Tanforan Park Food Purveyors Council v. N.L.R.B.

• Citation: 656 F.2d 1358
• Decision Date: 21 September 1981
• Docket Number: No. 79-7137,79-7137
• Parties: 108 L.R.R.M. (BNA) 2630, 92 Lab.Cas. P 13,037 TANFORAN PARK FOOD PURVEYORS COUNCIL and the Hapsmith Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1358

656 F.2d 1358

108 L.R.R.M. (BNA) 2630, 92 Lab.Cas. P 13,037

TANFORAN PARK FOOD PURVEYORS COUNCIL and the Hapsmith Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 79-7137.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 15, 1981.

Decided Sept. 21, 1981.

Robert V. Magor, Severson, Werson, Berke, Melchior, San Francisco, Cal., A. Charles Dell'Ario, Wendel, Lawlor, Rosen & Black, Oakland, Cal., for petitioners.

Ruah Lahey, NLRB, Washington, D.C., argued, for respondent; Elliott Moore, NLRB, Washington, D.C., on brief.

Petition to Review a Decision of the National Labor Relations Board.

Before ANDERSON, FLETCHER and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

Two corporations appeal a bargaining order of the National Labor Relations Board ("NLRB"). They claim that they were erroneously determined to be joint employers and erroneously denied a new election or evidentiary hearing. We remand for consideration of the accuracy of a Samoan translation used during the election process; on all other issues, we affirm the NLRB order.

I.

Tanforan Park Shopping Center ("Tanforan") operates a shopping center in San Bruno, California. The center contains a restaurant complex consisting of various tenant restaurants around a common area. The tenants are by lease required to belong to Tanforan Park Food Purveyors Council ("Council"), a non-profit corporation which operates the common area for the tenants' mutual benefit. Council employs busboys, supply persons, janitors, and dishwashers. These unit employees comprise the bargaining unit which the Union in this case ¹ sought to represent.

Tanforan hired the Hapsmith Co. ("Hapsmith") to manage its entire complex, including the restaurant area. Hapsmith also discharges Tanforan's lease obligation to provide administrative assistance to Council. Hapsmith employs Jack Kuks to conduct the day-to-day affairs of the restaurant common area.

The Union won the election to represent the unit employees in January, 1978. Afterwards, Hapsmith and Council filed objections to the Union's conduct prior to the election and the Board's conduct of the election. The Regional Director overruled these objections without a hearing. The NLRB denied the subsequent requests for review and ordered Council and Hapsmith to bargain with the Union. Council and Hapsmith refused to do so and the NLRB subsequently found that they had violated the National Labor Relations Act.

Hapsmith and Council, as petitioners here, dispute that order. They find error with the NLRB's determination that they are joint employers. They also claim error with the Regional Director's refusal to order a new election based on objections to the Union's campaign material. They assert that, at the least, the Regional Director should have ordered a hearing on these objections.

II.

The NLRB found Hapsmith to be a joint employer of Council's employees. Petitioners seek to excuse their admitted refusal to bargain with the Union by challenging that NLRB determination. Their challenge fails.

Whether a corporation possesses sufficient indicia of control to qualify as a joint employer "is essentially a factual issue ...." Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 899, 11 L.Ed.2d 849 (1964). The facts of this case accordingly warrant extensive exposition. The NLRB determination of joint employment will be upheld unless it is "arbitrary and capricious." NLRB v. Red-More Corp., 418 F.2d 890, 894 (9th Cir. 1969).

Petitioners present the facts as follows. Council pays the unit employees' worker's compensation insurance premiums and social security payments, assesses the tenants for expenses, and bears all the expenses for maintenance, utilities, and real estate taxes. In addition, unit employee wages, salaries, and fringe benefits are set and paid for by Council through accounts which bear its name. Hapsmith, by contrast, imposes no pricing or other restrictions, does not contribute to restaurant common area expenses, and has no authority to hire, fire, or otherwise influence terms and conditions of unit employees' employment. Finally, unit employees have their own lockers and break area, their personnel files are kept in a Council office, and Kuks' office is separate from Hapsmith's office.

