Wismettac Asian Foods, Inc. v. NLRB

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WISMETTAC ASIAN FOODS, INC., No. 20-73768
Petitioner, NLRB Nos. 21-CA-207463
21-CA-208128
v. 21-CA-209337
21-CA-213978
NATIONAL LABOR RELATIONS 21-CA-219153
BOARD, 21-CA-212285
Respondent.
MEMORANDUM*
NATIONAL LABOR RELATIONS No. 21-70142
BOARD,
NLRB Nos. 21-CA-207463
Petitioner, 21-CA-208128
21-CA-209337
v. 21-CA-213978
21-CA-219153
WISMETTAC ASIAN FOODS, INC., 21-CA-212285
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Submitted January 13, 2022**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
San Francisco, California
Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
Wismettac Asian Foods, Inc. (“WLA”) petitions for review of the National
Labor Relations Board’s (“NLRB” or “the Board”) decision that WLA violated
§§ 8(a)(1), 8(a)(3) of the National Labor Relations Act (“NLRA”).1 We have
jurisdiction under 29 U.S.C. § 160 and affirm. We also hold that the Board is entitled
to summary enforcement of the finding that WLA violated § 8(a)(1) by promising
compensation for rejecting the union. Because the parties are familiar with the facts,
we do not recount them here, except as necessary to provide context to our ruling.
“Decisions of the NLRB will be upheld on appeal if the findings of fact are
supported by substantial evidence and if the agency correctly applied the law.” Loc.
Joint Exec. Bd. of Las Vegas v. NLRB, 515 F.3d 942, 945 (9th Cir. 2008). “[W]e
may not ‘displace the NLRB’s choice between two fairly conflicting views, even
though [we] would justifiably have made a different choice had the matter been
before [us] de novo.’” Sever v. NLRB, 231 F.3d 1156, 1164 (9th Cir. 2000) (first
alteration added) (citations omitted).
1. The Administrative Law Judge (“ALJ”) found that WLA violated
§§ 8(a)(1), 8(a)(3) by demoting Ruben Munoz, terminating Pedro Hernandez, and
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
29 U.S.C. §§ 158(a)(1), 158(a)(3).
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suspending and terminating Alberto Rodriguez. “To establish an unfair labor
practice, the [NLRB] must show an unlawful motivation either to discourage union
membership or to interfere with the exercise of protected rights.” NLRB v. Nevis
Indus., Inc., 647 F.2d 905, 909 (9th Cir. 1981). If the Board makes this showing,
“the burden will shift to the employer to demonstrate that the same action would
have taken place even in the absence of protected conduct.” United Nurses Ass’ns
of Cal. v. NLRB, 871 F.3d 767, 778–79 (9th Cir. 2017) (citations and quotation marks
omitted).
The ALJ’s finding that WLA’s adverse actions against Munoz, Hernandez,
and Rodriguez violated §§ 8(a)(1), 8(a)(3) was supported by substantial evidence.
WLA knew of the three employees’ support for the union. WLA indicated hostility
toward the union; for example, manager Frank Matheu said that “under no
condition[] would he allow . . . the Union to come into the company.” Matheu
conceded that at least one allegation in a written warning against Munoz was false
and that he did not know of at least one stated reason for Rodriguez’s dismissal.
WLA’s stated reasons for firing Hernandez were unsubstantiated and shifted.
Matheu told Hernandez that he was let go because his contract expired and gave no
other reason, but Matheu testified before the ALJ that Hernandez was fired due to
unsubstantiated claims of creating a hostile work environment. This evidence
provides substantial support for the ALJ’s findings. See Healthcare Emps. Union,
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Local 399 v. NLRB, 463 F.3d 909, 922 (9th Cir. 2006) (“[A] flimsy or unsupported
explanation may affirmatively suggest that the employer has seized upon a pretext
to mask an anti-union motivation.” (alteration in original) (quoting NLRB v. Dillon
Stores, 643 F.2d 687, 693 (10th Cir. 1981))).
2. The ALJ found that WLA violated §§ 8(a)(1), 8(a)(3) by refusing to re-
hire Hernandez, Fanor Zamora, and Jeremiah Zermeno. Refusing to hire an
applicant because of his union activities is an unfair labor practice. See Frankl v.
HTH Corp., 650 F.3d 1334, 1362 (9th Cir. 2011) (citing FES, a Div. of Thermo
Power, 331 N.L.R.B. 9, 12 (2000)). In determining if an employer refused to hire
an applicant due to union activities, the Board applies the motivation test from
Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), as stated in FES:
(1) that the [employer] was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or generally known
requirements of the positions for hire, or in the alternative, that the
employer has not adhered uniformly to such requirements, or that the
requirements were themselves pretextual or were applied as a pretext
for discrimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
FES, 331 N.L.R.B. at 6 (footnotes omitted) (citing Wright Line, 251 N.L.R.B. at
1083). If the Board “meets this prima facie burden, thus creating an inference that
union animus was a motivating factor in the decision to hire, the employer must . . .
demonstrate that it would have made the same decision in the absence of the
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discriminatees’ union affiliation.” Blaylock Elec. v. NLRB, 121 F.3d 1230, 1233
(9th Cir. 1997) (citation omitted).
As to the first FES factor, WLA made at least 21 new hires in warehouse
positions after Hernandez, Zamora, and Zermeno applied. As to the second FES
factor, Hernandez, Zamora, and Zermeno applied for the positions they had worked
in before their dismissal. As to the third FES factor, WLA knew or likely knew that
these employees supported the union. WLA many times showed hostility toward
the union. And a finding of unfair labor practices does not require an employer to
discriminate against every known employee who supports the union.
3. The ALJ’s finding that WLA violated § 8(a)(1) by soliciting employees
to revoke union authorizations is supported by substantial evidence. See NLRB v.
Deutsch Co., Metal Components Div., 445 F.2d 902, 906 (9th Cir. 1971). WLA
mailed employees a letter explaining how to revoke authorization with a sample
revocation letter attached. WLA held meetings in which sample revocation forms
were distributed, and its labor consultant told workers in those meetings that “the
Union is not going to win” the election. The consultant testified that WLA wanted
to explain “how can [employees] get rid of this union? How can [employees]
retrieve [their] union authorization card . . . because [employees are] tired of this?”
But there is no evidence that any employee ever inquired with WLA about revoking
union authorization.
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There is also substantial evidence of a coercive environment. Following the
union’s recognition request, WLA stationed armed security guards at the entrance to
the warehouse. The day before the first union election, WLA held a mandatory
meeting at which armed security guards stood in front of the door. At the meeting,
Matheu said that “under no condition[] would [Matheu] allow . . . the Union to come
into the company.”
4. As WLA does not dispute that it violated § 8(a)(1) by promising to
compensate workers for rejecting the union, the Board is entitled to summary
enforcement of this portion of its order. See Gardner Mech. Servs., Inc. v. NLRB,
115 F.3d 636, 643 n.2 (9th Cir. 1997). The other findings that the Board claims were
uncontested (addressed above) were contested.
AFFIRMED.
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