NLRB v. Ayer Lar Sanitarium

• Decision Date: 10 December 1970
• Docket Number: No. 25462.,25462.
• Citation: 436 F.2d 45
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AYER LAR SANITARIUM, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

436 F.2d 45 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AYER LAR SANITARIUM, Respondent.

No. 25462.

United States Court of Appeals, Ninth Circuit.

December 10, 1970.

Marjorie Gofreed (argued), Atty., Marcel Mallet-Prevost, Asst. Gen., Counsel, Washington, D. C., Ralph E. Kennedy, Director of NLRB, Los Angeles, Cal., for appellant.

Harry R. Stang, Beverly Hills, Cal. (argued), of Levy, Deroy, Geffner & Van Bourg, Los Angeles, Cal., Tyre & Kamins, Beverly Hills, Cal., for appellee.

Before BARNES and HAMLEY, Circuit Judges, and LEVIN,^* District Judge.

LEVIN, D. J.

I. INTRODUCTION

Following a charge filed by Hospital and Professional Employees' Division, Local 399, Building Service Employees' International Union "Union" on February 15, 1968, a complaint and an amended complaint issued from the National Labor Relations Board's "Board" regional director on March 29 and May 31, 1968, respectively. A hearing was held before a Board trial examiner on July 16 and 17, 1968, and the examiner found that respondent Ayer Lar Sanitarium "Company" had committed unfair labor practices in violation of § 8(a) (1), (3), and (5) of the Labor-Management Relations Act "Act", 29 U.S.C. § 158.¹ Based on such finding, the trial examiner recommended, inter alia, that a bargaining order issue in the Union's favor.

On April 30, 1969, the Board adopted the trial examiner's recommendations. 175 NLRB No. 119. Thereafter, the Board reconsidered its decision sua sponte in light of the intervening Supreme Court decision in N. L. R. B. v. Gissel Packing Company, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), and on November 13, 1969, the Board affirmed its initial decision. 179 NLRB No. 194. The matter is now before this court on the application of the Board for enforcement of its order.

The issues under consideration here are:

(1) Whether substantial evidence on the record considered as a whole supports the Board's finding that the Company interfered with, restrained, and coerced its employees in violation of § 8(a) (1) of the Act;

(2) Whether substantial evidence on the record considered as a whole supports the Board's finding that the Company discharged employee Osby because of her union activities, in violation of § 8(a) (1) and (3) of the Act;

(3) Whether the Board properly found that the Company refused to recognize the Union as the majority representative of respondents' employees, in violation of § 8(a) (1) and (5) of the Act, and that a bargaining order is necessary to effectuate the policies of the Act.

The facts of this case may be summarized as follows: the Union began an organizational campaign among the Company's employees in September of 1967, and by November 20, 1967, 17 of the Company's 24 employees had signed union authorization cards. On November 20, 1967, the Union wrote the Company stating that it represented a majority of the employees in an appropriate unit, demanded recognition and bargaining, and offered to submit to a card check.

On November 27, 1967, Mr. and Mrs. Ayers, owners and operators of the Company, held a meeting of the employees and informed them that the Union would not be recognized for bargaining purposes. The same day, the Ayres wrote the Union that they had no basis for concluding that the Union represented an uncoerced majority of the employees in an appropriate unit.

On November 28, the Union filed a representation petition with the Board requesting certification in a unit consisting of "All nonprofessional employees of the Employer, including dietary employees, maids, janitors, store keepers, orderlies, nurses' aides, licensed vocational nurses and laboratory helpers * * *."

A few days later, employees Saavedra and Doil told Supervisor of Nurses Miller that they wished her to write letters for them withdrawing their Union authorizations. Thereafter, the Board found, Miller told other employees that similar letters requesting withdrawal were in her office and tacitly encouraged other employees to utilize such letters.

At about the same time, and shortly before the pending Union election, Mrs. Ayers questioned employee Rouse about her having sent in an authorization card. When she replied that she had done so, Mrs. Ayres stated, "Mr. Ayers and I talked it over and we wouldn't be able to pay the union price if it come in, and we would have to cut corners somewhere." Mr. Ayres told employee Henderson that if the Union came in he would have to cut corners and would have to engage a catering service to serve the patients. Mr. Ayers told employee King that, "I don't want the union in here and if it does get in here, I will close the place down." In response to employee Saavedra's comments about the Union's desire for increased wages and other benefits, Mr. Ayers said, "Well, we could work something out, you know, after it is all settled * * * we would probably just give them a five-cent an hour wage increase instead of a holiday." Employee Saavedra informed the other employees of this conversation.

