NLRB v. Dayton Motels, Inc.

• Decision Date: 14 February 1973
• Docket Number: No. 72-1078.,72-1078.
• Citation: 474 F.2d 328
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAYTON MOTELS, INC., d/b/a Holiday Inn of Dayton, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

474 F.2d 328 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAYTON MOTELS, INC., d/b/a Holiday Inn of Dayton, Respondent.

No. 72-1078.

United States Court of Appeals, Sixth Circuit.

Argued October 11, 1972.

Decided February 14, 1973.

COPYRIGHT MATERIAL OMITTED

John C. Getreu, Director, Region 9, N. L.R.B., Cincinnati, Ohio, Jay E. Shanklin, N.L.R.B., Washington, D. C., for petitioner; Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, N.L. R.B., Washington, D. C., on brief.

Charles A. Lawrence, Jr., Memphis, Tenn., for respondent; Elbert H. Coles, McKnight, Hudson & Coles, Memphis, Tenn., on brief.

Before WEICK, EDWARDS and MILLER, Circuit Judges.

WEICK, Circuit Judge.

This case is before the Court on the Board's application for enforcement of its order reported at 192 NLRB No. 112, against Dayton Motels, Inc., doing business as Holiday Inn of Dayton (Company), which application was filed pursuant to Section 10(e) of the National Labor Relations Act (Act) as amended. 29 U.S.C. § 160(e). The Company has cross-petitioned for non-enforcement.

The Board found that the Company, shortly prior to the expiration of the collective bargaining agreement with the Union, violated Section 8(a) (1) of the Act by interrogating and threatening employees, by soliciting employees to repudiate the Union, by soliciting an employee not to attend a Union meeting, and by promising benefits to employees who did not engage in the strike called by the Union. The Board also found that the Company violated Section 8(a) (5) of the Act by withdrawing recognition from the Union and by thereafter refusing to bargain with the Union as the representative of its employees.

The Board ordered the Company to cease and desist from its unfair labor practices, to reinstate discharged striking employees, to bargain with the Union as the exclusive representative of its employees, and to post appropriate notices.

We uphold the Board's order only with respect to the Section 8(a) (1) unfair labor practices. We decline to enforce the order of the Board with respect to the Section 8(a) (5) alleged violation, and remand for further proceedings.

SECTION 8(a) (1) VIOLATIONS

We are of the opinion that, on the record before us, the findings of the Board with respect to Section 8(a) (1), violations are supported by substantial evidence. NLRB v. Howell Automatic Mach. Co., 454 F.2d 1077 (6th Cir. 1972).

The only colorably valid attack that the Company makes against the finding of Section 8(a) (1) violations is that the predominance of activities was attributable to Collins and Branham, neither one of whom was a supervisor. Simply stated, the Company's position is that these activities took place near the end of the term of the agreement, and regardless of the anti-union nature of these employees' activities, their acts cannot be imputed to the Company since they were not supervisory employees of the Company.

The argument falls short of a successful attack on the Section 8(a) (1) violations found by the Board, for two reasons. First, the activities of the Executive Housekeeper, who was a supervisor, alone would be sufficient to support a finding that Section 8(a) (1) was violated by the Company. Second, strict principles of agency are not applicable where management uses an employee who is a union member, for effectuating its own interests. If there is a connection between management and the employee's actions, either by way of instigation, direction, approval, or at the very least acquiescence, then the acts of the employee will be imputed to the Company. Boyle's Famous Corned Beef Co. v. NLRB, 400 F.2d 154 (8th Cir. 1968).

The Board found that employees Collins and Branham had close ties with management; in fact, they customarily delivered to other employees work instructions from management. Furthermore, while the Company perhaps did not actually direct the activities of Collins and Branham, at least it acquiesced in the anti-union efforts. Thus, under the expanded agency principles applicable to Section 8(a) (1) the acts of these union-members employees are imputed to the Company and support the Board's order directed to these activities.

SECTION 8(a)(5) VIOLATIONS

In June, 1970, three months prior to expiration of the collective bargaining agreement with the Union, the Company received a request from the Union to negotiate for a new collective bargaining agreement. The Company did not respond to this request and thereafter refused to meet with the Union for purposes of bargaining. However, on September 16, 1970, the expiration date of the agreement, a Union representative came to the Inn and met with the Company's attorney. In the course of this meeting the Company's attorney advised the Union representative of the Company's position, that the Union did not represent a majority of its employees.

