National Labor Relations Board, Petitioner, v. Padre Dodge, Respondent, 471 F.2d 416 (9th Cir. 1973)

The National Labor Relations Board petitions this court pursuant to Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) for enforcement of its order issued on March 29, 1971 (reported at 189 NLRB No. 55) against respondent Padre Dodge. The Board found that respondent had violated Sec. 8(a) (1) by making coercive statements against the union¹  and by creating the impression of surveillance, and Secs. 8(a) (3), 8(a) (1) by discriminatorily discharging four employees to discourage membership in the union. We enforce the Board's order in part and deny enforcement in part.

Respondent does not except to the findings relating to the Sec. 8(a) (1) violation. Anti-union animus is therefore established. There was also evidence that might have supported a finding that the respondent had cause for discharging the four employees. We are thus confronted by the familiar inquiry: were the discharges motivated by anti-union animus, or by the alleged deficiencies in the employees' performances?

We note that it is particularly within the purview of the Board to determine in cases such as this on conflicting evidence what was the motivation for discharge. N.L.R.B. v. Winkel Motors, 443 F.2d 38 (9th Cir. 1971). The Board's finding must be upheld if supported by substantial evidence viewing the record as a whole, Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487-488, 71 S. Ct. 456, 95 L. Ed. 456 (1951).

Respondent mounts its attack mainly on the trial examiner's credibility resolutions, claiming they are in error. Credibility resolutions should not be disturbed "unless a clear preponderance of all the relevant evidence convinces that they are incorrect." N.L.R. B. v. Luisi Truck Lines, 384 F.2d 842, 846 (9th Cir. 1967). We have examined the record and have found no reason to reverse the credibility findings.

The Board's finding that the discharges were motivated by a desire to discourage union membership is amply supported by substantial evidence in the record. We find particularly persuasive the fact that three of the employees were discharged during their first day at work after attendance at a union organization meeting.

Respondent contends that one of the discharged employees, Daily, was offered reinstatement but refused it, and that accordingly, the back-pay period should have been tolled by the offer. The record discloses that this employee was offered reemployment on March 15, 1970. On reporting to work the following day, he asked that his seniority and insurance benefits be reinstated and, in addition, he requested a $200 loan. Receiving no reply on these matters, he went to work that day and the following day. Then, assertedly because no reply was forthcoming, he left respondent's facility and did not return.

The trial examiner and a majority of the Board²  found that Daily had not been offered a full reinstatement within the meaning of the Act. The record does not support the Board's determination but does support chairman Miller's dissenting views.

There is absolutely no evidence of lack of good faith on the part of respondent in offering Daily reemployment and the trial examiner so indicated for the record.³  Daily had previously been employed, either quit or was terminated and reemployed on many occasions. Each time, his seniority and health insurance benefits were reinstated to his satisfaction. His demand for $200, because he "needed the money," was an obvious attempt to coerce his employer into paying something that was not due. Daily's threat was an ultimatum: "Well, I will give you until nine o'clock tonight."

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Respondent was not in the business of lending money, had not previously established a pattern of doing so in dealing with its employees, and was not obliged to knuckle under to Daily's unreasonable demands. An offer to reinstate an illegally discharged employee should be on the same terms that applied when the employee was fired. And the Board's remedy should restore "the situation, as nearly as possible, to that which would have obtained but for" the unfair labor practices. Phelps Dodge Corp. v. N.L. R.B., 313 U.S. 177, 194, 61 S. Ct. 845, 852, 85 L. Ed. 1271 (1941).

Accordingly, we deny enforcement of that part of the Board's order which would grant Daily back pay after March 17, 1970 or grant him the status of an employee on April 21, 1970, the date of the election.

In all other respects the order of the Board is enforced.