Randolph Div., Ethan Allen, Inc. v. N.L.R.B.
| Decision Date | 17 April 1975 |
| Docket Number | No. 74-1304,74-1304 |
| Parties | 89 L.R.R.M. (BNA) 2013, 76 Lab.Cas. P 10,800 RANDOLPH DIVISION, ETHAN ALLEN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Alan J. Levenson, Portland, Me., with whom Clarke C. Hambley, Jr., and Levenson & Levenson, Portland, Me., were on brief, for petitioner.
Frank Charles Morris, Jr., Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, Washington, D. C., were on brief for respondent.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
Petitioner has sought review of the NLRB order finding that it violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, and the Board has filed a cross-application for enforcement. The Board adopted the decision of the administrative law judge, who had concluded that petitioner had discharged employee Naomi A. Falcone solely because it believed or suspected that she had begun or was about to embark upon the initial stages of unionizing petitioner's plant.
The Act proscribes employer actions which "interfere with, restrain, or coerce employees in the exercise" of their section 7 rights of self-organization or which discriminate "in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization." It is well established that the statute is violated when the subjective motivation underlying a discharge is that of opposition to an employee's union activity, Radio Officers' Union v. NLRB, 347 U.S. 17, 42-44, 74 S.Ct. 323, 98 L.Ed. 455 (1954); NLRB v. Barberton Plastics Products, Inc., 354 F.2d 66 (6th Cir. 1965); NLRB v. Whitin Machine Works, 204 F.2d 883 (1st Cir. 1953), and our role here is limited to inquiring whether there was substantial evidence to support the Board's determination that Falcone's discharge was due to petitioner's antiunion sentiment.
Falcone started work on a Tuesday and was discharged at the noon break on Friday of that week. On the morning of her discharge, she called upon Assistant Superintendent Dahlberg and requested a financial statement which would show how much money the company was making and how it was being spent. Dahlberg did not supply a statement, but suggested that Falcone buy a share of the company's stock or contact the personnel director. Falcone had another conversation with Dahlberg shortly before her lunch break. He asked why she wanted the financial information, and she responded that she was concerned about the fact that there was no union at the plant. The substance of these conversations was testified to by both Falcone and Dahlberg, and it is undisputed that during the four days of her employment Falcone performed her job capably and in a satisfactory manner.
The Board's determination that the discharge was attributable to an improper motive is supported by substantial evidence. Certainly the only alternative explanation offered by the employer is less than compelling in its persuasiveness, since the suggestion that Falcone was a "nut" or "screwball" was by the employer's admission based upon no information other than the requests for financial disclosure. Dahlberg testified variously as to his reasons for firing Falcone. He first said that she did not seem to be interested enough in her job. Then in answer to a question of the administrative law judge as to the reason, he said that he felt she was not likely to stick to her job as a permanent employee. He referred to her prior record of holding several jobs for only a short period (something known when she was hired) and the fact that they were having lengthy conversations "over something like that". Dahlberg said that his conversation with Falcone had been "good", not "sarcastic", but that it was "about something I didn't know", and (sic) "(a)fter I had given her a reasonable explanation", she still wanted to obtain information from secretaries. Finally, when asked by company counsel what he would have told Falcone if he had had to reveal his reason, he said, "I wouldn't have said she was a nut maybe; but I might have been thinking it." Perhaps this testimony would have supported the conclusion that Falcone was fired for reasons unrelated to her professed prounion sentiments, but that is not the question before us. We decide only that the Board did not go beyond the evidence or draw impermissible inferences in resolving the factual disputes as it did.
On appeal the company emphasizes that it had a practice of hiring indiscriminately because of a shortage of skilled...
To continue reading
Request your trial
-
YMCA of Pikes Peak Region, Inc. v. N.L.R.B.
...Cir.1985); JMC Transp., 776 F.2d at 618; Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 327-28 (7th Cir.1976); Randolph Div, Ethan Allen Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir.1975); Owens-Corning Fiberglas v. NLRB, 407 F.2d 1357, 1365 (4th Cir.1969); see generally Gorman & Finkin, The Individ......
-
Prill v. N.L.R.B.
...a minimum definition of concerted activity applied in the courts of appeals, it is not exhaustive.85 See, e.g., Randolph Div., Ethan Allen, Inc., 513 F.2d 706, 708 (1st Cir.1975); Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1355 (3d Cir.1969); Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 34......
-
N.L.R.B. v. Empire Gas, Inc.
...endorsed this viewpoint. Dreis & Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 327-28 (7th Cir. 1976); Randolph Division, Ethan Allen, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir. 1975). In our case the evidence shows an effort to solicit group support of a collective refusal to work on certa......
-
El Gran Combo de Puerto Rico v. N.L.R.B.
...NLRB, 835 F.2d 1481 (D.C.Cir.1987). See also City Disposal Systems, 465 U.S. at 831, 104 S.Ct. at 1511; Randolph Division, Ethan Allen, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir.1975). Because it is particularly germane to this case, we set out the Mushroom Transportation reasoning at It is ......