Sheraton-Kauai Corporation v. NLRB

• Decision Date: 23 July 1970
• Docket Number: No. 24665,24825.,24665
• Citation: 429 F.2d 1352
• Parties: SHERATON-KAUAI CORPORATION, Petitioner-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOTEL, RESTAURANT EMPLOYEES AND BARTENDERS UNION, LOCAL 5, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

429 F.2d 1352 (1970)

SHERATON-KAUAI CORPORATION, Petitioner-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Petitioner.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOTEL, RESTAURANT EMPLOYEES AND BARTENDERS UNION, LOCAL 5, AFL-CIO, Respondent.

Nos. 24665, 24825.

United States Court of Appeals, Ninth Circuit.

July 23, 1970.

Ernest C. Moore, Jr. (argued), Robert S. Katz, of Moore, Torkildson & Schulze, Honolulu, Hawaii, for Sheraton-Kauai Corp.

Marcel Mallet-Prevost (argued), Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Roy O. Hoffman, Reg. Director, N.L. R.B., San Francisco, Cal., Dennis R. MacCarthy, Officer-In-Charge, Honolulu, Hawaii, for N.L.R.B.

Rogers M. Ikenaga (argued), Ikenaga & Tam, Moore, Torkildson & Schulze, Bouslog & Symonds; Honolulu, Hawaii, for Union.

Before JERTBERG, BROWNING, and HUFSTEDLER, Circuit Judges.

BROWNING, Circuit Judge:

Sheraton-Kauai Corporation and Hotel, Restaurant Employees and Bartenders Union, Local 5, AFL-CIO, seek review of a National Labor Relations Board unfair labor practice decision and order. The Board cross-petitions for enforcement.

Sheraton Corporation of America operates a number of hotels in the State of Hawaii through wholly owned subsidiaries. In 1967 three of these subsidiaries entered into a collective bargaining agreement with Local 5. The agreement purported to cover all workers in relevant categories then employed at Sheraton hotels in the State of Hawaii, or at any Hawaii hotel thereafter operated by Sheraton, and included a clause requiring covered employees to join Local 5 within 31 days of their employment. When the agreement was entered into, Sheraton subsidiaries operated four hotels on the Island of Oahu and one on the Island of Maui. Sheraton-Kauai was later formed to build and operate a hotel on the Island of Kauai. When the new hotel opened, the company and the union extended the prior agreement, including the union security clause, to its employees. The Board found that in doing so the company violated sections 8(a) (1), (2), and (3) of the National Labor Relations Act (29 U.S.C. § 158(a) (1), (2), and (3)), and the union violated sections 8(b) (1) (A) and 8(b) (2) of the Act (29 U.S.C. § 158(b) (1) (A) and (b) (2).¹

Sheraton-Kauai and Local 5 justify extension of the agreement to employees at the new hotel on alternative grounds, contending that the new employees were lawfully added to a state-wide bargaining unit without their consent under the doctrine of "accretion";² and that, in any event, an uncoerced majority of the new employees expressed their wish to be represented by Local 5.

The Board found that either a state-wide unit of Sheraton employees or a local unit consisting entirely of employees at the new hotel would be an appropriate bargaining unit under section 9(b) of the Act. 29 U.S.C. § 159(b).³ Sheraton-Kauai and Local 5 do not dispute the conclusion that the local unit would be appropriate,⁴ but contend that when, as here, the more inclusive, multiple location unit is also an appropriate one, the addition of employees at a new location to that unit by agreement of the employer and the union cannot be considered an unfair labor practice, at least in the absence of a claim by a rival union that it represents a majority of the new employees. The Board's policy, however, is that whenever the single-location unit is an appropriate one for collective bargaining the employees in that unit should be given an opportunity to determine for themselves which union they wish to represent them, or whether they wish to reject union representation entirely. We think this policy is a lawful exercise of the discretion vested in the Board by the Act.

Section 9(b) of the Act, which requires the Board to determine the unit appropriate for collective bargaining, provides that the Board shall choose the unit which will "assure to employees the fullest freedom in exercising the rights guaranteed" by the Act; namely, "The right to self-organization, to form, join, or assist organization * * * and the right to refrain from any or all such activities." Section 7 of the Act, 29 U.S. C. § 157. And, of course, the Board should exercise its authority under section 9(b) in such a way as to effectuate the Act's general purpose of minimizing industrial strife by encouraging collective bargaining. 29 U.S.C. § 151. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 165, 61 S.Ct. 908, 85 L.Ed. 1291 (1941); NLRB v. Sunset House, 415 F.2d 545, 548-549 (9th Cir. 1969); Spartans Industries, Inc. v. NLRB, 406 F.2d 1002, 1005 (5th Cir. 1969); NLRB v. Food Employees Council, Inc., 399 F.2d 501, 504 (9th Cir. 1968); Hall, The Appropriate Bargaining Unit, 18 Western Res.L. Rev. 479, 482, 535-536 (1967); Note, The Board and Section 9(c) (5), 79 Harv. L.Rev. 811, 833-834 (1966).

