Opinion
21-71299 21-71344
10-26-2022
WISMETTAC ASIAN FOODS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WISMETTAC ASIAN FOODS, INC., Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 Pasadena, California
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
On Petition for Review of an Order of the National Labor Relations Board Nos. 21-CA-207463, 21-CA-208128, 21-CA-209337, 21-CA-213978, 21-CA-219153, 21-CA-212285, 21-CA-207463
Before: KLEINFELD, CHRISTEN, and BUMATAY, Circuit Judges.
MEMORANDUM
We review for whether the Board "correctly applied the law and if its factual findings are supported by substantial evidence in the record as a whole." NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 264 (9th Cir. 1995) (quoting Sierra Publishing Co. v. NLRB, 889 F.2d 210, 215 (9th Cir. 1989). Here, the administrative law judge found (and the Board agreed) that Lopez's actions were protected conduct and that Wismettac violated Section 8(a)(1) of the National Labor Relations Act by punishing Lopez for complaining at a safety meeting. 29 U.S.C. § 158.
The Board's finding that Lopez acted in concert with other employees is supported by substantial evidence. See Mike Yurosek & Son, Inc., 53 F.3d at 265. Lopez complained both on his own behalf and on the behalf of another driver, and at least one of Lopez's coworkers echoed his concerns.
Substantial evidence also supports the Board's finding that Lopez acted for the purpose of "mutual aid or protection." 29 U.S.C. § 157; Moreno v. UtiliQuest, LLC, 29 F.4th 567, 576-77 (9th Cir. 2022). In this case, not only did Lopez's comments occur in the midst of a large unionization campaign in which he was participating, his central complaint was that he and another driver had previously been told to drive unsafe, overweight trucks.
Substantial evidence also supports the Board's finding that Wismettac failed to "demonstrate that the same [disciplinary] action would have taken place even in the absence of [Lopez's] protected conduct." Wright Line 251 N.L.R.B. 1083, 1089 (1980). "[I]t would have been possible for a reasonable jury to reach the Board's conclusion" that Wismettac disciplined Lopez at least in part because of his protected activity. Plaza Auto Center Inc. v. NLRB, 664 F.3d 286, 291 (9th Cir. 2011) (quoting Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67 (1998)).
Wismettac's assertion that Lopez "crossed the line" into unprotected conduct is insufficient to meet its burden under Wright Line. The ALJ, as affirmed by the Board, found that explanation was a pretext to mask discriminatory motivation. The Board's credibility determinations are "entitled to special deference and may only be rejected when a clear preponderance of the evidence shows they are incorrect." Mike Yurosek & Son, Inc., 53 F.3d at 265 (citation omitted). Because the Board's credibility findings are supported by substantial evidence, we decline Wismettac's invitation to reweigh the record evidence.
Thus, substantial evidence supports the Board's order. We deny Wismettac's petition for review and grant the Board's cross-application for enforcement of its order.
PETITION DENIED; ENFORCEMENT GRANTED.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).