# Wah Chang Corporation v. National Labor Relations Board > Court of Appeals for the Ninth Circuit · June 25, 1962 · 305 F.2d 15 URL: https://www.frixlaw.com/law-library/cases/9448640 ## Case - **Full name:** WAH CHANG CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 25, 1962 - **Citations:** 305 F.2d 15; 50 L.R.R.M. (BNA) 2595; 1962 U.S. App. LEXIS 4706 - **Precedential status:** Published - **Opinion:** Dissent by Hamley - **Judges:** Chambers, Hamley, East - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9448640 ## Opinion text HAMLEY, Circuit Judge (dissenting). In the fall of 1958, Wah Chang Corporation and Zirconium and Allied Metals Union (Independent) were operating under a collective bargaining agreement, Article XXII of which provided: “There shall' be no soliciting or petitioning in the plants without the consent of the Company and the Union.” During October 1958, the Metal Trades Council of Portland and Vicinity, AFL-CIO (Union) conducted an organizing campaign at petitioner’s plant. Among the company employees who participated in this campaign were William L. Stutheit, Ronald E. Graham, Allen W. Wallace and Quinton D. Dombrowsky. On November 3 and 4, 1958, these employees were discharged, each being handed a “Personal Action Blank” which stated that he was discharged for “violation of Article XXII of the Existing Union Agreement.” The Union filed unfair labor practice charges against the company and a hearing was had before an Examiner of the National Labor Relations Board. The Examiner found and concluded that: 1. The company discriminatorily discharged the four employees, this constituting an unfair labor practice within the meaning of section 8(a) (3) of the National Labor Relations Act, 29 U.S.C., § 158 (a) (3); 2. The company interrogated its employees regarding their Union membership and activities and threatened them with discharge if they engaged in protected activities on behalf of the Union, this constituting an unfair labor practice within the meaning of section 8(a) of the Act, 29 U.S.C., § 158 (a) (l); and 3. The company maintained and gave effect to a provision in the collective bargaining agreement with Independent which requires permission from such union for the company’s employees to engage in solicitation on petitioner’s premises, this being an unfair labor practice within the meaning of section 8(a) (2) of the Act, 29 U.S.C., § 158 (a) (2). The Examiner recommended that the company be ordered to cease and desist from engaging in these practices, that the discharged employees be reinstated with lost pay, and that the usual notice to employees of intention to comply in the future be posted. The Board adopted the Examiner’s findings, conclusions and recommendations except that, as additional affirmative relief, the company was ordered to withdraw recognition from Independent until it demonstrates its majority status. In its petition filed in this court, the company does not challenge the third finding and conclusion set out above. As to the other two, the company’s only contention is that they are not supported by substantial evidence. Turning to the first of these it is the contention of petitioner that under the undisputed evidence the four employees were discharged because they engaged in union solicitation during working time. Hence, it is argued, there is no substantial evidence that they were discharged merely because they solicited on the premises, or because they solicited for Union distinguished from Independent, or because they had not first obtained the permission of Independent. There was substantial evidence tending to indicate that these four employees solicited on the company premises at a time when they, or the individuals being solicited, or both, were supposed to be working. Testimony to this effect was given by Louis Winterstein, Paul Kotyo, Earl D. Matthews, John Keller and Verle S. Barnhart. In addition, Dombrowsky, *25 •one of the discharged employees, admitted on cross-examination that he talked ~to two employees, Louis Winterstein and Earl Brooks, about distributing Union ■cards while the latter were on duty. Dombrowsky also admitted, on cross-examination, that while he was on duty he conversed with another employee, Robert Tidwell, about Union. On the other hand, there was evidence to the effect that, whether or not there was solicitation on company time, the four employees were not discharged for that reason, but for other reasons which rendered the discharges discriminatory And constituted an unfair labor practice under section 8(a) (3). These other reasons, according to the evidence, were: (1) soliciting on the company premises without the company’s permission, without regard to whether solicitation was carried on during company time; (2) soliciting on the premises in favor of "Union as distinguished from Independent; and (3) soliciting on the premises without the permission of Independent. Concerning the first of these proscribed reasons, the principal supporting evidence consists of the recital contained in the “Personnel Action Blank” which was handed to each discharged employee, attributing the discharge to a violation of Article XXII of the agreement with Independent. That article, quoted above, Among other things forbids “soliciting or petitioning in the plants without the ■consent of the Company. * * * ” The quoted words do not limit the rule against solicitation and petitioning in the plants without company consent to solicitation and petitioning carried on during working time. To the extent that it forbade such activity without -company consent during non-working time, including rest periods, it constituted an interference with union organization prohibited by section 8(a) (1) of the Act. