Did Bldg. Services, Inc. v. N.L.R.B.
| Decision Date | 26 September 1990 |
| Docket Number | 89-70113,Nos. 88-7519,s. 88-7519 |
| Citation | 915 F.2d 490 |
| Parties | 135 L.R.R.M. (BNA) 2484, 53 Fair Empl.Prac.Cas. 1844, 59 USLW 2259, 116 Lab.Cas. P 10,337 DID BUILDING SERVICES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DID BUILDING SERVICES, INC., Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Scott A. Wilson, Jody A. Landry, Littler, Mendelson, Fastiff & Tichy, San Diego, Cal., for petitioner, Did Bldg. Services.
Christopher W. Young, N.L.R.B., Washington, D.C., for respondent, N.L.R.B.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before THOMPSON and TROTT, Circuit Judges, and GRAY, * District Judge.
Petitioner Did Building Services, Inc. ("Company") appeals from respondent National Labor Relations Board's ("Board") decision that petitioner violated section 8(a)(1) and (5) of the National Labor Relations Act ("Act"), 29 U.S.C. Secs. 151-168 (1988), by refusing to bargain with and provide information to the Service Employees International Union, Local No. 102, AFL-CIO ("Union"), and from respondent's order requiring petitioner to bargain and furnish information. Respondent cross-appeals for enforcement of the order. We have jurisdiction under 29 U.S.C. Sec. 160(e) and (f), and we affirm.
On September 17, 1987, the Union won a representation election among petitioner's janitorial employees by a vote of eleven to six with three challenged ballots.
The Company filed objections to the election alleging that, during the campaign, the Union's agents and/or supporters: (1) used racial and religious slurs in describing the Company's owner, Carmine DiDomenico; and (2) promised to waive initiation fees of employees who signed Union authorization cards.
Testimony at the hearing with respect to racial and religious remarks was as follows.
Supervisor Carlos Violanti testified that, during a heated discussion with employee Jose Luis Contreras, the latter
said that the Union was supporting the Mexicans, that the Mexicans should get together and that the Union would protect them against gringos and Jews, that those people never do anything for the workers, and that the Union is for the poor people and for the Mexicans.... 1
[H]e [Contreras] said that he [DiDomenico] didn't care about the employees, that he was a Jew, that he had zillions of dollars and he's like all the other gringos who doesn't give a damn about the poor Mexicans.
Violanti said he tried to defend the owner but Contreras continued to repeat that the Union would protect the workers against the owner. Violanti stated that their discussion occurred in front of three other employees about two weeks before the election. Violanti said he also overheard Contreras in conversations with two other employees shortly before the election refer to the owner as a Jew and say that the Union protects the Mexicans against "gringos and Jews." Violanti characterized Employee Gloria Romero testified that after Company-sponsored meetings, Contreras always loudly told other employees
Contreras as an outspoken Union supporter.
that we should unite, that we should join the Union and we should not be on the owner's side, who was a Jew who was exploiting us.
She said Contreras habitually referred to the owner as a Jew.
Employee Monica Becerra, Romero's daughter, testified that, shortly before the election, Contreras solicited her signature on a Union authorization card and, in reply to her question as to what benefits would result, said that "the Jewish gringos were exploiting us." She said she attended the Company meetings but never heard Contreras make the loud remarks attributed to him by Romero.
Contreras admitted having engaged with Violanti in the conversation described, but denied ever having referred to DiDomenico as a Jew or gringo. Employee Jose Luis Trujillo testified that he was present at the conversation between Contreras and Violanti and attended all the Company meetings but did not hear Contreras refer to the owner as a Jew or gringo at any of these times.
Testimony with respect to promises to waive initiation fees was as follows.
Becerra testified that Contreras promised to waive her initiation fees if she signed a card, and told her to convey the same offer to Romero and another employee, which she said she did. Contreras denied these allegations.
Romero testified that employee Luis Ernesto, her son, told her that Eliseo Medina, the local union president, had promised in front of another employee to waive his initiation fee if he signed a card. Romero said her conversation with Ernesto occurred in front of many other employees. Medina denied the conversation with Ernesto.
