N.L.R.B. v. Champ Corp.

• Decision Date: 29 August 1990
• Docket Number: No. 89-70160,89-70160
• Citation: 913 F.2d 639
• Parties: , 116 Lab.Cas. P 10,268 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHAMP CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 639

913 F.2d 639

59 USLW 2212, 116 Lab.Cas. P 10,268

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHAMP CORPORATION, Respondent.

No. 89-70160.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1990.

Decided Aug. 29, 1990.

Scott D. MacDonald, N.L.R.B., Washington, D.C., for petitioner, N.L.R.B.

Margo A. Feinberg, Schwartz, Steinsapir, Dohrman & Sommers, Los Angeles, Cal., for petitioner-intervenor, United Auto., Aerospace and Agr. Implement Workers of America.

Thomas S. Kerrigan, Timothy F. Ryan, Steven W. Brennan, McLaughlin and Irvin, Los Angeles, Cal., for respondent, Champ.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.

ALARCON, Circuit Judge:

The National Labor Relations Board (Board) has applied to this court for enforcement of its Decision and Order entered on November 25, 1988. The Board found that Champ Corporation (Champ) committed unfair labor practices by discharging employees while they conducted an economic strike. The Board concluded that these unfair labor practices converted the employees' economic work stoppage into an unfair labor practice strike. As a result, the Board ordered, inter alia, that Champ cease and desist all unfair labor practices and reinstate all striking employees with backpay from the date of their unconditional offer to return to work.

Champ contends that substantial evidence does not support the Board's finding that any striking employees were fired during the economic strike. Champ also argues that the Board erred as a matter of law in concluding that the alleged discharge of the employees converted an economic work stoppage into an unfair labor practice strike.

The primary issue we must decide is whether Champ's conduct in discharging certain striking employees converted an economic work stoppage into an unfair labor practice strike by expanding the issues in dispute to include a protest regarding the company's alleged unfair labor practices. We conclude that the Board's finding that economic strikers were discharged is supported by substantial evidence and that this conduct became a contributing factor in expanding the issues in this labor dispute. We discuss each issue and the facts pertinent thereto under separate headings.

I SUBSTANTIAL EVIDENCE OF UNFAIR LABOR PRACTICES

Champ asserts that the Board's finding that the company was guilty of unfair labor practices because certain employees were discharged on or before October 25, 1979 is not supported by substantial evidence. We disagree.

We must uphold the Board's decision if its factual findings are supported by substantial evidence and if it has correctly applied the law. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989); Lippincott Indus., Inc. v. NLRB, 661 F.2d 112, 114 (9th Cir.1981). If there is evidence to support two conflicting views, the Board's findings must be allowed to stand even though we might have reached a different conclusion on our own. NLRB v. Pacific Grinding Wheel Co., 572 F.2d 1343, 1347 (9th Cir.1978). Credibility findings are entitled to special deference and may only be rejected when a clear preponderance of the evidence shows they are incorrect. Lippincott, 661 F.2d at 114.

A. The Discharge of Baugh and Naranjo

Because contract negotiations reached an impasse on economic issues, the International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America--UAW, Local No. 509 (the Union) ordered a work stoppage on October 15, 1979. Prior to that date, on October 3, 1979, Tom Simovich, Champ's general manager, presented a list to a deputy sheriff containing the names of nine employees. Simovich told the officer that these employees might cause problems in the event of a strike. Steven Baugh's name was on the list.

On October 17, 1979, Baugh and Jose Naranjo were picketing in front of one of Champ's buildings. Tom Simovich came out of the building and spoke to Naranjo. He told Naranjo that "he might as well go home" because he "didn't work here anymore." Baugh said "what about me, Tom?" and Simovich replied "[y]ou're fired, too. You might as well go home." Simovich then told Baugh and Naranjo that he would have them arrested if they did not leave. Baugh asked Simovich why he was fired but Simovich did not reply. Baugh then told Simovich, "[w]e still love you, Tom. We just want a contract." Simovich testified that he had had no conversation with Baugh or Naranjo during the first week of the strike. The ALJ found that Simovich's testimony was not credible.

The Board concluded that the testimony of Baugh and Naranjo was sufficient to show that they were discharged in violation of sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3) (the Act). ¹ The Board stated that "Simovich's remarks were entirely unequivocal in character, were phrased as an immediate discharge, were accompanied by a direction to leave the employment site with a concurrent threat of arrest, and were uttered by a high management official so as to lend credence to the finality of the action taken."

