N.L.R.B. v. Silver Spur Casino
| Decision Date | 27 May 1980 |
| Docket Number | Nos. 77-2311,77-2939,I,77-2658 and 77-2938,77-2954,AFL-CI,s. 77-2311 |
| Citation | 623 F.2d 571 |
| Parties | 104 L.R.R.M. (BNA) 3068, 89 Lab.Cas. P 12,086 NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Hotel, Restaurant & Bartenders International Union,ntervenor, v. SILVER SPUR CASINO, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Intervenor, v. NEVADA CLUB, INC., Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Intervenor, v. SPARKS NUGGET, INC., d/b/a John Ascuaga's Nugget, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Intervenor, v. BARNEY'S CLUB, INC., Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, and Hotel-Motel-Restaurant Employees & Bartenders Union, Local 86, Intervenor, v. FINALLY, INC., d/b/a The Palace Club, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles P. Donnelly, NLRB, Janet McCaa, Elliott Moore, Washington, D. C., for petitioner.
William W. Wertz, W. David Holsberry, Davis, Cowell & Bowe, San Francisco, Cal On Application for Enforcement of an Order of the National Labor Relations Board.
for respondents; Severson, Werson, Berke & Melchior, J. Montobbio, San Francisco, Cal., on brief.
Before KENNEDY and ANDERSON, Circuit Judges, and SCHWARTZ, * District Judge.
These consolidated cases are before this court pursuant to petitions filed by the National Labor Relations Board (Board) for enforcement of its Orders. 1 29 U.S.C. § 160(e). The unifying issue is whether the employer-respondents violated sections 8(a)(1) and (5) of the National Labor Relations Act (the Act) by refusing to bargain with the Union. We shall consider this issue first, then deal with the other issues that pertain to the individual respondents.
The respondents were all members of the Reno Employers Council (Council), a voluntary association of employers engaged in casino, restaurant and related businesses. The Council existed in part for the purpose of representing member-employers, in multi-employer units, in collective bargaining with labor organizations. The individual respondents joined the Council on different dates, but they all recognized the Union as the bargaining representative of a unit of their employees consisting of culinary workers, waiters and bartenders (employees). After being parties to successive multi-employer collective bargaining contracts with the Union, 2 respondents withdrew from their multi-employer bargaining units. Subsequent to their withdrawal from the multi-employer units, the respondents informed the Union that they would not negotiate new, individual collective bargaining agreements with the Union. Each respondent claimed to have a good faith doubt that the Union enjoyed the majority support of their respective employees.
Unfair labor practice charges were filed by the General Counsel of the Board against the respondents for their refusal to bargain with the Union. In each case the Board found that the respondents had committed unfair labor practices by withdrawing recognition of the Union as the collective bargaining representative of their employees and by refusing thereafter to bargain with the Union. 3 The Board ordered each respondent to cease and desist from the unfair labor practices and required each respondent to recognize and, upon request, bargain with the Union, and post certain We enforce the Board's orders on the issue of the respondents' refusal to bargain based upon the principles we have announced in Tahoe Nugget, Sahara-Tahoe, Carda Hotels, and Sierra Development. 4
notices. These cases are before us in part, for the enforcement of those orders.
We deal with the issue in more depth in the following discussion to emphasize and, where necessary, to clarify portions of our previous opinions.
In an unfair labor practice proceeding before the Board the burden is upon the General Counsel to establish by a preponderance of evidence that an unfair labor practice has occurred. NLRB v. United Brotherhood of Carpenters & Joiners, etc., 531 F.2d 424, 426 (9th Cir. 1976). Where an employer has been charged with a violation of section 8(a)(5), refusal to bargain, the General Counsel must show that the union represented a majority of the employees in the unit at the time the employer refused to bargain with the Union. NLRB v. Tahoe Nugget, Inc., 584 F.2d at 297.
