National Labor Relations Board v. Robertson Industries

560 F.2d 396 93 L.R.R.M. (BNA) 2529 , 79 Lab.Cas. P 11,688 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROBERTSON INDUSTRIES, Respondent. No. 75-1694. United States Court of Appeals, Ninth Circuit. Oct. 4, 1976. Michael F. Messitte, Atty. (argued), of N.L.R.B., Washington, D. C., for petitioner. A. Patrick Nagel (argued), Irvine, Cal., for respondent. 1 Before ELY and WALLACE, Circuit Judges, and ORRICK, * District Judge. ORRICK, District Judge: 2 Petitioner, the National Labor Relations Board (NLRB), seeks enforcement of its order issued against respondent, Robertson Industries (the Company), on January 30, 1975, which directed the Company to reinstate certain discharged employees with full back-pay and other privileges and granted further relief. 216 NLRB 62 (1975). The NLRB's order stems from its findings that the Company, inter alia, violated Section (8)(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (a)(1), by discharging thirty-four employees on February 4, 1974, because they engaged in a protected work stoppage. The Company opposes enforcement of the order. This Court has jurisdiction pursuant to 29 U.S.C. § 160 (e). 3 Upon review of the…

Petitioner, the National Labor Relations Board (NLRB), seeks enforcement of its order issued against respondent, Robertson Industries (the Company), on January 30, 1975, which directed the Company to reinstate certain discharged employees with full back-pay and other privileges and granted further relief. 216 NLRB 62 (1975). The NLRB’s order stems from its findings that the Company, inter alia, violated Section (8)(a)(l) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (a)(1), by discharging thirty-four employees on February 4, 1974, because they engaged in a protected work stoppage. The Company opposes enforcement of the order. This Court has jurisdiction pursuant to 29 U.S.C. § 160 (e).

Upon review of the entire record, considered as a whole, we determine that the NLRB’s findings and conclusions are supported by substantial evidence. Accordingly, for the reasons hereinafter stated, we grant the NLRB’s application for enforcement of its order. See, Electromec Design & Development Co. v. NLRB, 409 F.2d 631 (9th Cir. 1969).

The relevant facts are more fully set forth in the decision and order of the NLRB rendered on January 30, 1975, in conjunction with the order…

(dissenting):

I respectfully dissent. I conclude that the all-day work stoppage in question was not activity protected by section 7 of the National Labor Relations Act and that the company did not engage in an unfair labor practice in violation of section 8(a)(1) of the Act when it discharged employees for their absence on February 1.

In order for the discharge of employees to constitute an unfair labor practice, there must be substantial evidence that the employees were engaged in concerted protected activities. Southwest Latex Corp. v. NLRB, 426 F.2d 50 (5th Cir. 1970); Indian Gear Works v. NLRB, 371 F.2d 273 (7th Cir. 1967); cf. NLRB v. Kaiser Aluminum & Chemical Corp., 217 F.2d 366 (9th Cir. 1954). In Shelly & Anderson Furniture Manufacturing Co. v. NLRB, 497 F.2d 1200 (9th Cir. 1974), we identified the four elements essential to protected status of concerted activity. Two of them were that “a specific remedy or result must be sought through such activity; and . . . the activity should not be unlawful or otherwise improper.” Id. at 1203 .

*400 I. Specific Remedy or Result

On February 1, 33 employees of Robertson Industries failed to report to work. The record shows that at…