NLRB v. Phaostron Instrument & Electronic Co.

• Decision Date: 27 April 1965
• Docket Number: No. 19505.,19505.
• Citation: 344 F.2d 855
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.2d 855 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PHAOSTRON INSTRUMENT AND ELECTRONIC COMPANY, Respondent.

No. 19505.

United States Court of Appeals Ninth Circuit.

April 27, 1965.

Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Michael R. Brown, N. L. R. B., Washington, D. C., for petitioner.

Erwin Lerten, Potruch & Lerten, Beverly Hills, Cal., for respondent.

Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge.

ELY, Circuit Judge:

The National Labor Relations Board seeks full enforcement of its Order (146 N.L.R.B. No. 124), issued after a hearing and its determination that Respondent violated Section 8(a) (3) and (1)¹ of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S.C. § 151 et seq.). The violation is claimed to rest upon Respondent's terminating the employment of eight employees and its refusal, despite timely request, to reinstate them.

In March or April of 1963, a Union, Communication Workers of America, AFL-CIO, commenced an organizational campaign at Respondent's manufacturing premises, and authorization cards were signed by five of the eight employees whose employment subsequently terminated. At an organizational meeting conducted on April 24, 1963, approximately twenty-five to thirty of Respondent's employees attended, and upon being requested to indicate whether or not they desired to be members of the Union's "Organizing Committee," six of the particular eight employees joined the Committee. Another of the eight joined the Committee at a second meeting, held on April 30, 1963, and the last of the eight joined at a third meeting, held on May 6, 1963.

On May 8, 1963, the President of Respondent visited a portion of Respondent's premises designated as Building #4 to investigate the work in progress. After watching, for a short time, the work of one Louise Martel, a member of the Organizing Committee but not one of the eight who are involved in the Board's Order, the President summoned Martel's supervisor and complained that Martel was doing her work improperly. The President repeated his criticism to Martel's leadlady, and, as he began to walk away, he remarked that Martel would have to be properly trained or replaced. The President returned in a moment, whereupon there was a heated exchange of words culminating with Martel's gathering together her personal possessions and walking away from her station of work. Three of the eight employees, who had been working in close proximity to Martel, exchanged words with respect to leaving work in support of Martel and departed Building #4 with Martel. The four did not leave the building through the usual exit where time clocks were located but proceeded to Building #2 without checking out and without leaving the plant. Reaching Building #2, the four advised employees there as to why they had left their stations of work. There was a conversation to the effect that the President had abused Martel and that the three who had accompanied her from Building #4 were protesting in her behalf. The President had followed the group of four into Building #2, and seeing the gathering in which the conversations were taking place, he ordered the four employees from Building #4 to "get out." As these women left, they were joined by four employees from Building #2. Meanwhile, another employee whose station of work was located in Building #4, and who had heard the last portion of the argument between Martel and the President, decided, shortly after having seen her four companions leave the building, that she, too, would depart. She left by means of the usual exit but did not "punch out" on the time clock which was situated there.

Leaving the plant, the nine employees joined together on the sidewalk. One of them telephoned the Union's office and requested that union representatives join them at the plant. Other employees, who shortly afterward had left the plant for a "coffee break" and joined the nine, were dispersed upon orders of the President, but the nine remained on the outside. Two union representatives soon arrived and were told by various ones of the group that the eight, other than Martel, had "stood up" for her and had "walked out" in her support. Upon being told by them that they wished to return to work, the two union representatives advised that they would seek a conference with the President, and though being challenged as to their status to speak for the nine, they undertook to persuade the President to permit the women to return to work. In the course of a discussion which ensued, the union representatives urged the President to permit the employees to return to work and the President insisted that in his then state of mind he considered that the nine had "quit" their jobs, that they were unemployed, and that he did not desire their type of workers in his employ.

While immediately after the walkout, some of the nine employees were replaced by transferees from other departments, and two of them, from "within a day or two" to a "working week" were replaced by newly hired employees, none of the transferees from other departments was designated as a permanent replacement.

The foregoing facts, in our opinion, support the Board's conclusion that Respondent violated the Act by terminating the employment of the eight employees and by subsequently refusing to reinstate them.

Respondent first contends that it was denied a fair and impartial hearing. This contention arises from the Trial Examiner's refusal to permit Respondent to attempt to prove by four witnesses that at union meetings conducted prior to the walkout there was no discussion with respect to agreement by members of the Union's Organizing Committee to support one another. Before offering such proof by the four witnesses, Respondent had already presented evidence to the same effect, and the Trial Examiner's rejection of the offered testimony was based upon his expressed opinion that it was cumulative.

In the conduct of any judicial or quasi-judicial hearing, reasonable discretion must be vested in the officer who guides the course of the proceedings. Bethlehem Steel Co. v. N. L. R. B., 74 App.D.C. 52, 120 F.2d 641, 654 (D.C. Cir. 1941), Chicago, Milwaukee, St. Paul & Pacific Railroad Co. v. Poarch, 292 F.2d 449, 452 (9th Cir. 1961). We could not find an abuse of such discretion absent a strong showing of prejudice to the litigant making the charge of such abuse. In the case at bar, we find it unnecessary to make a determination in this respect. This is so because we agree with the Trial Examiner and with the Board that under the facts at hand, the eight employees were engaged in protected activity regardless of whether or not there had been a prior pledge or agreement for mutual support. In N. L. R. B. v. Holcombe, 325 F.2d 508 (5th Cir. 1963), the court, in holding that employee action was protected, stated, at page 511, "There can be no substantial doubt but that normally a spontaneous or planned walk-out in protest against the firing of another employee is protected activity." (Emphasis ours.) It has been...