# Falcon Plastics-Division of B-D Laboratories, Inc. v. National Labor Relations Board

> Court of Appeals for the Ninth Circuit · June 4, 1968 · 397 F.2d 965

URL: https://www.frixlaw.com/law-library/cases/9453811

## Case

- **Full name:** FALCON PLASTICS-DIVISION OF B-D LABORATORIES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 4, 1968
- **Citations:** 397 F.2d 965; 68 L.R.R.M. (BNA) 2514; 1968 U.S. App. LEXIS 6680
- **Precedential status:** Published
- **Opinion:** Dissent by Barnes
- **Judges:** Barnes, Browning, Solomon
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

BARNES, Circuit Judge
(dissenting):
I respectfully dissent.
In Lozano Enterprises v. NLRB, 357 F.2d 500, 502 (9th Cir. 1966), we said:
“If unlawful discrimination can be inferred from mere union membership or activity, followed by discharge, that inference disappears when a reasonable explanation is presented to show that the employee was not discharged for union membership. NLRB v. United Brass Works (4th Cir. 1961) 287 F.2d 689 ; NLRB v. Stafford (8th Cir. 1953) 206 F.2d 19 ; Ohio Associated Telephone Company v. NLRB, 192 F.2d 664 (6th Cir. 1951). Furthermore, an employer’s oath that the discharged employee’s membership or activity in a union was not the ground for his discharge cannot be disregarded, because of a suspicion that he may have lied. There must be impeachment of him or substantial contradiction, or if circumstances raise doubts, they must be inconsistent with the positive sworn evidence on the exact point.”
In Martel Mills Corp. v. NLRB, 114 F.2d 624, 631 (4th Cir. 1940), the Fourth Circuit said:
“We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer’s action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who undertook to disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation.”
Here, the circumstances relied upon by the Board to support its rejection of petitioner’s explanation for Reese’s dismissal do not suffice for such a purpose. Moreover, the cases relied upon by the Board are clearly distinguishable. In Butcher Boy Refrigerator Door Co., 127 N.L.R.B. 1360 (1960), enforced, 290 F.2d 22 (7th Cir. 1961), there was evidence of anti-union animus on the part of the employer — a circumstance relied upon by the Seventh Circuit, in fact, to distinguish the Butcher Boy case from that circuit’s earlier decision in Miller Elec. Mfg. Co. v. NLRB, 265 F.2d 225 (7th *968 Cir. 1959). Here, there is no independent evidence of any hostility to employees’ section 7 rights; in a finding upheld by the Board, in fact, the trial examiner concluded (with respect to a union organizing campaign connected with certain other charges brought against petitioner) that there was “a total absence of evidence of anti-union animus, hostility or opposition to the Union, or of the commission of unfair labor practices” by the company. C.T. 40. In Aeronca Mfg. Co. v. NLRB, 385 F.2d 724 (9th Cir. 1967), as well, there was “aciduous and acrimonious” hostility between employer and union. Additionally, the employer in Aeronca failed to “conduct an investigation of any sort” to determine if the accusations against the employee in question were accurate, and the employee was “ceremoniously conduct [ed] to the personnel office” and “ostentatiously escort[ed] to the plant gate” when he was discharged — circumstances which we explicitly relied upon in our decision of that case. 385 F.2d at 728. Finally, the dismissal in NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965), was ordered by the employer’s superintendent immediately after a bitter grievance discussion, during the course of which the superintendent had “[o]n several occasions, in progressively louder tones” objected to the participation of the employee in question, and then had “lost control of himself,” directing an “obscene epithet” at the employee. 351 F.2d at 586 .
In view of the lack of persuasive support for the Board’s rejection of the trial examiner’s report, I find that on the record considered as a whole the conclusion that Reese’s discharge violated section 8 (a) (1) is not supported by substantial evidence. Cf. NLRB v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (2d Cir. 1965). This court should not be a rubber stamp for either side of N.L.R.B. disputes, nor of the Board itself. Enforcement of the Board’s order should be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453811. Public record. Not legal advice.