Summary
affirming ALJ's conclusion but on different grounds
Summary of this case from J.G. Kern Enters. v. Nat'l Labor Relations Bd.Opinion
No. 85-5360.
Argued January 17, 1986.
Decided February 24, 1986.
Elliott Moore, Deputy Associate General Counsel N.L.R.B., Washington, D.C., Barbara Atkin (argued), for petitioner.
Ralph E. Kennedy, Beverly Hills, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before JONES and NELSON, Circuit Judges; and PECK, Senior Circuit Judge.
This case is before us on the application of the National Labor Relations Board to enforce its order. The administrative law judge found that the Jefferson Electric Company committed a violation of section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(3) (1982), when it discharged an employee who had campaigned actively for a union. The Board upheld the decision of the ALJ on the ground that the General Counsel established a prima facie showing that the employee's union activity was a motivating factor in the discharge and the company had not carried its burden of demonstrating that the employee would have been discharged absent her union activity. See NLRB v. Transportation Management Corp., 462 U.S. 393, 398-401, 103 S.Ct. 2469, 2472, 2474, 76 L.Ed.2d 667 (1983).
On consideration of the record, briefs and arguments, we find that the Board's findings of fact are supported by substantial evidence. See 29 U.S.C. § 160(e); NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968). We therefore GRANT enforcement of the Board's order.
I concur in the opinion and judgment of the court, but write separately to express the view that the evidence on which the agency found a violation of the statute passes the "substantiality" test by only the narrowest of margins.