It was then suggested by the Company's attorney that an election be conducted in order to give its employees an opportunity to express their desires concerning representation by the Union. This proposal was rejected by the Union representative. On the day following, the Union called a strike against the Company.

The Board found that the Company violated Section 8(a)(5) of the Act by refusing to bargain with the Union in June, 1970. The validity of this finding of the Board (and the resultant order of the Board that the Company bargain with the Union) depends on (1) whether the Union actually represented a majority of the employees, or (2) whether the Company had a good-faith doubt of the Union's majority status when it refused to bargain.

In order to establish that an employer's withdrawal of recognition and refusal to bargain with an incumbent union transgresses Section 8(a)(5) of the Act, the burden of proof is upon the Board to show that the union actually represented a majority of the employees in an appropriate unit. Machinists Lodges 1746 & 743 v. NLRB, 135 U.S. App.D.C. 53, 416 F.2d 809 (1969).

Failure to prove a majority-status of the Union relieves an employer of any duty to bargain. Maphis Chapman Corp. v. NLRB, 368 F.2d 298, 303 (4th Cir. 1966).

Furthermore, even if the Union is proved to be actually representative of a majority, the employer is not guilty of a Section 8(a) (5) violation if the employer had a reasonably-grounded belief that the Union did not represent an uncoerced majority of its employees. Pulley v. NLRB, 395 F.2d 870 (6th Cir. 1968); NLRB v. John S. Swift Co., 302 F.2d 342 (7th Cir. 1962). A good-faith doubt exculpates the employer even if the Union in fact represented a majority of the employees. NLRB v. Ben Duthler, Inc., 395 F.2d 28 (6th Cir. 1968).

The 1967 agreement between the Company and the Union is relevant to the two aspects of Section 8(a) (5) above stated. First, the Board did not order that an employee vote should be taken in order to determine whether the Union actually represented a majority of the employees; rather, the Board relied on the doctrine that an existing agreement creates a presumption of majority status of the Union. Second, the Board excluded evidence offered by the Company tending to prove that the collective bargaining agreement was procured by means of coercive tactics of a company supervisor who was collaborating with the Union, and evidence tending to prove the fraudulent concealment of this fact from the Company by the Union when the Union presented the authorization cards to the Company to persuade the Company to recognize the Union. The reason given by the Board for exclusion of the evidence was that it also proved an unfair labor practice of the Union, proof of which was barred by the six-months' time limitation in Section 10(b) of the Act.¹

This same statute precluded the Company from taking any action after it discovered the complicity of its supervisor and the fraud of the Union, when such discovery was made more than one year after the agreement was signed.

There seems to be no question but that the expiring agreement does give rise to a rebuttable presumption of majority status of the Union. Terrell Mach. Co. v. NLRB, 427 F.2d 1088 (4th Cir. 1970).

However, giving full recognition to the weight of the presumption, this does not help the Board because even if in fact the Union actually represented a majority of employees in the bargaining unit, the Company would still have a complete defense if it had a good-faith doubt about such representation. NLRB v. Ben Duthler, Inc., 395 F.2d 28 (6th Cir. 1968).

Section 10(b) of the Act provides in part as follows:

". . . Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . ."

Literally, this section applies only to the filing of complaints with the Board. On its face it appears to be a statute of limitations on the institution of proceedings directed at unfair labor practices, and not to have any application to the defense of an unfair labor practice charge. However, it was recognized that the policy² of the preventing stale unfair labor practice charges under Section 10(b) of the Act could easily be circumvented if the limitations provision was read narrowly.

Accordingly, the Supreme Court expanded considerably the effect of Section 10(b) of the Act, in Local Lodge No. 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411, 80 S.Ct. 822, 4 L.Ed.2d 832 (1960). In that case the company had committed a putative unfair labor practice by signing a collective bargaining agreement with a union which did not in fact represent a majority of the employees at that time. More than six months subsequent thereto, an unfair labor practice charge was filed with the Board. The complaint alleged that an independent unfair labor practice had been committed within the six-month-limitation period by the company's continued operation under the invalid agreement. The Court recognized that while the enforcement of the...