Golden Day Schools, Inc. v. N.L.R.B., 78-2518
| Decision Date | 08 May 1981 |
| Docket Number | No. 78-2518,78-2518 |
| Citation | 644 F.2d 834 |
| Parties | 107 L.R.R.M. (BNA) 2558, 91 Lab.Cas. P 12,762 GOLDEN DAY SCHOOLS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John W. Prager, Jr., Musick, Peeler & Garrett, Newport Beach, Cal., for petitioner.
Petition to Review a Decision of the National Labor Relations Board.
Before BROWNING, Chief Judge, CHOY, Circuit Judge, and THOMPSON, * District Judge.
Employees of Golden Day Schools, Inc., a proprietary child care facility, held meetings at which the benefits of unionization were discussed. At least thirteen participants were interrogated about the meetings, and eight were fired. Employees picketed Golden Day and distributed leaflets. Five additional employees were discharged.
The union filed an unfair labor practice charge. The Board found Golden Day had violated section 8(a)(1) of the National Labor Relations Act by coercively interrogating employees concerning their interest in the union and asking one employee to renounce her membership. 1 The Board also found Golden Day had violated sections 8(a)(1) and (3) of the Act by discharging the 13 employees for union activity, and ordered reinstatement with back pay.
Golden Day argues the Board should have exercised its discretion not to assert jurisdiction over Golden Day because Golden Day operates as an "adjunct" to the California school system, performing services "intimately connected" with the purposes of the school system, within the meaning of prior Board decisions declining to exercise jurisdiction over private employers standing in such a relationship to an exempt state entity. 2
The cases relied upon by Golden Day are no longer controlling. Under subsequent Board decisions the test is "whether th(e) employer has sufficient control over the employment conditions of its employees to enable it to bargain with a labor organization which represents them." D. T. Watson Home for Crippled Children, 242 NLRB, ---, --- (1979) (No. 187). 3
Although the State of California reviews Golden Day's budget and sets academic standards, Golden Day, not the State, controls such matters as hiring, firing, employee evaluation, pay raises, grievance procedures, and sick and vacation allowances. Clearly, Golden Day has sufficient control over the terms and conditions of employment of its employees to bargain effectively with a union representing their interests.
Alternatively, Golden Day contends that its gross income was below the $1,000,000 standard established by the Board for exercising jurisdiction over "educational institutions." However, Golden Day met the Board's $250,000 standard for exercising jurisdiction over "day-care centers," and the Board concluded that Golden Day fell in this category.
Golden Day does not challenge the appropriateness of the two standards; it argues only that the Board applied the wrong standard to Golden Day because the Board mischaracterized Golden Day's operations. The issue is the reasonableness of the Board's classification on the facts.
The Board's determination of such a question will not be set aside "in the absence of extraordinary circumstances, such as unjust discrimination." NLRB v. Carroll-Naslund Disposal, Inc., 359 F.2d 779, 780 (9th Cir. 1966). 4 There are no such circumstances here. The administrative law judge concluded that Golden Day's operations are "essentially undistinguishable from Young World 5 and Salt & Pepper Nursery School," 6 in which the Board asserted jurisdiction under the standard for "day-care centers". We agree. Golden Day enrolls children between 2 years and 4 years 9 months in age. 7 Its hours of operation (6:30 a. m. to 6 p. m.) coincide with the parents' work day rather than with a conventional school schedule. Most of its employees are non-teaching aides. Although some of Golden Day's activities are educational, the emphasis, as the administrative law judge stated, is upon "caring for, rather than educating, very young children." Educational elements in its program are informal and occupy a small part of the daily schedule. Most of the day is spent feeding the children, assisting them during bathroom periods, putting them down for naps, and supervising them in coloring, painting, or singing, indoor play with toys, or outside playground activities.
Golden Day argues that the evidence was not sufficient to sustain the Board's finding that the employees were discharged because of their efforts to organize a union.
