N.L.R.B. v. Buckley Broadcasting Corp. of California

• Decision Date: 07 December 1989
• Docket Number: No. 88-7106,88-7106
• Citation: 891 F.2d 230
• Parties: 133 L.R.R.M. (BNA) 2175, 113 Lab.Cas. P 11,694 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUCKLEY BROADCASTING CORPORATION OF CALIFORNIA, dba Station KKHI, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 230

891 F.2d 230

133 L.R.R.M. (BNA) 2175, 113 Lab.Cas. P 11,694

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUCKLEY BROADCASTING CORPORATION OF CALIFORNIA, dba Station KKHI, Respondent.

No. 88-7106.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 1989.

Decided Dec. 7, 1989.

Peter Winkler and Charles Donnelly, N.L.R.B., Washington, D.C., for petitioner.

Victor P. Reed, San Francisco, Cal., for respondent.

Della Bahan, Reich, Adell & Crost, Los Angeles, Cal., for intervenor Nat. Ass'n of Broadcast Employees & Technicians, Local 51, AFL-CIO.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before CHAMBERS, BRUNETTI, and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

The National Labor Relations Board ("NLRB") petitions for enforcement of its bargaining order against respondent Buckley Broadcasting Corporation ("Buckley"). We have jurisdiction pursuant to 29 U.S.C. § 160(e) and affirm the NLRB's order of enforcement.

FACTS AND PROCEEDINGS BELOW

The facts underlying this case are not in dispute. Buckley operates radio station KKHI in San Francisco. For many years it has had a collective bargaining relationship with the National Association of Broadcast Employees and Technicians ("NABET"), representing the company's engineering and technical employees, and the American Federation of Radio and Television Artists ("AFTRA"), representing the company's broadcast announcers. The last contract between Buckley and NABET expired on February 1, 1978. Negotiations for a new contract failed after Buckley proposed to assign both broadcast and engineering duties to the on-air announcer, a departure from the customary practice of having separate employees perform each function. NABET objected to this operating scheme, and when Buckley's "final offer" for combined operations did not meet with its approval, Buckley's five technicians and engineers went on strike. Eventually two of the striking employees resigned.

In late 1979 and early 1980 Buckley hired five permanent replacements for the striking engineers and implemented its new combined operating scheme. NABET then instituted proceedings with the AFL-CIO against AFTRA, claiming that the announcers were doing technician work in violation of Article XX of the AFL-CIO constitution. The AFL-CIO ruled in favor of NABET in October 1980. When this dispute was resolved in its favor, NABET approached Buckley and requested further negotiations in light of these "changed circumstances." Buckley responded by denying that NABET was still the representative of the engineering and technical employees, citing the lapse of time that had occurred between the expiration of the collective bargaining NABET then filed a complaint with the NLRB charging Buckley with an unfair labor practice. A hearing was held before an Administrative Law Judge ("ALJ") on August 6, 1981. The ALJ found that Buckley, by withdrawing recognition from NABET and refusing to bargain with it, engaged in an unfair labor practice within the meaning of sections 8(a)(1) and (5) of the National Labor Relations Act. Accordingly, the ALJ recommended that Buckley be ordered to cease and desist from withholding recognition from NABET and from refusing to bargain with NABET.

agreement and the renewed request for negotiations.

On July 27, 1987 the NLRB adopted the recommended order, affirming the ALJ's findings of fact and conclusions of law. Buckley Broadcasting Corp. v. National Association of Broadcast Employees and Technicians, Local 51, 284 N.L.R.B. No. 113 (1987). The NLRB has applied for enforcement of its bargaining order.

STANDARD OF REVIEW

We will uphold the decision of the NLRB if it correctly applied the law and if its factual findings are supported by substantial evidence on the record. NLRB v. Island Film Processing Co., 784 F.2d 1446, 1450 (9th Cir.1986). Because the facts in this case are not disputed we will confine our review to the Board's application of the law. Generally the court of appeals will not deny enforcement of an NLRB order unless the Board clearly departs from its own standards or the standards are themselves invalid. See Garcia v. NLRB, 785 F.2d 807, 809 (9th Cir.1986) (deferral decision).

DISCUSSION

Buckley's argument is two-fold. First, it argues that the NLRB exceeded its authority by retroactively invalidating certain presumptions that Buckley claims to have relied on in withdrawing recognition of NABET. Alternatively, Buckley argues that if the NLRB was correct in finding a violation of the Act, the imposition of a bargaining order is not the proper remedy in light of the passage of time and employee turnover that has occurred since recognition was withdrawn. We address each argument in turn.

