N.L.R.B. v. Wilder Const. Co., Inc.

• Decision Date: 05 September 1986
• Docket Number: No. 85-7679,85-7679
• Citation: 804 F.2d 1122
• Parties: 123 L.R.R.M. (BNA) 3137, 105 Lab.Cas. P 12,090 NATIONAL LABOR RELATIONS BOARD (NLRB), Petitioner, v. WILDER CONSTRUCTION CO., INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1122

804 F.2d 1122

123 L.R.R.M. (BNA) 3137, 105 Lab.Cas. P 12,090

NATIONAL LABOR RELATIONS BOARD (NLRB), Petitioner, v. WILDER CONSTRUCTION CO., INC., Respondent.

No. 85-7679.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 5, 1986. ^*

Decided Nov. 21, 1986.

Howard E. Perlstein, Atty., N.L.R.B., Washington, D.C., for petitioner.

Bruce Bischof, Bischof & Hungerford, Sunriver, Or., for respondent.

Petition for Enforcement and Cross-Petition for Review of an Order of the National Labor Relations Board.

Before FLETCHER, FERGUSON, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Wilder Construction appeals the decision by the National Labor Relations Board (NLRB) holding that the company's unilateral withdrawal of recognition of the union representing its workers interfered with the employees' right to bargain through representatives of their own choosing and constituted a breach of the company's corollary duty to bargain, in violation of sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act. 29 U.S.C. Secs. 158(a)(1) & (a)(5) (1982). The NLRB also found that the company's subsequent refusal to provide the union with the information it requested regarding employees in the bargaining unit violated the Act. The NLRB's decision and order were based upon substantial evidence; the order is enforced.

Facts

In 1974, Wilder Construction recognized General Teamsters Local No. 231, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective bargaining representative of a unit that includes truckdrivers, mechanics, and warehousemen. The company entered into successive collective bargaining agreements after that time, the most recent being an agreement from June 1, 1980, through May 31, 1983. The union and company met on several occasions to discuss terms of a new contract but failed to reach agreement.

The union began a strike on August 29, 1983. On that date, the company employed 14 people in the bargaining unit. All were On October 11, the company notified the union by letter that it was withdrawing recognition. The company asserted in its letter that it had a good faith doubt that the union commanded the support of a majority of the bargaining-unit employees. After that time, Wilder refused the union's requests to bargain.

members of the union and all joined the strike. During the first three weeks of the strike, the company hired 12 permanent replacements. Sometime prior to October 11, 1983, 3 of the 14 union members crossed the picket line and returned to work.

On November 18, the union made an unconditional offer to return to work on behalf of the striking employees. The company answered that it had permanently replaced the employees, but offered to place any of them so desiring on a preferential hiring list. Five striking employees accepted the company's offer.

Almost six months later, on May 11, 1984, the union requested a list of the names, social security numbers, addresses, dates of hire and termination, if applicable, of the bargaining-unit employees. Wilder refused to furnish the requested information.

Based upon these facts, the National Labor Relations Board found that the company violated sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act by withdrawing recognition from, and refusing to bargain with, the union. The NLRB also found that the refusal to provide the union with the requested information violated the Act.

Discussion

1. General Framework for Withdrawal of Recognition Claims

Once a union is certified by the NLRB or recognized by the employer, the union is conclusively presumed to command majority allegiance for a reasonable period; after such period, there is a rebuttable presumption of majority support. See Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1296-97 (9th Cir.1984). The presumption becomes rebuttable, for example, after a contract expires. See, e.g., 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). A company's withdrawal of recognition establishes a prima facie case of an unlawful refusal to bargain. See NLRB v. Mar-Len Cabinets, Inc., 659 F.2d 995, 998 (9th Cir.1981). There is a continuing duty on the employer to recognize and to bargain with the union until the presumption of majority support is rebutted. NLRB 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). Here, the employer seeks to rebut the presumption of union majority support by showing that it had a serious doubt as to the union's majority status at the time it refused to bargain. An employer may justify a refusal to bargain with the incumbent union by establishing a "good faith doubt" defense. See id. ¹

