N.L.R.B. v. Magnusen

• Decision Date: 19 September 1975
• Docket Number: No. 74-1278,74-1278
• Citation: 523 F.2d 643
• Parties: 90 L.R.R.M. (BNA) 3330, 77 Lab.Cas. P 11,097 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Harry MAGNUSEN, dba North Star Refrigerator Co., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 643

523 F.2d 643

90 L.R.R.M. (BNA) 3330, 77 Lab.Cas. P 11,097

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Harry MAGNUSEN, dba North Star Refrigerator Co., Respondent.

No. 74-1278.

United States Court of Appeals, Ninth Circuit.

Sept. 19, 1975.

Howard Pearlstein, Atty., N.L.R.B., Washington, D.C., for petitioner.

Mary Ellen Berke (argued), Van Nuys, Cal., for respondent.

OPINION

Before TRASK, WALLACE and KENNEDY, Circuit Judges.

PER CURIAM:

The National Labor Relations Board seeks enforcement, pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), of an order of November 20, 1973, against Harry Magnusen d/b/a North Star Refrigerator Company. The Board found that the employer had committed various unfair labor practices in his effort to impede union organization activities at his plant. The Board ordered the employer to reinstate with back pay three employees, prime movers in the unionization campaign, whom he had fired, to cease the unfair practices, and to post notices of the Board's action.

The employer Magnusen manufactures commercial walk-in refrigerators at a small plant in Sun Valley, California, and installs them in businesses in the area. During the period in question there were approximately nine employees. Jack Holt, general foreman, was in charge of overall management of the plant's operation and supervision of all employees. Hector Padron, William Mann, and James Dyche were three of the firm's employees.

In October 1972 Padron began discussing with his coworkers the possibility of forming a union at the plant. Thereafter general foreman Holt became aware of the activity and began his own counter activities to oppose unionization. Padron, Mann, and Dyche, the three union activists, were terminated for "official reasons" which might well have been found pretextual in view of a threat Holt made against union sympathizers and the various inconsistent and contradictory reasons given for the terminations. On one occasion Holt told several employees during a conversation:

"I hope this union thing doesn't go through . . . . Harry (Magnusen, the employer,) can't stand it. We can't have anything like that. We will go out of business. I am not going to stand for any talk of it and I am not going to listen to anymore (sic) stories about Bill Mann. If I catch Bill Mann or any other son of a bitch talking about the union, they are going to be out the door." R.T. 168-69.

After termination of Padron, Mann, and Dyche, Padron filed a NLRB complaint protesting the alleged illegal termination of Padron and Mann. Later Dyche charged that he also was discharged to discourage union organization activities. The two cases were consolidated, and six days of hearings were held before an administrative law judge. The judge found that the employer had engaged in unfair labor practices by firing the three employees and by coercing employees through other means. He ordered reinstatement with back pay of Padron, Mann, and Dyche. He further ordered the employer to cease and desist from unlawfully interrogating employees on their union activities, from threatening employees with discharge, and from threatening layoffs and other work changes if a union were established. A notice to this effect was required to be posted. The NLRB affirmed and adopted this order, 207 NLRB No. 85 (1973). The Board now seeks enforcement of its order by this court.

At the hearings two very different versions were offered of the events surrounding and the motivation behind the terminations of the three employees and the other allegedly coercive actions by the employer. The administrative law judge chose not to credit the employer's various and at times conflicting stories. The NLRB's determination on credibility is not to be lightly disturbed, NLRB v. International Longshoremen's & Warehousemen's Union & Local 27, 514 F.2d 481 (9th Cir. 1975), especially when the finder of fact, as here, provides a written statement of reasons for choosing not to believe the employer's story. See White Glove Building Maintenance, Inc. v. Brennan, 518 F.2d 1271 (9th Cir. 1975).

It is clear that section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3), prohibits an employer from discharging an employee because of his union activities or sympathies. Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 728 (9th Cir. 1966). Here it is clear that there was substantial evidence on the record as a whole in support of the Board's finding that the company violated section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), by terminating the employees and section 8(a)(1), 29 U.S.C. § 158(a)(1), by coercing its employees in an effort to prevent unionization. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

A question was properly raised about the enforcement of the order requiring reinstatement with back pay of Dyche. ¹ At the hearing, while under oath, Dyche was questioned by the employer's counsel about an incident in which Dyche claimed on his time card and was paid for working through the night on a job in San Diego when he and his coworker allegedly slept in a motel. In response to repeated and unequivocal questions on this matter Dyche denied being paid for work he did not perform and denied staying in the motel with his coworker, although he finally admitted to staying in the motel. R.T. 193, 489-92, 818, 829. The record clearly discloses that Dyche lied on the stand and that he, in fact, did get paid for work he claimed but did not do and did stay in a San Diego motel with his coworker when he was supposed to be working. R.T. 565-68, 660-61, 829-30. In addition, following the hearing Dyche wrote the NLRB and others stating he "told several untruths" while on the stand and admitting that he had stayed at the motel with his coworker on the night in question. C.T. 65. ²

On these facts we decline to enforce the Board's order requiring reinstatement with backpay of Dyche. "Padding" of work hours is equivalent to the theft of money. To require reinstatement with backpay of an employee who stole from his employer ³ and who severely impeded the vital fact-finding process by repeated lying "would not effectuate the policies of the Act. . . . (and) would reward conduct both reprehensible in quality and egregious in...