Micronesian Telecommunications Corp. v. N.L.R.B.

• Decision Date: 02 September 1987
• Docket Number: Nos. 86-7341,86-7404,s. 86-7341
• Citation: 820 F.2d 1097
• Parties: 125 L.R.R.M. (BNA) 3102, 126 L.R.R.M. (BNA) 2324, 107 Lab.Cas. P 10,007 MICRONESIAN TELECOMMUNICATIONS CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1097

820 F.2d 1097

125 L.R.R.M. (BNA) 3102, 126 L.R.R.M. (BNA) 2324,

107 Lab.Cas. P 10,007

MICRONESIAN TELECOMMUNICATIONS CORPORATION, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 86-7341, 86-7404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1987.

Decided June 29, 1987.

As Amended Sept. 2, 1987.

William Malone, Stamford, Conn., for petitioner-cross-respondent.

Kenneth B. Hipp, Washington, D.C., for respondent-cross-petitioner.

On Petition to Review and Cross-Petition to Enforce Orders of the National Labor Relations Board.

Before POOLE, NORRIS and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

I

OVERVIEW

Micronesian Telecommunications Corp. (MTC) petitions for review of an NLRB order directing it to bargain with the International Brotherhood of Electrical Workers Local 1357. The NLRB has filed a cross petition for enforcement of its order.

II

FACTS AND PROCEEDINGS BELOW

The Northern Mariana Islands are the sixteen northern-most major islands in the Micronesian Chain. Saipan, the largest of these islands, lies 3900 miles west of Honolulu, and 5600 miles southwest of Los Angeles. Guam is 45 miles south of Rota, 135 miles south of Tinian, and 150 miles south of Saipan.

Saipan has a population of approximately 17,000 inhabitants; 87% of the total population of the Northern Marianas. The dominant ethnic group within the Northern Marianas population is the Chamorros, who are of the same origin as the indigenous Guamanians.

The Japanese ruled the Mariana Islands from the beginning of World War I until the United States invaded Saipan in June of 1944. From then until 1947, when the United Nations designated Micronesia as a Trust Territory, these islands were an American possession. From July 1947 to November 1986, the United States administered the Northern Mariana Islands as part In 1976, the United States and the Northern Mariana Islands entered into a "Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America" (the 1976 Covenant). This covenant was approved by a unanimous vote of the Northern Mariana Legislature, and by a 78.8% vote of the citizens of the Northern Marianas before being enacted into law by the United States Congress.

of the United Nations Trust Territory of the Pacific Islands (TTPA). Under the Trust Agreement citizens of the Northern Mariana Islands were not citizens or nationals of the United States.

Some of the provisions of the 1976 Covenant became effective immediately upon its approval by the Northern Mariana Islands District Legislature, the People of the Northern Marianas and the United States Congress. See 1976 Covenant Sec. 1003(a), reprinted in 48 U.S.C.A. Sec. 1681 at 306 (Supp.1987). Other provisions became effective on January 9, 1978 by Presidential Proclamation. See 1976 Covenant Sec. 1003(b), reprinted in 48 U.S.C.A. Sec. 1681 at 306 (Supp.1987); Proclamation No. 4534, 42 Fed.Reg. 56,593 (1977), reprinted in 42 u.s.c.a. Sec. 1681 at 307-08 (Supp.1987). Sections 1002 and 1003(c) of the 1976 Covenant provide that by proclamation of the President of the United States the remainder of the 1976 Covenant was to become effective "upon the termination of the Trusteeship Agreement and the establishment of the Commonwealth of the Northern Mariana Islands." 1976 Covenant Secs. 1002, 1003(c) reprinted in 48 U.S.C.A. Sec. 1681 at 306 (Supp.1987). The President of the United States signed Proclamation No. 5564, 51 Fed.Reg. 40,399 (1986), on November 3, 1986, terminating the Trusteeship Agreement with respect to the Northern Mariana Islands as of November 3, 1986.

The petitioner, MTC, began operations in 1976, and operates approximately three thousand telephones on the islands of Saipan, Rota, and Tinian. On October 21, 1982, the International Brotherhood of Electrical Workers Local 1357 ("the Union") sought to represent employees of MTC in the Mariana Islands and petitioned for a representation election.

MTC opposed the petition, but on December 14, 1984 the Regional Director for the NLRB issued a decision and direction of election. On January 10, 1985, an election was conducted and of the 52 employees eligible to vote, 24 voted for the Union, and 20 voted against. MTC objected that the elections were tainted by impermissible government involvement and improper inducements. The Regional Director investigated the allegations, and on February 28, 1985, issued a report on the objections. MTC objected to the report, but on September 25, 1985, the Board issued a "Decision and Certification of Representative" and designated Local 1357 the exclusive collective bargaining representative of MTC.

