Sparks Nugget, Inc. v. N.L.R.B.
| Decision Date | 08 July 1992 |
| Docket Number | AFL-CIO,90-70370,Nos. 90-70316,s. 90-70316 |
| Citation | 968 F.2d 991 |
| Parties | 140 L.R.R.M. (BNA) 2747, 122 Lab.Cas. P 10,266 SPARKS NUGGET, INC., d/b/a John Ascuaga's Nugget, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Hotel Employees and Restaurant Employees Local 86, Hotel Employees and Restaurant Employees International Union,(Union), Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel Employees and Restaurant Employees Local 86, Hotel Employees and Restaurant Employees International Union,(Union), Intervenor, v. SPARKS NUGGET, INC., d/b/a John Ascuaga's Nugget, Respondent, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert G. Hulteng, Elizabeth A. Franklin, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., Richard L. Davenport, Davenport & Perry, Sparks, Nev., for petitioner.
Joseph A. Oertel, N.L.R.B., Washington, D.C., for respondent.
Barry S. Jellison, Andrew J. Kahn, and Michael T. Anderson, Davis, Cowell & Bowe, San Francisco, Cal., for intervenor.
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
Before: TANG and TROTT, Circuit Judges, and BREWSTER, * District Judge.
We review, in this case, a decision of the National Labor Relations Board ("NLRB" or "the Board") holding that Sparks Nugget, a hotel/casino, violated sections of the National Labor Relations Act ("NLRA" or "the Act") by: (1) bargaining with the Hotel, Motel, Restaurant and Employees and Bartender's Union Local 80 ("the union") in bad faith; and (2) forcing union agents to halt picketing, handbilling, and recording of bus license numbers in the parking lot of the hotel/casino. Sparks Nugget seeks review of the NLRB decision; the NLRB seeks enforcement. Enforcement is granted in part and denied in part.
A previous decision and order of the NLRB, which was enforced by the Ninth Circuit, see NLRB v. Silver Spur Casino, 623 F.2d 571 (9th Cir.1980), cert. denied, 451 U.S. 906, 101 S.Ct. 1973, 68 L.Ed.2d 294 (1981), held that beginning in December, 1974, Sparks Nugget violated various sections of the NLRA by: (1) refusing to bargain, id. at 576-81; (2) promulgating non-solicitation rules that prohibited employees from soliciting on company premises after their shifts had been completed, id. at 581-83; (3) unilaterally implementing a new grievance procedure and insurance program, id. at 583-84; (4) refusing to furnish the union with a requested copy of the new insurance program, id. at 584; (5) unlawfully interrogating an employee regarding her union activity, id. at 584-85; and (6) reprimanding an employee because he was suspected of engaging in union activities that the employer had sought to deter him from pursuing, id. at 585.
The Board's order, as enforced, required Sparks Nugget to "[r]ecognize and, upon request, bargain collectively with" the union. Sparks Nugget, 230 N.L.R.B. 275, 288 (1977). The instant case arises out of the failure of the earlier order to resolve the dispute between Sparks Nugget and the union.
When the union asked to resume bargaining, the union alleges that Sparks Nugget only agreed to short, intermittent bargaining sessions. On June 2, 1981, the union's principal negotiator, Vincent Sirabella, requested that negotiations commence between the union and Sparks Nugget. Sirabella asked that they meet regularly and often. Clinton Knoll, the principal negotiator for Sparks Nugget, responded that they could not meet for as long a time nor as frequently as the union wished because the managers were "businessmen, and they have to take care of business." Sirabella offered to adjust the union's schedule to accommodate the demands of Sparks Nugget, but the offer was refused.
On October 21, 1981, the union sent a contract proposal to Sparks Nugget that was identical in all respects--except wages--to its then-current contract with another establishment, Circus-Circus. The first negotiating session between Sparks Nugget and the union took place on October 27, 1981, and Knoll, Spark Nugget's negotiator, stated that the demand for the Circus-Circus contract would make things difficult. Sparks Nugget instead wanted to revive the 1972-1975 contract while retaining the then-current 1981 wages. Knoll also wanted a merit system for wage increases that gave Sparks Nugget unilateral power to decide when and which employees received increases, and offered no guaranteed wage increases at all. Knoll further insisted he would not agree to a hiring hall.
