Wismettac Asian Foods, Inc. v. NLRB

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 2, 2022
• Docket: 20-73768
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 2 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WISMETTAC ASIAN FOODS, INC., No. 20-73768

Petitioner, NLRB Nos. 21-CA-207463 21-CA-208128 v. 21-CA-209337 21-CA-213978 NATIONAL LABOR RELATIONS 21-CA-219153 BOARD, 21-CA-212285

Respondent. MEMORANDUM*

NATIONAL LABOR RELATIONS No. 21-70142 BOARD, NLRB Nos. 21-CA-207463 Petitioner, 21-CA-208128 21-CA-209337 v. 21-CA-213978 21-CA-219153 WISMETTAC ASIAN FOODS, INC., 21-CA-212285

Respondent.

On Petition for Review of an Order of the National Labor Relations Board

Submitted January 13, 2022**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California

Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.

Wismettac Asian Foods, Inc. (“WLA”) petitions for review of the National

Labor Relations Board’s (“NLRB” or “the Board”) decision that WLA violated

§§ 8(a)(1), 8(a)(3) of the National Labor Relations Act (“NLRA”).1 We have

jurisdiction under 29 U.S.C. § 160 and affirm. We also hold that the Board is entitled

to summary enforcement of the finding that WLA violated § 8(a)(1) by promising

compensation for rejecting the union. Because the parties are familiar with the facts,

we do not recount them here, except as necessary to provide context to our ruling.

“Decisions of the NLRB will be upheld on appeal if the findings of fact are

supported by substantial evidence and if the agency correctly applied the law.” Loc.

Joint Exec. Bd. of Las Vegas v. NLRB, 515 F.3d 942, 945 (9th Cir. 2008). “[W]e

may not ‘displace the NLRB’s choice between two fairly conflicting views, even

though [we] would justifiably have made a different choice had the matter been

before [us] de novo.’” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir. 2000) (first

alteration added) (citations omitted).

1. The Administrative Law Judge (“ALJ”) found that WLA violated

§§ 8(a)(1), 8(a)(3) by demoting Ruben Munoz, terminating Pedro Hernandez, and

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 29 U.S.C. §§ 158(a)(1), 158(a)(3).

2 suspending and terminating Alberto Rodriguez. “To establish an unfair labor

practice, the [NLRB] must show an unlawful motivation either to discourage union

membership or to interfere with the exercise of protected rights.” NLRB v. Nevis

Indus., Inc., 647 F.2d 905, 909 (9th Cir. 1981). If the Board makes this showing,

“the burden will shift to the employer to demonstrate that the same action would

have taken place even in the absence of protected conduct.” United Nurses Ass’ns

of Cal. v. NLRB, 871 F.3d 767, 778–79 (9th Cir. 2017) (citations and quotation marks

omitted).

The ALJ’s finding that WLA’s adverse actions against Munoz, Hernandez,

and Rodriguez violated §§ 8(a)(1), 8(a)(3) was supported by substantial evidence.

WLA knew of the three employees’ support for the union. WLA indicated hostility

toward the union; for example, manager Frank Matheu said that “under no

condition[] would he allow . . . the Union to come into the company.” Matheu

conceded that at least one allegation in a written warning against Munoz was false

and that he did not know of at least one stated reason for Rodriguez’s dismissal.

WLA’s stated reasons for firing Hernandez were unsubstantiated and shifted.

Matheu told Hernandez that he was let go because his contract expired and gave no

other reason, but Matheu testified before the ALJ that Hernandez was fired due to

unsubstantiated claims of creating a hostile work environment. This evidence

provides substantial support for the ALJ’s findings. See Healthcare Emps. Union,

3 Local 399 v. NLRB, 463 F.3d 909, 922 (9th Cir. 2006) (“[A] flimsy or unsupported

explanation may affirmatively suggest that the employer has seized upon a pretext

to mask an anti-union motivation.” (alteration in original) (quoting NLRB v. Dillon

Stores, 643 F.2d 687, 693 (10th Cir. 1981))).

2. The ALJ found that WLA violated §§ 8(a)(1), 8(a)(3) by refusing to re-

hire Hernandez, Fanor Zamora, and Jeremiah Zermeno. Refusing to hire an

applicant because of his union activities is an unfair labor practice. See Frankl v.

HTH Corp., 650 F.3d 1334, 1362 (9th Cir. 2011) (citing FES, a Div. of Thermo

Power, 331 N.L.R.B. 9, 12 (2000)). In determining if an employer refused to hire

an applicant due to union activities, the Board applies the motivation test from

Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), as stated in FES:

(1) that the [employer] was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants.

FES, 331 N.L.R.B. at 6 (footnotes omitted) (citing Wright Line, 251 N.L.R.B. at

1083). If the Board “meets this prima facie burden, thus creating an inference that

union animus was a motivating factor in the decision to hire, the employer must . . .

demonstrate that it would have made the same decision in the absence of the

4 discriminatees’ union affiliation.” Blaylock Elec. v. NLRB, 121 F.3d 1230, 1233

(9th Cir. 1997) (citation omitted).

As to the first FES factor, WLA made at least 21 new hires in warehouse

positions after Hernandez, Zamora, and Zermeno applied. As to the second FES

factor, Hernandez, Zamora, and Zermeno applied for the positions they had worked

in before their dismissal. As to the third FES factor, WLA knew or likely knew that

these employees supported the union. WLA many times showed hostility toward

the union. And a finding of unfair labor practices does not require an employer to

discriminate against every known employee who supports the union.

3. The ALJ’s finding that WLA violated § 8(a)(1) by soliciting employees

to revoke union authorizations is supported by substantial evidence. See NLRB v.

Deutsch Co., Metal Components Div., 445 F.2d 902, 906 (9th Cir. 1971). WLA

mailed employees a letter explaining how to revoke authorization with a sample

revocation letter attached. WLA held meetings in which sample revocation forms

were distributed, and its labor consultant told workers in those meetings that “the

Union is not going to win” the election. The consultant testified that WLA wanted

to explain “how can [employees] get rid of this union? How can [employees]

retrieve [their] union authorization card . . . because [employees are] tired of this?”

But there is no evidence that any employee ever inquired with WLA about revoking

union authorization.

5 There is also substantial evidence of a coercive environment. Following the

union’s recognition request, WLA stationed armed security guards at the entrance to

the warehouse. The day before the first union election, WLA held a mandatory

meeting at which armed security guards stood in front of the door. At the meeting,

Matheu said that “under no condition[] would [Matheu] allow . . . the Union to come

into the company.”

4. As WLA does not dispute that it violated § 8(a)(1) by promising to

compensate workers for rejecting the union, the Board is entitled to summary

enforcement of this portion of its order. See Gardner Mech. Servs., Inc. v. NLRB,

115 F.3d 636, 643 n.2 (9th Cir. 1997). The other findings that the Board claims were

uncontested (addressed above) were contested.

AFFIRMED.