The General Counsel is assisted by a presumption of majority union support in its attempt to meet its burden of proving that the employer unlawfully refused to bargain. Id. Where sufficient proof to rebut the presumption is not presented by the employer, the presumption carries the General Counsel's burden of proof regarding the unfair labor practice charge. Id.
An employer may rebut the presumption by presenting sufficient evidence to demonstrate that the union was actually in the minority or that the employer had a good faith reasonable doubt of the union's majority support at the time of the refusal to bargain. Id. If the presumption is deemed rebutted, then the General Counsel must come forward with evidence to satisfy its burden of proof. National Cash Register Co. v. NLRB, 494 F.2d 189 (8th Cir. 1974).
The rebuttable presumption was applied by the Board in these cases. The Board determined that the respondents had not rebutted the presumption and found that they had committed unfair labor practices by refusing to bargain with the Union.
The respondents challenge that determination on the grounds that:
a. the presumption should not be applicable in a situation where employers have withdrawn from a multi-employer unit;
b. an employer's good faith belief is all that is required to rebut the presumption of majority support for the union;
c. the objective factors considered by the respondents were sufficient to rebut the presumption of majority support for the union.
d. the respondents were improperly precluded from showing that only a minority of employees supported the union.
e. the Board has made it impossible to rebut the presumption under the circumstances.
The respondents contend that their withdrawal from the multi-employer bargaining unit should allow them to start anew in their relationship with the Union. That is, they wish to be viewed as single employers faced with the Union's initial claim for recognition.
In four previous cases 5 we have rejected that approach and have determined that the presumption survives an employer's withdrawal from the multi-employer bargaining unit. 6
The bargaining history of the respondents shows that the same fact patterns have occurred. Thus, the conclusions reached in our previous cases apply equally as well here.
Moreover, our conclusion that the presumption survives the respondents' withdrawal from the multi-employer unit is a recognition that the presumption is also grounded in policy, not just probability. NLRB v. Tahoe Nugget, 584 F.2d at 302. The most valued objective of the Act is industrial peace. Application of the presumption is a policy determination by the Board that industrial peace is more likely to be achieved by maintaining continuity in the bargaining structure.
We have not failed to observe that, in so deciding, the Board has favored continuity in the bargaining structure over the enhancement of employee free choice. However, the Board's decision, while not enhancing employee rights, does not adversely affect those rights. As always, the employees may exercise their freedom of choice by petitioning the Board for an election to choose whether to have another representative or to have no union representation at all. Adherence to the presumption does not stifle that right.
The presumption does make it more difficult for the respondents to rely on employee rights in refusing to bargain with their employees' designated representative. However, as we stated in Tahoe Nugget, at 301, "(I)n refusing to bargain because of an alleged decline in union adherents, the employer is acting as vicarious champion of its employees, a role no one has asked it to assume." See, Brooks v. NLRB, 348 U.S. 96, 103, 75 S.Ct. 176, 99 L.Ed. 125 (1954).
We thus believe that the Board has not abused its discretion in applying the presumption of majority union support here where employers have withdrawn from a multi-employer unit.
An employer may withdraw recognition from an incumbent union because of its asserted good faith doubt of the union's support. Respondents contend that under Celanese Corporation of America, 95 NLRB 664 (1951), the employer's good faith belief that the union no longer had the majority support of its employees is all that is required. The respondents misread Celanese and misconceive the law. 7
An employer's good faith doubt of a union's majority status must be reasonable and supported by objective considerations. NLRB v. Cornell of Cal., Inc., 577 F.2d 513, 515-516 (9th Cir. 1978); Dalewood Rehabilitation Hospital, Inc. v. NLRB, 566 F.2d 77, 80 (9th Cir. 1977); NLRB v. Tahoe Nugget, 584 F.2d at 299. Respondents' contrary interpretation of the law is erroneous.
Whether an employer has established a good faith reasonable doubt defense is a determination that must be made initially by the Board. The Board's...
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