Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

NATIONAL LABOR RELATIONS BOARD, Petitioner,v.T & H INVESTMENTS, INC., Respondent.

No. 89-70029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 1990.Decided April 5, 1990.

Before EUGENE A. WRIGHT, REINHARDT and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

The question presented is whether substantial evidence in the record as a whole supports the Board's order. It found that the employer had engaged in unfair labor practices in violation of Secs. 8(a) (1) and (3) of the Act by discharging five employees for participation in union activity and by other discriminatory actions.

Background

T & H Investments, Inc. remanufactures lumber and employs 25 production and maintenance workers. In November 1986 it contracted to "sticker" the lumber of two companies. Stickering involves separating layers of lumber with evenly spaced boards to facilitate drying. The units are then carted by forklift to a drying kiln and, when dry, they are remanufactured.

Initially, T & H subcontracted the stickering work to another plant but in January 1987 it organized its own crew. It closed its plant temporarily on January 8 and laid off most of its employees but within a week had recalled a majority of them. In late February and early March, it recalled Dick Wallace, Billie Alderman, Russell Nuxoll, Tim Hays and Don Hays to finish stickering. It also hired two new employees for the stickering crew, Leonard Lund and Tony Britton.

The stickering crew began to discuss forming a union and Alderman brought union authorization cards to work. Alderman, Nuxoll, Lund, Wallace, and Tim and Don Hays signed them. At the end of their shifts, plant manager Hopkins fired Alderman, Nuxoll, Lund, Wallace and Tim Hays. Britton and Don Hays were kept on to finish the stickering. Those fired were told that there was no more stickering work available.

The fired employees filed a claim for violations of the National Labor Relations Act. The administrative law judge found unfair labor practices and the National Labor Relations Board affirmed. The Board seeks enforcement of its order, and T & H seeks to have it set aside.

Standard of Review

We will "affirm the Board's conclusion that an unfair labor practice was or was not committed if supported by substantial evidence in the record as a whole." UAW v. NLRB, 834 F.2d 816, 819 (9th Cir. 1987). If there are conflicting interpretations of the facts, and the one adopted by the Board is supported by substantial evidence, we may not substitute our interpretation. Id. at 822.

Analysis

I. Section 8(a) (1) Violations: Unfair Labor Practices

Employees have the right to form and to join labor organizations. 29 U.S.C. § 157. It is "an unfair labor practice for an employer (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title." Id. Sec. 158(a) (1).1 

The Board found that T & H committed several unfair labor practices violating Sec. 8(a) (1) of the Act. The record shows that the ALJ's findings, adopted by the Board, are supported by substantial evidence.

An employer may communicate its view about a union, so long as the communication does not contain a " 'threat of reprisal or force or promise of benefit.' " UAW, 834 F.2d at 820 (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969)). A prediction of plant closure will be unlawful unless the employer can demonstrate that it is the probable consequence of unionization for reasons beyond its control. UAW, 834 F.2d at 821.

Substantial evidence supports the Board's finding that T & H unlawfully threatened to close its plant if the employees formed a union. Although there was testimony that general manager Warren told the employees that the plant would not be shut down, the plant manager and two supervisors told some employees that it would be closed. Plant manager Hopkins told Hendrickson and Tyler that Warren would close the plant if the employees unionized.2  Supervisor Mandigo threatened employee Hays with closure.3  No evidence was presented that the plant would have to close if it unionized. See NLRB v. Fort Vancouver Plywood Co., 604 F.2d 596, 599 n. 1 (9th Cir. 1979) (threat of plant closure coercive unless phrased as economic predictions based on objective facts), cert. denied, 445 U.S. 915 (1980).

An employer that asks an employee about union activity does not necessarily violate Sec. 8(a) (1). Hotel Employees & Restaurant Employees Union, Local 11 v. NLRB, 760 F.2d 1006, 1009 (9th Cir. 1985).4  But an employer's interrogation will violate Sec. 8(a) (1) when it carries a threat of reprisal or forms a pattern of coercive conduct tending to inhibit Sec. 7 rights. NLRB v. Los Angeles New Hosp., 640 F.2d 1017, 1019 (9th Cir. 1981). The test is whether, under all the circumstances, the interrogation reasonably tends to restrain or interfere with the employee's expression of his or her rights. Hotel Employees & Restaurant Employees, 760 F.2d at 1009.

Substantial evidence supports the Board's finding that T & H interrogated its employees coercively. After a meeting in which plant manager Hopkins stated that the plant would be shut down by unionization, supervisor Janhsen asked employee Tifft if he had signed a union card. Hopkins and supervisor Mandigo approached Nuxoll on the same day and asked if he knew anything about the union, its supporters and who had signed the union cards.

