N.L.R.B. v. Island Film Processing Co., Inc.
| Decision Date | 19 March 1986 |
| Docket Number | No. 85-7278,85-7278 |
| Citation | 784 F.2d 1446 |
| Parties | 121 L.R.R.M. (BNA) 3290, 54 USLW 2535, 104 Lab.Cas. P 11,823 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ISLAND FILM PROCESSING CO., INC., d/b/a Kahala Kai Photo Service, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Linda Dreeben, Washington, D.C., for petitioner.
Robert S. Katz, Honolulu, Hawaii, for respondent.
On Application for Enforcement of an Order of The National Labor Relations Board.
Before POOLE and BEEZER, Circuit Judges, and JAMESON, * District Judge.
The National Labor Relations Board (NLRB) has applied to this court for enforcement of its order requiring Island Film Processing Co., Inc., dba Kahala Kai Photo Service (Kahala Kai), to bargain collectively with the International Longshoremen and Warehousemen's Union, Local 142 (Union). The NLRB found that Kahala Kai had committed an unfair labor practice by refusing to bargain collectively in violation of the National Labor Relations Act (NLRA) section 8(a)(5) and (1), 29 U.S.C. Sec. 158(a)(5) and (1). Kahala Kai contends that because the active pro-union participation of its supervisors coerced employees in their right to vote, the NLRB improperly certified the Union. We agree with Kahala Kai and deny the application for enforcement.
Kahala Kai sells souvenir photographs to tourists on the island of Oahu, Hawaii. Kahala Kai maintains its headquarters at the Hilton Hawaiian Village, and operates three satellite photolaboratories at Kewalo Basin, Paradise Cove and Tavana. Each laboratory operates independently of the other laboratories. Kahala Kai photographs tourists at various places of entertainment and dispatches runners to collect the film for processing, the laboratory processes the prints, and the runners return the finished product for sale to the tourists within the hour. Kahala Kai employs approximately 150 people.
The Union, on December 3, 1982, filed a representation petition seeking certification as the exclusive bargaining representative for 35 of Kahala Kai's employees. 1 Basically the bargaining unit excludes all employees except those working in the photolaboratories. Within each photolaboratory the darkroom employees operate separately from the laboratory technicians. A head printer oversees the darkroom employees, and a head checker oversees the laboratory technicians.
Following a pre-election hearing, held pursuant to section 9(c) of the NLRA, 29 U.S.C. Sec. 159(c), the Regional Director determined the supervisory status of certain employees and filed a Decision and Direction of Election, dated January 31, 1983. The Director found that all head printers qualified as supervisors because they were able to grant time off and approve overtime, discipline darkroom staff, and effectively recommend pay increases, hiring or termination of employees. The parties stipulated that the head checkers Lenny Nichols at Paradise Cove, Vinny Zoccolante at Tavana, and Dwight Iwasa at Hilton Hawaiian Village were supervisors. The Regional Director found, however, that Clyde and Clayton Young, part-time checkers at Kewalo Basin, were not supervisors. 2 Unlike the head checkers, the Young brothers were paid an hourly rate and did not attend managerial meetings. The evening prior to Clyde Young's testimony at the administrative hearing, Dwight Iwasa informed Clyde that Clyde possessed the requisite authority to discharge personnel. However, up to that time Clyde had never recommended termination, hiring or salary increases for employees. Further, each time Clyde faced an unusual problem, he would telephone Dwight Iwasa for advice on how to proceed.
Clyde Young served as the Union's "main organizer." The head printers, William Kuencer, Joseph Flanagan, Theodore Cobeen, Dean Hewitt and Alan Nalui, also encouraged employee support for the Union. Kuencer and Flanagan initiated the Union movement. They visited the Union hall to discover the procedure for organizing. Flanagan urged employees to attend the first union meeting. Many of the head printers also attended the meeting. Kuencer, Cobeen, Hewitt and Nalui signed union authorization cards in the presence of employees. Nichols, a head checker and previously a head printer, testified that a type of "underground" was formed in order to "keep it [the union movement] quiet from the management," and to "talk it up to get support for the Union." Nichols described the pre-petition atmosphere:
Prior to the election head printers often spoke to employees in favor of the Union. Flanagan and Kuencer engaged in conversations favoring the Union "almost every night." Flanagan explained to employees that he Kuencer indicated to employees that "The job would be rougher if [they] didn't vote," and explained that if the Union lost the election "[t]hings will be about the same, there will be no vacations, vacation pay, and ... the job situation wouldn't be moving up for seniority people that had been working for the company...." A few days before the election Kuencer stated that if he could vote, he would vote in favor of the Union. The other head printers also engaged in conversations and indicated their pro-union bent.