The test for establishing a good faith doubt is an objective one. Evidence in support of that defense must "unequivocally indicate that union support had declined to a minority." NLRB 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). An employer must have more than a subjective belief regarding the lack of majority support; it must prove that at the time it withdrew recognition, it had "knowledge of ... facts which give a reasonable basis for doubting the union's majority." Tahoe Nugget, 584 F.2d at 299. The evidence presented by the employer must be "clear, cogent, and convincing." See id. at 297. This evidentiary standard applies to every element of the employer's defense. The NLRB's decision as to whether the test is met will be upheld if it is supported by substantial evidence. Silver Spur, 623 F.2d at 579.

2. The NLRB's Findings

a. The number of employees in the unit

The NLRB found that as of the date on which the company withdrew recognition the unit was comprised of 26 employees--the fourteen original workers and the twelve permanent replacements. Based upon its contention that four of the union members had permanently left the unit, the company asserts that by October 11 the unit was comprised of only 22 people. The employer's burden with respect to issues regarding the composition of the unit is the same as that which applies to all other aspects of its defense--its evidence must be "clear, cogent, and convincing."

1) Retired workers

Wilder contends that three of the union employees retired and were no longer part of the bargaining unit. The NLRB found, however, that the evidence presented was "far too equivocal" to establish Wilder's knowledge of the retirement of the three employees before it withdrew recognition from the union. Because the employer must have such knowledge before the withdrawal of recognition, any information acquired after withdrawal is not relevant. See N.T. Enloe Memorial Hospital v. NLRB, 682 F.2d 790, 794 (9th Cir.1982). The company's witness, its vice-president, did not establish when he found out about the retirements and admitted that the workers had not informed him of their plans. Moreover, the affidavit supplied by him to the NLRB three months after the withdrawal of recognition did not include the retirements as a reason for the company's good faith doubt. The NLRB reasonably found that the company's evidence was "insufficient to establish that [the] three employees either lost their status as employees or as strikers as of the date that the Company withdrew recognition." Thus the company failed to show by "clear, cogent and convincing" evidence that it had knowledge of facts that "unequivocally indicate[d]" that the three individuals no longer were part of the bargaining unit.

2) Employee who found work elsewhere

The company also asserts that the NLRB erred by counting as a part of the bargaining unit one striker who allegedly found permanent employment elsewhere. The NLRB held, however, that Wilder had failed to demonstrate that the striker accepted the new employment before its withdrawal of recognition. The company's operations manager testified that the employee in question went to work for another company either during the strike or shortly thereafter. Because the strike continued for more than a month after the withdrawal of recognition, the NLRB found that the company failed to establish that the employee's alleged acceptance of permanent employment occurred on or before the date of withdrawal. Thus, facts introduced by the company fell far short of meeting the strict test applicable when a "good faith doubt" defense is asserted.

3) Conclusion

The NLRB's determination that on the relevant date the bargaining unit consisted of 26 employees, the 14 original strikers

and the 12 permanent replacements, is supported by substantial evidence.

b. The allegiance of the three returning strikers who crossed the picket lines

Because the unit consisted of 26 workers, in order to establish a good faith reasonable doubt as to the union's majority status Wilder was required to show by clear, cogent, and convincing evidence that it had knowledge of facts that would unequivocally demonstrate that more than 13 workers had rejected the union's representation. Thus, even were we to assume--contrary to authoritative precedent--that none of the permanent replacements supported the union, the company had the burden of showing its knowledge of facts that would prove that at least some of the original workers had disavowed the union as their bargaining representative. Cf. Pennco, Inc., 250 NLRB 716 (1980) (holding that there is a presumption that permanent replacements support the union in the same proportion as the employees in the relevant unit), enforced 684 F.2d 340 (6th Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 355, 74 L.Ed.2d 392 (1982). Prior to the company's unilateral withdrawal of recognition, three striking employees crossed the picket line and returned to work. Whether these three maintained their allegiance to the union could, were w...