Hopkins also approached employee Tyler, and told him that he did not know Tyler was a union man. After Tyler admitted that he supported the union, Hopkins warned him about the union, accused him of being a leader in it and threatened to close the plant. Supervisor Mandigo asked employee Hays what he thought of the union and then told him that he had seen the union "ruin a lot of companies." Mandigo told him that the plant would be shut down if the employees formed a union. See Fort Vancouver Plywood, 604 F.2d at 599 n. 1 (interrogation about unions inherently suspect).

C. Surveillance of an Employee's Union Activities

Creating the impression of surveillance of an employee's union activities violates Sec. 8(a) (1). Anchorage Times Publishing Co., 637 F.2d at 1366; L'eggs Products, Inc. v. NLRB, 619 F.2d 1337, 1345 (9th Cir. 1980).

Substantial evidence supports the Board's finding that plant manager Hopkins created the impression of surveillance. He asked employees for names of those supporting the union, reasonably creating the impression that he sought the information to use it against them. See Los Angeles New Hosp., 640 F.2d at 1020. Employee Hendrickson also saw Hopkins hiding behind a pile of lumber listening to the stickering crew discuss the union.

D. Directing Employees not to Discuss Union Matters

Enforcement of a rule that forbids employees from discussing union matters without banning discussion of other non-work related matters, a discriminatory non-solicitation rule, violates Sec. 8(a) (1). NLRB v. Olympic Medical Corp., 608 F.2d 762, 763-64 (9th Cir. 1979).

Substantial evidence supports the Board's finding that T & H enforced a discriminatory non-solicitation rule. T & H had no rules about solicitation during working hours until Hopkins learned that Tyler was telling employees that union authorization cards were available to sign at lunch. Because Tyler drove a forklift throughout the mill, Alderman asked him to tell employees about the cards. After learning this, Hopkins informed Tyler that he was not to discuss union matters with employees during work time. He could continue to discuss other subjects.

E. Soliciting Employee Grievances for Adjustment During the Pendency of the Union Campaign

An employer's willingness to listen to grievances is insufficient to violate Sec. 8(a) (1). Idaho Falls Consol. Hosps., Inc. v. NLRB, 731 F.2d 1384, 1386 (9th Cir. 1984); NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). Solicitation becomes an unfair labor practice when an express or implied promise is made that the grievance will be corrected only if the union loses the election. Idaho Falls, 731 F.2d at 1386-87.

Substantial evidence supports the Board's finding that T & H solicited grievances unlawfully and promised to redress them if unionization failed. Hopkins sent a letter to the employees soliciting grievances and attempting to resolve them. He said that he wished "to defeat those who hoped to create conflict and adversity in order to achieve some other selfish motive."

Tyler told Hopkins that the employees wanted equal pay for equal work, seniority and an incentive plan. Hopkins then suggested that a meeting be set up with the employees to resolve these issues. The first meeting was with Hopkins and the second with general manager Warren at the request of the employees. Warren said there that wage increases, the incentive pay plan and everything else could not be discussed until after the union election.

Substantial evidence supports the Board's finding that T & H engaged in unfair labor practices that violated Sec. 8(a) (1) of the Act.

II. Section 8(a) (1) and (3) Violation: Discriminatory Discharges

It is an unfair labor practice under Sec. 8(a) (1) and (3) for an employer to discharge an employee for union activity.5  NLRB v. Transportation Management Corp., 462 U.S. 393, 394 (1983); NLRB v. Searle Auto Glass, Inc., 762 F.2d 769, 773-75 (9th Cir. 1982).6  "When an employee's discharge is motivated both by legitimate business reasons and by reasons related to the employee's exercise of protected activities, we will find an unfair labor practice only if the employee's exercise of a protected activity was a substantial or a motivating factor in the discharge." Searle Auto Glass, 762 F.2d at 773.

The General Counsel has the burden of showing that the employee's union activity was "a substantial or motivating factor" in the employer's decision to terminate the employee. There is an affirmative defense if the employer can show by a preponderance of the evidence that the discharge would have occurred regardless of the protected activity. Transportation Management Corp., 462 U.S. at 401-03; NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989).

Substantial evidence supports the Board's finding that the union activity of Alderman, Nuxoll, Lund, Wallace and Tim Hays was a "motivating factor" in T & H's decision to fire them. Employee Hendrickson testified that plant manager Hopkins knew about the union activity well in advance of March 11 when the stickering crew was fired and that Hopkins knew union authorization cards were being distributed on that date. Hendrickson testified also that Hopkins told him that if Hopkins terminated the stickering crew, the vote for the union would fail.

