N.L.R.B. v. Cal-Western Transport, CAL-WESTERN

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore ALARCON, FERGUSON and BEEZER; BEEZER
Citation870 F.2d 1481
Decision Date23 March 1989
Docket NumberNo. 87-7263,CAL-WESTERN
Parties130 L.R.R.M. (BNA) 3191, 111 Lab.Cas. P 11,093 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.TRANSPORT, Respondent.

Page 1481

870 F.2d 1481
130 L.R.R.M. (BNA) 3191, 111 Lab.Cas. P 11,093
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
CAL-WESTERN TRANSPORT, Respondent.
No. 87-7263.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 4, 1988.
Memorandum Filed Aug. 29, 1988.
Decided March 23, 1989.

Page 1482

Linda Dreeben, Victoria A. Higman, and Joseph A. Oertel, National Labor Relations Board, Washington, D.C., for petitioner.

Brian L. Rexon and Debby R. Hambleton, Rexon, Freedman, Klepetar & Thomas, Los Angeles, Cal., for respondent.

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

Before ALARCON, FERGUSON and BEEZER, Circuit Judges.

ORDER

The memorandum disposition filed August 29, 1988, 857 F.2d 1478, is redesignated as an authored opinion by Judge Beezer.

BEEZER, Circuit Judge:

The National Labor Relations Board (Board) petitions for enforcement of its order finding that Cal-Western Transport Co. (Company) violated sections 8(a)(1) and (5) of the National Labor Relations Act (Act), 29 U.S.C. Secs. 158(a)(1), (5), by refusing to bargain with the Building Material & Dump Truck Drivers Local 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union), which was certified as the collective bargaining unit of its employees. Because the Board did not abuse its discretion in upholding the representation election, we grant the Board's petition for enforcement.

FACTS

The Company transports milk from dairies to creameries and calf ranches. On May 27, 1983, the Union filed a representation

Page 1483

petition seeking certification as the collective bargaining unit of the Company's employees. The Board conducted a pre-election hearing to determine, inter alia, whether dispatcher Craig Kuyper was a supervisory, managerial, confidential, or office clerical employee within the meaning of section 2(11) of the Act, 29 U.S.C. Sec. 152(11). The Regional Director determined, inter alia, that dispatcher Kuyper was not a confidential or office clerical employee, but that there was insufficient evidence to determine conclusively whether he was a supervisor or manager. He was thus permitted to vote subject to challenge. The Board denied the Company's request for review of the Regional Director's conclusions regarding Kuyper.

The Board conducted a secret ballot election on August 5, 1983. Of approximately 28 eligible voters, 26 total votes were cast. Of the 18 initially valid votes, 12 were for and 6 against the Union. The remaining eight ballots were challenged--sufficient in number to affect the results of the election.

The Company filed timely objections to the election, alleging that: (1) the Union improperly promised to reduce initiation and reinstatement fees during its organization drive; (2) the Union threatened employees with loss of their jobs; and (3) there was improper supervisory involvement in the Union's campaign. After an investigation of the challenged ballots and objections, the Acting Regional Director ordered a hearing. The Hearing Officer recommended overruling the Company's objections in their entirety and the challenge to one ballot, and sustaining the challenges to seven ballots, including Kuyper's ballot because he was a supervisor within the meaning of section 2(11) of the Act, 29 U.S.C. Sec. 152(11). The Acting Regional Director adopted the Hearing Officer's findings and certified the Union as the exclusive collective-bargaining representative of the unit.

The Board subsequently granted the Company's request for review only as to its objection regarding the Union's alleged improper offers to waive initiation fees. The Regional Director vacated the Acting Regional Director's ruling on that objection and remanded the case to the Hearing Officer. The Hearing Officer recommended that the objection be overruled and that a Certification of Representative be issued. The Regional Director adopted the Hearing Officer's report, overruled the objection, and certified the Union. The Board denied the Company's request for review.