A. Presumptions

Once a union is recognized by an employer, the union is conclusively presumed to command majority support. NLRB v. Wilder Construction, Inc., 804 F.2d 1122, 1124 (9th Cir.1986); Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1296-97 (9th Cir.1984). The presumption becomes rebuttable after the expiration of a collective bargaining agreement. See NLRB v. Vegas Vic, Inc., 546 F.2d 828, 829 (9th Cir.1976), cert. denied, 434 U.S. 818, 98 S.Ct. 57, 54 L.Ed.2d 74 (1977). Before an employer can withdraw from union recognition it must rebut the presumption of majority support by showing with clear and convincing evidence that at the time of withdrawal it has a good faith reasonable doubt of the union's continued majority support. See Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1387 (9th Cir.1984); NLRB v. Tahoe Nugget, Inc., 584 F.2d 293, 297-98 (9th Cir.1978), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 290 (1979). The ALJ applied this presumption in finding Buckley guilty of violating the Act by withdrawing recognition from the union.

When permanent employees are hired to replace strikers, the Board has applied another rebuttable presumption, the Pennco presumption, that the strike replacements support the union in the same proportion as the striking employees. See NLRB v. Pennco, Inc., 250 N.L.R.B. No. 716 (1980). Pennco type presumptions, however, have generally met with disfavor in the courts. See NLRB v. Pennco, Inc., 684 F.2d 340, 343 (6th Cir.) (unknown sentiments of strike replacements could only "put the parties in equipoise," and would be insufficient to rebut presumption of continued union representation), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74 L.Ed.2d 392 (1982); Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1388 (9th Cir.1984) ("[T]he presumption that strike replacements support the union in the same ratio as strikers has never been embraced by any circuit."); The basis for Buckley's good faith doubt was the time that had elapsed between the expiration of the bargaining agreement in February 1978 and the withdrawal of recognition in October 1980. This was supported by affidavits from the five replacement employees stating that they had not been contacted by the union. Buckley argued that Arkay Packaging Corp., 227 N.L.R.B. No. 397 (1976) established precedent for making the passage of time a relevant consideration for withdrawal of union recognition, and that coupled with the affidavits of the employees it would be reasonable to assume that the strike replacements would be opposed to union representation.

                Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1110 (1st Cir.1981) (striker replacements generally assumed not to support the union);  National Car Rental System, Inc. v. NLRB, 594 F.2d 1203, 1206 (8th Cir.1979) (striker replacements presumed opposed to union);  NLRB v. Randle-Eastern Ambulance Service, Inc., 584 F.2d 720, 728 (5th Cir.1978) (same).   In finding Buckley guilty of an unfair labor practice the ALJ applied Pennco and concluded that Buckley had failed to rebut the presumption of continuing majority support of the union
                

Arkay Packaging involved unit abandonment by the union; the union made no attempt to insure compliance with a collective bargaining agreement that was in effect, and it failed to respond to the employer's written notification that striking employees would be replaced if they failed to return to work. Confining Arkay Packaging to its "unique circumstance" of apparent union abandonment, the ALJ declined to apply it to the facts of this case and concluded that Buckley had unlawfully withdrawn from union recognition. Accordingly, he recommended an order requiring Buckley to recognize the union and resume negotiations.

On appeal to the NLRB the Board affirmed the ALJ's decision and issued the bargaining order, but abolished the Pennco presumption that permanent strike replacements support a union in the same proportion as the employees they replace. Buckley Broadcasting, 284 N.L.R.B. No. 113 at 5. In declining to adopt Pennco, the Board opted instead for a position of neutrality:

[W]e can discern no overriding generalization about the views held by strike replacements and therefore we decline to maintain or create any presumptions regarding their union sentiments. Rather, we will review the facts of each case, but will require "some further evidence of union non-support" before concluding that an employer's claim of good-faith doubt of the union's majority is sufficient to rebut the overall presumption of continuing majority status.

Buckley Broadcasting, 284 N.L.R.B. No. 113 at 17.

B. Retroactivity

Buckley argues that the Board's decision cannot be implemented "as a matter of equity" because it has the effect of retroactively invalidating presumptions that it relied on in withdrawing union recognition. However, the Board is free to alter its standards provided the changes are rational and consistent with the provisions of the Act. Hotel and Restaurant Employees v. NLRB, 760 F.2d 1006, 1008-09 (9th Cir.1985).

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