Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)

MEMORANDUM^* 

We consider whether the National Labor Relations Board correctly held that Kinder-Care Learning Centers, Inc., violated section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1982 & Supp. III 1985), by granting wage and benefit increases to discourage employees from seeking union representation. We also consider whether the Board abused its discretion in ordering petitioner to reinstate its former employee, Johnnie Bradford, on the ground that she had been unlawfully discharged for engaging in union activities.

Discussion

A. The Board, adopting the Administrative Law Judge's rulings and findings, held that petitioner Kinder-Care had granted the March and April 1986 pay raises and tuition rebates to teachers at the Pittsburg and Antioch facilities with the intent of blunting interest in union representation. Excerpts of Record (ER) at 8-10. In reaching its conclusion, the Board relied on the timing of the increases, on the fact that the Company was aware of the union campaign at the time the increases were awarded and on the absence of any evidence substantiating the Company's contention that its decisions were made prior to its becoming aware of union activity. Id. The ALJ discredited petitioner's witnesses, who attempted to explain the reasons behind the sudden wage and benefit increases. Id. at 9. While there is certainly evidence supporting both sides, we cannot retry the case. Our responsibility is limited to determining whether the Board's decision is based on reasonable inferences and substantial evidence on the record as a whole, and we find the Board's determination that appellant violated section 8(a) (1) so supported. See Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 724-26 (9th Cir. 1980), cert. denied, 451 U.S. 984 (1981); NLRB v. Broadmoor Lumber Co., 578 F.2d 238, 241 (9th Cir. 1978).

B. The Board ordered Bradford reinstated with back pay based on its finding that she was discharged for engaging in protected union activity; petitioner does not contest this finding. It does argue, however, that Bradford was a supervisor and therefore not privileged to engage in union-organizing activities. The ALJ carefully considered appellant's argument, finding that "while classified as a teacher and while training her successor as assistant director ... Bradford engaged in ... union activities." ER at 12. Bradford's status is a question of fact. Different inferences could be drawn as to whether Bradford continued to be a supervisor while training another teacher for the supervisorial role she had been performing. The Board's determination that she was not a supervisor is supported by substantial evidence.

Kinder-Care's petition for review is DISMISSED; the Board's cross-petition for enforcement is GRANTED.