Romero also testified that: (1) she considered Contreras a Union representative because employees attending meetings during the campaign would have him ask their questions; and (2) employees brought work problems to Contreras for presentation in an unofficial capacity to the Company. Neither of the two employees whom she claims brought problems to Contreras testified.
As to the alleged slurs by Contreras, the hearing officer credited Violanti's over Contreras's version of their conversation and concluded that therefore Contreras on that occasion referred to the owner as a Jew and gringo in front of three other employees. He discredited Violanti's testimony that he overheard Contreras make similar comments in other conversations on the grounds that: (1) Violanti's recollection was slow to develop and devoid of specificity; and (2) the Company failed to call as witnesses the two employees to whom Contreras supposedly addressed these remarks.
The hearing officer discredited Romero's testimony that Contreras made similar comments after Company meetings on the grounds that: (1) Contreras and Trujillo denied her allegations; (2) her daughter, Becerra, did not hear the comments; and (3) Romero's demeanor in testifying was "less than candid" in that she appeared to seek to please her employer and exaggerate her replies, and often responded with broad, general answers.
The hearing officer discredited Becerra's claim that Contreras, in soliciting her signature on a card, referred to the owner as a Jew and said the Jewish gringos were exploiting the workers, on the grounds that: (1) although she claimed to have related the conversation to her mother and another employee, the Company did not present either's testimony in this regard; (2) her testimony and earlier affidavit were inconsistent as to whether Contreras had actually given her a card; and (3) her demeanor was unconvincing in that "she appeared too eager to state her accusations and tended to provide overly broad and generalized responses."
The hearing officer recommended overruling the objection based on Contreras's slurs because they "could [not] have impaired As to the allegations of promises of fee waivers, the hearing officer credited Contreras over Becerra because: (1) Becerra's testimony and affidavit were inconsistent; (2) Becerra's demeanor was unconvincing; and (3) Contreras testified in a sincere, forthright manner as to their conversation. The hearing officer credited Medina over Romero on the bases of: (1) their demeanors; (2) the Company's failure to present corroborating testimony of employees who supposedly witnessed the conversations; (3) inconsistencies in Romero's testimony (she initially said she overheard the alleged conversation between Medina and Ernesto and then reported its substance, but then testified that she did not actually know the substance until Ernesto described it); and (4) her tendency to exaggerate her testimony. Accordingly, he recommended overruling the objection based on alleged promises to waive fees on the ground that no such promises were made.
the employees' freedom of choice in the subsequent election." He reasoned that: (1) Contreras was neither a Union agent nor a person in any special position of influence over the other employees; (2) no one could have reasonably attributed his statements to the Union; and (3) the campaign was neither heated nor laced with threats or violence, and; (4) as Contreras uttered the slurs in a heated discussion, "it is reasonable to conclude that the other employees listening ... took them to reflect Contreras's personal biases."
In its Decision and Certification of Representative, the Board adopted the hearing officer's findings and recommendations and certified the Union. In particular, the Board upheld the hearing officer's credibility findings pursuant to its "established policy not to overrule a hearing officer's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us they are incorrect." As to Contreras's religious and racial remarks, the Board stated:
[T]he comments made by employee Contreras are troubling and we certainly do not condone the use of such terms occurring in the context of a Board conducted election. However, here the evidence as credited by the Hearing Officer establishes that the comments were made on a single occasion by a pro-union employee in a manner that could not reasonably create the appearance that his remarks represented the views of the Union; and there is no evidence that the Union had notice that he had made such remarks, so its failure to repudiate them has no significance. Under these circumstances, we find no basis for setting aside the election under rule [sic] of Sewell Manufacturing Co., 138 N.L.R.B. 66 (1962).
Accordingly, the Board, in its Decision and Order on summary judgment, held that the Company had violated the Act by refusing to bargain and to provide information to the Union, and ordered the Company to bargain and provide the relevant requested information. The Company appeals from this Decision and Order. 2
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