California Acrylic Industries, Inc. v. N.L.R.B.
| Decision Date | 23 July 1998 |
| Docket Number | Nos. 96-70932,97-70118,s. 96-70932 |
| Citation | 150 F.3d 1095 |
| Parties | 158 L.R.R.M. (BNA) 2901, 135 Lab.Cas. P 10,208, 98 Cal. Daily Op. Serv. 5719, 98 Daily Journal D.A.R. 7963 CALIFORNIA ACRYLIC INDUSTRIES, INC., d/b/a Cal Spas; G.B. Manufacturing, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CALIFORNIA ACRYLIC INDUSTRIES, INC., d/b/a Cal Spas; G.B. Manufacturing, Inc., Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wayne A. Hersh, and Jon G. Miller, Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, Irvine, California, for the petitioners.
Fred B. Jacob, National Labor Relations Board, Washington, DC, for the respondent.
Petitions for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board. D.C. No. 21 CA 29450.
Before: WIGGINS and KLEINFELD, Circuit Judges, and SMITH, * District Judge.
Following a contentious union organization campaign, the majority of employees at California Acrylic Industries, Inc., d/b/a Cal Spas ("Cal Spas"), voted to strike. Soon thereafter, the employees began picketing Cal Spas' facility. Within a month, the strikers unconditionally offered to return to work; Cal Spas, having hired replacements, refused their offer. The National Labor Relations Board ("NLRB"), adopting the recommended order of an Administrative Law Judge ("ALJ"), ruled that the strike was an unfair labor practice strike and ordered Cal Spas to reinstate the striking employees with back pay. Cal Spas timely petitions this court for review of the NLRB's order. The NLRB cross-petitions for enforcement of its order. We enforce the NLRB's order in part and deny enforcement in part.
Cal Spas manufactures spas, gazebos, saunas, and pool tables at its facility in Pomona, California. In March of 1993, the United Electrical, Radio and Machine Workers of America (the "Union") began an organization campaign among the production and maintenance employees at Cal Spas' Pomona facility.
During the organization campaign, Cal Spas engaged in several unfair labor practices: Cal Spas threatened to move its business, coercively interrogated employees, and coercively disciplined an employee for engaging in union activity. Cal Spas does not dispute these violations. The NLRB did not find that these unfair labor practices were a cause of the June 18 strike.
On May 28, 1993, the Union filed a petition for a representation election with the NLRB's Regional Director for Region 21. A few days later, Cal Spas' management rented videocamera equipment and purchased blank videotapes. This equipment was provided to Cal Spas' security guards. On June 4, a security guard videotaped a meeting between employees and Union representatives during the employees' lunch hour. Despite some contradictory testimony by Cal Spas' management, Cal Spas denies that the guard videotaped this meeting. In the alternative, Cal Spas maintains that any videotaping was justified by Union violence or trespass.
In early June, Cal Spas filed an unfair labor practice charge against the Union, alleging that the Union had committed acts of violence during the organization campaign. On June 14, the Regional Director for Region 21 issued an order indefinitely postponing the representation election petition hearing, which had been scheduled for June 17, pending investigation of Cal Spas' unfair labor practice allegations. On June 16, the Union's organizing committee met and discussed the possibility of a strike. Several Union members later testified before the ALJ that they discussed the June 4 videotape surveillance at that meeting.
The next night, a larger group of Union organizers and employees met to discuss their options. During the meeting, the Union organizers decided to request a strike vote at the June 18 rally at Cal Spas' Pomona facility. Cal Spas alleges that the decision to strike was made at the June 17 meeting because Union members believed Cal Spas had blocked the election.
On June 18, the Union conducted a rally outside Cal Spas' Pomona facility. Union Representative Humberto Camacho addressed the many employees in attendance. Reading from a prepared text, he stated that the employees of Cal Spas were outraged that Cal Spas had, among other things, "videotaped and surveilled our discussions with union representatives, in violation of Section 8(a)(1) of the Act." Cal Spas denies that Camacho ever mentioned the surveillance. Vicente Castillo, a Cal Spas' employee, then asked the employees to vote on a strike. A majority of the employees voted to strike. As a result, the employees stopped working and began picketing Cal Spas' facility.
