# 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/7839546

## 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:** Remittitur by Wright
- **Judges:** Hoffman, MacKinnon, Wright
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

J. SKELLY WRIGHT, Chief Judge,
dissenting:
I would affirm for the reasons stated in the Board’s opinion. 1
The Board reasoned that,
under a proper construction of Section 8(a)(4)[,] an employee may not lawfully be discharged after participation in any Board proceeding during his regular working hours (a) where an employer can establish no business necessity justifying a requirement that the employee stay on the job or (b) where a business justification is established but which in the particular circumstances is not on balance sufficient to overcome the employee’s assertion of his right to attend or participate. * * * [ 2 ]
Applying this bipartite test, the employer’s discharge of the employees in this case was held by the NLRB to be unlawful. First, the Board found that the employer never told the employees, when denying them permission to attend the NLRB hearing, that potentially serious adverse consequences to the business underlay the denial. 3 Second, the employer’s rejection of the employees’ bid to make up time lost due to attendance at the hearing was deemed inconsistent with any conclusion that the employer was truly concerned about lost production. 4 Finally, the Board found that the employer’s discharge of the employees took place two hours before the regular quitting time, rather than at the end of the work day, a fact also inconsistent with an underlying concern to maintain production. 5
My colleagues in the majority, however, rather than deferring to the Board’s judgment on how best, in light of competing considerations such as the exigencies of running a business, to vindicate the right of employees to participate in NLRB proceedings, have substituted both a different test and a different view of the facts for those of the Board, and in the process have threatened to eviscerate the employees’ right. As formulated by the majority, the test reads:
Bearing in mind that “working time is for work” we [hold] that, absent any subpoena or call from the Board to attend a hearing[,] “unless employees can demonstrate substantial reasons for attending a Board hearing, unless there are compelling reasons urging their attendance, the employer’s right to maintain normal operations should, and does, take precedence over the employees’ right to leave work during regular working hours for such attendance or for any other purpose except that of legitimate strike activity” excluding, of course, an emergency with which we are not concerned in this case. 6
As can readily be seen, the majority has turned the NLRB’s test on its head. That is to say, rather than imposing the burden of proof on the employer whose action threatens to deprive employees of their right to participate in NLRB proceedings, the majority imposes on the employees the burden of showing why their employer must refrain from denying them their right. As the Board, commenting on this viewpoint, stated, “[W]e consider it anomalous to require the possessor of a right to come forward with ‘compelling reasons’ to justify the exercise of the right.” 7
*130 This court’s majority in this case not only supplies an ill-considered test to replace the NLRB’s more reasoned version, but also substitutes its view of the facts for that of the Board. The Board interpreted the facts regarding the employer’s behavior as inconsistent with the proffered rationale for refusing to permit the employees’ attendance at the hearing — that is, economic necessity. The majority, however, writes that, even if the Board’s test were proper, the facts indicate that the employer acted lawfully in discharging the employees; that is, that economic necessity was the basis of the employer’s refusal to permit the employees’ attendance. 8 This holding by the majority ignores the limited nature of our review of the Board’s factual determinations. 9 If there is substantial evidence in the record to support the Board’s factual findings, as clearly there is here, reviewing courts must refrain from upsetting those findings. 10
I respectfully dissent.
. The majority opinion of Chairperson Murphy and Members Jenkins and Fanning is reprinted at Joint Appendix (JA) 244-261. The dissenting opinion of Members Penello and Walther is reprinted at JA 262-269.
. JA 249-250.
. JA 250.
. JA 250-251.
. JA 251.
. Majority opinion, 195 U.S.App.D.C. at 124, 600 F.2d at 938 (quoting dissenting opinion of Members Penello and Walther) (footnote omitted).
.JA 254. As a general rule, “[t]he construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a ‘reasonable basis in law.’ ” Volkswagenwerk v. FMC, 390 U.S. 261, 272 , 88 S.Ct. 929, 935 , 19 L.Ed.2d 1090 (1968), quoted in SEC v. Sloan, 436 U.S. 103, 118 , 98 S.Ct. 1702 , 56 L.Ed.2d 148 (1978).
. Majority opinion, 195 U.S.App.D.C. at 125-126, 600 F.2d at 939-940.
. 29 U.S.C. § 160 (e) (1976); see, e.g., Packard Motor Co. v. NLRB, 330 U.S. 485, 491 , 67 S.Ct. 789 , 91 L.Ed. 1040 (1947).
. Judge MacKinnon’s concurring opinion demonstrates the extent to which the majority is willing to substitute its view of the facts for that of the NLRB. Thus he informs the reader that “[a]ny reasonably intelligent employee would know the adverse consequences of [temporarily closing the plant].” Concurring opinion, 195 U.S.App.D.C. at 127, 600 F.2d at 941. He also intuits what the employees’ “offer to make up ‘time lost’ obviously meant,” and he shares his intuition with us. Id., 195 U.S.App. D.C. at 127, 600 F.2d at 941 (emphasis in original). And he divines from the employer’s dismissal of the employees two hours prior to normal closing a judgment on the part of the employer in favor of “managing] his plant.” Id.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7839546. Public record. Not legal advice.