Micro Pacific Development Inc. v. N.L.R.B.

• Citation: 178 F.3d 1325
• Decision Date: 18 June 1999
• Docket Number: No. 98-1386,98-1386
• Parties: MICRO PACIFIC DEVELOPMENT INC., d/b/a Saipan Grand Hotel, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

178 F.3d 1325

MICRO PACIFIC DEVELOPMENT INC., d/b/a Saipan Grand Hotel, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 98-1386.

United States Court of Appeals District of Columbia Circuit.

Argued May 10, 1999.

Decided June 18, 1999.

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

Joseph L. Manson, III argued the cause for the petitioner. Ronald B. Natalie and Douglas W. Hall were on brief.

David A. Seid, Attorney, National Labor Relations Board, argued the cause for the respondent. Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel at the time the brief was filed, and Peter Winkler, Attorney, National Labor Relations Board, were on brief. John D. Burgoyne, Acting Deputy Associate General Counsel, National Labor Relations Board, entered an appearance.

Before: SILBERMAN, HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Micro Pacific Development Company d/b/a Saipan Grand Hotel (Saipan) petitions the Court to set aside a final order of the National Labor Relations Board (NLRB or Board). Despite Saipan's assertion that four of its employees were supervisors engaged in pro-union, coercive electioneering, the Board concluded that the employees were not supervisors as defined in the National Labor Relations Act (NLRA or Act) § 2(11), 29 U.S.C. § 152(11). Saipan now attacks the Board's conclusion as unsupported by substantial evidence. In the alternative, Saipan argues that the results of the union election cannot stand because the Board erred in combining Saipan's resident and nonresident employees into a single bargaining unit. For the reasons set forth below, we grant Saipan's petition for review in part and grant the NLRB's cross-application for enforcement as to the remaining issues.

I. Background

A. The Representation Proceeding

Saipan is a beachfront resort hotel operating on the island of Saipan in the Commonwealth of the Northern Mariana Islands (CNMI). ¹ On August 2, 1995 the Commonwealth Labor Federation and Hotel Employees and Restaurant Employees, Local 5, AFL-CIO (Union) filed a representation petition with the Board, seeking certification as the representative of Saipan's employees. The parties entered into an Election Agreement, stipulating that the Board had jurisdiction and that the appropriate bargaining unit consisted of all hotel employees.

After changing counsel, apparently due to original counsel's "inexperience[ ] in NLRA matters," Pet'r Br. at 3, Saipan sought to withdraw from the stipulated election agreement and requested a representation hearing. In its motion, it asserted inter alia that the Board lacked jurisdiction over its nonresident contract workers. ² The NLRB's Regional Director (RD) denied Saipan's motion, finding that no changed circumstances justified withdrawal from the Election Agreement and that the Board had previously asserted jurisdiction over nonresidents working in the CNMI. See Micro Pac. Dev., Inc., No. 37-RC-3720 (Sept. 20, 1995) (Order Den. Employer's Mot. to Withdraw From Stipulated Election Agreement & Req. for Representation Hr'g), Joint Appendix (JA) 17-21. Saipan sought Board review of the RD's decision.

On October 5, pursuant to the Election Agreement, the Board conducted a representation election among Saipan's employees. From a total of 84 eligible employees, 49 voted for unionization and 24 voted against. Three ballots were challenged, a number insufficient to affect the results.

Saipan subsequently filed four objections. The first three objections asserted that the Board lacked jurisdiction over nonresident workers and that, even if the Board had jurisdiction, nonresident workers were ineligible to vote in the election and could not be included in a bargaining unit with resident employees. In the fourth objection, Saipan claimed that supervisors engaged in coercive pro-union conduct requiring the election to be set aside.