The NLRB offers the following facts. The Council, which is composed of a representative of each tenant plus a Hapsmith representative, meets only sporadically and plays little role in daily business, including employee supervision and labor relations. Its manager, Kuks, hires and fires all unit employees, sets their wage rates and vacation, holiday, and work schedules, and supervises them. Kuks was hired by Hapsmith, and all his incidents of employment are solely under Hapsmith's control. He serves at Hapsmith's pleasure Council once tried to have him fired, but failed. Kuks supervises Council's bookkeeper, who is also a Hapsmith employee. Moreover, Council payroll checks may be signed only by Kuks or two other Hapsmith employees.

The NLRB makes the additional points that Hapsmith has the right to have any unit employee fired and that it may make rules and regulations governing use and operation of the common area.

In comparing these various factual claims and eliminating those which are irrelevant, conflicting, or conclusory, the following picture emerges. Council employs the unit employees and controls various incidents of ownership. Hapsmith, through the agency of its employee, Kuks, hires and fires all unit employees, sets their wage rates and vacation, holiday, and work schedules, and supervises them. Hapsmith can accordingly be treated as a joint employer.

"A joint employer relationship exists when an employer exercises authority over employment conditions which are within the area of mandatory collective bargaining." Sun-Maid Growers of California v. NLRB, 618 F.2d 56, 59 (9th Cir. 1980). The areas within Hapsmith's control wage rates, vacation, holiday, and work schedules, and employee supervision lie within the core of mandatory collective bargaining. See, e. g., Maas & Feduska, Inc. v. NLRB, 632 F.2d 714, 717-18 (9th Cir. 1979); Gallenkamp Stores Co. v. NLRB, 402 F.2d 525, 529 n.4 (9th Cir. 1968). Hapsmith must therefore be considered a joint employer.

That conclusion follows far more strongly than is required by the "arbitrary and capricious" standard which governs review of NLRB determinations of joint employment, NLRB v. Red-More Corp., supra, at 894. Indeed, the breadth of Hapsmith's control over fundamental areas of mandatory collective bargaining makes its position as a joint employer emerge a fortiori from Boire, Sun-Maid, and Gallenkamp, supra, in which cases a determination of joint employment was made from lesser indicia of joint control.

III.

Council and Hapsmith (hereinafter "employers") objected to various campaign statements presented to unit employees. They claim that the election should be set aside and the order to bargain denied or, alternatively, that a hearing on the issue must be held. The Regional Director overruled these objections. We reverse and remand in part and affirm in part the NLRB order.

This court may overturn the decision of the Regional Director if it determines that she abused her discretion in reviewing the facts. NLRB v. J.R. Simplot Co., 322 F.2d 170, 171 (9th Cir. 1963). If the employees have been prevented from freely registering their choice in a representation election, the court may set the election aside and deny enforcement of the NLRB order. NLRB v. Winchell Processing Corp., 451 F.2d 306, 310 (9th Cir. 1971). Further, the court may require a hearing on a lesser showing than that required to overturn the election. Employers need only assert facts which would, if true, require a new election. NLRB v. G.K. Turner Associates, 457 F.2d 484, 487 (9th Cir. 1972).

A. The Alleged Preferential Treatment Based on Pre-Election Support

The employers object to statements made in the Union letter sent to the employees dated January 10, 1978. The letter allegedly implies that employees who are not Union members cannot vote to ratify a Union contract. Furthermore, the employers claim that the letter conditions a waiver of Union dues on the employee's pre-election support of the Union.

The NLRB will set aside elections when a union promises to treat union members differently from other employees in return for pre-election support. Knapp-Sherrill Co., 171 N.L.R.B. 1547 (1968). The Supreme Court has held that if a union promises to waive dues because of pre-election support, the election will be set aside. NLRB v. Savair Mfg. Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973). Furthermore, the election should be set aside if the fee waiver is communicated in such a confusing fashion that it implies that waiver hinges on pre-election support. NLRB v. Aladdin Hotel Corp., 584 F.2d 891, 893 (9th Cir. 1978).

The disputed statements do not violate these principles of the election process. The letter states that a Union contract must be ratified...