These standards are general. They define ultimate objectives rather than immediate means, and necessarily allow the Board, enlightened by continuing experience, to exercise "a large measure of informed discretion." Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). See also NLRB v. Jones & Laughlin Co., 331 U.S. 416, 425-427, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947); Pittsburgh Plate Glass Co. v. NLRB, supra, 313 U.S. at 152-153, 165, 61 S.Ct. 908. The Board has dealt with the problem involved here within this framework.

For some time the Board held that appropriate units in multiple-location retail chain operations should include all employees at locations within the geographic area which the employer treats as a unit. The Board eventually concluded, however, that this policy "too frequently * * * operated to impede the exercise by employees in retail chain operations of their rights of self-organization guaranteed by Section 7 of the Act," Sav-On Drugs, Inc., 138 N.L. R.B. 1032, 1033 (1962), and developed a new policy to better protect those rights. Under the new policy, the appropriate unit is to be "determined in the light of the circumstances of each case," Id. at 1033, with each single-unit location within a multiple-location enterprise considered presumptively correct for collective bargaining. See Hagg Drug Co., 169 N.L.R.B. No. 111 and cases cited at n. 3 (1968). As the Board stated in Hagg:

"Absent a bargaining history in a more comprehensive unit or functional integration of a sufficient degree to obliterate separate identity, the employees\' `fullest freedom\' is maximized, we believe, by treating the employees in a single store or restaurant of a retail chain operation as normally constituting an appropriate unit for collective-bargaining purposes."

In developing this policy the Board considered the possibility that employer operations would be disrupted, but concluded: "Bargaining in less than employerwide units has been effectively conducted in other industries without such results, and no reason has been presented, nor are we aware of any, which indicates that the situation would be different in the retail chain industry." Hagg Drug Co., supra. See also Frisch's Big Boy Ill-Mar, Inc., 147 N.L.R.B. 551 (1964).

These rulings directly concerned unit determinations in connection with initial representation petitions. As the Board has noted, however, essentially the same factors are involved in determining whether employees at a subsequently established single location should be absorbed into an existing multiple-location unit without their consent. In the latter situation, section 7 rights are even more clearly at stake. If the Board, in making its initial representation determination, decides that a multiple-location unit is appropriate, employees at each included single location have an opportunity to participate in the resolution of the representation issue. But if employees at a new single location are simply absorbed into the multiple-location unit by accretion, they are denied that opportunity. Nor does the procedure for decertification under section 9 of the Act provide an adequate remedy for these employees.⁵ Hence, the Board has held that even though it might have found an overall unit appropriate on a representation petition, and thus have given all employees at all locations an equal voice in the initial representation decision, it would not "under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them." Melbet Jewelry Co., 180 N.L.R.B. No. 24 (1969). See also Super Valu Stores, Inc., 177 N.L.R.B. No. 63 (1969); Warehouse Markets, Inc., 174 N.L.R.B. No. 70 (1969).

It is possible that at some future time the Board may conclude on the basis of further experience that employee self-determination and stable collective bargaining can be better attained by some other approach to the problem. Cf. Packard Motor Car Co. v. NLRB, supra, 330 U.S. at 492-493, 67 S. Ct. 789, 91 L.Ed. 1040. But since the present policy appears to be a reasonable means for accomplishing the statutory purposes, the Board is entitled to enforcement of its decree. NLRB v. Sunset House, supra, 415 F.2d 545, 548; Spartans Industries, Inc. v. NLRB, supra, 406 F.2d 1002, 1005; NLRB v. Master Lake Success, Inc., 287 F.2d 35 (2d Cir. 1961). Cf. Local 919, Retail Clerks International Association v. NLRB, 135 U.S.App.D.C. 103, 416 F.2d 1118, 1120 (1969).

Sheraton-Kauai and Local 5 rely principally upon NLRB v. Appleton Electric Co., 296 F.2d 202 (7th Cir. 1961). Arguably, Appleton is distinguishable on its facts, for in that case the new plant was located immediately adjacent to another plant of the employer, and the operations of the two plants were functionally integrated. We agree with the company and the union, however, that the rationale of Appleton is irreconcilable with the Board's decision...