We turn next to the affirmative defense. Substantial evidence supports the Board's finding that T & H failed to show by a preponderance of the evidence that it would have discharged the employees regardless of their union activity. T & H presented evidence that no stickering work was available. Although there was no work, the crew members argued that, but for their union activity, they would have been laid off rather than discharged and would later have been recalled to another position with T & H.7  See Anchorage Times Publishing Co., 637 F.2d at 1367 (section 8(a) (3) violation where employee would have been offered part-time status had she been anti-union). To support their position, they point to T & H's actions before their discharge on March 11 and thereafter.

As evidence that T & H had established a policy of laying off rather than discharging its workers the crew members refer to a January 1987 layoff.8  At that time, T & H laid off a majority of its employees but, within a week, recalled most of them.

As evidence that the crew members would have been recalled to other comparable positions, they refer to evidence that T & H hired new employees after March 11, and that Hopkins viewed the crew members as capable, hard-working employees.

Date of Position Comment

Hire

31187 Stickering Crew Five members discharged.

315 Millwright Crew members could not fill this position.

47 Forklift Operator Unknown if members could do this job. Hopkins

never asked.

47 Carpenter/Laborer Crew could do labor work.

47 Office Worker Crew could do work. Person who filled position

owned part of the company.

68 Graderman Crew could not do job.

68 Laborer Crew could do job.

69 Laborer Crew could do job.

716 Laborer Crew could do job.

In addition, T & H hired fourteen workers between August and October. The crew members were qualified for many of these positions, such as laborer and clean-up crew.

Substantial evidence supports the employees' allegations that, but for their union activity, they would have been laid off rather than discharged on March 11 and T & H would have hired them at a later date. Although there is evidence of only one prior lay off, there is substantial evidence that the crew members could have returned to comparable positions in the plant and that Hopkins regarded them as capable employees. In this situation, it was reasonable for the Board to conclude that T & H did not establish by a preponderance of the evidence that it would have discharged the employees regardless of their union activity.

Conclusion

We grant the Board's petition for enforcement of its order. The Board's findings that T & H committed unfair labor practices by violating Secs. 8(a) (1) and (3) are supported by substantial evidence.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

29 U.S.C. § 158(a) (1) is referred to as Sec. 8(a) (1) of the Act

 2

T & H challenges the ALJ's finding that Hendrickson's testimony was credible. We give "great deference" to the ALJ's credibility resolutions and sustain them on review unless they are inherently incredible or patently unreasonable. Photo-Sonics, Inc. v. NLRB, 678 F.2d 121, 123 (9th Cir. 1982). Hendrickson's testimony was not inherently incredible or patently unreasonable

 3

T & H argues that Mandigo was not a supervisor and that his statements cannot be charged to it. Section 2(11) of the Act provides:

The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if ... the exercise of such authority ... requires the use of independent judgment.

29 U.S.C. § 152(11). The existence of any of these powers combined with independent judgment suffices. NLRB v. Chicago Metallic Corp., 794 F.2d 527, 530-31 (9th Cir. 1986); NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1451 (9th Cir. 1986).

Although T & H contends that Mandigo did not have the power to fire, the employees were told that he had that authority. He also assigned work when necessary. Even if he was not a supervisor, the result would not change because Hopkins clearly threatened to close the plant.

 4

T & H argues that the interrogation was not coercive because it did not explicitly threaten the employees. This contention is without merit. Threats may be explicit or implicit. NLRB v. International Medication Sys., Ltd., 640 F.2d 1110, 1112 (9th Cir. 1981), cert. denied, 455 U.S. 1017 (1982)

It also argues that the interrogation was not coercive because the employees did not have to answer any questions. This contention is without merit. An interrogation violates the Act if it has the tendency to intimidate even if it does not actually do so. NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1364 (9th Cir.), cert. denied, 454 U.S. 835 (1981).

 5

29 U.S.C. § 158(a) (3) provides that it is an unlawful labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."

 6

Although the ALJ did not refer to the applicable case authority, the Board found that the employees had made out a prima facie case of unlawful motivation in their discharge and that the ALJ applied the correct analysis

 7

Lawfully discharged employees, unlike laid-off employees with a reasonable expectation of recall, are ineligible to vote in representation elections

 8

Because T & H is a relatively new company, this was its only other worker reduction during Hopkins' tenure

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