On October 11, 1985, MTC notified the Union that it would not recognize or bargain with the Union, because it believed the Board's decision was erroneous. MTC was charged with refusal to bargain, and the Regional Director issued a complaint and Notice of Hearing. On May 23, 1986, a motion for summary judgment filed on behalf of the NLRB was decided against MTC and directed MTC to cease and desist from its refusal to bargain with the Union. This petition for review followed. The Board filed a cross-petition for enforcement.

III

ANALYSIS

MTC raises two issues in its petition. It argues that (1) the NLRB was without jurisdiction to order the representation election for employees in the Northern Mariana Islands, and (2) the Board abused its discretion in certifying the Union without holding a hearing on the employer's objections.

A. Jurisdiction.

1. Standard of Review. "Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963). The Board's construction 2. Applicability of the NLRA. MTC argues that the NLRA does not apply to the Northern Mariana Islands because it is only applicable to commerce "among the several States, or between ... any Territory of the United States and any State or other Territory...." MTC states that since the TTPI was not a state or territory ¹ within the meaning of the Act, the NLRA does not apply of its own force, and Congress has not made the NLRA applicable to the TTPI.

                of terms in the National Labor Relations Act (NLRA) that establish its statutory jurisdiction must be upheld if that construction is "reasonably defensible."   Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891, 104 S.Ct. 2803, 2808, 81 L.Ed.2d 732 (1984)
                

The jurisdictional breadth of the NLRA was intended by Congress to encompass the full extent of Congress' power to regulate commerce, NLRB v. Reliance Fuel Oil, 371 U.S. 224, 226, 83 S.Ct. 312, 313, 9 L.Ed.2d 279 (1963), and the term "Territory" as used in Section 2(6) of the NLRA, 29 U.S.C. Sec. 152(6), must be considered in this light.

The term "Territory" has been read broadly. In United States v. Standard Oil Company of California, 404 U.S. 558, 92 S.Ct. 661, 30 L.Ed.2d 713 (1972), the Supreme Court concluded that the Sherman Act was applicable to American Samoa, an "unorganized" territory. In articulating the test to determine whether those islands were covered, the Court stated that the test was whether: " 'if the acquisition of that insular dependency had been foreseen, Congress would have so varied it comprehensive language as to exclude it from the operation of the act.' " Id. at 559, 92 S.Ct. at 662 (quoting Puerto Rico v. Shell Co., 302 U.S. 253 at 257, 58 S.Ct. 167, 169, 82 L.Ed. 235 (1937)). In light of the far-reaching jurisdiction of the NLRB, we do not think Congress intended to exclude the Marianas from operation of the NLRA. See NLRB v. Security National Life Insurance Co., 494 F.2d 336 (1st Cir.1974) (NLRA applicable to the "commonwealth" of Puerto Rico). ² The Board's construction of the term "Territory" is "reasonably defensible," and it did not exceed its jurisdiction in finding the NLRA applicable.

However, even if we concluded that the NLRA did not apply of its own force, we would still conclude that the NLRB had jurisdiction because the 1976 Covenant makes the NLRA applicable to the Marianas. The formula for determining whether the NLRA is applicable to the Marianas is found in sections 502(a) and 504 of the 1976 Covenant.

Section 502(a) provides that certain federal laws will apply to the Northern Mariana Islands. Section 502(a) reads:

The following laws of the United States in existence on the effective date of this Section and subsequent amendments to such laws will apply to the Northern Mariana Islands, except as otherwise provided in this Covenant:

(1) those laws which provide federal services and financial assistance programs and the federal banking laws as they apply to Guam; Section 228 of Title II and Title XVI of the Social Security Act as it applies to the several States; the Public Health Service Act as it applies to the Virgin Islands; and the Micronesian Claims Act as it applies to the Trust Territory of the Pacific Islands;

(2) those laws not described in paragraph (1) which are applicable to Guam and which are of general application to the several States as they are applicable to the several States....

90 Stat. 268 (emphasis added).

Section 504 provides for the creation of a Commission on Federal Laws (Commission) to survey the laws of the United States and to make recommendations to Congress as to which laws of the United States should or should not be made applicable to the Marianas. This section requires that at least four of the seven members of the Commission be citizens of the TTPI and have been domiciled in the Northern Marianas for at least five years. The Commission was to make interim reports to Congress before termination of the Trustee Agreement, and issue a final report within one year of the termination of the Agreement.

Section 1003 of the 1976 Covenant makes ...