# Opposition — Tahoe Nugget, Inc. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 921

## Text

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In the Supreme Court

OF THE
United States
Ocroser Trrm, 1978
No. 78-1379

Tanor Nvuaeet, Inc., dba Jus Kuxizizy’s Tanor Nvuaget,
and Nevapa Lopar,

Petitioners,
vs.

Nationa Lasor Rexations Boarp, and
Horet-Moret-Restavrant Empvovess & Bartenvers Union,
Locat 86, Hore. & Restaurant Emproyzrs & BarTEnvErs

InTeRNATIONAL Union, AFL-CIO,

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On Petition for a Writ of Oertiorari to the e
United States Court of Appeals |
for the Ninth Circuit

RESPONDENT UNION’S BRIEF IN OPPOSITION

Counsel for Respondent Union

Davis, Cowzi. & Bows
Pawar Pavut Bows

351 California Street, Fourth Floor
San Francisco, California 94104

May 7, 1979

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TABLE OF AUTHORITIES CITED

Cases
Page
Bally Case & Cooler, Inc. v. N.L.R.B., 416 F.2d 902 (6th Cir.
BMI oo. 0 cc lgas'vts banks tvs ves ke

Celanese Corp. of America, 95 N.L.R.B. 664, 672 (1951) ..... 3,4

International Ladies’ Garment Workers’ Union v. N.L.R.B., 366
UG, TER (IGTE) oo. os on ceoigies oo « snes MED) ee

Local Lodge No. 1424, 1.A.M. v. N.L.R.B., 362 U.S. 411 (1060) 5

Lodges 1746 & 743, I.A.M. v. N.L.R.B., 416 F.2d 809 (D.C. Cir.
1969), cert. denied, 396 U.S. 1058 (1970) ................

N.L.R.B. v. Burns Security Service, 406 U.S. 272 (1972) ..... 4

N.L.R.B. v. Cayuga Crushed Stone, Inc., 474 F.2d 1380 (2d
Cin MSA. cot cant. -< fc ney nea een

N.L.R.B. v. Dayton Motels, Inc., 474 F.2d 328 (6th Cir.
DOIIN ioies vggrcd Kure Csi Gby a BIO ip. oh ge oe 6, 7,8

‘N.L.R.B. v. Denham, 469 F.2d 239 (9th Cir. 1972), vacated on
other grounds; 411 U.S. 945 (1973) ....... 0.0... eee ee.

N.L.R.B. v. District 30, U.M.W., 422 F.2d 115 (6th Cir. 1969),
cert. denied, 398 U.S. 959 (1970) .......... ccc cceceeeeees 5

N.L.R.B. v. Frick Co., 423 F.2d 1327 (3d Cir. 1970) ......... 3
N.L.R.B. v. Richard W. Kaase Co., 346 F.2d 24 (6th Cir. 1965) 4
N.L.R.B. v. Vegas Vic, Inc., 546 F.2d 828 (9th Cir. 1976), cert.

Geaas, G54 TS. GE are. vis cov Wer eacvavccnwhon caw 6
N.L.R.B. v. Washington Manor, Inc., 519 F.2d 750 (6th Cir.
i Raa a wl cane, PRN ee Rs Woke la guar eet 7
Terrell Machine Co. v. N.L.R.B., 427 F.2d 1088 (4th Cir.
1970), cert. denied, 398 U.S. 929 (1970) ................. 6
Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 (1951) .... 10
Wausau Steel Corp. v. N.L.R.B., 377 F.2d 369 (7th Cir. 1967) 10
Statutes
a WR I QO Ae ee iy wh p's o Gowns aioe ie 2
National Labor Relations Act:
29 U.S.C. Section 158 a} See es ee IN UNS 2 i Dee 2
IED ii, 55s MG cohy sea cs gues Re 6
TIRE. 5c...» ho sie veg a ROO ae 2,5

In the Supreme Court

OF THE

United States
Ocroser Term, 1978

No. 78-1379

Tanoe Nuacet, Inc., dba Jim Keiiey’s Tanor Nuacet,
and Nevapa Lopeg,

Petitioners,
vs.

Nationa Laspor Rexations Boarp, and
Horet-Morert-Restaurant Emp.oyers & Barrenpers Union,
Locat 86, Hore, & Restaurant Emp.oyees & BarTrenpDERS

INTERNATIONAL Union, AF'L-CIO,

Respondents

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

RESPONDENT UNION’S BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-28) is
reported at 584 F.2d 293. The decisions and orders of the
Board (Supp. App. 1-89) are reported at 227 N.L.R.B. 357
and 227 N.L.R.B. 368.

