Penasquitos Village, Inc., Penasquitos Gardens, Inc., Penasquitos Hills, Inc., and San Diego Leisure Life Village v. National Labor Relations Board

(concurring in part and dissenting in part):

I concur in the result reached in part II A of Judge Wallace’s opinion, but I have some reservations about the rationale by which that result is reached. I dissent from part II B of the opinion, and would enforce the part of the Board’s order that is considered in part II B.

I.

My reservations relate to Judge Wallace’s adoption of the dichotomy between “credibility determinations based on demeanor . testimonial inferences” and those based on “inferences drawn from the evidence itself — . . . derivative inferences. . . ” This distinction he finds in a concurring opinion of Judge Frank in NLRB v. Universal Camera Corp., 2 Cir., 1951, 190 F.2d 429, 432 , on remand from Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 . Judge Wallace is careful to emphasize that the administrative law judge’s determinations of credibility are not conclusive, but I am concerned lest the dichotomy that he adopts may result in future decisions that are merely mechanical applications of labels, which hinder rather than help the intelligent and principled application or growth of the law. I fear that Judge Wallace’s opinion may…

The National Labor Relations Board (the Board), reversing the decision of an administrative law judge, held that Penasquitos Village, Inc. and affiliated companies (Pe-nasquitos) had engaged in coercive interrogation of employees in violation of section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (a)(1), and had wrongfully discharged employees in violation of section 8(a)(3) of the Act, 29 U.S.C. § 158 (a)(3). 217 NLRB 878 (1975). Penas-quitos petitioned us to review and set aside the Board’s order, alleging that it was not supported by substantial evidence. The Board cross-petitioned for enforcement. We refuse enforcement and set aside the order.

I.

This case presents no contested or novel legal issues regarding the alleged unfair labor practices. The dispute is basically factual, and the central legal principle requiring clarification concerns the respective and related roles of the administrative law judge, the Board and the Court of Appeals in resolving factual disputes, particularly those turning on the credibility of witnesses. Because of this, it would be more appropriate to first analyze the law before proceeding to a detailed examination of…

(concurring):

I concur in the results reached by Judge Wallace in both parts II A and II B.

However, I share the concern that Judge Duniway feels about Judge Wallace’s treatment of demeanor evidence and testimonial inferences. I, therefore, concur in Judge Duniway’s eloquent exposition of his reservations contained in part I of his concurring and dissenting opinion.

565 F.2d 1074 97 L.R.R.M. (BNA) 2244 , 82 Lab.Cas. P 10,288 PENASQUITOS VILLAGE, INC., Penasquitos Gardens, Inc., Penasquitos Hills, Inc., and San Diego Leisure Life Village, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 75-2173. United States Court of Appeals, Ninth Circuit. Nov. 30, 1977. J. Robert O'Connor, III (argued), of Donnelley & Holden, San Diego, Cal., for petitioners. John D. Burgoyne (argued), Washington, D. C., for respondent. On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Before DUNIWAY, CHOY and WALLACE, Circuit Judges. WALLACE, Circuit Judge: 1 The National Labor Relations Board (the Board), reversing the decision of an administrative law judge, held that Penasquitos Village, Inc. and affiliated companies (Penasquitos) had engaged in coercive interrogation of employees in violation of section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 158 (a)(1), and had wrongfully discharged employees in violation of section 8(a)(3) of the Act, 29 U.S.C. § 158 (a)(3). 217 NLRB 878 (1975). Penasquitos petitioned us to review and set aside the Board's order,…