N.L.R.B. v. Fort Vancouver Plywood Co.
| Decision Date | 02 August 1979 |
| Docket Number | 78-2288,Nos. 78-2214,s. 78-2214 |
| Citation | 604 F.2d 596 |
| Parties | 102 L.R.R.M. (BNA) 2232, 86 Lab.Cas. P 11,471 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FORT VANCOUVER PLYWOOD COMPANY, Respondent. FORT VANCOUVER PLYWOOD COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George J. Tichy, II, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for Fort Vancouver Plywood Co.
Christine Peterson, N. L. R. B., Washington, D. C., for N. L. R. B; Elliott Moore, N. L. R. B., Washington, D. C., on brief.
On Petition to Review a Decision of the National Labor Relations Board.
Before HUFSTEDLER and GOODWIN, Circuit Judges and JAMESON *, District Judge.
The National Labor Relations Board (NLRB) petitions for enforcement of its order entered upon a finding that Fort Vancouver Plywood Company committed unfair labor practices. The Board ordered the company to cease certain practices, to bargain with the union, and to reinstate and compensate for lost earnings 72 former employees. Fort Vancouver Plywood cross-petitions to set the order aside.
Fort Vancouver Plywood Company is a worker-owned Washington corporation. Not all workers are shareholders, however. The company has often employed nonshareholders as fill-ins during periods of peak production or as replacements for vacationing shareholder-workers. The number of nonshareholders in the work force has varied from time to time. The Board contends that the number has ranged from 30 to 70, but concedes that it also has fallen to 2 or 3. The company claims that the figure has occasionally dropped to zero.
For reasons not material here, the employment of nonshareholders has always been a matter of contention within the company's management. Three of the seven directors (also worker-shareholders) consistently advocated ending the employment of nonshareholders altogether. They could not convince any of the other directors to join with them until June 14, 1976. On that day, all 72 nonshareholders then employed were fired.
The dismissals came as Local Union No. 3-3 of the International Woodworkers of America was taking steps to organize the nonshareholder contingent. On June 9, the union had held an organizational meeting, at which it distributed authorization cards. By June 16, the union had acquired signed cards from a majority of nonshareholder employees, and then demanded recognition from the company. All 72 nonshareholders had been discharged two days earlier, however, and the company refused to recognize the union. The union then filed charges with the Board, which issued a complaint.
Following a lengthy hearing, the administrative law judge found that the company had violated three subsections of the National Labor Relations Act: section 8(a)(1), by illegally coercing and interrogating employees; section 8(a)(3), by the firings; and section 8(a)(5), by refusing to bargain with the union. 29 U.S.C. § 158(a)(1), (3), (5). He ordered the company, Inter alia, to bargain with the union and to reinstate the discharged employees with back pay. The Board affirmed the administrative law judge's findings, conclusions, and remedies.
We agree with the Board's conclusions that Fort Vancouver Plywood violated section 8 of the Act in several respects.
Section 8(a)(1) makes it unlawful for an employer "to interfere with, restrain, or coerce employees" in the exercise of their right to organize. On petition for enforcement, the Board's ruling that the company violated section 8(a)(1) will stand as long as there is substantial evidence to support it. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Lozano Enterprises v. NLRB,357 F.2d 500, 502 (9th Cir. 1966). There is more than sufficient evidence here to support the Board's finding that the company violated section 8(a)(1) by making coercive statements to its employees. 1
Under section 8(a)(3) of the Act, an employer may not discharge employees because of their union activities or sympathies. NLRB v. Magnusen,523 F.2d 643, 645 (9th Cir. 1975). See also NLRB v. Tesoro Petroleum Corp.,431 F.2d 95, 97 (9th Cir. 1970). Violation Vel non of the subsection depends on the employer's motive for terminating employment; the task of determining that motive is " 'particularly within the purview of the Board.' " NLRB v. Vangas, Inc., 517 F.2d 747, 748 (9th Cir. 1975), Quoting NLRB v. Winkel Motors, Inc., 443 F.2d 38, 40 (9th Cir. 1971). In determining motive, the Board may consider circumstantial and direct evidence, and its inferences will prevail if reasonable and supported by substantial evidence on the record as a whole. NLRB v. Miller Redwood Co., 407 F.2d 1366, 1369 (9th Cir. 1969). See also Santa Fe Drilling Co. v. NLRB, 416 F.2d 725, 729-30 (9th Cir. 1969) (citing cases).
