis violated section 8(a)(1) by interfering with the rights of the employees it retained?

2. Did the Board apply the correct legal standard, and does substantial evidence support its finding that Nevis violated sections 8(a)(1) and (3) by refusing to retain the engineers because they were union members, and to avoid an obligation to bargain with Local 39?

3. Did the Board apply the correct legal standard in determining that Nevis violated section 8(a)(1) by refusing to retain Chief Engineer Brewer?

4. Did the Board apply the correct legal standard, and does substantial evidence support its finding that Nevis violated sections 8(a)(1) and (5) by refusing to bargain with Local 39?

DISCUSSION

I. Standard of Review.

We must enforce the Board's order if the Board correctly applied the law, and if the Board's findings of fact are supported by substantial evidence on the record viewed as a whole. E. g., NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, at 931 (9th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980). The Board's interpretation of the Act is entitled to considerable deference. Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979); NLRB v. International Harvester Co., 618 F.2d 85, 87 (9th Cir. 1980). The Board's findings must be enforced if supported by substantial evidence, even if this court might reach a different conclusion based on the same evidence. Stephens Institute v. NLRB, 620 F.2d 720, 726 (9th Cir.), cert. denied, -- U.S. --, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980). This court must not limit its consideration to supporting evidence while excluding contradictory evidence. Stephenson v. NLRB, 614 F.2D 1210, 1214 (9th Cir. 1980).

II. Interference With Retained Employees.

The Board held that Nevis violated section 8(a)(1) by interfering with the section 7, 29 U.S.C. § 157, rights of the employees it retained.

A. The Service Employees

The Board found that Snider, the manager of the Townehouse, and a subordinate told the banquet waitresses that the Townehouse was going to be non-union. They promised greater benefits than the union had offered. After the takeover, Snider urged the maids to withdraw from Local 62, and threatened to discharge maids who joined Local 62's picket line. The Board held that these acts violated section 8(a)(1).

Nevis does not contest the Board's holding as to these acts. This constitutes a waiver. Riverside Press, Inc. v. NLRB, 415 F.2d 281, 284-85 (5th Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94 (1970).

B. The Retention of Alford

The Board found that Nevis conditioned retention of one employee, Alford, on his resignation from Local 39. Nevis contends that this finding is not supported by substantial evidence on the record as a whole. We disagree.

Snider encouraged Alford to resign from Local 39. He originally suggested that Alford resign, after checking with his lawyer as to its feasibility. Snider loaned Alford the company car to deliver his letter of resignation to Local 39.

Snider had, on other occasions, made statements consistent with conditioning retention on resignation from the Union. He told Alford at a later date that he would not hire any of the picketing engineers. He threatened the maids with discharge if they joined the strike by Local 62, and circulated a petition of resignation from Local 62, which the maids were to sign.

Snider denied that he conditioned Alford's retention on resignation from Local 39. The ALJ discredited his testimony. We will not overturn decisions as to credibility unless shown to be incorrect by a clear preponderance of the evidence. NLRB v. Max Factor & Co., 640 F.2d 197 at 205 (9th Cir. 1980); NLRB v. Inland Empire Meat Co., 611 F.2d 1235, 1238 (9th Cir. 1979).

There is substantial evidence on the record viewed as a whole supporting the finding that Nevis violated section 8(a)(1) by conditioning retention of Alford on his resignation from Local 39.

III. Refusal to Retain the Engineers.

The Board held that Nevis violated sections 8(a)(1) and (3) by refusing to retain the engineers because they were members of Local 39, and to avoid incurring a duty to bargain with that union. Nevis contends that the Board applied an incorrect legal standard in determining the motive underlying the decision not to retain the engineers, and that there is not substantial evidence supporting the finding of an unlawful motive.

A. The Standard Governing Unlawful Terminations

To establish an unfair labor practice, the General Counsel must show an unlawful motivation either to discourage union membership or to interfere with the exercise of protected rights. Ad Art, Inc. v. NLRB, 645 F.2d 669, at 678 nn.9-10 (9th Cir. 1980).

Where a discharge is motivated both by legitimate business considerations and protected activity, this court requires the General Counsel to show that the protected union activity was the dominant or moving cause behind the discharge. Ad Art, Inc., supra at 1285-86; L'Eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1341-42 (9th Cir. 1980); Western Exterminator Co. v. NLRB, 565 F.2d 1114, 1118 (9th Cir. 1977). Other circuits have employed different standards. See Western Exterminator Co., supra at 1118 n.3 (citing cases); Wright Line, a Division of Wright Line, Inc., 251 NLRB No. 150, 105 LRRM 1169, 1170-72 (1980) (same).

The Board has recently changed the procedural requirements in mixed motivation cases. It held that the General Counsel has the initial burden of showing that protected conduct was "a motivating factor" in the decision to discharge an employee. The burden then shifts to the employer to show that it would have discharged the employee absent participation in protected activity. Wright Line, 105 LRRM at 1175.

The Board is not disqualified from altering its rules. When it does so, we must still review its decision for rationality and consistency with the Act, and not construe the statute de novo. NLRB v. Local 103, International Association of Iron Workers, 434 U.S. 335, 350-51, 98 S.Ct. 651, 660, 54 L.Ed.2d 586 (1978). See also Ford Motor Co., 441 U.S. at 497, 99 S.Ct. at 1849. The rule articulated by the Board in Wright Line is a reasonably defensible interpretation of the Act, and is entitled to acceptance by this court. Ford Motor Co., supra.

The Wright Line rule is consistent with the legislative history of the Act, which reveals an intent to require the employer to show that an employee was discharged for cause. 93 Cong.Rec. 6678 (1947) (remarks of Sen. Taft), reprinted in 2 Legislative History of the Labor Management Relations Act, 1947, at 1595 (1947). See also NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 1797, 18 L.Ed.2d 1027 (1967). It is also consistent with the reality that the employer has the best access to proof of motivation. Great Dane Trailers, Inc., supra. The new rule strikes an acceptable balance between protection of employees' rights and preservation of employers' rights to discharge employees for valid business reasons. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 229, 83 S.Ct. 1139, 1145, 10 L.Ed.2d 308 (1963).

B. The Finding of Unlawful Motivation

The Board found that the General...