Stanley A. Dash, Jr. v. National Labor Relations Board, Lawyers Co-Operative Publishing Company, Intervenor-Respondent

793 F.2d 1062 122 L.R.R.M. (BNA) 2931 , 104 Lab.Cas. P 11,919 Stanley A. DASH, Jr., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Lawyers Co-operative Publishing Company, Intervenor-Respondent. No. 85-7267. United States Court of Appeals, Ninth Circuit. Argued Feb. 4, 1986. Submitted April 7, 1986. Decided July 7, 1986. Lawton & Cates, Bruce M. Davey, Madison, Wis., for petitioner. Ellen Boardman, N.L.R.B., Washington, D.C., for respondent. Eugenia D. Ulterino, Rochester, N.Y., for intervenor-respondent. On Petition to Review an Order of the National Labor Relations Board. Before ANDERSON and PREGERSON, Circuit Judges, and SOLOMON, * Senior District Judge. PREGERSON, Circuit Judge. 1 Stanley A. Dash, Jr. appeals from a decision and order of the National Labor Relations Board ("the Board"). The Board found that the Lawyers Co-operative Publishing Company ("LCP") did not violate section 8(a)(1) and (3) of the National Labor Relations Act ("NLRA") by discharging Dash or by appealing to the Wisconsin state court Dash's award of unemployment compensation benefits. 1 Dash contends that the Board's decision, which reversed the decision of the Administrative Law Judge…

dissenting:

I respectfully dissent. This is a classic case for the application of our deferential and narrow standard and scope of review. The majority recognizes our restrictive role but declines to apply it because they are not “persuaded” by the “facts.” Fact finding and the inference to be drawn are for the Board, not this court. See, e.g., Kall-mann v. NLRB, 640 F.2d 1094, 1098 (9th Cir.1981); Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 693-94 (9th Cir.1982). The Board relied on significant facts not mentioned in the majority opinion, including, but not limited to, Dash’s rather sorry record of rudeness and arrogance.

The interested reader and researcher are directed to the majority and dissenting opinions of the Board members, 273 N.L. R.B. No. 31 (1984), in support of the assertions made in this brief dissent. It is clear that the Board majority accepted an almost undisputed version of facts in reaching its conclusion. The facts so found by the Board are supported by the record and constitute substantial evidence on the record as a whole. In the interests of uniformity, stability and predictability, we must not substitute our judgment just for a preferred result.

We are…

Stanley A. Dash, Jr. appeals from a decision and order of the National Labor Rela *1064 tions Board (“the Board”). The Board found that the Lawyers Co-operative Publishing Company (“LCP”) did not violate section 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”) by discharging Dash or by appealing to the Wisconsin state court Dash’s award of unemployment compensation benefits. 1 Dash contends that the Board’s decision, which reversed the decision of the Administrative Law Judge (“ALJ”), is not supported by substantial evidence. We reverse in part and remand.

BACKGROUND

Dash worked for LCP as a sales representative from November 1971 until his termination on November 5, 1980.

In December 1979, Dash initiated a union organizing drive among LCP’s sales representatives. On May 5, 1980, the sales representatives voted against unionization. Later that month, on the advice of a psychologist, Dash, who suffered extreme stress as a result of the organizing campaign, took a leave of absence from work. He did not immediately notify his regional manager, as required by company policy. On May 30, the National Sales Manager sent Dash a telegram threatening him with discharge if he…