# Service Employees International Union, Local 250 v. National Labor Relations Board

> Court of Appeals for the D.C. Circuit · April 25, 1979 · 600 F.2d 930

URL: https://www.frixlaw.com/law-library/cases/7839545

## Case

- **Full name:** SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 250, AFL-CIO v. NATIONAL LABOR RELATIONS BOARD, E. H. Limited, d/b/a Earringhouse Imports, Intervenor E. H. LIMITED, d/b/a Earringhouse Imports v. NATIONAL LABOR RELATIONS BOARD, Service Employees International Union, Local 250, AFL-CIO, Intervenor
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 25, 1979
- **Citations:** 600 F.2d 930; 195 U.S. App. D.C. 116
- **Precedential status:** Published
- **Opinion:** Concurrence by MacKinnon
- **Judges:** Hoffman, MacKinnon, Wright
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

MacKINNON, Circuit Judge,
concurring:
I concur fully in Judge Hoffman’s opinion but feel it necessary to direct attention to a few points mentioned by the dissent.
First, the dissent holds that the employer was duty bound to engage in a full blown economic discussion with the employees as to why closing down the plant in the middle of the day should have “potentially serious adverse consequences to the business . . ” Any reasonably intelligent employee would know the adverse consequences of such a shut-down. 1 Overhead and operating costs continue, supervisors continue to be paid (despite the absence of employees) and the production of goods to fill orders is delayed to the dissatisfaction of customers. The employees of the plant were on full notice of how serious the company considered the matter to be when their superiors notified them, before they left to attend the hearing, that they would be discharged if they absented themselves from work merely to attend the hearing as spectators.
Second, the offer to make up “time lost” obviously meant working beyond regular working hours. 2 This plainly involved the supervisors, executives and any nonabsenting employees also working overtime to the further economic loss of the employer. In this decision there is nothing inconsistent with the employer’s concern about lost production.
Finally, firing the recalcitrant employees when they returned, two hours before normal quitting time, indicates that the employer placed his right to manage his plant above his concern for two hours production. 3 That was his right. He had warned the employees of such consequence and he had a right to carry out his warning. A far different situation would have been created if the employees’ presence was required at the hearing, but it was not. The employer’s offer to permit them to send a representative, which was also unnecessary, was more than reasonable.
The dissent states that the case involves determining “how best, in light of competing considerations such as the exigencies of running a business, to vindicate the right of *128 employees to participate in NLRB proceedings.” The discussion in the dissent, however, focuses solely on the employees’ right, without giving due consideration to the employer’s right to manage his business. The rights of the employees and of the employer should be considered together. The employer’s offer to excuse any representative the employees would elect to attend the hearing as their representative took both factors into consideration and was more than was required by either party to the hearing. This does not “eviscerate” any employee right. It merely recognizes that employees acting contrary to an employer’s express order have no right en masse to quit work in the middle of the day to attend an administrative labor board hearing when their presence was not requested or required either formally or informally by the agency, their employer, or their union.
Judge Hoffman’s opinion recognizes that when no party to a labor board hearing requires or requests employees to attend, and the employees do not testify as witnesses or participate in the hearing, the employer’s right to the regular operation of his plant takes precedence over any claimed right merely to attend as spectators, unless the employees have substantial and compelling reasons or an emergency or strike exists. This recognition places the rights of the employer, the employees and the public in perfect balance.
The dissent’s objection concerning the burden of proof is unfounded; the court’s decision invokes nothing more than the customary burden borne by the proponent in an unfair labor practice proceeding. See, e. g., Labor Board v. Brown, 380 U.S. 278, 288-89 , 85 S.Ct. 980 , 13 L.Ed.2d 839 (1965); Portland Willamette Co. v. NLRB, 534 F.2d 1331, 1334-35 (9th Cir. 1976); NLRB v. United Brotherhood of Carpenters & Joiners, 531 F.2d 424, 426 (9th Cir. 1976); NLRB v. Fibers International Corp., 439 F.2d 1311, 1315 (1st Cir. 1971). In rejecting the customary burden, the Board majority cited no authority directly on point, but relied on NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33-34 , 87 S.Ct. 1792 , 18 L.Ed.2d 1027 (1967). J.A. 254. Great Dane, however, involved a § 8(a)(3) case in which the employer’s discrimination against striking employees had been established; the employer then bore the burden of establishing that he was motivated by legitimate business objectives. To apply Great Dane in this § 8(a)(4) action so as to alter the burden of proof where there is no showing of discrimination finds no support in law. 4
Judge Hoffman’s discussion of business justification sets forth an alternative holding that, even if the burden was on the employer, that burden was met because all production was stopped, and loss was inevitable, from the departure of the bulk of the work force. This holding does not, as the dissent claims, ignore the limited nature of review of the Board’s factual determinations, but rather is based upon the undisputed fact that production came to a halt. That fact taken in perspective affects the balance struck between the employer’s right to maintain production and the employees’ right to participate in Board proceedings, particularly where such participation was not necessary. Ignoring the fact that production stopped, the Board instead drew unsupported conclusions that the employer failed to warn the employees of any economic consequences of their departure en masse, and acted inconsistently with production concerns in rejecting the offer to make up time and in discharging the employees promptly upon their return rather than at the end of the work day. J.A. 250-51. In the face of the employer’s refusal of permission for en masse departure so that production could continue, and the offer to allow the employees to send a representative to the hearing, a proper accommodation in this case favors the employer’s legitimate interest in operating his business without unnecessary disruption.
.This statement does not contradict the factual record. The dissent comments upon this inference from the record but fails to indicate in what respect the adverse consequences would not be perfectly obvious to any reasonably intelligent employee. See dissent, footnote 10. Triers make findings of fact and appellate courts, that are required to interpret such records, may indulge in such presumptions as are “natural and probable and such as ought to be drawn from the facts actually found by the court below,” Bear Lake Irrigation Co. v. Garland, 164 U.S. 1, 25 , 17 S.Ct. 7, 14 , 41 L.Ed. 327 (1896), including facts that the appellate court concludes the parties “would know” from the facts stated. 164 U.S. at 23 , 17 S.Ct. 7 . An appellate court may also “make the inference” from “[t]he facts found,” Harrison v. Perea, 168 U.S. 311, 324 , 18 S.Ct. 129 , 42 L.Ed. 478 (1897), and interpret the record to the extent that “it seems plain.” Apache County v. Barth, 177 U.S. 538, 547 , 20 S.Ct. 718 , 44 L.Ed. 878 (1900).
. The dissent also fails to share with us in what respect the offer of the whole staff to “work overtime” would not involve the consequences which are outlined. See dissent, footnote 10, and n. 1, supra.
. The disser.: fails to indicate how ordering the plant closed during normal working hours is not correctly characterized as a “management” decision. See dissent, footnote 10, and n. 1. supra.
. One commentator notes that Great Dane has been uniformly interpreted by the Circuit Courts as placing the burden of going forward with the evidence on the employer, upon a showing of discrimination in a § 8(a)(3) action; the ultimate burden of proof remains with the General Counsel. 3 T. Kheel, Labor Law § 12.03[8],

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7839545. Public record. Not legal advice.