Polynesian Cultural Center, Inc. v. N.L.R.B.
| Decision Date | 18 July 1978 |
| Docket Number | No. 76-1851,76-1851 |
| Citation | 582 F.2d 467 |
| Parties | 99 L.R.R.M. (BNA) 3416, 84 Lab.Cas. P 10,756 POLYNESIAN CULTURAL CENTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jared H. Jossem (argued), Honolulu, Hawaii, for petitioner.
John Burgoyne (argued), Washington, D.C., for respondent.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before SNEED and TANG, Circuit Judges, and ORRICK *, District judge.
This action is before us on a petition filed by the Polynesian Cultural Center (hereinafter PCC) to review and set aside the National Labor Relations Board's order and the cross-application by the NLRB for enforcement of that order. The decision of the Board is reported at 222 NLRB 172. The PCC challenges both the substantiality of the evidence supporting the Board's conclusion that the PCC violated sections 8(a)(1) and (3) of the National Labor Relations Act 1 by discharging six employees and by refusing to hire another person and the propriety of the reinstatement and back pay orders entered by the Board. PCC also asserts, for the first time in a supplemental brief filed in connection with this appeal, that the NLRB lacks jurisdiction over it because of the Religion Clauses of the First Amendment. For reasons set forth hereafter, we refuse to consider the jurisdictional issue. Also we find that the PCC's actions were in violation of the Act, but we hold that certain of the specific remedial orders entered by the Board were inappropriate and accordingly limit enforcement of the order.
The Polynesian Cultural Center, Inc. is a nonprofit corporation wholly owned by the Church of Jesus Christ of Latter Day Saints. The center itself is a large facility in Laie, Hawaii, where recreations of six different Polynesian villages are housed. Tours and exhibitions are given to visiting tourists who pay the entrance fee. The funds earned by the center are used to support the activities of Brigham Young University Hawaii (hereinafter BYU-H), an educational institution operated by the church. The college and the PCC are closely linked, both in terms of physical proximity and religious purpose. Management of the PCC is entrusted to a Board of Directors appointed by the church hierarchy in Salt Lake City, Utah. Day-to-day management functions were carried out by a team headed by Mr. Norman Nielsen and Mr. Vernon Hardisty.
The employees of the PCC consisted of both Polynesian students at BYU-H who worked part-time and full-time employees, many of whom had been recruited from Polynesia and brought to Hawaii by the PCC. In January 1973 twenty Fijians, including the six whose subsequent discharge resulted in the instant proceeding, were recruited in Fiji to work at the PCC. They signed six-month probationary contracts before leaving Fiji. There is strong evidence that the group was concerned with the short term of the initial contracts and sought a guarantee of additional employment if their work was satisfactory. The record indicates that Mr. Hardisty gave some form of guarantee, but it is disputed whether it was a two year Maximum term or a two year Minimum term.
The Fijians arrived in February 1973. On the expiration of the six-month probationary period, the six employees involved in this action were all given a further one year contract extending through August 5, 1974. These contracts included a provision requiring the employees to observe church rules, which include a strict code of conduct.
The first labor troubles began when Noa Naivi, the leader of the group of Fijians who had come to the PCC in February 1973, was terminated on November 1, 1973. Dr. James Anthony, a Fijian who recently had been employed as a professor at the University of Hawaii and who had been active in labor disputes in Fiji, agreed to assist Naivi in dealing with the PCC. A meeting chaired by Anthony was held in December 1973 and attended by many of the Fijian employees of the PCC. The group discussed Naivi's firing as well as other problems regarding their employment at the PCC. A petition was drafted addressed to the PCC management concerning wage rates, medical insurance coverage, fringe benefits, job descriptions, housing, the authenticity of the exhibits and the rehiring of Naivi. While this petition was never delivered, there is evidence in the record which indicates that Hardisty and Nielsen knew that these meetings were taking place. Anthony's efforts on behalf of Naivi ceased in January 1974 when the two had a disagreement. Anthony continued to meet sporadically with some of the Fijian employees during the winter and spring, as they complained to him of new problems at the Center.
Anthony next became involved in problems with the PCC when he intervened on behalf of the chief of the Fijian village, Sigavata, who was having difficulty obtaining an extension of his visa. After a meeting with PCC and Immigration officials in early June the visa was extended. Other Fijian employees then expressed concern to Anthony about their visa status and the PCC's handling of the matter. On June 4, 1974, Anthony met with Nielsen and informed him of "the latent discontent" among the Fijian employees. The Fijians held meetings on June 6 and 8 and reactivated the organizational structure which had been developed in December. Anthony communicated often with Nielsen during this period, with discussions focusing on the visa problem. On June 18 Anthony called Dennis Shipley, personnel manager at the PCC, in regard to the visas. There was an angry conversation between the two men. In an internal memo dated that same day Shipley informed Nielsen that the Fijian contracts would be expiring on August 5 and recommended that they not be renewed, but that the employees be retained on a month-to-month basis if needed. Anthony obtained a copy of this memo from Sigavata, the Fijian chief, and discussed the contents with the Fijian employees.