The employees met on September 30, 1976 and October 7. Golden Day learned of the meetings on Monday, October 11. On the same day, management personnel began to question individual employees regarding the meetings. Witnesses credited by the Administrative Law Judge testified that the interrogation concerned formation of a union. On Wednesday management personnel called a meeting of all employees and told them there would be no union at Golden Day. From Monday through Friday, thirteen employees were interrogated, one for three hours, several more than once. Eight of the thirteen interrogated employees were discharged during the course of the week. On the following Monday, numerous employees picketed and distributed leaflets at Golden Day. Five were discharged. Thirteen of Golden Day's total workforce of 25 to 30 were terminated during the eight-day period.
Golden Day's management testified that seven of the first eight employees terminated were not discharged because they met to consider organizing a union but because they participated in unauthorized meetings with parents to induce these parents to withdraw their children from Golden Day and enroll them in a new school to be formed by staff members; because the employees made false and malicious statements to these parents regarding Golden Day's services and facilities; and because the employees falsely denied attending the meetings or making the derogatory statements to the parents. Golden Day asserts the remaining one of the first eight employees terminated was discharged for unsatisfactory work performance. 8
Management testified that three of the last five employees terminated were not discharged because they picketed Golden Day, but because they circulated a disparaging leaflet regarding Golden Day while picketing, and that the remaining two were not discharged. 9
"(I)t is particularly within the purview of the Board to determine in cases such as this on conflicting evidence what the motivation for discharge was." NLRB v. Winkel Motors, Inc., 443 F.2d 38, 40 (9th Cir. 1971). The determination may, and usually must, be based upon circumstantial evidence. 10 Self-serving declarations by Golden Day's management personnel regarding their motivation are not conclusive. 11 Indeed, when the Board determines, as it did here, that such declarations are untrue, the false assertions of lawful purpose support the inference that the declarants' motive was unlawful. 12
The record amply supports the Board's finding that the discharges were motivated by antiunion bias. The discharges followed immediately upon union organizing activity in which the discharged employees participated. Golden Day evidenced strong antiunion bias by announcing to its assembled workers that there would be no union, and by the timing, nature, and extent of interrogation of individual employees. And as the Administrative Law Judge found, Golden Day "concocted the flimsiest of explanations" for its conduct.
Golden Day questioned the adequacy of the performance of only one of the discharged employees, and as to this employee the charge was not borne out by the record. 13 There was no evidence that meetings between staff and parents were prohibited unless specifically authorized. There was no evidence that the two meetings that were held had any purpose except to consider organization of a union. There were no parents at the first meeting; only two parents attended the second. One was invited because of her knowledge of union matters; the other attended to inquire about conditions at Golden Day. The unfavorable statements regarding Golden Day's services and facilities appear from the testimony to have been moderate responses to direct questions asked of employees by this parent. There is no evidence that any employee sought to solicit these or any other parents to remove their children from Golden Day.
Since the leaflet containing statements disparaging Golden Day was distributed during the picketing, it could not have played a part in the eight discharges that occurred before the picketing. The record also supports the inference that the disparaging statements did not influence the discharge of the five employees who picketed while the leaflet was being distributed.
Golden Day admits that two of these five employees did not participate in distributing the leaflet. 14 The Administrative Law Judge found that Golden Day punished all "five employees on no known basis other than having picketed the school following (the) rash of discharges," indicating that the ALJ discredited testimony of the President of Golden Day that he was aware of the contents of the leaflet when he discharged the other three of the five employees. Rejection of the alternative motive is also reflected in the ALJ's finding that all five employees were discharged "for engaging in the protected activity of protesting an unfair labor practice." From what we have said earlier, it is evident that this finding that anti-union bias alone motivated the discharge of all five employees is amply supported by the record. 15 Assuming distribution of the leaflet would have afforded Golden Day justifiable ground for discharge of three of these employees, therefore, their discharges are nonetheless unlawful, for it is settled that "(d)ischarge of an employee...
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