Top of Waikiki, Inc., Petitioner, v. National Labor Relations Board, Respondent, 429 F.2d 419 (9th Cir. 1970)

This case is before the court on petition of Top of Waikiki, Inc., pursuant to Section 10(e) and (f) of the National Labor Relations Act, to vacate and set aside portions of the order of the National Labor Relations Board requiring petitioner to reinstate, with back pay, its discharged employees, David Kochi, Michael Leslie, and Dwight Yamaguchi, and the Board's cross-petition for enforcement of its order. The board's decision and order are reported at 176-77 N.L.R. B. No. 6. No jurisdictional issue is present.

The Board found that petitioner violated Sec. 8(a) (1) of the Act by disciplining, and then later discharging, the above named employees for engaging in protected, concerted activities for the purpose of mutual aid and protection within the meaning of Sec. 7 of the Act.

The Board also found that petitioner violated Sec. 8(a) (3) and (1) of the Act in respect to nine other named employees by refusing to reinstate them after a protected walkout. Petitioner acquiesced in the enforcement of the Board's order in respect to them, and we are, therefore, not concerned with them in this review.

On this review petitioner earnestly contends that the findings of the Board that petitioner violated Sec. 8(a) (1) of the Act by disciplining and then later discharging the above named employees while engaging in protected, concerted activities for the purpose of mutual aid and protection within the meaning of Sec. 7 of the Act are not supported by substantial evidence on the record considered as a whole. In support of this contention petitioner asserts that the record as a whole reveals that the three employees named above "had been suspended for proper cause by reason of their imputation of Company dishonesty and insubordination in grumbling about the change in the method of pooling of tips on the one night of New Year's Eve and were thereafter discharged when they made a later appearance to attend a meeting of employees called by the Company during the period of their suspension."

The reviewing power of this Court over orders of the Board is set forth in Sec. 10(f) of the Act, which states:

" [T]he findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall in like manner be conclusive."

The standard of review set forth in that provision is elaborated upon in Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951) and its companion case, N.L.R.B. v. Pittsburgh S. S. Company, 340 U.S. 498, 71 S. Ct. 453, 95 L. Ed. 479 (1951). If the findings are not supported by substantial evidence on the record when considered as a whole, it is our duty to set aside and refuse enforcement of the order of the Board. Universal Camera Corp. v. N.L.R.B., supra; N.L.R.B. v. Isis Plumbing & Heating Co., 322 F.2d 913 (9th Cir. 1963); Lozano Enterprises v. N.L.R.B., 357 F.2d 500 (9th Cir. 1966).

Under the rationale expressed in Universal Camera, supra, it is our duty in determining the substantiality of evidence supporting a Labor Board decision to take into account contradictory evidence or evidence from which conflicting inferences could be drawn.

"The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera, supra, 340 U.S. at 488, 71 S. Ct. at 464.

We recognize that an affirmative duty rests upon General Counsel to establish by substantial evidence that, in respect to the discharges in question, petitioner was motivated to do so because the discharged employees had engaged in protected, concerted activities.

We have carefully reviewed the entire record in this case, not only in the light of the governing principles of law set forth above in this opinion, but also in light of petitioner's contention that the discharged employees were acting solely for themselves and not for other employees.

We conclude that there is substantial evidence from which the Board could infer that the activities of the discharged employees, leading to their discharge, were engaged in with, or on behalf of, other employees and not solely by and on behalf of themselves, and thus were "concerted activities for the purpose of * * * mutual aid or protection" within the meaning of Sec. 7 of the National Labor Relations Act protected by Sec. 8(a) (1) of the Act. See: Pacific Electricord Company v. N.L.R.B., 361 F.2d 310 (9th Cir. 1966); Signal Oil and Gas Company v. N.L.R.B., 390 F.2d 338 (9th Cir. 1968).

The petition to vacate and set aside the decision and order of the Board is denied, the petition is dismissed, and the cross-petition of the Board for enforcement of its order is granted.