N.L.R.B. v. Tahoe Nugget, Inc.
| Decision Date | 10 August 1978 |
| Docket Number | 77-2105,Nos. 77-2095,s. 77-2095 |
| Citation | 584 F.2d 293 |
| Parties | 99 L.R.R.M. (BNA) 2509, 84 Lab.Cas. P 10,793, 3 Fed. R. Evid. Serv. 884 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TAHOE NUGGET, INC., d/b/a Jim Kelley's Tahoe Nugget, Respondent, Hotel, Motel and Restaurant Employees and Bartenders' Union, Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEVADA LODGE, Respondent, Hotel, Motel, Restaurant Employees and Bartenders' Union, Local 86, Intervenor. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Mark Montobbio (argued), San Francisco, Cal., for respondent.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before TRASK and ANDERSON, Circuit Judges, and GRANT, * District judge.
Pursuant to 29 U.S.C. § 160(e), the National Labor Relations Board has petitioned for enforcement of its Orders against respondents. The Board, affirming the findings made by an Administrative Law Judge in separate hearings, 1 found respondents Tahoe Nugget and Nevada Lodge violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (the Act). We grant enforcement. 2
In 1959, the Reno Employers Council (the Association), a voluntary combination of restaurant and casino employers, entered into a collective bargaining agreement with Union Local 86 (the Union). 3 Soon after it opened in 1958, Nevada Lodge joined the Association; Tahoe Nugget joined after opening for business in 1962. 4 A series of three-year contracts, the last expiring on November 30, 1974, recognized the Union and set terms and conditions of employment for all Association members. By joining the Association, both respondents recognized the Union as bargaining representative for its employees; an election has never been held in either single employer unit or in the multi-employer unit.
On September 17, 1974, Nevada Lodge withdrew from the Association; on October 25, it refused to recognize or bargain with the Union. Tahoe Nugget took the same action on September 18 and October 23, respectively. The withdrawals were timely. 5 In November, the Union filed unfair labor practice charges against respondents. Subsequently, each employer filed an election petition, but under established Board practice, the elections were stayed pending the outcome of the unfair labor practice charges.
The Union alleged that respondents' refusal to bargain violated section 8(a) (5) of the Act, 29 U.S.C. § 158(a)(5), and that respondents subsequently interfered with the free exercise of employee rights in violation of section 8(a)(1), 29 U.S.C. § 158(a)(1). The refusal to bargain charge was premised on the Union's presumed majority status. Respondents defended by introducing evidence to show their refusal was based on a reasonable doubt of the Union's majority. 6 The Board found respondents' proof unconvincing.
The 8(a)(1) violations charged were of two varieties: dependent and independent. The dependent 8(a)(1) charges flowed from the refusal to bargain: by refusing to bargain with the employees' bargaining representative, the employer interferes with the employees' organizational rights and thereby violates 8(a)(1), if the refusal is not justified. The Board upheld these charges inasmuch as the refusal to bargain had been Respondents' primary contentions on appeal are:
adjudged unlawful. 7 The independent 8(a)(1) charges stemmed from unilateral wage and benefit increases instituted after the collective bargaining agreement expired. These charges were also sustained by the Board
1. The presumption of majority status is inapplicable; and
2. A reasonable doubt has been proved.
The presumption endorsed by the Board must be upheld unless it fails to evenhandedly further the Act's purpose. 8 The Board's factual findings must be sustained if supported by substantial evidence in the record considered as a whole. 9
To sustain an 8(a)(5) charge, the General Counsel must show the union represented a majority of the unit employees when the employer refused to bargain. The Board employs two presumptions obviating an evidentiary showing of majority status. For a reasonable time, usually one year, after certification or voluntary recognition, majority support is irrebuttably presumed absent "unusual circumstances." 10 After one year, the presumption becomes rebuttable. Absent sufficient countervailing proof, the presumption establishes, without more, the employer's duty to bargain. NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 97 (9th Cir. 1970).
