71 F.3d 1434 (9th Cir. 1995), 93-70236, N.L.R.B. v. Unbelievable, Inc.

Docket Nº:93-70236.
Citation:71 F.3d 1434
Party Name:95 Cal. Daily Op. Serv. 9031, 95 Daily Journal D.A.R. 15,862 NATIONAL LABOR RELATIONS BOARD, Petitioner, Beverage Dispensers' Union, Local 165, Hotel Employees & Restaurant Employees International Union, AFL-CIO, Petitioner-Intervenor, v. UNBELIEVABLE, INC., d/b/a Frontier Hotel & Casino, Respondent.
Case Date:September 06, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1434

71 F.3d 1434 (9th Cir. 1995)

95 Cal. Daily Op. Serv. 9031,

95 Daily Journal D.A.R. 15,862

NATIONAL LABOR RELATIONS BOARD, Petitioner,

Beverage Dispensers' Union, Local 165, Hotel Employees &

Restaurant Employees International Union, AFL-CIO,

Petitioner-Intervenor,

v.

UNBELIEVABLE, INC., d/b/a Frontier Hotel & Casino, Respondent.

No. 93-70236.

United States Court of Appeals, Ninth Circuit

September 6, 1995

Argued and Submitted January 9, 1995.

Order and Opinion Filed Dec. 1, 1995.

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[Copyrighted Material Omitted]

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Frederick C. Havard, National Labor Relations Board, Washington, DC, for the petitioner.

Barry S. Jellison, Michael T. Anderson, Davis, Cowell & Bowe, San Francisco, California, for intervenor Beverage Dispensers' Union, Local 165, Hotel & Restaurant Employees International Union, AFL-CIO.

James J. Meyers, Jr., Meyers, Merrill, Schultz & Wolds, San Francisco, California; Michael A. Taylor, Ogletree, Deakins, Nash, Smoak & Stewart, Washington, DC, for respondent Unbelievable, Inc.

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Petition for Enforcement of an Order of the National Labor Relations Board.

Before: GOODWIN and SCHROEDER, Circuit Judges, and TASHIMA, District Judge. [*]

ORDER

The Memorandum disposition filed September 6, 1995, is amended as follows:

The request for publication is granted and the Memorandum disposition, filed September 6, 1995, as amended, is redesignated as an authored Opinion by Judge Tashima.

OPINION

TASHIMA, District Judge:

The National Labor Relations Board ("Board") petitions for enforcement of its order finding that respondent Unbelievable, Inc. d/b/a Frontier Hotel & Casino ("Frontier") violated Sec. 8(a)(1) and (a)(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(a)(1) and (5), by conducting surveillance on and ejecting Union representatives, unilaterally imposing new rules on employee conduct and unilaterally ceasing to pay pension fund contributions. We have jurisdiction under 29 U.S.C. Sec. 160(e) and we grant the petition to enforce.

FACTUAL AND PROCEDURAL BACKGROUND

Frontier owns a hotel in Las Vegas, where the disputed events occurred. The hotel's previous owner entered into a collective bargaining agreement ("CBA") with the Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226, and Bartenders Union, Local 165, affiliated with Hotel Employees and Restaurant Employees International Union, AFL-CIO (the "Union"). Frontier acquired the hotel in July, 1988, adopted the CBA, and honored it through its expiration in June, 1989, and thereafter. On February 26, 1990, bargaining between Frontier and the Union to reach a new CBA reached an impasse, when Frontier implemented its "Last, Best and Final Proposal" (the "Final Offer") to the Union.

After the CBA expired, Frontier engaged in certain activities which were alleged to have violated the NLRA, including eavesdropping and conducting private surveillance on employees, ejecting Union representatives, unilaterally issuing new rules and ceasing to pay pension fund contributions.

The Union filed charges with the Board on November 16, 1989, July 17, 1990, October 4, 1990, and October 23, 1990. The Regional Director of the Board subsequently filed complaints against Frontier, which were tried before an Administrative Law Judge (the "ALJ"). The ALJ found that Frontier had engaged in the alleged unfair labor practices and issued an order for Frontier to cease and desist from such activities. Frontier filed exceptions to that decision. A three-member panel of the Board affirmed the ALJ's decision in a Decision and Order issued on December 7, 1992. 309 NLRB No. 120. Pursuant to 29 U.S.C. Sec. 160(e), the Board petitioned this court for enforcement of its order. The Union intervened on appeal on behalf of the Board. Both the Board and the Union also seek sanctions on appeal.

Frontier, represented by its counsel Joel I. Keiler ("Keiler"), filed both an opening and reply brief, challenging all of the Board's rulings. In addition, Frontier argued that the ALJ should have recused himself for bias against both Frontier and this court. Subsequently, Frontier obtained new counsel, Ogletree, Deakins, Nash, Smoak & Stewart, and Meyers, Merrill, Schultz & Wolds, who moved for leave to file a supplemental brief, and to strike references to the motion to disqualify the ALJ. A motions panel denied the request to file a supplemental brief, and referred the motion to strike to this panel for resolution.

For the reasons given below, we affirm the Board's order in all respects, deny Frontier's

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motion to strike, and impose sanctions against Frontier and its former counsel, Keiler.

DISCUSSION

Standard of Review

We will uphold decisions of the Board if its findings of fact are supported by substantial evidence and if it correctly applied the law. NLRB v. General Truck Drivers, Local No. 315, 20 F.3d 1017 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994); NLRB v. O'Neill, 965 F.2d 1522, 1526 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2995, 125 L.Ed.2d 689 (1993). " 'The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record.' " General Truck Drivers, 20 F.3d at 1021 (quoting Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987)). We will defer to the Board's interpretation of the NLRA if it is reasonably defensible. General Truck Drivers, 20 F.3d at 1017.

Surveillance and Ejection of Union Representatives

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