Humes Electric, Inc. v. National Labor Relations Board

Humes Electric, Inc. petitions for review of the Decision and Order of the National Labor Relations Board, 263 NLRB No. 159 (Sept. 20, 1982), holding James Devers’ discharge illegal and ordering his reinstatement and back pay. The Board has filed a cross-application for enforcement of its order. For the reasons that follow, we deny the petition for review and order enforcement.

Facts:

The critical factual issue before the Board was Humes’ motivation in firing Devers. The Board concluded that Devers was fired for engaging in protected activity. Humes argues that Devers was fired for poor production and insubordination.

Before Devers was fired, he had worked for four weeks as a foreman for Humes on their “Elk Hills Project” which involved setting large electrical poles and stringing wire at the Elk Hills Naval Petroleum Reserve. Though not directly communicated to Humes, Devers was the Union Steward on the job. Humes was, however, aware that Devers was a union man with a lot of influence with the other workers. Conflicting testimony was presented, and both Devers’ and Humes’ views of the reasons for Devers’ discharge have support in the record. The Board found that Humes had…

concurring:

I concur in Judge Tang’s opinion. I write only to call attention to an interaction between the employer’s Wright Line burden and the substantial evidence standard to which we must adhere in reviewing the Board’s findings. An employer, who presents a fairly strong case that an employee was discharged for reasons unrelated to protected activity, but which ease fails to convince the Board that the showing amounts to a preponderance of the evidence, should not be sanguine about the Board’s result being overturned by a court. Inevitably, or almost inevitably, the evidence that established the employee’s prima facie case, plus a bit more, probably will constitute substantial evidence. The employer’s proof that will require a court to overturn a Board’s finding against it very likely must be stronger than the preponderance of the evidence burden that Wright Line imposes. To say either that we must affirm a Board’s finding against the employer when that finding rests on nothing but the employee’s prima facie case, or that we can reverse such a Board’s finding only if the employer’s proof is beyond a reasonable doubt, is to go too far. However, it is also clear that we are not…

715 F.2d 468 114 L.R.R.M. (BNA) 2445 , 98 Lab.Cas. P 10,438 HUMES ELECTRIC, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 82-7700, 82-7587. United States Court of Appeals, Ninth Circuit. Argued May 5, 1983. Submitted June 28, 1983. Decided Sept. 7, 1983. Stuart H. Young, Jr., Los Angeles, Cal., for petitioner. Fred Havard, Washington, D.C., for respondent. Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Before SNEED and TANG, Circuit Judges, and COPPLE, * District Judge. TANG, Circuit Judge. 1 Humes Electric, Inc. petitions for review of the Decision and Order of the National Labor Relations Board, 263 NLRB No. 159 (Sept. 20, 1982), holding James Devers' discharge illegal and ordering his reinstatement and back pay. The Board has filed a cross-application for enforcement of its order. For the reasons that follow, we deny the petition for review and order enforcement. Facts: 2 The critical factual issue before the Board was Humes' motivation in firing Devers. The Board concluded that Devers was fired for engaging in protected activity. Humes argues that Devers was fired for poor production and…