Mingtree Restaurant, Inc. v. N.L.R.B., AFL-CI

• Decision Date: 02 July 1984
• Docket Number: Nos. 82-7773,C,83-7119,AFL-CI,s. 82-7773
• Parties: 116 L.R.R.M. (BNA) 3089, 101 Lab.Cas. P 11,103 MINGTREE RESTAURANT, INC., dba Forbidden City Restaurant, Petitioner/Cross-Respondent v. The NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, Hotel, Motel, Restaurant Employees and Bartenders Local 20, International Union,harging Party.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1295

736 F.2d 1295

116 L.R.R.M. (BNA) 3089, 101 Lab.Cas. P 11,103

MINGTREE RESTAURANT, INC., dba Forbidden City Restaurant Petitioner/Cross-Respondent v. The NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner Hotel, Motel, Restaurant Employees and Bartenders Local 20 International Union, AFL-CIO, Charging Party.

Nos. 82-7773, 83-7119.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 6, 1983.

Decided July 2, 1984.

O.W. Hollowell, Hollowell & Pisto Federal Way Wash., for petitioner/cross-respondent.

Paul Spielberg, N.L.R.B. Washington, D.C., for respondent/cross-petitioner.

On Cross-Petitions for Review of an Order of the National Labor Relations Board.

Before WRIGHT, ANDERSON and FLETCHER, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Mingtree Restaurant (Employer) petitions for review of a decision of the National Labor Relations Board (Board) holding that the Employer violated section 8(a)(1) of the National Labor Relations Act (Act), 29 U.S.C. Sec. 158 (1982), by polling its employees, and section 8(a)(5) of the Act by refusing to bargain with the incumbent union. The Board ordered the Employer to refrain from polling or otherwise interrogating its employees to ascertain their union views unless it had additional objective evidence that the union had lost its majority support. The Board further ordered the Employer to resume collective bargaining. For the reasons stated below, we deny the Board's cross-petition for enforcement of its order.

I. FACTS

The Employer voluntarily recognized the Hotel, Motel, Restaurant Employees and Bartenders International Union, Local 20, AFL-CIO (Union) in 1971 and subsequently executed a succession of "me-too" collective-bargaining agreements negotiated between the Union and the Pierce County Restaurant Owners Association. These agreements contained a union security clause requiring compulsory union membership or discharge and mandatory employer contributions to trusts maintained for employee health insurance and pensions.

After expiration of the most recent agreement on August 1, 1980, the parties began negotiating a new contract. They suspended negotiations in September pending resolution of a representation petition filed by the management of a restaurant which was a party to the negotiations but not involved in this action. The Employer filed a representation petition in November, which it withdrew after being advised by the Regional Director that the petition would be dismissed because the evidence was insufficient to demonstrate the union's loss of majority support. Thereafter, the Employer hired a certified public accounting firm to conduct a secret ballot poll to determine the union's status. Out of 26 employees eligible to vote, eight voted for the union, fourteen voted against it, and four did not vote. The Employer then withdrew recognition from the union and refused to resume bargaining.

The Union's unfair labor practice charge was tried on stipulated facts with the parties waiving a hearing. The Board affirmed the finding of the Administrative Law Judge that the poll was unlawful because the Employer "did not have sufficient objective considerations upon which to base a reasonable doubt of the union's majority status prior to conducting the poll."

II. ISSUE

What standard must an employer meet before it may poll its employees about their support of an incumbent union?

III. DISCUSSION

Once a union has been certified or voluntarily recognized, it enjoys a presumption of continued majority status. N.L.R.B. v. Tahoe Nugget, Inc., 584 F.2d 293, 297 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979). This presumption is irrebuttable for a reasonable time, usually one year, and is rebuttable thereafter. Id. An employer may rebut the presumption and withdraw recognition from the union if it shows, by clear, cogent, and convincing evidence that the union was in the minority or that the employer had a good faith reasonable doubt of majority support. Id. "[T]he evidence presented to establish reasonable good faith doubt, individually or cumulatively, must unequivocally indicate that union support [has] declined to a minority." N.L.R.B. v. Silver Spur Casino, 623 F.2d 571, 579 (9th Cir.1980),cert. denied, 451 U.S. 906, 101 S.Ct. 1973, 68 L.Ed.2d 294 (1981).

Given this strict interpretation of good faith doubt, there is little difference between the evidence necessary to prove a union's minority in fact and the employer's reasonable good faith doubt. The results of the poll, however, clearly showed that the Union no longer enjoyed the support of a majority of employees. Nevertheless, the Board, in rejecting the Employer's claim of good faith doubt, held that the taking of the poll was itself an unfair labor practice and the other evidence of employee dissatisfaction with the Union was insufficient to rebut the presumption.

The Board relied on Montgomery Ward & Co., Inc., 210 N.L.R.B. 717 (1974), in which an employer was found to have violated the Act by conducting a poll without sufficient objective considerations to warrant a reasonable doubt of the union's majority status. Sufficient objective considerations for a private poll, concluded the Board, must be such as would occasion the grant of an employer's petition for a Board election. Montgomery Ward, 210 N.L.R.B. at 724. The criteria for a Board election are the same as those that determine whether the employer may withhold recognition from an incumbent union. Id. Thus, under the Montgomery Ward rule, the same evidentiary standard applies to an employer's conducting its own poll, successfully petitioning the Board for an election, or withdrawing recognition from the union. By the Board's reasoning, an employer in doubt of the union's majority status would be allowed to take a poll only when it had no actual need to do so, that is, when it already had sufficient objective evidence to justify withdrawal of recognition.

Although the Montgomery Ward rule is tantamont to an outright prohibition of employer-sponsored polls, the Board maintains that the rule is necessary to preserve the stability of the bargaining relationship. Adopting a lower standard for employer polling, the Board contends, poses a significant danger to employees' rights in that it would encourage polling conducted to weaken unions rather than to test real doubts of majority status.

While we appreciate the Board's concerns and "give 'considerable deference' to the Board's expertise in construing and applying the labor laws," Machinists Local 1327 v. N.L.R.B., 725 F.2d 1212, 1215 (9th Cir.1984) (quoting Bureau of Alcohol, Tobacco & Firearms v. F.L.R.A., --- U.S. ----, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983), we find its position to be untenable. In Struksnes Construction Co., Inc., 165 N.L.R.B. 1062 (1967), the Board adopted guidelines for employer polling of employee union sentiment during a union's initial demand for recognition:

(1) the purpose of the poll is to determine the truth of a union's claim of majority,

(2) this purpose is communicated to the employees,

(3) assurances against reprisal are given,

(4) the employees are polled by secret ballot, and

(5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.

165 N.L.R.B. at 1063. The...