Sirabella stated that the union did not require adopting the Circus-Circus contract verbatim. Sirabella maintained that the proposal was not "etched in stone." He emphasized that the union had not requested a hiring hall. He also withdrew a request for indemnification and agreed to continue a profit-sharing plan in lieu of a pension plan.
At a one-and-one-half-hour meeting on November 10, 1981, Sirabella proposed various wage increases, based on "(1) the effects of inflation; (2) a comparative wage analysis with unionized employers in the industry in the Nevada-California area; and (3) equal pay for equal work, by the end of the first 3-year contract." Sparks Nugget, 298 N.L.R.B. No. 69, 6 (1990). Sparks Nugget rejected the proposal in toto without considering any of the elements separately, and continued to make, basically, the same demands as those issued at the prior meeting. At yet another meeting on December 1, 1981, Sparks Nugget continued to insist upon the 1972-1975 contract updated to current wage levels. Sirabella critiqued this proposal point by point.
On December 17, 1981, during a forty-five minute session, Knoll disparaged the union's wage proposals. Sirabella replied that the proposals were only the "opening gambit" and not the "bottom line." Knoll responded that the 1972-1975 terms were "going to be it." Knoll also repeated he would never agree to a hiring hall. Again, he was assured the union was not seeking one.
On January 8, 1982, Knoll stated he would agree to non-binding federal mediation. The mediation session occurred on January 14, 1982, and no progress was made. On January 28, 1982, the second and last federal mediation session was held, and again no progress was made. At this meeting, Knoll continued to insist that Sparks Nugget would "make the decision [as to seniority] solely and independently from any involvement with the Union." As for wages, Sparks Nugget would determine the increases and the union "would have nothing to say about it." Suffice it to say, the collective bargaining process failed.
The second aspect of this case concerns picketing. On June 17, 1982, about four-and-one-half months after the last bargaining session, nonemployee union representatives picketed and distributed handbills on both the street side and the private-driveway side of the hotel/casino. Twenty minutes after the handbilling and picketing started, local police and Sparks Nugget security guards asked the protesters to leave Sparks Nugget's property. They moved into the public street where it intersected with the driveway. On July 3, 1982, company guards expelled from the Sparks Nugget parking lot a nonemployee union supporter who was recording the license numbers of tour buses in that lot. She was told the lot was private property.
Based on the failure of the collective bargaining process, charges were filed against Sparks Nugget on June 10, 1982 and June 29, 1982, alleging violations of section 8(a)(5) and (1) of the National Labor Relations Act. 1 A consolidated complaint charged Sparks Nugget with (1) unlawfully refusing to bargain in good faith with the union, and (2) improperly barring the union from picketing and handbilling on its premises.
Both the ALJ and the NLRB found Sparks Nugget violated section 8(a)(5) and (1) of the NLRA by refusing to bargain in good faith with the union. The Board found that Sparks Nugget adamantly refused "to make any modification in its only contract proposal, in the face of the Union's willingness to modify its proposals." Id. at 12. Moreover, the Board found Sparks Nugget was unwilling to explain or justify its proposals clearly, and that the proposals indicated a lack of serious intent to reach agreement. Id.
The Board also found Sparks Nugget violated section 8(a)(1) of the Act by prohibiting representatives of the union from picketing, handbilling, and recording the license numbers of tour buses in the Sparks Nugget parking lot.
The scope of review in this case is narrow:
[T]he Board has been afforded flexibility to determine ... whether a party's conduct at the bargaining table evidences a real desire to come into agreement. Findings as to the good faith of parties involved in collective bargaining is a matter for the Board's expertise and will not be upset unless unsupported by substantial evidence.
Queen Mary Restaurants Corp. v. NLRB, 560 F.2d 403, 407 (9th Cir.1977) (quotations omitted) (omissions in original). The Board's conclusions shall be afforded deference if they are based on a reasonable construction of the Act. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266-67, 95 S.Ct. 959, 968-69, 43 L.Ed.2d 171 (1975). "We must uphold a Board rule 'as long as it is rational and consistent with the Act, even if we would have formulated a different rule had we sat on the Board.' " NVE Constructors, Inc. v. NLRB, 934 F.2d 1084, 1086 (9th Cir.1991) (quoting NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787, 110 S.Ct. 1542, 1549, 108 L.Ed.2d 801 (1990)). Deference extends to the Board's factual determinations that are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951).
The Board's decision should be based on the totality of the parties' conduct....
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