Petition — Sahara-Tahoe Corp. v. National Labor Relations Board

Office - Supreme Court, U.S.

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80-1452 FEB 25 199]

PO. se. ALEXAND'S L. sTevag,

IN THE CLERK

sce

Supreme Court of the United States

October Term, 1980

SAHARA-TAHOE CORPORATION,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD, and HOTEL, MOTEL,

RESTAURANT EMPLOYEES AND BARTENDERS UNION

LOCAL 86, HOTEL AND RESTAURANT EMPLOYEES and

BARTENDERS INTERNATIONAL UNION, AFL-CIO,

Respondents.

On a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit.

PETITION FOR A WRIT OF CERTIORARI.

PARKER, MILLIKEN, CLARK & O’HARA,

ANTHONY T. OLIVER, JR.,

WILLIAM H. EMerR,

LINDA S. KLIBANOW,

CATHERINE B. FRINK,

By WILLIAM H. EMER,

Counsel of Record,

333 South Hope Street, 27th Floor,

Los Angeles, Calif. 90071,

(213) 683-6500,

Attorneys for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

i

Questions Presented.

|. Whether an employer should be required to supply

unequivocal proof of actual loss of union majority

Status to establish a good faith doubt sufficient to

rebut the presumption of continuing union majority?

2. Whether the Ninth Circuit failed to exercise its func-

tion as a reviewing court by deferring to the National

Labor Relations Board’s elevation of stable bargain-

ing relationships over employee free choice, in

violation of public policy and the protected rights of

employees and employers under the National Labor

Relations Act?

Parties Appearing Before the Ninth Circuit Court of

Appeals.

Petitioner Sahara-Tahoe Corporation’ was the petitioner

before the Court of Appeals for the Ninth Circuit, and was

the respondent before the National Labor Relations Board.

Respondent National Labor Relations Board was the respon-

dent in the Court of Appeals. Respondent Hotel, Motel,

Restaurant Employees and Bartenders Union Local 86,

Hotel and Restaurant Employees and Bartenders Interna-

tional Union, AFL-CIO was an intervenor before the Court

of Appeals, and was the charging party before the National

Labor Relations Board.

'Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel, is a wholly

owned subsidiary of the Sahara-Nevada Corporation, which in turn is

a wholly owned subsidiary of the Del E. Webb Corporation. Del E.

Webb Corporation has the following subsidiaries (not wholly owned)

and affiliates:

Bell Plaza Shopping Centers, Inc.

Bullfrog Marina, Inc.

Del E. Webb Development Co.

Oak Brook Development Co.

Sun City Title Co.

Sunland Memorial Park, Inc.

Sun State Insulation Co., Inc.

Webb-Centrio

Webb-University-Truckee

Webb-University-Tucson

li

TABLE OF CONTENTS

Page

ee i

Parties Appearing Before the Ninth Circuit Court of

OOS Nad veh dod okay os Cae od xs vl e Ges i

IRIE Gs ds 5 dt hve nein ceo eastces soaps l

Rn ee ge ye a he eg 2

Statutory Provisions Involved .................... 2

sentomnemt of the Case... ww... ccc cece ce 3

Reasons for Granting the Writ.................... 7

I.

I ee a acy eek ls lw caren 7

II.

A Serious Conflict Exists Between the Ninth Circuit

and Other Federal Courts of Appeal ........... 11

A. Evidence Raising a Serious Question Concern-

ing Majority Status Will Support an

Employer’s Good Faith Doubt of Continued

Union Majority Status .................. 11

B. The Cumulative Effect of Objective Factors

Must Be Considered in Evaluating the

Employer’s Good Faith Doubt of Union Major-

MT Sales bles vice so xd boc oh ewee 14

tt eas buy acdva'r ee dp awe 19

Ill.

The Standard of Proof Required by the Ninth Circuit

Eliminates the Employer’s Good Faith Doubt as a

Basis for Refusal to Bargain ................. 19

A. The Requirement of Unequivocal Proof Ex-

ceeds Mere Objective Considerations or Rea-

NFS. 65 6 a6 ike eke ek ie kewedss 19

B. The Employer Is Generally Unable to Prove

Actual Loss of Majority ................. 21

ill

Page

IV.