After hearing testimony for and against the proposition that all 72 nonshareholders were fired for valid business reasons, the judge concluded that the mass discharge was motivated by management's anti-union sentiment. There was ample evidence that the company's directors were aware of the attempted unionization and that the threat precipitated the decision to fire all nonshareholders. The judge's conclusion that a desire to stop unionization outweighed other business purposes was reasonable and well-supported.
The company also argues that, even if illegally motivated, the firings were permissible under Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). In Darlington, the Supreme Court held it is not a statutory violation for an employer to fire all its employees and close down its business even though its motive may be to thwart unionization. Fort Vancouver Plywood contends that it fired all its employees. According to the company, since the only workers it retained were shareholders, it retained no employees. The company therefore claims that the Darlington exception to section 8(a)(3) applies.
We need not pass on cross-petitioner's attempt to draw a line between shareholder "workers" and nonshareholder "employees". It is clear that the Supreme Court meant its exception in Darlington to apply only to the complete liquidation of a business. 2 See Great Chinese American Sewing Co. v. NLRB, 578 F.2d 251, 255 (9th Cir. 1978). Anti-union firings that fall short of terminating business operations completely, such as the discharges here, violate section 8(a)(3). See Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. at 274-75, 85 S.Ct. 994.
On June 16, 1976, having obtained authorization cards from a majority of nonshareholders, the union demanded recognition. The company refused to bargain with the union. It alleges that the union's majority was obtained only after the nonshareholders were fired, and that several cards were backdated to show union support before the firings. Two signers admitted backdating their cards, and the company urges that others did, too.
Assuming arguendo that there was extensive backdating, the fact remains that a majority had signed cards for the union on or before June 16, the date that Fort Vancouver Plywood claims the backdated cards really were signed. Backdating does not negate the expression of desire for union representation. Ultra-Sonic De-Burring, Inc., 233 NLRB No. 165 (1977), Enforced, 593 F.2d 123 (9th Cir. 1979). When cards have been backdated, the proper course is to determine when they were signed and to count them as expressing union support as of that date. See, e. g., Essex Wire Corp., 188 NLRB 397 (1971).
The administrative law judge here concluded that the union had majority support on June 16, two days after the firings. Even if there was considerable backdating, this would not affect the finding of majority support shortly After the illegal discharges.
That finding is sufficient to make out a violation of section 8(a)(5) even though some members of the pro-union majority may have been fired two days before it signed the cards. An employer may not thwart a pro-union movement by improperly discharging employees before they formally express their wishes.
For the same reason, the failure to reopen the hearings to receive newly discovered evidence relating to the backdating was not error. The administrative law judge has considerable discretion in the grant or denial of a motion to reopen. NLRB v. Victor Otlans Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971); NLRB v. Seafarers Union, 496 F.2d 1363, 1365 (5th Cir. 1974). It was hardly an abuse of discretion not to reopen here. As the Board noted in affirming the denial of the motion to reopen, "even if such evidence were to show that additional cards had been backdated, this fact alone would not vitiate the finding that the Union possessed valid authorization cards from a majority of unit employees on June 16 * * *."
Fort Vancouver Plywood maintains that even if it violated the Act, two of the Board's remedies were improper. It objects, first of all, to the bargaining order. The company contends that it is entitled to an election.
Our standard of review gives a broad presumption in favor of the remedy selected by the NLRB. NLRB v. Longshoremen's and Warehousemen's Union, 549 F.2d 1346, 1355 (9th Cir.), Cert. denied, 434 U.S. 922, 98 S.Ct. 397, 54 L.Ed.2d 279 (1977). Where the employer has been guilty of multiple unfair practices, a bargaining order is proper if such an order would be the only way to effectuate employees' union preferences. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). See NLRB v. Prineville Stud Co., 578 F.2d 1292, 1296 (9th Cir. 1978). A determination that a bargaining order is needed to rectify the effect of past practices will not be upset if...
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