On January 24, 1996 the Board denied Saipan's request to review the RD's denial of its motion to withdraw from the Election Agreement, holding that the jurisdictional issues were raised by Saipan in its election objections and that the denial of its request for review was without prejudice to the right to pursue its argument in the representation litigation. On February 22 the RD overruled Saipan's election objections. See Micro Pac., No. 37-RC-3720 (Feb. 22, 1996) (Rep. on Objections), JA 45-51. After Saipan filed exceptions, the Board ordered a hearing before an administrative law judge (ALJ) on Saipan's allegations of supervisory pro-union conduct. Relying solely on the Election Agreement, the Board also adopted the RD's finding that the Board had jurisdiction over the nonresident employees. See Micro Pac., No. 37-RC-3720 (June 24, 1996) (Decision & Order Directing Hr'g), JA 113-15.

On July 31, 1997 the ALJ overruled Saipan's objection alleging coercive conduct by supervisors. The ALJ found that Edwin Melon, Paquito Gonzales, Reynaldo Rojas and Sesinando Laderas were employees rather than supervisors and thus that their pro-union conduct was not objectionable. In the alternative, the ALJ found that Rojas's and Laderas's pro-union conduct was insufficient to materially affect the election results but that, if Melon and Gonzales were found by the Board to be supervisors, their conduct materially affected the election. See Micro Pac., No. 37-RC-3720 (July 30, 1997) (ALJ's Decision), JA 116-46. The Board fully adopted the ALJ's findings and recommendation and certified the Union. Because the Board affirmed the ALJ's findings that the four individuals were employees, the Board found it "unnecessary to pass on the judge's alternative findings." ³ Micro Pac., No. 37-RC-3720 at 2 n.2 (Mar. 26, 1998) (Decision & Certification of Representative), JA 195.

B. The Unfair Labor Practice Proceeding

Following certification, Saipan refused to bargain or furnish requested information to the Union, whereupon the Union filed an unfair labor practice charge. ⁴ In its answer, Saipan admitted the allegations but challenged the validity of the certification. Thereafter, the General Counsel moved for summary judgment and the Board issued a show cause notice.

On August 19, 1998 the Board granted the General Counsel's motion for summary judgment. In its Decision and Order, the Board found that "[a]ll representation issues raised by [Saipan] were or could have been litigated in the prior representation proceeding," and that Saipan did not offer to adduce "any newly discovered and previously unavailable evidence, nor [did] it allege any special circumstances" that would require the Board to modify its decision in the representation proceeding. Micro Pac. Dev., Inc., 326 N.L.R.B. No. 20 at 1 (Aug. 19, 1998). Accordingly, the Board concluded that Saipan's refusal to bargain and to furnish requested information violated the NLRA. The Board required Saipan to cease its unfair labor practices, post a remedial notice, bargain with the Union upon request and supply the requested information. See id. at 2. Saipan then petitioned this Court to review the Board's decision and the NLRB cross-applied for enforcement of its order.

II. DISCUSSION

Pursuant to section 10 (e) and (f) of the NLRA, 29 U.S.C. § 160(e), (f), we will reverse the Board if, "upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." International Union of Elec., Elec., Salaried. Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C.Cir.1994) (quotations omitted). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ("[A] reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view."). Moreover, the Board "is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 118 S.Ct. 818, 829, 139 L.Ed.2d 797 (1998). ⁵

A. Supervisors

Section 2(3) of the NLRA excludes from the term "employee" "any individual employed as a supervisor." 29 U.S.C. § 152(3). Section 2(11) defines "supervisor" as follows:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

29 U.S.C. § 152(11). The first portion of section 2(11) is stated disjunctively--the possession of any of the enumerated powers is sufficient to establish supervisory status. Section 2(11)'s conjunctive language, however, mandates that the exercise of any of the powers "must require independent judgment, ... and cannot be merely routine, clerical, perfunctory, or sporadic." Desert Hosp., 91 F.3d at 193. In short, to be considered a supervisor, one must exercise only one of the enumerated supervisory functions, using independent judgment in doing so.

In its main attack on the ALJ's and the Board's findings, Saipan asserts that Edwin...