The Ninth Circuit Failed to Perform Its Function as a

Reviewing Court in Permitting the Board to Sac-

rifice Employee Free Choice for the Sake of Bar-

gaining Stability in Violation of the Act........ 24

A. Employers Have an Independent Duty Under

the Act:to Refrain From Bargaining With a

Minority Representative ................. ya

B. The Election Process Is the Favored Method to

Effectuate Employee Free Choice ......... 27

SHUN So ice cic hice she fawn Chao ore ena 29

INDEX TO APPENDIX

Appendix. Opinion of the United States Court of Ap-

peals, for the Ninth Circuit ............. App. p. 1

Decision and Order of the National Labor Relations

Ee ores 4 Ae ek PON Is ee cadet 8

Decision of James S. Jenson, Administrative Law

Ne Ar nn hitas Cae Ser ea 12

SIE sx od ch ew iy ees Keo eee nes Kale eee 4]

iV

TABLE OF AUTHORITIES

Cases Page

Allied Industrial Workers Local 289 v. NLRB, 155 U.S.

App. D.C. 112, 476 F.2d 868 (1973) .................

Automated Business Systems v. NLRB, 497 F.2d 262

ef) ee id, 83,'24, 17, 21, 2,

Bellwood General Hospital Inc. v. NLRB, 627 F.2d 98

RONNIE Novax tas ves sakevssculahoacestsaaels 15, 16,

Brooks v. NLRB, 348 U.S. 96 (1954) ............ 7, 8,

Burns International Security Services, Inc. v. NLRB,

367 F.2d 945 (10th Cir. 1977) .............cccscecees.

Celanese Corp. of America, 95 NLRB 664 (1951) ....

SNE ARAMA RRRSDENAUS Gaba ES scabs UNSekneusravh 6S buaeunneans 8,

Dalewood Rehabilitation Hospital, Inc. v. NLRB, 566

Pew FT COREE BUTE cute sbicictsvensnasscocsces 17,

First National Maintenance Corp., 254 NLRB No. 28

eng ETO IT ED OE ea ARTE

ILGWU v. NLRB, 366 U.S. 731 (1961) ........... 21,

Ingress-Plastene, Inc. v. NLRB, 430 F.2d 542 (7th Cir.

WWW tathavins cinsddeindudavesetzenlesievs ae Se

J. Ray McDermott & Co., Inc. v. NLRB, 571 F.2d 850

(Sth Cir. 1978), cert. den. 439 U.S. 893 (1978) ....

Net saaAaamdneueeNEteunaaaNbasnenieasavhicsaneeceeoue 13, if,

SPR SSCVSEFC CRASS OCRAOSECAEASCH SADR OTHE S OO HO OOOO 6 O646N665'646008068 608088

Machinists Lodges 1746 and 743 v. NLRB, 416 F.2d

809 (D.C. Cir. 1969), cert. den. 896 U.S. 1058

RRR fein Bier ag ua eu eet 7 ua er: 12,

National Car Rental System v. NLRB, 594 F.2d 1203

NE NG I eee ALY concn enc aks cx caccccelnececwane

National Cash Register Co. v. NLRB, 494 F.2d 189

Pe OPE ba ncdas securssacncdsdudakace. 13, 14, 15,

19

28

15

Page

NLRB v. Alvin J. Bart and Co., Inc., 598 F.2d 1267

ote 15

NLRB v. Cards Hotels, Inc., 604 F.2d 605 (9th Cir.

gt SE 9

NLRB v. Dayton Motels, Inc., 474 F.2d 328 (6th Cir.

ia incneaswnarpsucecececccéusnceeceavess 8,14

NLRB v. Downtown Bakery Corp., 230 F.2d 921 (6th

a 22

NLRB v. Frick Co., 423 F.2d 1327 (3rd Cir.

SET ULM Maatanekthenepevydsedeuavectscvncacascesenes 9, 12

NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) .. 27

NLRB v. Iron Workers Local 103, 434 U.S. 335

a 25, 26

NLRB v. Laystrom Manufacturing Co., 359 F.2d 799

UD eicnncnnisevccnsccccssesecsecsecs 21, 22, 29

NLRB v. Nu-Southern Dyeing & Finishing, Inc., 444

F.2d 11 (4th Cir. 1971) 20.0... eee ee eee 15

NLRB v. Randle-Eastern Ambulance Service, Inc., 584

F.2d 720 (Sth Cir. 1978) ........000000000002.. 13, 15, 21

NLRB v. Sierra Development Co., 604 F.2d 606 (9th

UNE hvngvasacuedousdsccaccuncessacesepeivesscessscese 9

ET Aaidtasid dev nanscosiesnsvewnes 7, 8,9, 10, 11, 19

NLRB v. Tahoe Nugget, Inc., et al., 584 F.2d 293 (9th

Cir. 1978), cert. den. 442 U.S. 921 (1979), reh. den.