On July 19, Camacho, on behalf of the striking employees, tendered Cal Spas an unconditional offer to return to work. After delivering this unconditional offer to return, the striking employees continued to picket. Cal Spas refused the offer to return, stating that the workers had been replaced because of their participation in an economic strike. Furthermore, Cal Spas claimed that widespread sexual harassment by striking employees vitiated any right to reinstatement.
The NLRB issued complaints against both Cal Spas and the Union. The NLRB severed the case against the Union and, on December 5, 1994, an ALJ began a hearing on the charges against Cal Spas. After the hearing, the NLRB issued an order affirming the ALJ's rulings, findings, and conclusions that the June 18 strike was caused, in part, by the June 4 videotape surveillance, an unfair labor practice under section 8(a)(1) of the National Labor Relations Act ("Act"), 29 U.S.C. § 158(a)(1). Consequently, the NLRB found that the strike was an unfair labor practice strike and that the employees were entitled to reinstatement. In addition, the NLRB rejected Cal Spas' claims that widespread sexual harassment by striking employees vitiated any right to reinstatement. 2
Cal Spas timely petitions this court for review of the NLRB's order. The NLRB timely cross-petitions for enforcement of its order.
We "will enforce a decision of the NLRB if 'its findings of fact are supported by substantial evidence and if the Board correctly applied the law....' " New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1464 (9th Cir.) (quoting Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 (9th Cir.1995)), cert. denied, 118 S.Ct. 366 (1997). "Evidence is substantial when reasonable minds might accept it as adequate to support a conclusion, even if reasonable minds might also draw a second, inconsistent conclusion from the same evidence." NLRB v. Bakers of Paris, Inc., 929 F.2d 1427, 1441 (9th Cir.1991).
The first issue in this case concerns the alleged videotaping of Union activity by Cal Spas' security guards. The NLRB concluded that Cal Spas violated section 8(a)(1) of the Act when it videotaped a meeting between Union organizers and employees on June 4, 1993. Cal Spas contends that it did not videotape any Union activity on June 4. We conclude that substantial evidence in the record supports the NLRB's finding. In the alternative, Cal Spas argues that any videotaping was justified and not coercive. We disagree; the surveillance amounted to an unfair labor practice under section 8(A)(1).
The NLRB relied on many sources of evidence in finding that Cal Spas videotaped Union activity on June 4. First, General Counsel's Exhibits 3 and 5 are photographs which depict a Cal Spas security guard operating a videocamera during what appears to be Union organizing activity. These photographs confirm that Cal Spas rented and used video equipment. Second, Union organizers Humberto Camacho and David Bacon testified that the photographs were taken on June 4 during a meeting with Cal Spas employees. Third, Cal Spas' own witness, Robert Suminski, confirmed that Cal Spas "rented the [video] cameras on the 3rd" of June. Fourth, Suminski testified that the photographs in Exhibits 3 and 5 were taken in "the early June days." Another Cal Spas witness conceded that the pictures were taken before the strike. This evidence clearly supports the NLRB's conclusion that Cal Spas videotaped Union organizing activities on June 4.
Given the above evidence, the NLRB did not err when it discredited the testimony of Cal Spas' other witnesses. Some of these witnesses testified that the videocameras were obtained only after the strike had begun and were to be used only to record strike-related incidents. That testimony conflicts with the admission by Suminski that the exhibit photographs were taken in "the early June days." Furthermore, we must accord substantial deference to the ALJ's evaluation of the testimonial evidence. See Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078 (9th Cir.1977) (). The ALJ found the Union's witnesses more credible than Cal Spas' witnesses on this issue. That credibility determination, coupled with the General Counsel's photographic exhibits, constitutes substantial evidence upon which the NLRB could base a finding that Cal Spas videotaped protected organizing activity on June 4. Consequently, we will not disturb that finding.
The NLRB further concluded that Cal Spas' videotaping of Union activity on June 4 was an unfair labor practice in violation of section 8(a)(1) of the Act. Cal Spas argues that, even if the videotaping occurred, it was not an unfair labor practice because it was justified and not coercive. A review of the record, however, confirms that the NLRB did not err when it characterized the surveillance as an unfair labor practice.
Section 8(a)(1) of the Act makes it an unfair labor practice for an employer ...
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