Zurn Industries, Inc. v. Nat'l Labor Relations Bd.

13 Citing cases

  1. Royal Development Co., Ltd. v. N.L.R.B

    703 F.2d 363 (9th Cir. 1983)   Cited 18 times

    Four cases have adopted the standard specifically. See NLRB v. Brooks Cameras, Inc., 691 F.2d 912, 915 (9th Cir. 1982); Doug Hartley, Inc. v. NLRB, 669 F.2d 579, 580-81 (9th Cir. 1982); Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 686-93 (9th Cir. 1982) ( Zurn Industries); Nevis Industries, supra, 647 F.2d at 909. Two other cases indicate in dicta that we have adopted the Wright Line standard.

  2. Boich v. Federal Mine Saf. Hlt. Review Com'n

    704 F.2d 275 (6th Cir. 1983)   Cited 12 times
    Striking Pasula rule that employer bears burden of persuasion on defense, rather than mere burden of production

    While no court has yet considered whether the allocation of the burden in Pasula is appropriate, many courts have scrutinized NLRB formulation of Wright Line, 251 NLRB at 1083, which also relies on Mount Healthy. The circuits disagree about the burden shifting portion of the test in Wright Line. Compare Behring Int'l Inc. v. NLRB, 675 F.2d 83 (3rd Cir. 1982) (test improper), and NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981) (test improper), with Zurn Industries, Inc. v. NLRB, 680 F.2d 683 (9th Cir. 1982) (test proper), and NLRB v. Fixtures Mfg., 669 F.2d 547 (8th Cir. 1982) (test proper). See generally Note, Dual Motive Discharge, 58 Notre Dame L.Rev. 118 (1982).

  3. Anja Engineering Corp. v. Nat'l Labor Relations Bd.

    685 F.2d 292 (9th Cir. 1982)   Cited 5 times
    In Anja, the election also was long delayed and had not been completed at the time of the proceedings before us. At oral argument the NLRB and the union, which are on the same side in this proceeding, offered conflicting explanations for the delay in holding the elections.

    29 U.S.C. ยง 160(e). Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 693 (9th Cir., 1982) (petition for rehearing and en banc suggestion pending). This standard of review does not change simply because the Board has disagreed with the findings of the administrative law judge, NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir. 1978); however, "credibility resolutions of the ALJ are entitled to specific weight, and findings of the Board that are contrary to those credibility resolutions will be subjected to particularly critical scrutiny."

  4. Churchon v. Sutter Valley Hosps.

    No. C095228 (Cal. Ct. App. Jan. 29, 2024)

    (Eastex, Inc. v. NLRB (1978) 437 U.S. 556, 567.) "Employee protests to improve working conditions have long been held protected activity" (PHT, Inc. v. NLRB (D.C. Cir. 1990) 920 F.2d 71, 73) and the Board "has jurisdiction to investigate unfair labor practices, which include discharges based on protected activity such as voicing safety complaints" (Zurn Industries, Inc. v. NLRB (9th Cir. 1982) 680 F.2d 683, 694). It is true that "[t]he Board has held repeatedly that employee concerns for the 'quality of care' and the 'welfare' of their patients are not interests 'encompassed by the "mutual aid or protection" clause'" of section 7 of the Act.

  5. Bricker v. Rockwell Intern. Corp.

    22 F.3d 871 (9th Cir. 1993)   Cited 7 times
    Denying a Bivens claim to an employee at the Hanford Nuclear Reservation because administrative procedures included a grievance procedure with arbitration as a final step, and the opportunity to file a formal complaint with the DOE, which it must investigate

    DOE Order 5438.1A provides a procedure for investigating claims of discrimination and states that "if it is found that such discrimination has occurred, the field organization shall assure that appropriate measures are taken by the contractor, including rehiring or reinstatement of the employee, restoration of lost seniority, and back pay." Third, the National Labor Relations Act declares it an unfair labor practice for an employer to interfere with an employee's right to engage in "concerted activities for . . . mutual aid or protection", 29 U.S.C. ยง 157, and gives the National Labor Relations Board ("NLRB") broad discretion to devise remedies for such unfair labor practices, 29 U.S.C. ยง 158, 160. See, e.g., Zurn Indus., Inc. v. NLRB, 680 F.2d 683, 694 (9th Cir. 1982) (the NLRB "has jurisdiction to investigate unfair labor practices, which include discharges based on protected activity such as voicing safety complaints"), cert. denied, 462 U.S. 1131, 103 S.Ct. 3110, 77 L.Ed.2d 1366 (1983). The district court concluded that "[although] these remedies, either alone or in combination, do not constitute a comprehensive statutory scheme, they are in fact a remedial mechanism designed to provide relief in circumstances that exist in the instant case[.

