Tanforan Park Food Purveyors Council and the Hapsmith Company v. National Labor Relations Board

656 F.2d 1358 108 L.R.R.M. (BNA) 2630 , 92 Lab.Cas. P 13,037 TANFORAN PARK FOOD PURVEYORS COUNCIL and the Hapsmith Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 79-7137. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 15, 1981. Decided Sept. 21, 1981. Robert V. Magor, Severson, Werson, Berke, Melchior, San Francisco, Cal., A. Charles Dell'Ario, Wendel, Lawlor, Rosen & Black, Oakland, Cal., for petitioners. Ruah Lahey, NLRB, Washington, D.C., argued, for respondent; Elliott Moore, NLRB, Washington, D.C., on brief. Petition to Review a Decision of the National Labor Relations Board. Before ANDERSON, FLETCHER and FERGUSON, Circuit Judges. FERGUSON, Circuit Judge: 1 Two corporations appeal a bargaining order of the National Labor Relations Board ("NLRB"). They claim that they were erroneously determined to be joint employers and erroneously denied a new election or evidentiary hearing. We remand for consideration of the accuracy of a Samoan translation used during the election process; on all other issues, we affirm the NLRB order. I. 2 Tanforan Park Shopping Center ("Tanforan") operates a shopping center in San Bruno,…

Two corporations appeal a bargaining order of the National Labor Relations Board *1360 (“NLRB”). They claim that they were erroneously determined to be joint employers and erroneously denied a new election or evidentiary hearing. We remand for consideration of the accuracy of a Samoan translation used during the election process; on all other issues, we affirm the NLRB order.

I.

Tanforan Park Shopping Center (“Tan-foran”) operates a shopping center in San Bruno, California. The center contains a restaurant complex consisting of various tenant restaurants around a common area. The tenants are by lease required to belong to Tanforan Park Food Purveyors Council (“Council”), a non-profit corporation which operates the common area for the tenants’ mutual benefit. Council employs busboys, supply persons, janitors, and dishwashers. These unit employees comprise the bargaining unit which the Union in this case 1 sought to represent.

Tanforan hired the Hapsmith Co. (“Haps-mith”) to manage its entire complex, including the restaurant area. Hapsmith also discharges Tanforan’s lease obligation to provide administrative assistance to Council. Hapsmith employs Jack Kuks to conduct the…

concurring:

I concur in the result reached by the majority but I write separately to make clear my understanding of our holding in Part III C.

The employers made only one claim below regarding the Samoan translation of the sample ballot. They alleged that the translation conveyed the impression that the Board endorsed the Union. In support of this contention, the employers submitted two retranslations from the Samoan. Only one of these, the retranslation prepared by the Samoan employee, appears to support the claim. 1

The Regional Director rejected this challenge to the election on the ground that a perfect translation from English into Samoan was not to be expected, because Samoan does not have the vocabulary necessary to render the technical language of federal labor law. She held that the translation was not so misleading as to prevent employees from making an informed choice in the election.

Translation is not an exact science. When the Board supplies employees with foreign language election notices and ballots, however, the translation must provide those who do not read English with the basic information necessary to an informed choice. See Marriott In-Flite Service Div.…