NLRB v. Super Toys, Inc., 71-1450.
| Decision Date | 29 March 1972 |
| Docket Number | No. 71-1450.,71-1450. |
| Citation | 458 F.2d 180 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SUPER TOYS, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen H. Naiman (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Washington, D. C.; Abraham Siegel, Los Angeles, Cal., for petitioner.
David G. Moore (argued) of Reid, Babbage & Coil, Riverside, Cal., for respondent.
George Pappy, of Brundage, Neyhart, Miller, Ross & Reich, Los Angeles, Cal., for the charging party.
Before HAMLEY, HUFSTEDLER and WRIGHT, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order against respondent based upon its findings that respondent violated section 8(a) (3) and (1) of the National Labor Relations Act by discharging its employee Calvaresi for engaging in union activities and that it violated section 8(a) (1) of the Act by interrogating Calvaresi and Epstein regarding their union activities.
The first issue is whether or not the Board's finding that Calvaresi was discharged for his union activities, rather than for good cause, is supported by substantial evidence in the record considered as a whole. We hold that it is not.
Respondent is a toy supplier. Its main office is in Detroit, Michigan. It maintains several branch offices, including one in North Hollywood where Calvaresi was employed initially as a freelance salesman and later as a driver with responsibility for supplying toys and installing toy racks at retail stores. In early December 1969, Calvaresi collected company money in the sum of $220 from a "swap meet" and appropriated it to his own use. When respondent's branch manager Boigon discovered Calvaresi's defalcation in mid-December Calvaresi apologized for his action, pleaded not to be discharged, and promised to reimburse the company. Boigon agreed to Calvaresi's proposal.
On December 29, 1969, Boigon announced that there were going to be some operational changes and called an employee's meeting for January 3, 1970. Calvaresi and two of his fellow drivers, Epstein and Diamond, were worried that the changes might adversely affect their employment or income. The trio arranged a meeting with a representative of the Teamsters Union at Calvaresi's home. On the evening of December 29 they met with the union representatives. All three signed cards authorizing the union to represent them, and each agreed to deny any knowledge of the union if he were questioned by the respondent. The drivers asked the union man to notify respondent of its representation status before January 3, to avert changes in their employment.
Boigon advanced the employment meeting to January 2. The three drivers attended. Boigon told the employees about some of the changes to be effective January 5, including Diamond's promotion to supervisor of warehouse and truck operations and Calvaresi's taking over Diamond's former route as a driver. Epstein's status was not changed. At the conclusion of the meeting, Boigon assured the employees that "Everybody has got a job at Super Toys."
Boigon testified that on the evening of January 2, after the employees' meeting, the president of respondent telephoned him from Detroit and told him that he had received information from an employee of the company traveling in Michigan that Calvaresi had misappropriated company funds. The president instructed Boigon to discharge Calvaresi immediately. Early the next morning Boigon related both to Brown, assistant manager, and to Epstein the president's direction to discharge Calvaresi. The conversations took place before the morning mail arrived in which there was a letter to Boigon from the union advising him that it had been designated as the three drivers' bargaining representatives. Boigon's testimony on these points was corroborated by Brown and Epstein. There was no contrary testimony.
After receiving the union letter, Boigon telephoned Diamond, told him about the letter, and asked him what he knew about it. Diamond said he would come to the office to talk. Next, Boigon called Calvaresi and asked him about his knowledge of the union. Calvaresi denied any affiliation with or knowledge of the union. Diamond went to Boigon's office and told him about signing the union cards. Calvaresi came to Boigon's office while Diamond was still talking to Boigon. Diamond indicated that he had told Boigon everything and left. Calvaresi said to Boigon, "Since you've heard Mr. Diamond's story, I might as well tell you my part of the story." Calvaresi testified that Boigon said, ...
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