The Company refused to bargain with the Union, maintaining that the Board committed reversible error by overruling its election objections and certifying the Union. The Board's General Counsel issued a complaint alleging violation of sections 8(a)(1) and (5) of the Act, 29 U.S.C. Secs. 158(a)(1), (5). 1 On a motion for summary judgment, the Board ruled in favor of the General Counsel, concluding that the Company violated sections 8(a)(5) and (1) by refusing to bargain with the certified Union. The Board reasoned that all issues raised by the Company were or could have been litigated in a prior representation proceeding. Moreover, it explained that the Company had offered no newly discovered and previously unavailable evidence or special circumstances that would justify relitigation of the issues. After its sua sponte reconsideration of the case, the Board reaffirmed its decision on March 31, 1987.

A. Standard of Review

We conduct a limited review of the Board's underlying decision. NLRB v. Island Film Processing Co., 784 F.2d 1446, 1450 (9th Cir.1986). The Board has broad discretion to determine the propriety of the union representation election process. Micronesian Telecommunications Corp. v. NLRB, 820 F.2d 1097, 1101 (9th Cir.1987); Island Film, 784 F.2d at 1450. As stated by the Supreme Court, "Congress has entrusted the Board with a wide degree of

Page 1484

discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees." NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946). We will not overturn a Board decision to certify a union unless it has abused its discretion. Micronesian Telecommunications, 820 F.2d at 1102. The Board's order must be enforced if it correctly applied the law and if its findings of fact are supported by substantial evidence on the record as a whole. NLRB v. Hawaiian Flour Mill, Inc., 792 F.2d 1459, 1462 (9th Cir.1986); Island Film, 784 F.2d at 1450; NLRB v. Best Prods. Co., 765 F.2d 903, 906 (9th Cir.1985).

B. Participation of Dispatcher Kuyper in the Election Campaign

The Company argues that the Board erroneously held that its "supervisory taint" objection was properly overruled. The Company maintains that because dispatcher Kuyper was a supervisor, his participation in the election campaign had a reasonable tendency to coerce its employees. The Board reasoned that the dispatcher's limited campaign activity was neither coercive in itself, nor when viewed in the context of his limited authority to reward or retaliate against employees.

Supervisory participation in a union campaign will not per se invalidate an election. NLRB v. Yuba Natural Resources, Inc., 824 F.2d 706, 708 (9th Cir.1987); Hawaiian Flour Mill, 792 F.2d at 1462. However, supervisory support will invalidate the Union's victory if its reasonably tends to have a coercive effect on or is likely to impair an employee's choice. Yuba, 824 F.2d at 708; Hawaiian Flour Mill, 792 F.2d at 1462; Island Film, 784 F.2d at 1451.

As we have recognized, an election must be invalidated if the supervisor's conduct creates either an impression that the employer favors the Union or a fear of future retaliation. Hawaiian Flour Mill, 792 F.2d at 1462. The Company alleges that the latter has occurred. Such fear of retaliation occurs when a pro-union supervisor's solicitation of employees " 'contains the seeds of potential reprisal, punishment, or intimidation.' " Id. (quoting Island Film, 784 F.2d at 1452); see also Global Marine Dev., Inc. v. NLRB, 528 F.2d 92, 95 (9th Cir.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 70, 50 L.Ed.2d 83 (1976). In determining whether the supervisor's conduct is impermissible solicitation, we consider both the extent of the supervisor's authority and the extent of his pro-union activity. Hawaiian Flour Mill, 792 F.2d at 1462; Island Film, 784 F.2d at 1451.

The Company's challenge against Kuyper's ballot was sustained because of his supervisory status. Nonetheless, the Company maintains that because of dispatcher Kuyper's supervisory authority, his participation in campaign activities tended to coerce employees in deciding whether to select a bargaining representative. We review the record as a whole to determine whether Kuyper's conduct "laid the foundation for potential coercion of the employees." Island Film, 784 F.2d at 1452. If the Board properly focused on the extent of Kuyper's supervisory authority and his pro-union activity in making its findings of noncoercion, and if substantial evidence in the record supports its findings, we must uphold the Board's conclusion. Hawaiian Flour Mill, 792 F.2d at 1463.

As a dispatcher, the evidence on the record shows that Kuyper's primary responsibility is to establish, assign, and adjust the drivers' milk pick-up and delivery routes. These routes are designed by taking into account the milking times of the dairies, the delivery request by customers, and the amount of milk that could be transported on a given route. Once established, these routes rarely change during a season. Kuyper reports to the terminal manager and the Company's vice president, and works in the same office with them. He is paid $1.00 per hour less than the drivers he dispatches, but receives the same benefits. With the exception of the yardman, the dispatcher is the Company's lowest paid employee.

