N.L.R.B. v. Bakers of Paris, Inc., 89-70050

• Citation: 929 F.2d 1427
• Decision Date: 08 April 1991
• Docket Number: No. 89-70050,89-70050
• Parties: 137 L.R.R.M. (BNA) 2007, 118 Lab.Cas. P 10,680, 32 Fed. R. Evid. Serv. 801 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAKERS OF PARIS, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1427

929 F.2d 1427

137 L.R.R.M. (BNA) 2007, 118 Lab.Cas. P 10,680,

32 Fed. R. Evid. Serv. 801

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BAKERS OF PARIS, INC., Respondent.

No. 89-70050.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 16, 1990.

Decided April 8, 1991.

David A. Fleischer, N.L.R.B., Washington, D.C., for petitioner.

Robert G. Hulteng, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before TANG and BEEZER, Circuit Judges, and STEPHENS, ^* District Judge.

TANG, Circuit Judge:

The National Labor Relations Board ("Board") has petitioned for enforcement of its bargaining order issued to Bakers of Paris, Inc. ("Bakers" or "Company"), and reported at 288 N.L.R.B. 991 (1988). The issues before us concern the proper means of confronting non-English-speaking witnesses with prior statements written in English, and the use of interpreters in administrative proceedings. Bakers also challenges the Board's finding that at one time a majority of employees within the appropriate bargaining unit supported collective bargaining. In opposing enforcement, Bakers further contends the Board's bargaining order is not a proper remedy in light of the passage of time and the turnover in personnel occurring between the commission of the unfair labor practices and the issuance of the bargaining order. We conclude that the bargaining order must be enforced.

FACTS AND PROCEDURAL BACKGROUND

Bakers is a production French bakery located in South San Francisco, California. In 1983 and 1984, the Company primarily employed immigrants from Southeast Asia who spoke little or no English. In September 1983, several Bakers employees met at the home of David York, a business agent of the Bakery and Confectionery and Tobacco Workers International Union, Local 24, AFL-CIO-CLC ("the Union"). In the days following, the Union obtained the signatures of many Bakers employees on English language authorization cards and on October 3, 1983 Bakers received a Petition for Representation Election from the Board. Two months later, on December 9, 1983, the Union lost in a secret ballot election.

Thereafter, the Union filed with the Board objections to the election and charges of unfair labor practices. A complaint issued; it was amended later to allege additional unfair labor practices occurring in 1984. On August 23, 1985, after 25 days of trial in 1984, ¹ an administrative law judge ("ALJ") found that Bakers had committed extensive unfair labor practices both before and after the 1983 election, all in violation of section 8(a)(1) and (3) of the National Labor Relations Act ("the Act"), 29 U.S.C. 158(a)(1), (3).

The ALJ concluded specifically that Bakers had coercively interrogated employees regarding their union activities, threatened employees with layoffs, granted employees longer break periods and wage increases to induce them not to engage in union activities, and promised job promotions for the same purpose. The ALJ found, for example, that on September 15, 1984 a Bakers vice president, Gilles Wicker, interrogated employee Gia Tuong Phung regarding Phung's testimony during the early portion of the hearing before the ALJ. Wicker accused Phung of lying, then left him with a Vietnamese-speaking customer who intimated to Phung that his statements at the hearing had jeopardized his position with Bakers, but that he could repair the damage by amending his testimony.

The ALJ found further that while the hearing was in progress Bakers announced Two additional examples of the unfair labor practices found by the ALJ involve employees Chi Van Hoang and Thanh Vinh Luu. Both employees played important roles in attempting to organize their coworkers. Hoang was fired sometime during November 1983, purportedly because he attended a social function after having called in sick. Shortly thereafter, Luu was isolated from most of his fellow employees when Bakers changed his working hours, supposedly to accommodate another employee's schedule. The ALJ determined that Bakers's reasons for these personnel decisions were pretextual, and that the decisions discriminated against the employees on the basis of their efforts to organize, in violation of section 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(3).

to its employees that, because one of the charges against the Company involved wage increases, the Company would not raise wages during the course of the litigation, which was estimated to last from two to five years. The ALJ concluded that this message was a reprisal against employees for their exercising and pursuing rights of organization and redress under the Act.