On the day before the Union election, Mr. Ayres and Nurse Miller told employees Saavedra and Doil to attend a pancake breakfast that the Union was holding. This they did. The Board found that Mr. Ayers had told them to find out what was going on at the breakfast and who was there and then to come back and tell him.

The election was held on January 23, 1969, and the Union lost by a vote of 11-9, with one vote challenged (that of Mr. Ayers' son). The Union then filed objections to the election which were consolidated for hearing with the present unfair labor practices charges.

About two weeks after the election, Nurse Miller discharged employee Osby, the Union's only observer at the election. Osby had worked competently for the Company for the previous two years. The Company claims that Osby's discharge resulted from a complaint from a patient's son to the effect that she had been handling the patient somewhat roughly. No investigations were made, however, of the complaint and Osby was not given an opportunity to rebut the complaint. Moreover, upon her discharge, Osby was told by Nurse Miller that the firing was none of her doing and that she would like to keep Osby there and that she would give Osby a letter of recommendation upon request.

On the basis of the foregoing, the Board found that the Company had violated § 8(a) (1) of the Act by engaging in surveillance of union activities; coercive investigation; solicitation and assistance of withdrawals from the Union; promises of benefits; and threats of discharge, subcontracting and plant closure. The Board also found violations of § 8(a) (1) and (3) of the Act by the Company's discharging Osby because of her union activity. Finally, the Board found a violation of § 8(a) (1) and (5) of the Act in that the Company refused to recognize and bargain with the Union and thereafter embarked upon a campaign of unfair labor practices calculated to make the holding of an election "a less reliable indication of the employees' free choice than the cards by which they designated the Union to represent them."

II. DISCUSSION OF APPLICABLE LAW

A. Restraint and Coercion of Employees

The allegations of the conduct of Nurse Miller and of the Ayers are sufficient to support the finding of the commission of an unfair labor practice within the meaning of § 8(a) (1) of the Act. The main thrust of the Company in this proceeding is that the trial examiner erred in crediting virtually all of the pro-union testimony of the witnesses while crediting none of that which tended to support the arguments of the Company. Indeed, the trial examiner prefaced his findings with the following statement as to the Company's witnesses, Mr. and Mrs. Ayers and Nurse Miller: "Their respective demeanors impressed me unfavorably, and I do not credit their testimony unless corroborated by otherwise credited testimony."

Relying largely on the testimony discredited by the trial examiner, the Company argues that the employees who signed withdrawal letters came to Nurse Miller to do so and were not coerced; that there was no surveillance since the employees asked permission to go to the Union breakfast and were not asked nor did they in fact report anything back; that the Ayers had long considered a catering service, which suggestion employee Henderson translated into anti-union threats; and that the recollections of employee King must be discredited since she was no longer employed by the Company at the time she alleges that certain statements were made to her.

The short answer to the Company's contentions here is that the Board found to the contrary and its findings are supported by the record. The findings of the Board must be upheld if supported by substantial evidence viewing the record as a whole. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 487-488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This court cannot displace the Board's choice between two fairly conflicting views, even though this court would justifiably have made a different choice had the matter been before it de nova. National Labor Relations Board v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 7 L.Ed.2d 829 (1962) (citing Universal Camera, 340 U.S. at 488, 71 S.Ct. 456); N. L. R. B. v. Custom Chair Manufacturing Co., 422 F.2d 1300, 1301 (9th Cir. 1970). This deference extends as well to the inferences reasonably drawn by the Board, even though this court might have drawn different ones. N. L. R. B. v. United States Railway Equipment Co., 424 F.2d 86, 89 (7th Cir. 1970).

On the credibility question, this court may decline to follow an examiner's crediting or discrediting of testimony in "a proper case," N. L. R. B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir. 1967); N. L. R. B. v. Elias Brothers Big Boy, Inc., 327 F.2d 421, 426 (6th Cir. 1964), but the examiner's findings as to credibility should not be disturbed unless "a clear preponderance of all the relevant evidence...