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 803 , 65 S.Ct. 982 , 89 L.Ed. 1372 ; N. L. R. B. v. Essex Wire Corp., 9 Cir., 245 F.2d 589, 593 . Since the article itself is not limited ■-to employee solicitation during working time, and since the employees were advised that they were discharged for violating the article the Examiner could reasonably infer that the grievance was not that working time was being used, but that solicitation was engaged in on the premises. Substantial support for such an inference is to be found in Dombrowsky’s testimony that he was never cautioned for soliciting on working time, but only for soliciting on the premises. His further testimony, referred to below, provides additional support for the indicated inference. As to the second proscribed reason for the discharges, referred to above (soliciting for Union as distinguished from Independent), Dombrowsky testified that two supervisory employees, Kenneth Radford and John Keller, criticized him for soliciting for Union. According to this witness, Radford told Dombrowsky that if the employees were represented by the international they would not receive free coffee and gloves, two weeks paid vacation “and a lot of other benefits that you receive now.” Radford further said, according to Dombrowsky, “ * * * with an international union you pay higher dues and have all kinds of strikes and things like that.” Dombrowsky testified that Keller warned Dombrowsky that “if you continue to solicit for the international union you will get into trouble. * * * You could be fired. * * * I thought I would warn you.” Petitioner called Keller as a witness but did not ask him if he voiced the warning as testified to by Dombrowsky. The latter’s testimony on this point therefore stands unchallenged. Radford was also called as a witness by petitioner. He was not asked specifically concerning the conversation related by Dombrowsky in which the relative merits of the two unions were discussed. Radford gave some testimony, however, which varied to some extent from that of Dombrowsky. The Examiner, however, chose to credit Dombrowsky’s testimony and discredit Radford’s. Noting that the testimony of this witness was at variance to *26 some extent with, that of Radford, the Examiner stated in his decision: “ * * * In the light of the entire record in the case, coupled with the fact that Dombrowsky particularly impressed the undersigned as being one who was meticulous in not enlarging his testimony beyond his actual memory of what occurred whereas Radford, on the other hand, gave the undersigned the impression that he was attempting to conform his testimony to what he considered to be the best interest of Respondent [petitioner], the undersigned finds Dombrowsky’s version of the above referred to conversations with Rad-ford to be substantially in accord with the facts.” Dombrowsky’s testimony is not inherently incredible, and the contrary testimony is not of such nature that it cannot in law be discredited. The determination of the Examiner and the Board concerning Dombrowsky’s credibility is therefore binding upon this court. N. L. R. B. v. Pittsburgh S.S. Co., 337 U.S. 656, 659-660 , 69 S.Ct. 1283 , 93 L.Ed. 1602 . Concerning the third proscribed reason for the discharges referred to above (failure to obtain Independent’s permission to solicit), crew foreman Russell D. Underwood testified that the whole inquiry concerning solicitation for the international union got under way when William Feigenbaum, secretary of the local union, informed Underwood that “he thought perhaps there were cards being distributed.” The local union had no legitimate interest in whether solicitation was being carried on during working time. It was very apparently interested only in enforcing Article XXII which required local union consent before there could be such solicitation — or so the Examiner was free to find. It may also be noted that with respect to Dombrowsky the local1 union took no action to contest the discharge, as it could have done under section 2 of Article XI and step 3 of Article XVIII of the agreement. With respect to the other three employees who were discharged the union filed protests which in each case were not timely and were for that reason rejected. A permissible inference from this lack of union backing is that the discharged employees had transgressed the agreement which forbade solicitation without the consent of the local union. Since there was substantial evidence to support the Examiner’s determination, adopted by the Board, that the discharges were motivated by one or more of the proscribed reasons, the finding and conclusion that such discharges violate section 8(a) (3) of the Act should be sustained. The discharges being for proscribed reasons it is immaterial that there may have been other and valid reasons not relied upon by the company in effectuating the discharges. The only other finding and conclusion which is challenged, relates to interrogation of and threats against employees concerning union activity. As stated above, Dombrowsky testified concerning such interrogations and threats by Rad-ford and Keller and the Examiner and Board were entitled to accept his testimony. Petitioner argues that Radford and Keller were only giving their friend Dombrowsky some information and that in any event, neither of them had direct supervision over Dombrowsky or the authority to discharge him. The personal relationship which then existed between Dombrowsky and the two supervisory employees is a relevant consideration in determining whether their conversations had the tendency of interfering with or coercing Dombrowsky in the exercise of his protected right to assist Union in organizing petitioner’s employees. But the Examiner was in a better position than are we to appraise this factor along with all of the other circumstances of the case. Radford and Keller had supervisory status. While Dombrowsky was not subject to their direction and control the Examiner was warranted in finding that *27 lie and other employees regarded them as representatives of management. See N. L. R. B. v. West Coast Casket Co., 9 Cir., 205 F.2d 902 . I would affirm the Board order. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9448640. Public record. Not legal advice.