  6. Dash v. Nat'l Labor Relations Bd.

    793 F.2d 1062 (9th Cir. 1986)   Cited 13 times
    Characterizing the employer's burden as an affirmative defense

    Fact finding and the inference to be drawn are for the Board, not this court. See, e.g., Kallmann v. NLRB, 640 F.2d 1094, 1098 (9th Cir. 1981); Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 693-94 (9th Cir. 1982). The Board relied on significant facts not mentioned in the majority opinion, including, but not limited to, Dash's rather sorry record of rudeness and arrogance.

  7. N.L.R.B. v. New York University Medical Center

    702 F.2d 284 (2d Cir. 1983)   Cited 17 times
    Remanding to Board, while retaining jurisdiction, for application of proper legal standard

    However, the extent of that burden remains in dispute. Although shifting the burden of persuasion has been sanctioned by four circuits, Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 687 (9 Cir. 1982); NLRB v. Fixtures Mfg. Corp., supra, 669 F.2d at 550 n. 4; Red Ball Motor Freight, Inc. v. NLRB, 660 F.2d 626, 627-28 (5 Cir. 1981), cert. denied, 456 U.S. 997 (1982); NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442, 446 (6 Cir. 1981), three circuits have held that such a shift violates the requirement imposed upon the Board in ยง 10(c) of the Act, 29 U.S.C. ยง 160(c) (1976), that the General Counsel prove each unfair labor practice by a preponderance of the evidence. NLRB v. Webb Ford, Inc., 689 F.2d 733, 739 (7 Cir. 1982); Behring International, Inc. v. NLRB, 675 F.2d 83, 87-91 (3 Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3199 (U.S. September 13, 1982) (No. 82-438); NLRB v. Wright Line, A Division of Wright Line, Inc., supra, 662 F.2d at 902-05.

  8. N.L.R.B. v. Mount Desert Island Hosp

    695 F.2d 634 (1st Cir. 1982)   Cited 12 times
    Upholding Board finding of concerted activity where, after discussing working conditions extensively with other employees, employee wrote letter to newspaper complaining of work conditions and citing complaints of fellow workers, and subsequently over one hundred employees corroborated employee's complaints and joined employee's petition to management

    The Board, however, maintains that shifting the burden of persuasion to the employer as an affirmative defense is consonant with the plain language of ยง 10(c), as well as with the legislative history of the Act. Its approach has received support from the Fifth Circuit in Red Ball Motor Freight, Inc. v. NLRB, 660 F.2d 626, 627-28 (5th Cir. 1981), cert. denied, ___ U.S. ___ (1982), the Sixth Circuit in NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442, 446 (6th Cir. 1981), the Eighth Circuit in NLRB v. Fixtures Mfg. Corp., 669 F.2d 547, 550 (8th Cir. 1982), and the Ninth Circuit in Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 687 (9th Cir. 1982), petition for cert. filed, 51 U.S.L.W. 3554 (U.S. Jan. 6, 1983) (No. 82-1166). See also NLRB v. Transportation Management Corp., 674 F.2d 130 (1st Cir. 1982), cert. granted, ___ U.S. ___ (1982); Consolidated Edison Co. v. Donovan, 673 F.2d 61 (2nd Cir. 1982) (dictum); NLRB v. New York Univ.

  9. Boise Cascade Corp. v. Secretary of Labor

    694 F.2d 584 (9th Cir. 1982)   Cited 3 times

    We will not reverse the ALJ's credibility judgment, or the testimonial inferences on which it is based. See Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 694 (9th Cir. 1982); Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir. 1977). Substantial evidence supports the finding that the winders and seamers produced noise in excess of permissible levels, and we affirm that determination.

  10. N.L.R.B. v. Brooks Camera, Inc.

    691 F.2d 912 (9th Cir. 1982)   Cited 20 times
    Upholding the agency's rejection of credibility findings when an inaccuracy engendered the erroneous finding of fact and reviewing court cannot say that agency erred in rejecting administrative law judge's findings

    " Alfred M. Lewis, Inc. v. NLRB, 681 F.2d 1154, 1155 (9th Cir. 1982) (citations omitted). See also Zurn Industries, Inc. v. NLRB, 680 F.2d 683, 694 (9th Cir. 1982); H D, Inc. v. NLRB, 670 F.2d 120, 122 (9th Cir. 1982); NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924, 928 (9th Cir.), cert. denied, 449 U.S. 919, 101 S.Ct. 318, 66 L.Ed.2d 147 (1980). The NLRB's expertise is especially well-suited to the selection of remedies.