JURISDICTION

The judgment of the court of appeals was entered on
August 10, 1978, after consolidation of the two cases for

2

argument and decision. A timely petition for rehearing was
denied on October 20, 1978 (Pet. App. 29-30). On January
9, 1979, Mr. Justice Rehnquist exiended the time for filing
a petition for a writ of certiorari to and including March
10, 1979. The instant petition was filed on March 9, 1979.
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
QUESTIONS PRESENTED

1. Whether the Board abused its discretion in holding
that the presumption of majority status, derived from peti-
tioners’ voluntary recognition of the Union as the repre-
sentative of their own employees, could not be defeated by
petitioners’ subsequent withdrawal from a multiemployer
bargaining unit?

2. Whether the Board’s finding that petitioners had not

established a reasonably grounded doubt of the Union’s
majority status was supported by substantial evidence?

STATUTE INVOLVED
1. Section 8(a) of the National Labor Relations Act,
29 U.S.C. §158(a), provides in relevant part:
“Tt shall be an unfair labor practice for an em-
ployer—

(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section

Perey

(5) to refuse to bargain collectively with the rep-
resentatives of his.employees * * *.”

2. Section 10(b) of the National Labor Relations Act,
29 U.S.C. § 160(b), provides in relevant part:

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“Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice,
the Board * * * shall have power to issue and cause to
be served upon such person a comyiaint stating the
charges * * * and containing a notice of hearing * * *:
Provided, that no complaint shall issue based upon any
unfair labor practice occurring more than six months
prior to the filing of the charge * * *.”

STATEMENT OF THE CASE

The Brief For The National Labor Relations Board In
Opposition herein succinctly and accurately states the case.

ARGUMENT

I. There Is No Conflict Among the Circuits Created By
the Court of Appeal’s Holding That the Presumption
of Majority Status Applies In This Case

Consistent with established judicial authority, the Board
held in this case that petitioners’ voluntary recognition of
the Union as the bargaining representative of their re-
spective bar and culinary employees gave rise to a con-
tinuing presumption of the Union’s majority support among
those employees. (Supp. App. 2-3)' As this Court has
stated, such recognition without a Union majority would
violate the Act. International Ladies’ Garment Workers’

Union v. N.L.R.B., 366 U.S. 731, 737-739 (1961). Once

established, the presumption of majority support continues

throughout the term of a collective bargaining agreement

and beyond. Celanese Corp. of America, 95 N.L.R.B. 664,

See N.L.R.B. 0. Frick Co., 423 F.2d (3d Cir. 1970);
N.L.R.B. v. C Crushed Stone, Inc., 474 F.2d 1380, 1383 (2d
Cir. 1973); N.L.R.B. v. Denham, 469 F.2d 239 (9th Cir. 1972),
vacated on other grounds, 411 U.S. 945 (1973).

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672 (1951), cited with approval in N.L.R.B. v. Burns Secu-
rity Service, 406 U.S. 272 n.2 (1972).

On this predicate,’ the court of appeal upheld the Board’s
determination that the presumption subsisted following
petitioners’ withdrawal from the multiemployer unit:

“When respondents joined the Association and recog-
nized the Union, they implicitly declared their em-
ployees favored the Union. Thus, majority status can
be directly inferred from the employer’s own conduct;
the presumption is not derived from the larger unit’s
majority, but originates with the employer’s implicit
declaration of a majority in the single employer unit.
Moreover, the original factual inference is convincing:
employers normally will not knowingly violate the law
and union fraud is rare. Continued membership in the
larger unit does nothing to negate this principle even
though the larger unit becomes the appropriate one
for bargaining. The original presumption subsists:
withdrawal from the unit simply entails a reversion to
the original unit, a unit previously determined from
the employer’s own conduct to favor union represen-
tation.” (footnote omitted)

[Pet. App. 17-18]

The case of N.L.R.B. v. Richard W. Kaase Co., 346 F.2d
24 (6th Cir. 1965) is not at all in conflict with the holding
of the Board. As petitioners acknowledge (Pet. 6), the
Kaase court invalidated a presumption of majority status
derived from a tnultiemployer election following the em-

*Plainly, then, petitioners’ assertion that the Board adopted some
“derivative” presumption flowing from the multiemployer bargain-
was

c———_—_— -——

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ployer’s withdrawal; unlike petitioners, the employer there
had never voluntarily recognized that union as representa-
tive of its own employees.

