NLRB v. West Coast Casket Company, Inc.

• Decision Date: 17 November 1972
• Docket Number: No. 72-1026.,72-1026.
• Citation: 469 F.2d 871
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEST COAST CASKET COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

469 F.2d 871 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WEST COAST CASKET COMPANY, INC., Respondent.

No. 72-1026.

United States Court of Appeals, Ninth Circuit.

November 17, 1972.

Michael Winer, Atty. (argued), Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Wilford W. Johansen, Director, Region 21, NLRB, Los Angeles, Cal., for petitioner.

Carl Minton (argued), of Minton & Minton, Michael Posner, of Geffner & Satzman, Los Angeles, Cal. (for charging party) for the respondent.

Before: HAMLEY and MERRILL, Circuit Judges, and POWELL, District Judge^*.

HAMLEY, Circuit Judge:

The National Labor Relations Board has petitioned for enforcement of its order issued against West Coast Casket Company, Inc. (West Coast) and Mrs. Gladys Selvin, West Coast's bargaining representative.

In adopting the findings of the trial examiner, the Board held West Coast had violated the following sections of the National Labor Relations Act (Act): (1) section 8(a)(3), 29 U.S.C. § 158(a)(3), by discharging three employees because of their union activities; (2) section 8(a)(5), 29 U.S.C. § 158(a)(5), by, through its bargaining agent, failing to bargain in good faith with the certified union representatives; and (3) section 8(a)(1), 29 U.S.C. § 158(a)(1), by sending employees telegrams threatening loss of employment if they took part in an unfair labor practice strike. 192 NLRB No. 78 (1971).

The Board adopted the trial examiner's recommendation that West Coast be ordered to cease and desist from the unfair labor practices found, to bargain with the unions, to reinstate two of the three employees who, the Board found, had been discharged because of their union activity (one of the three had been rehired one year after his discharge), to make those three employees whole for any loss of pay resulting from the discrimination against them, to offer reinstatement to the strikers, and to post the usual notices. Mrs. Selvin was also ordered to cease and desist from her unfair labor practices.

This court has heretofore entered an order granting enforcement against Mrs. Selvin following her motion stating that she did not object to enforcement against her. For the reasons stated below we will grant enforcement of the Board's order against West Coast, with one indicated exception.

In resisting enforcement, West Coast makes three arguments. First, it argues that the Board's order is now partially moot because West Coast sold all of its assets on July 1, 1972 and has had no employees since June 30, 1972. Second, West Coast contends that the Board erred in refusing to reopen the hearing to receive certain additional testimony. Third, West Coast challenges the sufficiency of the evidence supporting the Board's conclusions with respect to each of the unfair labor practices.

With regard to the mootness contention, West Coast asks that this court either enlarge the record of the hearing by including an affidavit concerning the discontinuance of operations or remand the case to the Board for a hearing on this point.

Section 10(e) of the Act provides that the latter of these alternatives is appropriate when the additional evidence is "material and . . . there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board." However, in Southport Petroleum Co. v. N.L.R.B., 315 U.S. 100, 6 S.Ct. 452, 86 L.Ed. 718 (1942), the Supreme Court held that a dissolution and transfer of assets to another company subsequent to a Board order which bound the officers, agents, successors and assigns was immaterial to an enforcement proceeding. Instead, the Court reasoned, these developments are proper subjects for later compliance or contempt proceedings, in which the performance of any impossible obligation may be excused. This reasoning applies to the present case and, therefore, West Coast's mootness contention is without merit.

West Coast's second contention is that the Board incorrectly refused to reopen the record to receive testimony of two West Coast supervisors on the issue of the allegedly discriminatory discharges. The motion to reopen the record was filed almost five months after the close of the hearing. The delay, West Coast argues, was caused by its inability to review the testimony of the discharged employees with the supervisors prior to the close of the hearings.

Assuming the testimony of the supervisors is material to the discharges, this court may order the Board to take additional evidence only if "there were reasonable grounds for the failure to adduce such evidence in the hearing." 29 U.S.C. § 160(e). We do not believe that the grounds West Coast urges here satisfy the reasonableness requirement.

This is not a case in which the company should have been surprised by the testimony given at the hearing. The charge against West Coast, which was filed more than one year before the hearing, listed the names of all employees alleged to have been discharged because of their union activities. West Coast had sufficient information and time to learn the nature of their proposed testimony prior to the hearing. Its failure to do so will not excuse its failure to have the supervisors testify at the hearing. See N.L.R.B. v. Boyer Brothers, Inc., 448 F.2d 555, 565 (3d Cir. 1971).

West Coast's final contentions concern the sufficiency of the evidence supporting the Board's conclusions on the unfair labor practice charges. The Board's conclusions must be affirmed if, considering the record as a whole, the conclusions are supported by substantial evidence. Universal Camera Corp. v. N. L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Each charge will be considered separately.

Prior to July 1, 1972, West Coast manufactured, sold and distributed metal and wood caskets at two plants in Los Angeles. In 1968, West Coast's president decided to discontinue some of its manufacturing procedures and to phase out one of the plants. During the first part of 1969, when West Coast alleges it had reached a point in its phasing out program at which it became necessary to lay off some of its workers, two unions began a joint program to organize the employees.

Roy Cooper, an employee who was an active participant in the campaign to organize the workers, was laid off in April of 1969. Shortly after the representation election, in which a majority of the employees voted for the unions, Rudolfo Ramirez, the employee who initiated the unions' contact with West Coast's employees, was discharged. A third employee who was active in union activities, Aurelio Mena, was also discharged a short time after the representation election.

The Board found that these...