N.L.R.B. v. Lorimar Productions, Inc.
| Decision Date | 17 September 1985 |
| Docket Number | 84-7561,Nos. 84-7531,s. 84-7531 |
| Citation | 771 F.2d 1294 |
| Parties | 120 L.R.R.M. (BNA) 2425, 103 Lab.Cas. P 11,573 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LORIMAR PRODUCTIONS, INC., Respondent. LORIMAR PRODUCTIONS, INC., Cross-Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Cross-Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elliott Moore, Elinor Hadley Stillman, N.L.R.B., Washington, D.C., for petitioner.
Arthur Chinski, Debra P. Granfield, Buchalter, Nemer, Fields, Chrystie & Younger, Helena S. Wise, Geffner & Satzman, Los Angeles, Cal., for respondent.
Petition to Review a Decision of the United States National Labor Relations Board.
Before PREGERSON, and ALARCON, Circuit Judges, and SOLOMON, * District Judge.
The National Labor Relations Board (hereinafter the Board) applies for enforcement of its order requiring that Lorimar Productions, Inc. (hereinafter Lorimar) bargain with Production Office Coordinators and Accountants Guild Local 717, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (hereinafter the union). Lorimar cross-petitions for review, contending that its refusal to bargain was justified because (1) the Board certified an inappropriate bargaining unit; (2) the Regional Director conducted the representation election pursuant to an official notice that incorrectly defined the bargaining unit; (3) the Board abused its discretion by failing to afford Lorimar an evidentiary hearing on its objections to the conduct of the election; (4) the Board abused its discretion by extending the union's certification in its remedial order; (5) the union failed to make a clear and proper demand for bargaining; and (6) Lorimar had a good faith doubt regarding the union's majority status.
We deny Lorimar's cross-petition insofar as it asserts that the Board certified an inappropriate unit. Because the Board's election procedures effectively denied the employees an opportunity to vote for representation in the unit certified by the Board, however, the Board's application for enforcement of its bargaining order is denied. Consequently, we do not reach Lorimar's remaining contentions.
Lorimar is a California corporation whose business is the production of motion pictures and television programs. On November 25, 1980, the union filed a representation petition with the Board seeking certification as the bargaining representative of Lorimar's estimators and production coordinators. The Regional Office conducted a representation hearing on December 19, 1980 to determine a unit appropriate for collective bargaining.
Following the hearing, the Board certified a unit composed of the estimators and production coordinators and directed an election for February 26, 1981. Lorimar filed a request for review of the Board's decision, contending that a combined unit of estimators and production coordinators was inappropriate because the estimators were technical employees, and arguing that the estimators and production coordinators were confidential and managerial employees.
On February 25, 1981, the Board granted Lorimar's request for review with respect to the status of production coordinators as confidential employees, and denied review in all other respects. The Board notified the Regional Director of its decision by telephone on the afternoon of February 25. The parties received notification by telegram on the day of the election. Nevertheless, the election took place as originally scheduled. Both production coordinators and estimators voted; the estimators were under the impression that the unit on which they were voting included both the estimators and the production coordinators. Ballots were received from eleven estimators and six production coordinators, and the ballots were segregated and impounded pending the Board's review decision.
On September 1, 1981, the Board issued a decision on review finding that the production coordinators were confidential employees and excluding them from the unit. Lorimar Productions, Inc., 257 N.L.R.B. 1138, 1139 (1981). The estimators' ballots were opened and counted on October 1, 1981, and the tally showed six votes for the union, four votes against, and one nondeterminative challenged ballot.
Lorimar filed timely objections alleging that the election results should be set aside because (1) the election was conducted on the assumption that the production managers would be a part of the unit; (2) the union made material pre-election misrepresentations; and (3) the curtain on the voting booth was torn and did not close properly, thus destroying the secrecy of the election. After investigating Lorimar's objections, the Board overruled them and certified the union as the estimators' exclusive collective bargaining representative on November 12, 1981. Lorimar filed with the Board a request for review of the Regional Director's decision. The Board denied Lorimar's request, finding that it raised no substantial issues warranting review.
On September 2, 1982, the union requested that Lorimar bargain with it. On November 11, 1982, Lorimar refused. On December 8, 1982, the union filed an unfair labor practice charge alleging that Lorimar had violated National Labor Relations Act (NLRA) Secs. 8(a)(1) and (a)(5) by refusing to bargain with the union. The Board issued a complaint, and the union answered. The Board granted General Counsel's motion for summary judgment on April 26, 1984.
The Board's order requires Lorimar to cease and desist from refusing to bargain with the union and from interfering with its employees' NLRA Sec. 7 rights in any similar manner. The order also requires Lorimar to bargain with the union on request and construes the initial period of union certification as beginning on the date Lorimar commences such bargaining with the union.
Lorimar contends that because the Board's unit determination was inappropriate, Lorimar did not commit an unfair labor practice by refusing to bargain with the union. See NLRB v. West Coast Liquidators, Inc., 725 F.2d 532, 534 (9th Cir.1984) (). Specifically, Lorimar asserts that the Board erred in certifying a unit composed of estimators because they are confidential employees not covered by the NLRA.
We will enforce the Board's order if the Board's factual findings are supported by substantial evidence in the record and if the Board correctly applied the law. NLRB v. Carpenters Local Union No. 35, 739 F.2d 479, 481-82 (9th Cir.1984). The Board's legal conclusion that a unit is appropriate is reviewable only for an abuse of discretion; its unit determinations will be credited on appeal unless clearly arbitrary or capricious. Alaska StateBank v. NLRB, 653 F.2d 1285, 1287 (9th Cir.1981) (quoting Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1037 (9th Cir.1978) ). In the instant case, however, the Board's unit determination is based solely upon its finding that estimators are not confidential employees. This is a factual finding reviewable for substantial record support. NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 191, 102 S.Ct. 216, 229, 70 L.Ed.2d 323 (1981); NLRB v. Los Angeles New Hospital, 640 F.2d 1017, 1023 (9th Cir.1981).
The NLRA requires that two categories of confidential employees be excluded from bargaining units: (1) those employees who "assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations" (B.F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956)), and (2) "those employees who, in the course of their duties, regularly have access to confidential information concerning anticipated changes which may result from collective-bargaining negotiations." (Pullman Standard Division, Inc., 214 N.L.R.B. 762, 762-63 (1974)). Union Oil Co. v. NLRB, 607 F.2d 852, 853-54 (9th Cir.1979). The rationale behind the exclusion of confidential employees from the bargaining unit is that employees should not be placed in a position which creates a potential conflict between the interests of the employer and the union. Id. at 853.
Lorimar's estimators do not fall within either category of confidential employees. The central inquiry in ascertaining whether an employee falls within the first category is whether the employee is in a confidential work relationship with a specifically identifiable managerial employee responsible for labor policy. Id. The record shows that the estimators are supervised by vice president/controller Mary Van Houten, who has no authority to make decisions on labor policy matters.
Lorimar argues that because estimators "work with" unit production managers, the estimators have a confidential relationship with unit production managers. 1 The record demonstrates, however, that the estimators' relationship with the unit production managers is limited to obtaining information from them for inclusion in the budget, and on occasion providing information regarding existing or mathematically predictable labor costs. The estimators' occasional performance of such clerical duties for the unit production managers does not demonstrate the existence of a confidential work relationship where the estimators are not generally under their supervision. See Union Oil Co., supra, at 853 ().
Lorimar also contends that the estimators assist the unit production managers in making labor relations decisions, and concludes that performance of these duties...
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