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

(dissenting):

I respectfully dissent.

In Lozano Enterprises v. NLRB, 357 F.2d 500, 502 (9th Cir. 1966), we said:

In Martel Mills Corp. v. NLRB, 114 F.2d 624, 631 (4th Cir. 1940), the Fourth Circuit said:

Here, the circumstances relied upon by the Board to support its rejection of petitioner’s explanation for Reese’s dismissal do not suffice for such a purpose. Moreover, the cases relied upon by the Board are clearly distinguishable. In Butcher Boy Refrigerator Door Co., 127 N.L.R.B. 1360 (1960), enforced, 290 F.2d 22 (7th Cir. 1961), there was evidence of anti-union animus on the part of the employer — a circumstance relied upon by the Seventh Circuit, in fact, to distinguish the Butcher Boy case from that circuit’s earlier decision in Miller Elec. Mfg. Co. v. NLRB, 265 F.2d 225 (7th *968 Cir. 1959). Here, there is no independent evidence of any hostility to employees’ section 7 rights; in a finding upheld by the Board, in fact, the trial examiner concluded (with respect to a union organizing campaign connected with certain other charges brought against petitioner) that there was “a total absence of evidence of anti-union animus, hostility or opposition to the Union, or of the…

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…

397 F.2d 965 FALCON PLASTICS-DIVISION OF B-D LABORATORIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 21882. United States Court of Appeals Ninth Circuit. June 4, 1968. Frank Simpson for Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for appellant. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Warren M. Davison, Burton L. Raimi, Attys., N.L.R.B., Washington, D.C., Paul A. Cassady, Regional Director, N.L.R.B., Los Angeles, Cal,, for appellee. Before BARNES and BROWNING Circuit Judges, and SOLOMON, District judge. PER CURIAM: 1 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. 2 The Examiner found that Reese and two other employees had agreed to make common cause in…