National Labor Relations Board v. Cal-Western Transport

870 F.2d 1481, 130 L.R.R.M. (BNA) 3191, 1989 U.S. App. LEXIS 20831
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 23, 1989
Docket87-7263
StatusPublished
Cited by22 cases

This text of 870 F.2d 1481 (National Labor Relations Board v. Cal-Western Transport) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Cal-Western Transport, 870 F.2d 1481, 130 L.R.R.M. (BNA) 3191, 1989 U.S. App. LEXIS 20831 (9th Cir. 1989).

Opinion

ORDER

The memorandum disposition filed August 29, 1988, 857 F.2d 1478, is redesigna-ted 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. §§ 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 representa *1483 tion 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. § 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. § 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. §§ 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 relit-igation 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 *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.

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Bluebook (online)
870 F.2d 1481, 130 L.R.R.M. (BNA) 3191, 1989 U.S. App. LEXIS 20831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-cal-western-transport-ca9-1989.