Royal Development Co., Ltd. v. N.L.R.B.

• Citation: 703 F.2d 363
• Decision Date: 22 February 1983
• Docket Number: 81-7736,Nos. 81-7638,s. 81-7638
• Parties: 112 L.R.R.M. (BNA) 2932, 96 Lab.Cas. P 14,056 ROYAL DEVELOPMENT CO., LTD., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 363

703 F.2d 363

112 L.R.R.M. (BNA) 2932, 96 Lab.Cas. P 14,056

ROYAL DEVELOPMENT CO., LTD., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 81-7638, 81-7736.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 9, 1982.

Decided Feb. 22, 1983.

Robert Katz, Jeffrey Harris, Honolulu, Hawaii, for petitioner/cross-respondent.

William R. Stewart, Gen. Counsel, N.L.R.B., Washington, D.C., for respondent/cross-petitioner.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before CHAMBERS and WALLACE, Circuit Judges, and JAMESON, ^* District Judge.

WALLACE, Circuit Judge:

In this case, we are confronted with apparently conflicting labor law precedents. The legal issues are significant and require our careful analysis. The case stems from the entry of an order by the National Labor Relations Board (the Board) holding Royal Development Company (Royal) in violation of subsections 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), (3), and (4), for its refusal to rehire Schmidt, both because he engaged in union and other protected, concerted activity, and because he filed an unfair labor practice charge against Royal with the Board. The Board ordered Royal to cease and desist from its violations, to post appropriate notices, and to reinstate Schmidt with back pay. Royal filed a petition for review under 29 U.S.C. Sec. 160(f); the Board cross-applied for enforcement of its order pursuant to 29 U.S.C. Sec. 160(e). We order enforcement of the Board's decision on the 8(a)(3) and 8(a)(4) charges, but deny enforcement of its decision on the 8(a)(1) charge.

I

As of early 1978, Royal operated at least six movie theaters, including the King and Queen Theaters. Royal had an agreement with the union, ¹ covering its movie projectionists, including employee Schmidt. Under this agreement, a movie projectionist was designated as a regular projectionist, a relief projectionist, or a casual projectionist. A regular projectionist was defined as one who was assigned a minimum of either 30 or 36 hours per week. ² A relief projectionist was one who was assigned a minimum of three shifts per week, and a casual projectionist was not guaranteed any hours. Grievances were to be filed with the union, although an exception allowed grievances to be filed with the employee's immediate supervisor.

Miller was Royal's vice president, and Petroni was Royal's chief projectionist and the supervisor of all projectionists, including Schmidt. Petroni prepared the work schedules for all of Royal's projectionists at all Royal theaters. He also scheduled projectionists for movie theaters other than Royal's, even though he was employed full-time by Royal. Since the union did not have a hiring hall, Petroni, at the request of the union, used the same list of projectionists for all scheduling.

Schmidt was employed as a regular projectionist by Royal from 1973 until he was laid off in November, 1978, as a result of Royal's reduced operating schedule. On June 15, 1978, while still employed as a regular projectionist, Schmidt filed a written grievance with Petroni. He complained that although he was scheduled for only 24 to 26 hours per week, Wheeler, another regular projectionist for Royal, was scheduled for 50 to 60 hours per week. After Petroni stated that Schmidt had "no right to file grievances," Schmidt filed the same grievance with Miller. Receiving no response, he sent a second letter to Miller in which he advised Miller that Petroni also worked for a second employer. He sent copies of these grievances to the union business representative. When asked by the administrative law judge (ALJ) whether the grievance was solved under the arbitration provision of the contract, Schmidt stated that the "union sided with the company and ruled against me."

On July 26, Schmidt filed subsection 8(a)(1), 8(a)(2), and 8(a)(3) unfair labor charges with the Board stating that Royal had reduced his work hours and changed his job classification in response to the grievance and other union activities, and that Petroni, as a member of management, was functioning as the union's shop steward. The Board dismissed the charges.

In October 1978, Schmidt sent a series of letters to Alameda, the union president, demanding that the union file written grievances because Schmidt was being scheduled for fewer hours than those specified in the agreement for a regular projectionist. On October 13, 1978, Miller wrote to the union explaining that Royal had filled its contractual obligations to Schmidt by offering him shifts at other theaters which would have guaranteed him the required minimum hours per week. The letter further stated that "Mr. Schmidt's contention represents an attempt to subvert the contract and his continual harassment can no longer be tolerated."