444 U.S. 887 (1979) ............000... 9, 17, 18, 20, 26

NLRB v. Vegas Vic, Inc. , 546 F.2d 828 (9th Cir. 1976),

cert. den. 434 U.S. 818 (1977) «0.00.00. 20

NLRB v. West Sand and Gravel Co., 612 F.2d 1326

PU Met BOD wen ccccccccccccccccccccccccccccccccccccecce 13

v1

Page

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35 (D.C.

NE ~ o

Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d

cata kuchadssseduesvescccdevecse 1S, ae

Royal Typewriter Co. v. NLRB, 533 F.2d 1030 (8th

Nee hics ic ocobundvensscvvesssece 12

Sahara-Tahoe Corp. v. NLRB, 581 F.2d 767 (9th Cir.

1978), cert. den. 442 U.S. 917 (1979), reh. den. 444

EE 9, 19

Sahara-Tahoe Corp. v. NLRB (9th Cir. 1980) __ F.2d

—, 90 CCH LC § 12,399, 105 LRRM 3421 ........ 9

Star Manufacturing Co. v. NLRB, 536 F.2d 1192 (7th

ee vuakveansakeriscncssecccceses 16, 19

Stoner Rubber Co., 123 NLRB 1440 (1959) ....... 8, 21

Telautograph Corp., 199 NLRB 892 (1972) ........... 16

Terrell Machine Co. v. NLRB, 427 F.2d 1088 (4th Cir. —

Ee 12

U.S. Gypsum Co., 157 NLRB No. 60 (1966) ........ 22

Upper Mississippi Towing Corp., 246 NLRB No. 41

Ne LG sadn reves devencccesenccess 9

Viking Lithographers, Inc., 184 NLRB 139 (1970) .. 15

W & W Steel Co. v. NLRB, 599 F.2d 934 (10th Cir.

I AEE ES 12, 14, 19

Dictionary

Webster’s New Collegiate Dictionary, G. & C. Merriam

Nec. lo incsacesdescescsoscces 20

Statutes

National Labor Relations Act, Sec. 7 ............... 25, 26

National Labor Relations Act, Sec. 8(a)(1) ........ 22, 26

National Labor Relations Act, Sec. 8(a)(2) ... 10, 22, 26

Page

National Labor Relations Act, Sec. 8(a)(5) ........ 10, 14

ee OE ED, BBD ain vanecssvcccecasccaccceoccees 6

Fo My OE NI, TOD iss cecrcxsdasncccdevsunessnvas 6

United States Code, Title 28, Sec. 1254(1) ............ 2

United States Code, Title 29, Sec. 15 et seq. ......... 6

United States Code, Title 29, Sec. 157 .........00...... 2

United States Code, Title 29, Sec. 158 ................. 2

United States Code, Title 29, Sec. 158(a)(1) .......... 6

United States Code, Title 29, Sec. 158(a)(3) .......... 2

United States Code, Title 29, Sec. 158(a)(5) .......... 6

United States Code, Title 29, Sec. 159 ................. 2

IN THE

Supreme Court of the United States

October Term, 1980

SAHARA-TAHOE CORPORATION,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD, and HOTEL, MOTEL,

RESTAURANT EMPLOYEES AND BARTENDERS UNION,

LOcAL 86, HOTEL AND RESTAURANT EMPLOYEES AND

BARTENDERS INTERNATIONAL UNION, AFL-CIO,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered on November

28, 1980 in Case No. 79-7152.

Opinions Below.

The opinion of the Court of Appeals for the Ninth Circuit

was entered on November 28, 1980. It is not officially

reported as of the date of this Petition. The Decision and

Order of the National Labor Relations Board is reported at

- 241 NLRB No. 12 and the decision of the Administrative

Law Judge is appended thereto. All of the aforementioned

decisions appear in the Appendix hereto.

oa, oa

Jurisdiction.