Champ contends that there is substantial evidence in the record that supports a finding that Baugh and Naranjo did not believe that they had been discharged. Champ characterizes the conversation among Simovich, Baugh, and Naranjo as a jovial, facetious exchange. As further proof that no discharge occurred, Champ notes that Baugh and Naranjo continued picketing and reported for reinstatement on April 21, 1980, and that Baugh continued serving as a member of the Union's negotiating team. In addition, Champ contends that the letter sent to all striking employees on October 30, 1979 requesting them to return to work demonstrates that Baugh and Naranjo were not discharged on October 17, 1979. ²

"No set words are necessary to constitute a discharge; words or conduct, which would logically lead an employee to believe his tenure had been terminated, are in themselves sufficient." NLRB v. Cement Masons Local No. 555, 225 F.2d 168, 172 (9th Cir.1955). "The test of whether an employee has been discharged depends on the reasonable inferences that the employee could draw from the statements or conduct of the employer." Pennypower Shopping News, Inc. v. NLRB, 726 F.2d 626, 629 (10th Cir.1984) (emphasis in original); accord NLRB v. Downslope Indus., Inc., 676 F.2d 1114, 1118 (6th Cir.1982); NLRB v. Ridgeway Trucking Co., 622 F.2d 1222, 1224 (5th Cir.1980) (per curiam); NLRB v. Trumbull Asphalt Co., 327 F.2d 841, 843 (8th Cir.1964). In Health Enterprises of America, Inc., 273 NLRB, 1196 (1984), the Board held that a top management official could be taken at his word when he told an employee that he was fired. Id. at 1204. In Trident Recycling Corp., 282 NLRB 1255 (1987), the Board stated that it must view the evidence through the strikers' Simovich's statements that Baugh and Naranjo were "fired" and "might as well go home" would lead reasonable workers to believe they had been discharged. As a high management official, Simovich had the power to discharge employees; the employees were entitled to take Simovich at his word. Health Enters. of Am., Inc., 273 NLRB at 1204. Simovich backed up these statements by threatening to have Baugh and Naranjo arrested if they did not leave. Champ has made no showing that the ALJ's credibility determinations were erroneous. See Lippincott, 661 F.2d at 114 (deference must be given to a ALJ's credibility determinations absent a clear preponderance of the evidence to the contrary).

                eyes.   Id. at 1260.  "Each case requires an examination of the facts."    Id
                

The fact that Baugh and Naranjo continued picketing and that Champ subsequently reinstated them after the Union agreed to terminate the strike does not alter our conclusion that it was reasonable for them to believe that they were discharged on October 17, 1979. It is not unusual for an employee who has been unlawfully discharged for union activity to continue to picket. In Health Enterprises of America, Inc., 273 NLRB 1196 (1984), the Board concluded that a discharged employee's continued picketing did not alter the fact of his discharge. Id. at 1203-04. The fact that Baugh and Naranjo presented themselves for reinstatement does not demonstrate it was unreasonable for them to believe that on October 17, 1979 they had been discharged. See Pennypower Shopping News, 726 F.2d at 630 (holding that subsequent reinstatement did not alter a finding of discharge where that employer had created ambiguity as to its employees' status); Central Broadcast Co., 280 NLRB 501, 504 (1986) (holding that a subsequent reinstatement did not alter the fact that a discharge took place).

B. The Discharge of Valenzuela, Solis, Gutierrez, and Ortiz

On October 25, 1979, Champ's negotiator, Edmund Hoy, Jr., met with Ralph Gazzigli, the Union's negotiator. Hoy handed Gazzigli a list, prepared by Tom Simovich, containing the names of Steve Baugh, Heriberto Valenzuela, Joe Solis, Ruben Gutierrez, and Eduardo Ortiz. Hoy informed Gazzigli "very adamantly" that the individuals on the list "would never be rehired, or reinstated under any conditions." Gazzigli informed Hoy that he could not negotiate away any employee's job and handed the list back to Champ's negotiator. Gazzigli testified that he told Hoy "there was no way I could negotiate, or agree to single out any persons as far as negotiating the job away ... I couldn't do that, I wouldn't do it." Prior to giving back the list, Gazzigli read all of the names on the list.

At a subsequent negotiating session, on October 31, 1979, Hoy again attempted to present the list to Gazzigli. Tom Simovich, Steve Baugh, and a federal mediator were also present. Hoy stated that he wanted to present the list containing the names of individuals who would not be rehired under any circumstances, regardless of whether a contract was...