Signal Oil and Gas Company v. NLRB
Decision Date | 04 March 1968 |
Docket Number | No. 21745.,21745. |
Parties | SIGNAL OIL AND GAS COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
Court | U.S. Court of Appeals — Ninth Circuit |
Norman G. Kuch, Los Angeles (argued), A. E. Stebbings, Harold Judson, Los Angeles, Cal., for appellant.
Abraham Siegel, Washington, D. C. (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, H. M. Levy, Eugene B. Granof, N.L.R.B., Washington, D. C., Ralph E. Kennedy, Director, N.L.R.B., Los Angeles, Cal., for appellee.
Before BARNES and DUNIWAY, Circuit Judges, and HILL*, District Judge.
This case is before us pursuant to sections 10(e) and 10(f) of the National Labor Relations Act, 29 U.S.C. §§ 160(e), (f) (1964), which authorize our review of final orders of the National Labor Relations Board. The Board ruled on August 24, 1966, that the Signal Oil and Gas Company had violated sections 8(a) (1) and 8(a) (3) of the NLRA, 29 U.S.C. §§ 158(a) (1), (a) (3) (1964), by discharging from its employ one Louis Evans. Signal has petitioned this court for review of the Board's order implementing that ruling, asking that it be set aside, and in its answer the Board has cross-petitioned for enforcement of the order.
The controversy arises from incidents occurring in September 1965 in Bakersfield, California, where Signal has for some time operated a refinery and related petroleum facilities. Employees at the refinery itself were at that time represented by the Oil, Chemical, and Atomic Workers International Union, AFL-CIO, Local 1-19, whose collective bargaining agreement with Signal was about to expire; negotiations between union and company representatives concerning the terms of a new agreement were in fact then being carried on. Signal also employed nine truck drivers, who delivered oil products to local retail outlets, and an unspecified number of pipeline employees. Neither of these two groups was represented by any labor union. Evans, the employee in question, was one of the truck drivers.
On September 24, 1965, Evans was in Signal's Bakersfield dispatching office. In the presence of Fred Brown, his immediate superior, he engaged in a conversation with Walter Bright, a pipeline employee with whom he was acquainted. Bright asked what Evans thought concerning the possibility of an Oil Workers' strike at the refinery. Evans — who was the only one of the three individuals present to testify concerning his response — admitted that he replied, "Good, good, I hope they do." R.T. 15.
Later that day Brown telephoned his own superior, Malcolm Dawson, and reported Evans' remark. Dawson, however, testified that Brown quoted Evans as having said, "I hope they do strike, maybe it will teach this cheap company something." R.T. 79. (Brown testified, but was not asked what he had heard Evans say.) The next week Dawson repeated Evans' comment (allegedly as it had been recounted to him) to James Rasbury, manager of Signal's Employment Relations Department. At the time, neither Dawson nor Rasbury discussed the possibility of any future action with regard to Evans' employment.
On September 30, in accord with this decision, Evans was given a termination slip, on which the reason for discharge was stated to be "poor attitude." Evans testified that when he asked Brown the reason for his discharge, he received the answer:
"Because you have been over to the Refinery talking to the employees about the Union and the Refinery called — the main office in Los Angeles, and had you fired." R.T. 18.
When he later called Dawson, however, Evans was told that Brown's explanation was incorrect, and that those making the decision had heard nothing regarding the allegations on which that explanation was based. Dawson then queried Evans about "the conversation with Mr. Bright," R.T. 88, and repeated that Evans had been discharged because his "attitude" had been poor.
Section 8(a) (1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7," while section 8(a) (3) similarly makes it an unfair labor practice "to encourage or discourage membership in any labor organization" by means of "discrimination in regard to hire or tenure of employment * * *." The Board's order requires Signal to cease and desist from the unlawful conduct found, to offer Evans reinstatement and back pay, and to post the usual notices announcing its compliance with the Board's decision.
In seeking to bar enforcement of the Board's order Signal puts forward two arguments. First, the company contends that it took action against Evans not because of his comment to Bright, but on the basis of his overall record and attitude — and that the Board erred in not so finding. And second, it argues that Evans' remark does not fall within the concept of "concerted activities for the purpose of * * * mutual aid and protection," as specified by sections 7 and 8(a) (1) of the Act, and that therefore it is not "protected activity" (for the exercise of which an employee may not be discharged).
It is clear that, although engaging in activity protected by section 7 of the Act "does not perforce immunize employees against discharge for legitimate reasons," Mitchell Transport, Inc., 152 N.L.R.B. 122, 123 (1965), petition to set aside denied sub nom. Hawkins v. NLRB, 358 F.2d 281 (7th Cir. 1966), a dismissal based primarily on an employee's union activity constitutes an unfair labor practice under section 8(a) (3). And, while determinations concerning the actual motive behind particular dismissals are often difficult, they must be made by the Board in the course of its official functions. Judicial review of such determinations is limited to decisions as to whether they are supported by substantial evidence. Here the Board concluded that Evans was discharged because of the pro-strike content of his remark to Bright, and, since that conclusion is supported by substantial evidence, Signal's first contention must be rejected.
The trial examiner rested his conclusion concerning the reason for Evans' discharge on his finding that "the report of Evans' remark to Bright expressing his approval of the strike caused management to question his desirability as an employee and to institute the investigation" of his personnel file. C.T. 18. It is implicit in this finding that management's response to the comment was due at least in large part to its pro-strike sentiment rather than to its alleged anti-company flavor. Both of these findings are supported by substantial evidence. The rapidity with which Evans' remark was reported upward through Signal's managerial ranks and the nature of Stroud's response upon hearing of that remark make it fairly clear that Evans' file would not have been reviewed had he not made the comment in question. And, although Signal's contention that it looked only to the comment's alleged slur on the company rather than to its support for the Oil Workers' rumored strike is not entirely without support, such questions are primarily matters of inference which must of necessity be left largely to the trier of fact, with his command of the record as a whole and his opportunity to observe the witnesses. Here, Evans denied that he used language derogatory to the...
To continue reading
Request your trial-
Be-Lo Stores v. N.L.R.B.
...that would not have occurred but for the employer's desire to get rid of a pro-union employee, see, e.g., Signal Oil and Gas Co. v. NLRB, 390 F.2d 338, 340-42 (9th Cir.1968) (upholding a § 8(a)(3) violation where an employer discharged an employee who made a pro-strike remark, allegedly for......
-
Totten v. Kellogg Brown & Root, LLC
...conditions through resort to administrative and judicial forums....” Id. at 566, 98 S.Ct. 2505 ; see, e.g., Signal Oil and Gas Co. v. NLRB, 390 F.2d 338, 342–43 (9th Cir.1968) (finding non-union employee engaged in protected concerted activity when he made pro-strike remarks to another non-......
-
Prill v. N.L.R.B.
...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, 342-43 (9th Cir.1968).86 See, e.g., NLRB v. Charles H. McCauley Assocs., Inc., 657 F.2d 685, 688 (5th Cir. Unit B. 1981); NLRB v. Senco......
-
I.N.S. v. Federal Labor Relations Authority
...by passing certain general information concerning the employer to a union negotiating with the employer); Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 342-43 (9th Cir.1968) (a non-union employee has a section 7 "right to assist" a labor organization by stating to another non-union employee t......