The Board and the court of appeal properly held that
petitioners could not avoid application of the presumption
by now claiming that the initial recognition more than a
decade earlier had been unlawful. Because petitioners’
recognition of a minority union would have been an unfair
labor practice occurring beyond the six-month limitation
period in Section 10(b) of the Act, both the Board and the
court of appeal concluded petitioners could not revive a
legally defunct unfair labor practice in order to defend
against a present refusal to bargain. Local Lodge No. 1424,
IAM. v. N.L.R.B., 362 U.S. 411, 416 (1960); N.L.R.B. v.
District 30, U.M.W., 422 F.2d 115, 122 (6th Cir. 1969), cert.
denied. 398 U.S. 959 (1970).

Apart from disallowing petitioners’ attack on the validity
of the Union’s presumption of majority support, the court
of appeal also correctly held that the circumstances of
the initial recognition could not be used to bolster peti-
tioners’ claim of subjective good faith in refusing to bar-
gain in 1974. Even if the companies’ alleged unlawful
recognition were admitted to show their good faith in
suddenly deciding to accord their employees a free choice
of bargaining representative in 1974, the court of appeal
concluded that merely subjective belief was not sufficient
ground to disrupt the stability of the bargaining relation-
ship. Consistent with other courts of appeal, the court held
petitioners’ claimed reasonable doubt could only be sus-
tained by objective facts showing a majority of their em-

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ployees no longer desired Union representation. N.L.R.B.
v. Vegas Vic, Inc., 546 F.2d 828, 829 (9th Cir. 1976), cert.
denied, 434 U.S. 818 (1978) ; Terrell Machine Co. v. N.L.R.B.,
427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied, 398 U.S.
929 (1970) ; Lodges 1746 & 743, 1.A.M. v. N.L.R.B., 416 F.2d
809 (D.C. Cir. 1969), cert. denied, 396 U.S. 1058 (1970).
As the court below stated:

“We hold the employer is free to act on the objective
grounds before him, regardless of his underlying mo-
tivation. If union support is lacking, the employer’s
action actually furthers the cause of employee demo-
cracy by overcoming the inertia which helps maintain
the status quo. Since the employer’s action is not in
derogation of employee rights, his subjective motiva-
tion is important only evidentially. In sum, when
challenging the union majority, good faith is demon-
strated if the employer is aware of the facts mani-
festing lack of union support and employer misconduct
did not contribute to the loss of support.” (footnotes
omitted )°

[Pet. App. 11-12]

Contrary to petitioners’ assertion (Pet. 8), neither of the
court of appeal’s grounds for excluding evidence of the
claimed unlawful initial recognition conflicts with the Sixth
Circuit’s decision in N.L.R.B. v, Dayton Motels, Inc., 474
F.2d 328 (6th Cir. 1973). In Dayton Motels, as in this case,
the court held that circumstances establishing an unfair
labor practice at the time of initial recognition of the union
could not “. . . constitute an attack on the validity of the

*In this case, the Board also found that petitioner Nevada Lodge
violated Section 8(a)(1) of the Act by announcing and granting
pay increases to induce employees to abandon support of the

nion. (Supp. App. 44, 81).

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expiring agreement or on the presumption created thereby,
which attack was barred by Section 10(b) of the Act.” Zd.,
474 F.2d at 333. Consistent with the Ninth Cireuit and
other cases in that Circuit, it held that the employer must
show both reasonable grounds for doubting the union’s
majority status, and good faith in asserting that doubt.
Id., 474 F.2d at 330; Bally Case & Cooler, Inc. v. N.L.R.B.,
416 F.2d 902 (6th Cir. 1969); N.D.R.B. v. Washington
Manor Inc., 519 F.2d 750 (6th Cir. 1975). Nevertheless, the
court held, evidence of fraudulent procurement of author-
ization cards at the union’s initial recognition was material
to show the employer’s subjective good faith in refusing to
bargain. Id., 474 F.2d at 334.