This petition for writ of certiorari is filed within ninety

days from November 28, 1980, the date judgment was

entered upon the Opinion of the Ninth Circuit Court of

Appeals. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. Section 1254(1).

Statutery Provisions Involved.

United States Code, Title 29.

$157 Rights of employees

Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choos-

ing, and to engage in other concerted activities for the

purpose of collective bargaining or otiier mutual aid

or protection, and shall also have the right to refrain

from any or all of such activities except to the extent

that such right may be affected by an agreement re-

quiring membership in a labor organization as a con-

dition of employment as authorized in section 158(a)(3)

of this title.

$158 Unfair labor practices

(a) It shall be an unfair labor practice for an

employer—

(1) To interfere with, restrain or coerce em-

ployees in the exercise of the rights guaranteed in

section 157 of this title;

(2) to dominate or interfere with the formation

or administration of any labor organization or con-

tribute financial or other support to it: . . .

(5) torefuse to bargain collectively with the rep-

resentatives of his employees, subject to the provi-

sions of section 159(a) of this title.

$159 Representatives and Elections

(a) Representatives designated or selected for the

purposes of collective bargaining by the majority of

the employees in a unit appropriate for such purposes,

shall be the exclusive representatives of all the em-

ployees in such unit for the purposes of collective

bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employ-

ment: ...

a ae

(c) (1) Whenever a petition shall have been filed,

in accordance with such regulations as may be pre-

scribed by the Board—

(A) by an employee or group of employees or

any individual or labor organization acting in their

behalf alleging that a substantial number of em-

ployees (i) wish to be represented for collective bar-

gaining and that their employer declines to recognize

their representative as the representative defined in

subsection (a) of this section, or (ii) assert that the

individual or labor organization, which has been

certified or is being currently recognized by their

employer as the bargaining representative, is no

longer a representative as defined in subsection (a)

of this section; .. .

the Board shall investigate such petition and if it has

reasonable cause to believe that a question of repre-

sentation affecting commerce exists shall provide for

an appropriate hearing upon due notice. Such hearing

may be conducted by an officer or employee of the

regional office, who shall not make any recommen-

dations with respect thereto. If the Board finds upon

the record of such hearing that such a question of rep-

resentation exists, it shall direct an election by secret

ballot and shall certify the results thereof.

(2) In determining whether or not a question of

representation affecting commerce exists, the same

regulations and rules of decision shall apply irre-

spective of the identity of the persons filing the

petition or the kind of relief sought. . .

Statement of the Case.

Prior to August 2, 1974, Sahara-Tahoe Corporation

d/b/a Sahara-Tahoe Hotel (hereafter ‘‘Hotel’’) was a mem-

ber of a multiemployer bargaining unit known as the Reno

Employer’s Council (hereafter *‘Council’’). On May 13,

1970, the Hotel, Motel, Restaurant Employees and Barten-

ders Union Loca! 86, Hotel and Restaurant Employees and

Bartenders International Union, AFL-CIO (hereafter

ae Se

‘‘Union’’) was certified as the collective bargaining rep-

resentative of all employees employed by the Hotel in its

hotel-service operations. Subsequent to 1970, the Hotel and

the Union entered into two collective bargaining agree-

ments, the first of which expired on November 30, 1973,

and the second of which expired on November 30, 1976.

The Council was the designated representative of the Hotel

and other member employers for the sole purpose of ne-

gotiating the collective bargaining agreements which were

then signed by the general manager of the Hotel. The Hotel

withdrew from the Council on August 2, 1974.

Throughout the terms of the two collective bargaining

agreements, the Union was largely inactive. During the first

term no Union representative was designated and there were

no grievances filed or other dealings between the Hotel and

the Union. During the second term, no Union representative

was designated until April, 1975; the Hotel increased wages

and added job classifications without notice to or response

from the Union; employees complained directly to Hotel

management with respect to changes in terms and conditions

of employment; only two written grievances were filed by

the Union, neither of which were ever arbitrated; hotel-

service unit employees crossed a picket line formed by the

Union between November 1974 and September 1975 to

protest the failure to reach a contract with respect to food

and beverage employees represented by the Union in a dif-

ferent bargaining unit. The turnover rate in the hotel service

unit was extremely high, averaging 300% per year in 1973,

1974 and 1975.