On November 17, 1978, Miller notified the union by letter that, due to discontinuance of operations at some of its theaters, it would be necessary to reduce the number of shifts available to regular projectionists and to eliminate casual and relief projectionists. Schmidt's position was reduced from a regular to a relief projectionist because he was the last hired. Schmidt was laid off later in November, but Petroni continued to schedule him as a regular projectionist at the Queen Theater, which by then had been sold by Royal.

When Parker, a regular projectionist employed by Royal at the King Theater, became ill, Schmidt was rehired as a casual projectionist to cover some of Parker's shifts. In July, Ohata, who had more seniority than Schmidt, requested and received one of Schmidt's shifts. When Parker died, a regular projectionist vacancy was created. Parker's shifts were given to Ohata. This in effect terminated Schmidt's employment as a casual projectionist with Royal. On August 4, 1979, the Queen Theater was purchased by a new owner and Schmidt's employment at the theater was discontinued. When Schmidt asked Petroni when he would be scheduled for work for Royal, Petroni stated he would be unable to schedule Schmidt because Miller was "fed up" and wanted nothing more to do with him. Petroni also responded that Schmidt had "dragged [Miller] through hell with all that nonsense with the NLRB" for what Miller indicated was no reason.

Schmidt filed a grievance with Miller protesting his termination and requesting that he be reemployed as a regular projectionist. He also requested a meeting with Miller and a union officer to discuss Petroni's statements and to examine a three inch file that Petroni stated Miller had compiled on Schmidt. In response, Miller told Schmidt that he would not be rehired. Schmidt testified that when he spoke with Petroni on August 18 and on August 25, 1979, he was told that he had performed competently as a projectionist, but that he was not being scheduled because Miller did not want to rehire him.

The ALJ found that Royal violated subsections 8(a)(1), 8(a)(3), and 8(a)(4) of the Act by refusing to rehire Schmidt. The Board concurred with the ALJ.

II

We must enforce the Board's order if the Board correctly applied the law and if the Board's findings of fact are supported by substantial evidence in the record viewed as a whole, Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); NLRB v. Nevis Industries, Inc., 647 F.2d 905, 908 (9th Cir.1981) (Nevis Industries ), even if we might reach a different conclusion based on the same evidence. Id.

Subsection 8(a)(3) provides that it is an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization[.]" 29 U.S.C. Sec. 158(a)(3). Under subsection 8(a)(4), it is also an unfair labor practice "to discharge or otherwise discriminate against

an employee because he has filed charges or given testimony under [the Act.]" 29 U.S.C. Sec. 158(a)(4). These subsections are implicated in Schmidt's case because the ALJ found that he was discharged for presenting grievances to the union and for filing an unfair labor practice charge with the Board. The crucial question is whether the refusal to rehire was motivated by anti-union animus or instead by legitimate business reasons

We are confronted first with the question of what standard should be applied to determine the real motive of Royal. The Board employed its Wright Line test. Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982). Royal claims that this was error and that the "dominant motive" test should apply. A survey of Ninth Circuit decisions shows that there is some confusion as to what is the correct standard in employee discharge cases.

Until recently, it was clear that we followed the dominant motive test. In Western Exterminator Co. v. NLRB, 565 F.2d 1114 (9th Cir.1977) (Western Exterminator ), we stated that:

"[t]he test is whether the business reason or the protected union activity is the moving cause behind the discharge." Stated conversely, "[w]here a party has two motives, one permissible and the other impermissible, the better rule is ... that the improper motive must be shown to have been the dominant one."

Id. at 1118, quoting NLRB v. West Coast Casket Co., 469 F.2d 871, 874 (9th Cir.1972), and Famet, Inc. v. NLRB, 490 F.2d 293, 296 (9th Cir.1973) (citations omitted) (emphasis added). We have followed this test repeatedly since our decision in Western Exterminator. See, e.g., Ad Art, Inc. v. NLRB, 645 F.2d 669, 678 (9th Cir.1981) (Ad Art ); NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1366-67 (9th Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 137, 70 L.Ed.2d 115 (1981) (Anchorage Times ); L'Eggs Products, Inc. v. NLRB, 619...