National Labor Relations Board, Petitioner, v. H. C. Smith Construction Co., Respondent, 439 F.2d 1064 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 439 F.2d 1064 (9th Cir. 1971) March 19, 1971

Paul J. Spielberg (argued), Atty., NLRB, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C.; Charles Henderson, Director, NLRB, Washington, D. C., for appellant.

H. William Coder (argued), of Burton & Coder, Great Falls, Mont., for appellant.

Before BROWNING and TRASK, Circuit Judges, and PREGERSON, District Judge.* 


The order which the Board asks us to enforce rests upon a determination that respondent violated section 8(a) (1) of the Act by discharging an employee for concerted activity protected by section 7 of the Act.

To the extent that this determination is based upon factual premises we think the Board's findings represent a "choice between two fairly conflicting views" of the evidence and are therefore binding upon us. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S. Ct. 456, 465, 95 L. Ed. 456 (1951).

Respondent raises one legal issue. The Board concedes that the employee based his action upon an erroneous assumption that the collective bargaining agreement contained a provision regarding the chain of command on the job when in fact it did not. Respondent argues that, as a matter of law, employee activity directed to the implementation of a supposed provision of the collective bargaining agreement cannot be protected concerted activity within section 1 when there is no such provision in the contract.

The reasonableness or unreasonableness of the employee's asserted interpretation of the contract is relevant to the factual issues of the employee's good faith and the employer's motivation. We agree with the General Counsel, however, that the employee does not lose the protection of the Act as a matter of law simply because his understanding of the contract turns out to be mistaken.

The Board's order will be enforced.


Honorable Harry Pregerson, United States District Judge for the Central District of California, sitting by designation