However, none of the supervisors directly threatened employees. A bargaining unit employee, Frances DeCosta, testified that although she frequently engaged in conversations with Kuencer, she never felt threatened by him. She was able to freely express her views.
In response to the Union campaign, Kahala Kai's acting president, Lee Fleishman, clearly expressed his opposition to the Union during a weekly managerial meeting. He threatened to close down the photolaboratories and lay off employees if the Union won. The head printers relayed this message to employees.
The Union held a secret ballot election on March 3, 1983. Twenty-six employees cast their ballots. Fifteen employees voted for the Union and seven voted against, with four ballots challenged. The challenged ballots were not sufficient to change the election results. Kahala Kai timely objected to the propriety of the pre-election supervisory participation. 3
On September 12, 1983, the hearing officer recommended that all of Kahala Kai's objections be overruled. 4 The hearing officer addressed two issues: (1) whether Clyde Young's status had changed subsequent to the pre-election hearing, and (2) whether supervisory participation invalidated the election. Addressing the first issue, the hearing officer noted that on January 3, 1983, Lee Fleishman had informed Clyde that he would be converted to salary, rather than hourly pay, and that he was now a manager. Thereafter, however, Clyde attended only one managerial meeting, his working hours were reduced, and he was shifted to different work locations. Based on these facts, the hearing officer concluded that Clyde was still an employee.
Addressing the second issue, the hearing officer summarized:
Thus, in all circumstances I conclude that the record has no evidence of any employee fear of supervisory retaliation in the event they vote in a way not supported by the supervisors. I find that in view of the supervisors in question being "minor supervisors" in terms of both their actual exercise of authority and the clear authority of Fleishman [Kahala Kai's acting president], that it is unlikely employees had any real basis to have such a fear. I finally conclude that by the dissemination of the employer's clear threats to shut down in the event of a union victory, the employer's position was known to the employees.
The NLRB adopted the hearing officer's recommendation and issued a Decision and Certification of Representation.
After the Union obtained certification, Kahala Kai, beginning June 4, 1984, refused to bargain collectively with the Union. On November 1, 1984, the General Counsel issued a complaint, based on charges by the Union alleging that Kahala Kai refused to recognize, bargain, and furnish information to the Union, in violation of section 8(a)(5) and (1) of the NLRA, 29 U.S.C. Sec. 158(a)(5) and (1). In answer, Kahala Kai admitted the allegations, but asserted improper certification of the Union for the reasons urged in its election objections. The NLRB in its decision issued April 5, 1985, granted the General Counsel's motion for summary judgment because
the points the Company raise[d] in connection with its assertion of "special circumstances" constitute[d] nothing more than a reiteration of its position with respect to its objection to the election alleging improper supervisory involvement in the Union's election campaign.
The NLRB concluded that Kahala Kai engaged in unfair labor practices violating Section 8(a)(5) and (1), and ordered Kahala Kai to cooperate with the Union as required by the NLRA. Kahala Kai seeks review of this order. 5
Kahala Kai contends that (1) Clyde Young is a supervisor within the meaning of section 2(11) of the NLRA, 29 U.S.C. Sec. 152(11), and (2) the supervisors' campaign activities precluded employees from exercising their right to an uncoerced vote for Union representation. For these reasons Kahala Kai urges this court to deny enforcement of the NLRB's order.
This court conducts a limited review of the NLRB's underlying decision. The NLRB possesses wide discretion in determining whether an individual is a supervisor. See George...
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