In determining a proper remedy, the ALJ noted that the Union had obtained valid authorization cards from a majority of employees in the bargaining unit before the filing of the election petition. Ultimately, the ALJ recommended the Board impose several remedial measures, including ordering Bakers to bargain with the Union.

After the ALJ issued his decision, Bakers filed its exceptions to the decision with the Board. On May 17, 1988, the Board adopted the decision of the ALJ in all significant aspects, including the ALJ's assessments of witness credibility, and issued the bargaining order recommended by the ALJ. On February 2, 1989, the Board petitioned this court for enforcement of its order. The Board's jurisdiction was founded on section 10(a) of the Act, and we have jurisdiction over the enforcement petition pursuant to section 10(e). See 29 U.S.C. Sec. 160(a), (e).

DISCUSSION

Bakers attacks the Board's order on four grounds: two concern administrative procedures, and two concern the substantive basis upon which the bargaining order is founded. We review each contention in turn. Before doing so, we note as a general rule that this court will conduct only a limited review of a Board order to determine whether the Board has correctly applied the law. NLRB v. Island Film Processing Co., 784 F.2d 1446, 1450 (9th Cir.1986). The Board's factual findings are conclusive if substantial evidence in the record as a whole supports them. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); 29 U.S.C. Sec. 160(e).

A. Administrative Procedures

In opposing enforcement of the Board's order, Bakers challenges the ALJ's decision--adopted by the Board, 288 N.L.R.B. at 991 n. 1--that prevented the Company from confronting non-English-speaking witnesses with prior statements written in English. Bakers also contends that it was error for the ALJ not to disqualify two interpreters used during the administrative hearing.

1. Exclusion of Prior Statements

At the hearing before the ALJ, Bakers repeatedly sought to question witnesses called by the Board's General Counsel about prior statements that were written in English and signed by the witnesses. The witnesses who made these prior statements were present or past employees of Bakers. Although some understood English, they all testified in either the Cantonese or Vietnamese language with the aid of an interpreter.

The prior statements of these witnesses were of two types: those taken by the Board in the course of its investigation, and those taken by Bakers's counsel for purposes of conducting the Company's defense. In producing to Bakers the statements taken by the Board, see 29 C.F.R. Sec. 102.118(b), the Board's General Counsel also produced translated versions of these During the course of the hearing, Bakers was permitted to confront the General Counsel's witnesses with the native-language versions of the statements taken by the Board. However, the ALJ would not allow the English versions of these statements into evidence, and Bakers declined to offer the native-language versions. As to the statements taken by the Company, the ALJ consistently refused to allow Bakers to use these in any manner, whether as evidence in themselves, as tools to refresh the recollection of witnesses, or as topics on which to conduct cross-examination. The ALJ did indicate that he would allow Bakers's counsel to ask generalized questions based on the prior statements taken by the Company, such as whether a witness had ever said anything contrary to his or her testimony. At times, however, it appears that Bakers was prevented from asking even these types of questions. The Company contends that these evidentiary rulings were erroneous, and that these errors preclude enforcement of the Board's order.

statements prepared in the native languages of the witnesses. Translated versions of the written English statements taken by Bakers's counsel were never offered at the hearing.

In deciding whether to enforce the Board's decision, we assess whether the Board's evidentiary rulings were correct. See NLRB v. Maywood Do-nut Co., 659 F.2d 108, 110 (9th Cir.1981); Carpenter Sprinkler Corp. v. NLRB, 605 F.2d 60, 66 (2d Cir.1979); cf. NLRB v. International Bhd. of Elec. Workers, Local 77, 895 F.2d 1570, 1573 (9th Cir.1990) (whether the Board correctly applied the law in arriving at its decision is a question for this court). Ordinarily, this is a matter of determining whether the Board properly applied the federal rules of evidence. Maywood Do-nut Co., 659 F.2d at 110 (in unfair labor practice hearings the Board shall apply the Federal Rules of Evidence to the extent practicable); 29 U.S.C. Sec. 160(b). However, in those instances where the Board departs from the federal rules to promulgate its own particular rule of evidence, this court will first determine whether the departure from the federal rules constituted an abuse of the Board's discretion. Maywood Do-nut Co., 659 F.2d at 110; cf. NLRB v. Hudson Oxygen Therapy Sales Co., 764 F.2d 729, 731 (9th Cir.1985) (rules promulgated by the Board are reviewed solely for rationality, and for consistency with the National Labor Relations Act). Even when the Board...