Respondents contend a presumption cannot have such efficacy under rule 301, Federal Rules of Evidence. 11 Only a superficial reading of the rule supports this contention. The courts have approved the presumption's use and force in reviewing 8(a)(5) violations, both before and after the adoption of the Federal Rules of Evidence. 12
The presumption is rebutted if the employer shows, by clear, cogent, and convincing evidence, 13 that the union was in the minority or that the employer had a good faith reasonable doubt of majority support at the time of the refusal. 14 Some courts view these as complete defenses; 15 other courts say they simply shift the burden to the General Counsel. 16 Since the General Proving minority status is a straightforward factual question. When the employer seeks to rely on the less exacting standard of reasonable doubt, he must also show the doubt was entertained in good faith. Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th Cir. 1975).
Counsel usually relies on the presumption alone, as he did here, the distinction is primarily academic.
Respondents sought to substantiate their factual defense by showing the Union did not enjoy majority support at the time of voluntary recognition. The showing was disallowed as time barred.
In Bryan Manufacturing, 17 the Supreme Court held that the six-month statute of limitations for filing unfair labor practice charges contained in § 10(b) of the Act can also act as an evidentiary bar. The issue arose when an employer recognized a minority union and entered into a collective bargaining agreement with it. No unfair labor practice charges were filed for ten months. The Board upheld the charges, reasoning that execution of the agreement was a continuing violation. The Supreme Court reversed, holding that § 10(b) precluded a challenge to the union's majority position.
Two situations were differentiated. The Court said when events within the six months preceding the filing of charges "may constitute, as a substantive matter, unfair labor practices," evidence showing earlier unfair labor practices is admissible to clarify the more recent events. When, however, the recent events violate the Act only if an earlier unfair practice occurred, the prior events are not merely evidentiary and evidence thereof is inadmissible. The facts in Bryan Manufacturing fell into the second category because enforcement of the agreement was illegal only if its execution were an unfair labor practice.
Here we are presented with the other side of the coin. Respondents intended to use the evidence defensively to prove their conduct was lawful. Respondents argue the evidence clarifies their subjective motivation and is therefore admissible to prove their good faith doubt defense.
In NLRB v. Tragniew, Inc., 470 F.2d 669 (9th Cir. 1972), this court held that evidence of an unfair labor practice that occurred beyond the 10(b) period could not be admitted in defense of a refusal to bargain charge. Accord, Lane-Coos-Curry-Douglas Counties Building and Construction Council, AFL-CIO v. NLRB, 415 F.2d 656, 659 n. 7 (9th Cir. 1969). Other courts agree that under Bryan Manufacturing a defunct unfair practice claim cannot be revived to defend subsequent charges. E. g., NLRB v. District 30, United Mine Workers of America, 422 F.2d 115, 122 (6th Cir. 1969), Cert. denied, 398 U.S. 959, 90 S.Ct. 2173, 26 L.Ed.2d 543 (1970). In Tragniew, however, the employer had not attempted to avail himself of the good faith doubt defense, but only tried to prove the union was in the minority. Consequently, the court did not consider the precise question raised by respondents. 18
The defense respondents press has two parts:
1. objective facts sufficient to support a reasonable doubt; and
2. the employer's good faith. 19
NLRB v. Cornell of California, Inc., 577 F.2d 513, # 76-1545 (9th Cir. 1978). The Sixth Circuit has held in similar circumstances that evidence otherwise time barred is admissible to substantiate the second part of the defense presented here.
In NLRB v. Dayton Motels, Inc., 474 F.2d 328 (6th Cir. 1973), the employer sought to defend refusal to bargain charges by showing that union authorization cards, obtained more than six months previously, were procured fraudulently. The court held that evidence to support this defense was admissible. The employer does not resurrect a stale claim by showing the original authorization cards were obtained through fraud, the court reasoned, but only proves that the employer acted in good faith.
We think this misperceives the essence of the good faith criterion. The good faith criterion is ordinarily satisfied if, at the time the employer challenges the union majority, the employer has knowledge of the facts which give a reasonable basis for doubting the union's majority. 20 The good faith criterion is unconcerned with the employer's subjective motivation; its focus is empirical and objective. See NLRB v. Vegas Vic, Inc., 546 F.2d 828 (9th Cir. 1976), Cert. denied, 434 U.S. 818, 98 S.Ct. 57, 54 L.Ed.2d 74 (1978). What the employer knew is determinative, not why he challenged the union's position. See Automated Business Systems v. NLRB, 497 F.2d 262 (6th Cir. 1974); NLRB v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966); Seger, The Majority Status of...
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