Evidence of an employer’s subjective good faith could
be relevant where it had already established objective
grounds for doubting a union’s majority status. £.g.,
Bally Case & Cooler, Inc. v. N.L.R.B., supra. But the court
below held that petitioners had not established reasonable
grounds for doubting the Union’s majority status; peti-
tioners’ protestations of good faith were therefore immate-
rial, and the circumstances of initial recognition irrelevant :

“If, but only if, the employer can show the union’s
majority is truly in doubt, the situation confronted
is at the opposite end of the spectrum from the situa-
tion where the employer’s conduct is inherently de-
structive of employee rights. It follows that not only
is proof of anti-union motivation then unnecessary,
but it is immaterial to the charge. We emphasize,
however, that the employer must have ample evidence
in support of his doubt before we can condone this
assumption of the cause of employee democracy.”

[Pet. App. 11 n.24]

8

Consistent with the Sixth Circuit, therefore, the court be-
low held the evidence of subjective good faith inadmissible.
(Pet. App. 13)

The sole conflict between the decision of the court below
and Dayton Motels is, as petitioners assert (Pet. 10), a
difference of whether an employer’s proof of reasonable
good faith doubt serves as a complete defense, or whether
it merely shifts the burden of going forward to the General
Counsel. As the court below stated, “[s]Jince the General
Counsel usually relies’on the presumption alone, as he did
here, the distinction is primarily academic.” (Pet. App. 6).
The distinction is solely academic in this case, as petitioners
did not sustain their burden of rebutting the Union’s pre-
sumptive majority status:

II, The Court Of Appeal And The Board Properly
Assessed The Cumulative Impact Of Factors Claimed
To Support Petitioners’ Reasonable Doubt; Accord-
ingly, There Is No Conflict In Decisions Meriting
Review
Petitioners’ remaining contention is the repeated asser-
tion that the court of appeal and the Board refused to
consider the cumulative effect of the facts claimed to
support the companies’ reasonable doubt. (Pet. 5, 6, 11,
13, 14). That assertion simply has no basis in the record.

After analyzing each of the factors alleged by petitioner
Tahoe Nugget to support its reasonable _—* the Admin-
istrative Law Judge stated:

“After considering all of the factors set forth above,

I conclude that Respondent did not have substantial
and reasonable grounds for believing the Union had

9

lost its majority status. Respondent’s assertion in’ that
regard was based on subjective rather than objective
considerations.” (footnote omitted)

[Supp. App. 36]
The Administrative Law Judge analyzed the same cumula-

_tive impact with regard to petitioner Nevada Lodge. (Supp.

App. 77)

Similarly, the court below analyzed the cumulative effect
of each of the factors asserted by petitioners, in accordance
with explicit guidelines which the opinion set forth:

“When the Board looks to the cumulative force of
the evidence, the factors are reconsidered and weighed
against the force of the, presumption. If unexplained,
the cumulative inferential weight of these equivocal
factors might suffice to establish that the —— to
bargain was reasonable.“

: “*But we have found no cases in which the reasonable doubt
defense was sustained based solely on equivocal evidence.
Common to each case was the presence of at least one factor
clearly referable to a lack of majority support.”

[Pet. App. 21]

The court of appeal concluded that “[n]Jone of the evidence
is wholly referable to a decline in Union support within
the relevant units”, and therefore affirmed the Board’s de-
termination. (Pet. App. 28).

Petitioners are reduced to claiming the Board erred in
the evidentiary weight accorded each of petitioners’ as-
serted objective considerations, since it had previously
held similar factors—once established—sufficient to justify
a refusal to bargain (Pet. 14). In essence, this is a confes-
sion that petitioners have engaged in brinksmanship in

Pi Titi | ial

10

attempting to thwart collective bargaining among their em-
ployees. As another court of appeal stated in an analogous
context, “. . . one who engages in ‘brinksmanship’ may
easily overstep and tumble into the brink” Wausau Steel
Corp. v. N.L.R.B., 377 F.2d 369 (7th Cir. 1967). Peti-
tioners’ disagreement with the Board’s findings with re-
spect to the weight of the evidence does not merit review
by this Court. Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 490-491 (1951). Also, because such an evidentiary
determination turns on the totality of all the circumstances,
review of the Board’s findings cannot have a substantial
impact on other litigants.

CONCLUSION

For all the above reasons, as well as for the reasons
stated in the Brief For The National Labor Relations
Board in Opposition, the petition for a writ of certiorari
should be denied.

| Respectfully submitted,

Pur Pau Bowe

Grorrrey V. WHITE

351 California Street, Fourth Floor
Fourth Floor
San Francisco, California 94104

Counsel for Respondent Union
May 7, 1979

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2589%3A4. Public record. Not legal advice.