Fun Striders, Inc. v. National Labor Relations Board

dissenting:

I respectfully dissent.

The record clearly reveals that the decision not to allow Carranza, Castro, Ruiz and Marin to return to work was made solely by one man, Jack Atkins, the director of manufacturing. Therefore, the relevant inquiry in this case is the reason for his decision.

It is admitted that the reason was that Atkins believed the four persons had passed out leaflets at the entry gate. It is troubling that he could identify no reason why he believed Marin was involved in that activity. He stated he saw Carranza and Castro handing out the leaflets and saw Ruiz holding a stack of them, but he could state no reason why he thought Marin had been involved. This, of course, leads to a possible inference that his reason was not solely because of the leaflet activity, but rather that the four were key instigators in the employee demands and organizational efforts.

However, neither the AU nor the Board based their decisions on that ground. They concluded that the four employees were not allowed to return to work because they had passed out the leaflets and that this was a protected activity.

The essential question in my judgment is whether the Board was correct in…

Fun Striders, Inc., petitions for review of an order of the National Labor Relations Board finding that Fun Striders violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1) (1976), by discharging and refusing to reinstate four employees who Fun Striders believed had distributed certain literature during an unannounced employee work stoppage. See Fun Striders, Inc., 250 N.L.R.B. 520 (1980). Fun Striders contends that the NLRB erred (1) by finding the employees’ distribution of communist-oriented literature to be protected activity and (2) by failing to apply a dual or mixed motive analysis to the discharges. The NLRB cross-applies for enforcement of its order. We set aside the order and refuse enforcement.

*661 I. THE DISPUTE

Fun Striders, Inc., is engaged in the manufacture of shoes and handbags. On August 24, 1978, in protest of the piece-rate set on a new shoe style, stitching department employees in one of its three plants stopped work. While the employees were on the picket line, members of the Progres-' sive Labor Party appeared outside the plant and began selling their newspapers. The Party members offered to prepare and provide leaflets…

686 F.2d 659 108 L.R.R.M. (BNA) 2759 , 108 L.R.R.M. (BNA) 3058 , 111 L.R.R.M. (BNA) 2147 , 92 Lab.Cas. P 13,064 FUN STRIDERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 80-7452, 80-7557. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 1981. Decided Oct. 8, 1981. Dissenting Opinion Aug. 26, 1982. Kyle D. Brown, Hill, Farrer & Burrill, Los Angeles, Cal., for petitioner. William Wachter, Washington, D. C., for respondent. Cross-Petitions for Review and Enforcement of an Order of the National Labor Relations Board. Before HUG and FARRIS, Circuit Judges, and CLAIBORNE, * District Judge. FARRIS, Circuit Judge: 1 Fun Striders, Inc., petitions for review of an order of the National Labor Relations Board finding that Fun Striders violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158 (a)(1) (1976), by discharging and refusing to reinstate four employees who Fun Striders believed had distributed certain literature during an unannounced employee work stoppage. See Fun Striders, Inc., 250 N.L.R.B. 520 (1980). Fun Striders contends that the NLRB erred (1) by finding the employees' distribution of…