Western Exterminator Co. v. N.L.R.B., Nos. 76-2293

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WALLACE and SNEED; WALLACE
• Citation: 565 F.2d 1114
• Parties: 97 L.R.R.M. (BNA) 2187, 83 Lab.Cas. P 10,319 WESTERN EXTERMINATOR COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INDUSTRIAL CARPENTERS UNION, LOCAL NO. 2565, Respondent.
• Docket Number: 76-2617,Nos. 76-2293
• Decision Date: 07 December 1977

Page 1114

565 F.2d 1114 97 L.R.R.M. (BNA) 2187, 83 Lab.Cas. P 10,319 WESTERN EXTERMINATOR COMPANY, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
INDUSTRIAL CARPENTERS UNION, LOCAL NO. 2565, Respondent. Nos. 76-2293, 76-2617. United States Court of Appeals,
Ninth Circuit. Dec. 7, 1977.

Page 1115

Stanley E. Tobin (argued), of Hill, Farrer & Burrill, Los Angeles, Cal., for petitioner.

Michael S. Winer (argued), Washington, D. C., David A. Rosenfeld (argued), San Francisco, Cal., for respondent.

Petition to Review a Decision of the National Labor Relations Board.

Before WALLACE and SNEED, Circuit Judges, and BOLDT, ^* District Judge.

WALLACE, Circuit Judge:

This case is before us on a Petition for Review and Application for enforcement of a decision of the National Labor Relations Board holding that both the employer and the union committed certain unfair labor practices in connection with the discharge of a particular employee. We grant enforcement as to certain aspects of the Board's Decision and Order, which are not attacked on appeal. As to the Board's finding of violations of section 8(a)(3) and section 8(b)(2) of the National Labor Relations Act, however, we deny enforcement.

I

Western Exterminator Company (Western) operates some eighteen separate facilities engaged in the pest control industry. Western's field employees are divided generally into two main groups, termite control and nuisance pest control. During the period from October 1, 1974 to September 30, 1977, the termite employees in Western's Oakland branch were covered by a collective bargaining agreement between Western and the Structural Pest Control Division of the Industrial Carpenters Union Local No. 2565 (Union).

On October 26, 1973, Macias, a Union member, applied for employment at Western's Oakland branch. Macias was interviewed by Hoffman, the senior termite inspector. Hoffman hired Macias upon his representation that he was a journeyman termite-worker.

On November 12, 1974, Macias attended a contract ratification meeting at which Hoffman, as president of the Union, presided. During the course of this meeting, Worley, a Union member, challenged Hoffman's dual position as company supervisor and Union president. Hoffman asked Worley where he had obtained his information and Worley pointed to Macias who was seated next to him. Other Union members subsequently challenged Hoffman's Union position and he responded by offering to settle the matter outside.

The following day, when Macias reported for work, Hoffman asked him what he had said to Worley at the union meeting. Macias responded that he had merely told Worley that Hoffman was the senior termite inspector at Western. Hoffman shook his head and walked away.

During the closing months of 1974, Western's business suffered an unusually severe seasonal decline. In late November or early December, Hoffman and Doucette, the Oakland branch manager, determined that

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the reduction in business necessitated the layoff of one or more termite-workers. On December 9, Macias returned from vacation and went to the coffee room to await his day's assignment. About 8:00 a. m. Hoffman entered the room and dispatched all of the termite-workers except Macias. Hoffman then went to Doucette's office. He returned within a few minutes and informed Macias that Doucette wanted to see him. Macias reported to Doucette's office and was told that he was being laid off as a result of the lack of work. Macias asked if he would be recalled when work increased, and Doucette responded affirmatively.

In early January 1975, Macias telephoned Doucette to inquire about his prospects of returning to work. When Doucette told him that work was still slack, Macias protested that he had more seniority than two termite-employees who were still working. Doucette responded that he was unaware of such matters and suggested that Macias call Hoffman. Macias did so and repeated what he had told Doucette. Hoffman advised Macias that the controlling collective bargaining agreement contained no seniority provisions. After further protestations by Macias, Hoffman told him that he had no intention of calling him back to work, in any event, because of his poor work record and marginal competency as a journeyman termite-worker.

On January 23, 1975, Macias instituted Union grievance procedures on the basis of his discharge. Macias subsequently filed unfair labor practice charges against both Western and the Union. On the basis of these charges, the General Counsel of the National Labor Relations Board issued a complaint against Western and the Union alleging certain violations of the National Labor Relations Act (NLRA). Specifically, the General Counsel charged Western with violating sections 8(a)(3) and (1), 29 U.S.C. § 158(a)(3) and (1), by discharging Macias for engaging in protected Union activities, and sections 8(a)(2) and (1), 29 U.S.C. § 158(a)(2) and (1), by allowing one of its supervisors to act as a Union official. The General Counsel also alleged that the Union had violated section 8(b)(2), 29 U.S.C. § 158(b)(2), by causing Western to discharge Macias, and section 8(b)(1)(A), 29 U.S.C. § 158(b)(1)(A), by failing to process properly Macias' grievance.

The administrative law judge (ALJ) held that Western and the Union had violated section 8(a)(2) and section 8(b)(1)(A), respectively. The ALJ declined, however, to find violations of sections 8(a)(3) and 8(b)(2). A three-member panel of the NLRB sustained the ALJ's finding of section 8(a)(2) and section 8(b)(1)(A) violations. The Board disagreed with the ALJ, however, with respect to the section 8(a)(3) and section 8(b)(2) allegations and held that Western and the Union had committed unfair labor practices by discharging Macias. The Board ordered Western to reinstate Macias and, together with the Union, to remunerate Macias for any loss of wages incurred as a result of the discriminatory discharge.

The parties are now before us on Western's Petition for Review and the Board's applications for enforcement of its Decision and Order. At oral argument, counsel for Western and the Union acceded to the section 8(a)(2) and section 8(b)(1)(A) violations, respectively. Western and the Union vigorously contend, however, that the NLRB's finding of section 8(a)(3) and section 8(b) (2) violations are not supported by substantial evidence. We agree.

II

The essence of the Board's argument is that Macias' exercise of section 7 rights in publicizing Hoffman's dual role as Union president and company supervisor was a contributing factor in Western's decision to discharge Macias. This nexus, the Board asserts, is established by Hoffman's participation in the decision to discharge Macias.

The ALJ found that Doucette had identified Macias as the termite man to be laid off and that Hoffman's role in the decision was limited to concurrence. The ALJ also found, and it is not disputed, that Doucette had no knowledge of Macias' Union activities. Accordingly, the ALJ found that Western, acting through its...