Falcon Plastics-Division of B-D Laboratories, Inc. v. National Labor Relations Board

397 F.2d 965, 68 L.R.R.M. (BNA) 2514, 1968 U.S. App. LEXIS 6680

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 1968
• Docket: 21882
• Status: Published

Opinions

PER CURIAM:

The petitioner was charged with numerous unfair labor practices. The Trial Examiner recommended dismissal of the complaint in its entirety. The Board adopted his findings in toto and agreed with all of his conclusions except that the discharge of the employee Reese did not violate Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1964). The opinion of the Board and the decision of the Examiner are reported at 164 N.L.R.B. No. 101.

The Examiner found that Reese and two other employees had agreed to make common cause in demanding a wage increase and were thus engaged in protected concerted activity to secure it, and that the employer may well have been aware of, or have suspected, this fact. He found that it was “fairly inferable” that Reese was discharged not because he had used vulgar and obscene language in rejecting an increase less than that he and his fellow employees had agreed upon, but because Reese’s supervisor was “disturbed about the rejection of the merit increase” and realized “that the rejection presaged a demand for higher wages.” The Examiner found it significant that the employer’s rules and regulations permitted lesser penalties for insubordination (the employer's characterization of Reese’s conduct) than discharge. The Examiner found, “It may be assumed that [the employer] had concluded that, of [the three employees] who had initially refused the merit increase, Reese had been most vociferous, and, perhaps, even, that his attitude did not bode well for [the employer’s] future wage structure.”

The Examiner’s reasons for not concluding, on these findings, that Reese was discharged for his concerted activity appear to have been two. First, since the two other employees who had refused the increase had -not also been fired, the Examiner thought that in order to hold that Reese was discharged for his protected activity in concert with these two “it would be necessary to find that [the employer] was bent on eliminating a stormy petrel and that it seized upon the incident as a pretext for doing so.” And, second, the Examiner thought that it “would also deprive [the employer] of its inherent management right to discipline recalcitrant employees. * * * The right of an employee to indulge in the argot of the plant in his day-to-day relations with his fellow-employees, and perhaps even in certain circumstances, with his superiors, must be weighed against the right of the employer to maintain plant discipline and morale, and respect for superiors.”

The Board concluded that the Examiner’s findings, briefly stated above, “establish prima, facie that [the employer] discharged Reese because he had engaged in protected concerted activities. Therefore, it was incumbent on [the employer] to rebut that showing. This it has not done.”

As to the Examiner’s first reason for reaching the contrary result, the Board did not consider the singling out of Reese for discharge to be sufficient to rebut the inference of improper motivation since Reese “was the most outspoken participant in the common cause.” This seems to us to be as permissible an evaluation of this portion of the record as the contrary evaluation adopted by the Examiner. Whether the employer’s discharge of Reese was motivated by his participation in protected concerted activity or by his insubordination, was an inference to be drawn from all of the established facts. We think it fair to say that there was substantial support in the record for either inference. Since the Examiner did not base the conclusion which he reached on this issue upon an evaluation of the credibility of witnesses, the Board’s conclusion must prevail. Cheney California Lumber Co. v. NLRB, 319 F.2d 375, 377 (9th Cir. 1963); NLRB v. Texas Independent Oil Co., 232 F.2d 447, 451 (9th Cir. 1956).

The Examiner’s second reason for holding for the employer raises the issue dealt with in NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). As the Court in that case said, “flagrant conduct of an employee, even though occurring in the course of section 7 activity, may justify disciplinary action by the employer. On the other hand, not every impropriety committed during such activity places the employee beyond the protective shield of the act. The employee’s right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain order and respect. [Citation] Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbitrary, ought not be disturbed.” The Board, not the Examiner, bore the ultimate responsibility for striking this balance; we are not convinced that its determination was either “illogical or arbitrary.”

The Board’s order will be enforced.