Hotel, Motel & Restaurant Employees & Bartenders Union Local No. 19 v. National Labor Relations Board

785 F.2d 796
CourtCourt of Appeals for the Ninth Circuit
DecidedMarch 25, 1986
DocketNo. 85-7106
StatusPublished
Cited by1 cases

This text of 785 F.2d 796 (Hotel, Motel & Restaurant Employees & Bartenders Union Local No. 19 v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hotel, Motel & Restaurant Employees & Bartenders Union Local No. 19 v. National Labor Relations Board, 785 F.2d 796 (9th Cir. 1986).

Opinion

BOOCHEVER, Circuit Judge.

We review the NLRB decision that Burger Pits, Inc., did not violate sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and 158(a)(5) (1982), by withdrawing recognition from and refusing to bargain with the Hotel, Motel, Restaurant Employees and Bartenders Union, Local 19 (Union). The Union asks us- to review (1) whether the NLRB correctly applied the law regarding the presumption of continuing majority support for a union and an employer’s good faith doubt of that support and (2) whether the NLRB’s finding that Burger Pits had a good faith reasonable doubt of the Union’s continuing support is sustained by substantial evidence in the record. We find that the NLRB correctly applied the law and that the record supports its findings of fact.

I. FACTS

Hotel, Motel, Restaurant Employees and Bartenders Union, Local 19 (Union) represented Burger Pits employees. Burger Pits entered into successive collective bargaining agreements with the Union, the most recent of which was effective through May 31, 1980. On May 29, 1980, Burger Pits and the Union agreed to extend the contract through June 30, 1980.

Under the contract, Union representatives had the right to enter the kitchen areas of Burger Pits facilities to investigate employee status and work conditions. After May 31, however, Burger Pits refused to grant Union representatives access to the kitchen areas. No evidence was submitted, however, that any Union representatives sought access.

As of June 1,1980, Burger Pits employed 276 employees in the bargaining unit. Between June 1 and June 3, relief cook Turrick Robbins collected 180 signatures on an employee petition which stated that the signers “no longer wish[ed] to be represented by the [Union].” Robbins presented [798]*798the petition to Burger Pits Vice President Albert Berger on June 3, 1980. When he presented the petition, Robbins told Berger that he had collected the signatures on his own initiative and that the employees “willingly signed the petition” at “almost every location.”

Berger contacted his attorney who, on June 6, sent to the Union written notice that Burger Pits no longer recognized the Union as the employees’ bargaining representative. After June 6, but before the expiration of the contract on June 30, Burger Pits unilaterally instituted new health and welfare coverage and ceased making the contractually required contributions to the existing health and welfare fund and pension plan.

On June 16, 1980, the Union filed an unfair labor practice charge, alleging that Burger Pits had violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), 158(a)(5) (1982). The Union alleged Burger Pits had locked out Union representatives, unilaterally changed terms and conditions of employment during the term of the contract extension, and refused to recognize and bargain with the Union.

The Administrative Law Judge decided that Burger Pits had engaged in unfair labor practices and ordered a broad “make-whole” relief and a bargaining order. Burger Pits sent its Exceptions to the ALJ’s decision to the NLRB.

On December 14, 1984, the NLRB upheld the ALJ’s Conclusion of Law that Burger Pits had violated sections 8(a)(1) and 8(a)(5) but found that Burger Pits had a good faith reasonable doubt of the Union’s majority status. The NLRB refused to enforce the order to bargain. It further held that because Burger Pits had failed to recognize the Union for purposes of its contract obligations a make-whole remedy was appropriate for the contract period but not beyond.

The Union appealed, alleging that the NLRB failed to apply correctly the presumption of a union’s continuing majority support, and that the record failed to provide substantial evidence sufficient to justify a finding that Burger Pits had a good faith doubt of the Union’s majority support.

II. STANDARD OF REVIEW

A court reviewing an NLRB decision looks to see “if the Board correctly applied the law” and determines “if the Board’s findings of fact are supported by substantial evidence on the record viewed as a whole.” Whisper Soft Mills, Inc. v. NLRB, 754 F.2d 1381, 1384 (9th Cir.1985). Although a reviewing court reviews questions of law de novo it should give considerable deference to the Board’s expertise in construing and applying the labor laws. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); Mingtree Restaurant, Inc. v. NLRB, 736 F.2d 1295, 1297 (9th Cir.1984). Thus, with some deference to the NLRB, we review de novo whether the NLRB correctly applied the presumption of a union’s majority status.

With respect to questions of fact, however, the NLRB’s findings are conclusive if supported by substantial evidence in the record considered as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 484-88, 71 S.Ct. 456, 462-64, 95 L.Ed. 456 (1951). Thus, in reviewing whether the NLRB’s finding that Burger Pits had a good faith doubt of the Union’s continuing majority support, we look to the record for substantial evidence.

III. ANALYSIS

A. The NLRB correctly applied the law regarding a union’s presumption of continuing majority support and an employer’s good faith doubt of that support.

As long as a union is certified or voluntarily recognized, the employer has a duty to bargain. A refusal to bargain is a violation of sections 8(a)(1) and 8(a)(5). Once a union is certified or recognized it enjoys a presumption of continued majority [799]*799status which is irrebuttable for a reasonable time, usually one year, and is rebut-table thereafter. An employer may rebut the presumption of continued majority status if it shows by clear, cogent, and convincing evidence that the union was in the minority or that the employer had a good faith reasonable doubt of majority status. See Brooks v. NLRB, 348 U.S. 96, 104, 75 S.Ct. 176, 181, 99 L.Ed. 125 (1954); Ming-tree Restaurant, 736 F.2d at 1296-97. The reasonable doubt must be asserted in good faith and may not be raised in the context of any employer activities aimed at causing disaffection with the union. NLRB v. Carilli, 648 F.2d 1206, 1216 (9th Cir.1981); Clear Pine Mouldings, Inc. v. NLRB, 632 F.2d 721, 730 (9th Cir.1980), cert. denied, 451 U.S. 984, 101 S.Ct. 2317, 68 L.Ed.2d 841 (1981).

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