The Fijians then decided to make formal demands on management. A document entitled "Proposed Modification to Contract" was drafted by Anthony and delivered to PCC management on July 7. The demands included better wages, specific guarantees as to working conditions and an extension of the contract until February 1975. On July 10 Nielsen informed Anthony that the PCC would not bargain with him. On July 11 Nielsen caused termination letters to be prepared for the six Fijians involved in this action, but they were not immediately delivered. On July 16 the six employees received word from Nielsen that he wanted to meet with them. Anthony advised them not to go unless Nielsen consented to Anthony's attendance. After the employees failed to show up for the meeting on July 17, Nielsen had the termination letters of July 11 delivered. The employees were also given three-day disciplinary suspensions because of their refusal to meet with a supervisor.
Community meetings were held on July 13 and 20 to explain the Fijians' position to the community at large. These meetings were attended by over a hundred people. After the meeting on July 20 Anthony and the employees met with Mr. Nielsen. Nielsen again reaffirmed his desire to meet only with the employees. After Nielsen left without making any progress, the employees voted to go out on strike.
The picket line went up on July 22. The strikers demanded that the letters of termination be withdrawn, the suspensions be revoked, and that members of the Board of Directors of the PCC come to Hawaii for direct negotiations with the employees' bargaining committee, which included Anthony. On July 26 Hardisty and Nielsen again stated that they would be willing to talk with the employees, but they refused to bargain with Anthony. The stalemate continued in this posture. Picketing continued at several different entrances to the PCC. The six terminated employees were joined on the picket line by other PCC employees, most of whom continued on the job during the strike, and some community people.
On July 31 Shipley notified Immigration officials that the six employees after August 5 would no longer be employed at the PCC and withdrew the PCC's support for the visa extensions. Some officials of the Hawaiian tourist industry, concerned about the effects of the strike, began acting as intermediaries in an effort to achieve a settlement of the strike. On August 12 Trade Wind Tours of Hawaii agreed to pay the four remaining discharged workers (two had voluntarily left Hawaii) $2000 each to cease the strike. This settlement was accepted and the strike ended. On August 29 an attorney representing the Fijians sent a letter to the PCC in which the four remaining discharged employees offered to return to work. On October 8 the PCC sent the employees a letter inviting them to discuss the possibility of reemployment.
Kini Suschnigg, another Fijian, was a student at BYU-H during the 1973-74 school year. She had a part-time secretarial job at the university and, although she rarely worked at the Center, she was an "on-call" employee there. She was active in the Fijian labor activities from the time of the dispute concerning Noa Naivi's termination in December 1973 and she engaged in picketing during the strike.
When she registered at the university for the fall term in 1974, she again sought part-time work. She was told by the university employment office that no office jobs were available, but that she should try the PCC. She met with several lower level supervisors there, including the chief and assistant chief of the Fijian village, both of whom told her that there was no work available. She appealed directly to Nielsen, who also told her that no work was available at the PCC, but did find her a job on campus. The job referred to by Nielsen was one at the university library, to which she had been previously referred and where she...
To continue reading
Request your trial
-
San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd.
...action would not have been taken but for the union sentiment, or whether more than that is required. (See Polynesian Cultural Center, Inc. v. N.L.R.B. (9th Cir.1978) 582 F.2d 467, 473; N.L.R.B. v. Eastern Smelting and Refining Corp. (1st Cir.1979) 598 F.2d 666, At any event, the question is......
-
Babbitt Engineering & MacHinery v. Agricultural Labor Relations Bd.
...Highland Ranch v. Agricultural Labor Relations Bd., 29 Cal.3d 848, 862, 176 Cal.Rptr. 753, 633 P.2d 949; Polynesian Cultural Ctr., Inc. v. N.L.R.B. (9th Cir.1982) 582 F.2d 467, 475; Alfred M. Lewis, Inc. v. N.L.R.B. (9th Cir.1982) 681 F.2d 1154, Babbitt argues the "make whole" remedy ordere......
-
Nat'l Labor Relations Bd. v. New Vista Nursing & Rehab.
...(3d Cir.1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir.1964)); see also Polynesian Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th Cir.1978). Under § 153(b) and New Process Steel, delegee groups of the Board do not have statutory authority to act if th......
-
Cadillac of Naperville, Inc. v. Nat'l Labor Relations Bd.
...2080, 147 L.Ed.2d 80 (2000) ; U-Haul Co. of Nevada, Inc. v. NLRB , 490 F.3d 957, 963 (D.C. Cir. 2007) ; cf. Polynesian Cultural Ctr., Inc. v. NLRB , 582 F.2d 467, 473 (9th Cir. 1978) (holding that raising First Amendment issue on judicial appeal was "too late" under 29 U.S.C. § 160(e) ). Se......