Kuyper and the terminal manager together pick a driver for each route, and determine the driver's schedule. Kuyper may adjust the routes to avoid overloading

Page 1485

trucks, and determines whether to hold a driver at a particular dairy if the dairy is behind in its milking schedule. Kuyper also reviews the drivers' worksheets and paysheets to correct inaccuracies or discrepancies. Kuyper testified that his power to discipline employees was minimal; he could issue...

To continue reading

Request your trial
19 practice notes
  • St. Margaret Memorial Hosp. v. N.L.R.B., AFL-CI
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 23, 1993
    ...in other courts of appeals. See, e.g., NLRB v. Hyatt Hotels, Inc., 887 F.2d 109, 111-12 (6th Cir.1989); NLRB v. Cal-Western Transport, 870 F.2d 1481, 1489 (9th Cir.1989); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 883-84 (D.C.Cir.1988); State Bank of India v. NLRB, 808 F.2d 526, 538-39 (7th C......
  • Did Bldg. Services, Inc. v. N.L.R.B., Nos. 88-7519
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 26, 1990
    ...conduct a limited review of the Board's finding that conduct does not warrant setting aside an election. NLRB v. Cal-Western Transport, 870 F.2d 1481, 1483 (9th Cir.1989). The Board has broad discretion to determine the propriety of the election process. Id. " 'Congress has entrusted the Bo......
  • Evergreen Healthcare, Inc. v. N.L.R.B., Nos. 95-6039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 17, 1997
    ...choice in the election." Id. at 937; see also NLRB v. Color Art, Inc., 932 F.2d 723, 724 (8th Cir.1991); NLRB v. Cal-Western Transport, 870 F.2d 1481, 1484 (9th Cir.1989); NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1451 (9th Cir.1986). The party challenging the election need n......
  • Bituma Corp. v. N.L.R.B., Nos. 93-1901
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 11, 1994
    ...i.e., protection of insurance benefits, and thus, Teynor's statement was campaign propaganda. See NLRB v. Cal-Western Transp., 870 F.2d 1481, 1488 (9th Further, Teynor's account of his insurance problems was substantially correct. See NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1182 (6t......
  • Request a trial to view additional results
19 cases
  • St. Margaret Memorial Hosp. v. N.L.R.B., AFL-CI
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 23, 1993
    ...in other courts of appeals. See, e.g., NLRB v. Hyatt Hotels, Inc., 887 F.2d 109, 111-12 (6th Cir.1989); NLRB v. Cal-Western Transport, 870 F.2d 1481, 1489 (9th Cir.1989); C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 883-84 (D.C.Cir.1988); State Bank of India v. NLRB, 808 F.2d 526, 538-39 (7th C......
  • Did Bldg. Services, Inc. v. N.L.R.B., Nos. 88-7519
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 26, 1990
    ...conduct a limited review of the Board's finding that conduct does not warrant setting aside an election. NLRB v. Cal-Western Transport, 870 F.2d 1481, 1483 (9th Cir.1989). The Board has broad discretion to determine the propriety of the election process. Id. " 'Congress has entrusted the Bo......
  • Evergreen Healthcare, Inc. v. N.L.R.B., Nos. 95-6039
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 17, 1997
    ...choice in the election." Id. at 937; see also NLRB v. Color Art, Inc., 932 F.2d 723, 724 (8th Cir.1991); NLRB v. Cal-Western Transport, 870 F.2d 1481, 1484 (9th Cir.1989); NLRB v. Island Film Processing Co., Inc., 784 F.2d 1446, 1451 (9th Cir.1986). The party challenging the election need n......
  • Bituma Corp. v. N.L.R.B., Nos. 93-1901
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 11, 1994
    ...i.e., protection of insurance benefits, and thus, Teynor's statement was campaign propaganda. See NLRB v. Cal-Western Transp., 870 F.2d 1481, 1488 (9th Further, Teynor's account of his insurance problems was substantially correct. See NLRB v. Superior Coatings, Inc., 839 F.2d 1178, 1182 (6t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT