Family Service Agency San Francisco v. N.L.R.B.

• Decision Date: 15 January 1999
• Docket Number: No. 98-1204,AFL-CI,I,98-1204
• Parties: 160 L.R.R.M. (BNA) 2288, 78 Fair Empl.Prac.Cas. (BNA) 1453, 333 U.S.App.D.C. 377, 137 Lab.Cas. P 10,344 FAMILY SERVICE AGENCY SAN FRANCISCO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Service Employees International Union, Local 790,ntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1369

163 F.3d 1369

160 L.R.R.M. (BNA) 2288, 78 Fair

Empl.Prac.Cas. (BNA) 1453,

333 U.S.App.D.C. 377, 137 Lab.Cas. P 10,344

FAMILY SERVICE AGENCY SAN FRANCISCO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Service Employees International Union, Local 790, AFL-CIO, Intervenor.

No. 98-1204.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 4, 1998.

Decided Jan. 15, 1999.

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Paul B. Johnson argued the cause and filed the briefs for petitioner.

Sharon I. Block, Attorney, Norristown, PA, National Labor Relations Board, argued the cause for respondent. With her on the brief were Linda Sher, Associate General Counsel, John D. Burgoyne, Acting Deputy Associate General Counsel, and Fred L. Cornnell, Supervisory Attorney.

Before: WALD, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

In June 1996, the Service Employees International Union Local 790, AFL-CIO ("Union") began a campaign to unionize a daycare site operated by Family Service Agency San Francisco ("FSA"), a private agency hired by state and local authorities to provide child care to underprivileged children. The Union set about organizing the supervising teachers, who were in charge of six classrooms at the site, as well as the assistant teachers, teachers' aides, and the facility's office and support workers. In October 1996, the Union filed a petition with the National Labor Relations Board ("NLRB" or "Board") seeking a representation election among these employees. FSA objected to the proposed bargaining unit on the ground that supervising teachers were statutory supervisors and so disqualified under the National Labor Relations Act ("NLRA" or "the Act") from inclusion. After a hearing, the Board's Regional Director found that they were not supervisors and ordered an election in the petitioned-for unit. On appeal, the Board amended this ruling to permit the supervising teachers to vote subject to challenge. See Joint Appendix ("J.A.") at 42 (Order of Dec. 19, 1996).

The election was held on January 8, 1997. The union won 25 to 12, with one challenged ballot. At the pre-election conference, FSA did not challenge the ballots cast by supervising teachers. After the election, it filed the following objections: (1) the Union destroyed the laboratory conditions of the election by improperly appealing to racial prejudice during the election campaign; (2) the election was tainted by the involvement of supervisory teachers in the election process; (3) Union supporters engaged in improper electioneering during the voting; (4) the Union engaged in misconduct when its agents improperly invaded the workplace; and (5) the election was invalid because the Union failed to file reports required by the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 431(a), 431(b), 432 & 435. ¹ The Board's hearing officer, after four days of testimony, issued a report which recommended that all of the objections be overruled. FSA filed exceptions with the Board, but the Board rejected them and instead adopted the hearing officer's findings and conclusions. The Decision and Certificate of Representative issued on October 17, 1997. FSA refused to bargain with the Union on the ground--the same raised in its objections--that the election was not conducted lawfully. J.A. at 107 (Answer to Complaint). The Union filed a complaint with the Board, charging that FSA violated We hold that FSA is estopped from attempting to litigate the question whether the election was tainted by the involvement of supervisors. FSA waived its right to a ruling on whether the supervising teachers are statutory supervisors during the prior representation proceeding, and may not bring that issue before this court. We also find that the Board reasonably concluded that FSA's other objections lacked merit.

                sections 8(a)(1) and (5) of the National Labor Relations Act ("NLRA" or "the Act"), 29 U.S.C. § 158(a)(1) and (5), and the NLRB General Counsel subsequently brought an unfair labor practice charge against the agency.  The Board granted the NLRB's motion for summary judgment, and FSA asks that we deny enforcement of the Board's order to bargain collectively. 2  The NLRB cross-petitions for enforcement
                

I. BACKGROUND

Teachers and administrators work in close proximity at FSA's Bryant Street site, serving 160 children aged two weeks to three years old. Each classroom is staffed by a supervising teacher, an assistant teacher, and teachers' aides. When the Union began its organizing campaign in June 1996, racial discord already characterized relations between African-American and Latina ³ employees. The supervisor of the center, Vivian Storey, who is African-American, testified that at some point before the Union's arrival, a Latina co-worker told Storey that she could not socialize with her African-American co-workers anymore because she had been harassed by another Latina. J.A. at 510. In addition, the employees took racially segregated lunch periods, with Latina workers eating from 12:30 to 1:30 and African-Americans from 1:30 to 2:30 p.m. J.A. at 552.

The Language Issue

The pivotal issue that drove a wedge between Latina and African-American workers--the alleged presence of a policy limiting use of Spanish in the classroom and front office--surfaced well before the unionization campaign. In early 1996, there were a series of meetings among administrators in which the staff addressed, among other things, complaints about Sandra Ramirez, who worked in the center's front office and dealt with agency clients. J.A. at 751-58 (testimony of Claudette Darley, operations manager). At one such meeting, according to Darley, one of Ramirez' supervisors, Ramirez was instructed to speak English whenever she was in a group of people that included non-Spanish speakers. J.A. at 767. Ramirez was told of an incident in which three African-American parents were standing in the office while the Latina staff conversed in Spanish, and Ramirez was warned that this could be considered insulting by non-Spanish-speaking parents. Id.; see also J.A. at 797 (notes from 1/11/96 staff meeting).

The language issue arose again on June 5, 1996, when a staff meeting was held among the teachers in Room 2. Among the teachers who attended were Phyllis Hogan, the African-American supervising teacher for the room; Edith Ruiz, a Latina teachers' aide; and Johnny Overton, an African-American substitute teachers' aide. According to testimony and contemporaneous hand-written notes from the meeting (it is not clear from the record who served as notetaker) a parent had complained about the Latina staff's speaking Spanish to her son. The notes from the meeting set forth the following: "It is appropriate to speak Spanish to children whose primary language is Spanish, as long as it is in accordance with their parents' wishes. It is appropriate to speak Spanish to Spanish-speaking parents in order to convey information or explain things more clearly."

J.A. at 796 (emphasis in original). "If a non-Spanish-speaking parent or staff member is nearby when Spanish is being spoken, a staff member will attempt to give a short explanation in English of what is being discussed so they don't feel unwelcome or uncomfortable; Ex: 'Hi ___. I was just explaining this memo to ___. I'll be right with you.' " Id.

Some time later in June, according to Ruiz, Ruiz was speaking Spanish to a parent and Hogan came into the room. Hogan "touched me on the shoulder and she told me, 'Remember.' And then she told me ... that we were going to have a short meeting," Ruiz testified. J.A. at 706. Once the children went down for their naps, Hogan asked Ruiz whether she remembered that she should not speak Spanish, according to Ruiz, and Ruiz asked for a written policy regarding the language issue. J.A. at 706-07. This was followed by a tense interaction between Storey, who subsequently intervened, and Ruiz; Ruiz testified that Storey told her she was in America and should speak English, J.A. at 706, but Storey denied this and recalled that she told Ruiz each employee needed to be sensitive to other cultures, J.A. at 527. "My words was to her that there is a whole lot of rules and regulations that I do not like," Storey testified, "and I said if I could not follow the rules and stuff, then it was time for me to leave." Id.

Also at the end of June, the teachers in Room 7/9 held a staff meeting at which they discussed the use of Spanish. Notes from this meeting reflect mounting tension over the issue. Marva Stephens, the African-American supervising teacher in the classroom at the time, indicated on the "Meeting Outcome" form that "[t]o identify speech and language problems, staff will use English then Spanish to enhance receptive language skills, and to assist development by speaking English." J.A. at 804. But Lourdes Perez, a Latina teachers' aide, wrote in Spanish her own version of what happened at the meeting on the "Meeting Outcome" form. Perez testified that her notation reads: " 'Today, June 26, our supervisor once again has forbidden us. She does not want us to talk Spanish in the rooms. And that she does not care what the Union' has said...." J.A. at 726. At the hearing, Storey denied directing Stephens to implement an "English-only" language policy. J.A. at 570.

The Organizing Campaign

In their testimony Storey and other higher-ranking employees all unequivocally denied that FSA ever had an "English-only" language policy, but Latina employees felt that their supervisors were increasing pressure on them to stop speaking Spanish. When the Union began to hold meetings among employees in the prospective bargaining unit in the summer of 1996, J.A. at 512, the language issue was one of the first workplace problems that the Latina employees...