In June, 1974 Hotel representatives attended a meeting

of the Council at which they learned that the Union was

financially insolvent and might merge with Las Vegas lo-

cals; and that organizers from the Las Vegas Culinary Local

Union were coming into the area to solicit Union member-

ship. About that time a trusteeship was imposed on the

Union. Shortly thereafter a representative of the Union re-

—_ om

quested permission of Hotel management to solicit em-

ployees for Union membership or support on Hotel prem-

ises. The Union opened up an office in the area during the

summer of 1974 and, in subsequent months through early

1976, meetings and visits were held by the Union solely to

encourage employees to join and support the Union. The

Union’s office in the area was closed in June or July of

1976 without notice to the Hotel.

In late 1975, a unit employee inquired of Hotel manage-

ment if there was some way of ‘‘getting out from under”

the Union, and he was advised to contact the National Labor

Relations Board (hereafter ‘‘Board’’). In the fall of 1976

the employee prepared a petition to decertify the Union,

obtained the requisite number of signatures to necessitate

an election, and mailed the petition to the Board. The Board

sent a letter to the employee stating that no election could

be held since unfair labor practices had been filed by the

Union against the Hotel. The employee wrote to the Board

and resubmitted the petition, explaining that the dispute to

which the Board referred concerned a different bargaining

unit. The Board responded that the petition was now un-

timely and could not be refiled until after November 30,

1976. The employee apprised Hotel management of his

efforts to file the decertification petition; that he had con-

tacted 150 people (more than 50% of the unit) and none of

them wanted the Union and/or wanted to withdraw from it:

that many of the employees he spoke to were totally ignorant

of the fact that they were represented by a union.

On September 27, 1976, the Hotel received a letter from

the Union advising the Hotel of its desire to change and

modify the contract for the period following November 30,

1976. On September 28, 1976, the Hotel sent a letter to the

Union advising it of the Hotel's desire to *‘modify, amend

or terminate’’ the contract. The Hotel received no further

communication from the Union until November 29, 1976,

the day before the contract was to expire, when the Hotel

a Sm

received a letter from the Union along with its proposed

Agreement. By letter dated December 16, 1976, the Hotel

replied and expressed its doubt that the Union represented

a majority of any employees at the Hotel in an appropriate

bargaining unit, and declined to bargain.

Thereafter the Union filed an unfair labor practice charge

against the Hotel based upon the Hotel’s refusal to bargain

with the Union. In April 1977 the Regional Director, Region

20, issued a complaint thereupon against the Hotel. In Feb-

ruary 1978 the Administrative Law Judge (hereafter “‘ALJ’’)

determined that the Hotel had violated the National Labor

Relations Act [61 Stat. 136, 73 Stat. 519, 29 U.S.C. 815,

et seq., §§158(a)(1) and (5)] (hereafter ‘‘the Act’’) by re-

fusing to bargain. The ALJ’s finding was based upon a

presumption that the Union continued to represent a majority

of the Hotel’s employees in the hotel-service unit arising

from the certification electiun held more than six years ear-

lier and the subsequent collective bargaining agreements.

The ALJ, after a separate analysis of each objective con-

sideration, concluded that the Hotel had failed to show that

it had a reasonable doubt based upon objective consid-

erations that the Union did not enjoy majority support at the

time recognition was withdrawn.

The Board, in March 1979, issued its decision and order

affirming the decision of the ALJ, noting that ‘‘the employee

petition here is a slender thread which, by itself, is an

inadequate consideration to support a good faith doubt.’’

(Appendix, p. 8). In November 1980 the Ceart of Appeals

for the Ninth Circuit enforced the Board’s decision and order

holding that the Hotel had failed to meet the ‘‘good faith

reasonable doubt’’ rebuttal standard since ‘‘[t]he petitiot

relied upon by the employer did not, by itself or together

with the other evidence presented, unequivocally indicate

that the union support had declined to a minority.’’

(Appendix, p. 6).

sila Meike

REASONS FOR GRANTING THE WRIT.

I

Introduction.

This case presents a fundamental issue which is ripe for

review by this Court in order to guide the Board and Federal

courts in the application of the presumption of continuing

majority support for a once-certified union.

‘For many years, the Board has judged the legality

of an employer’s withdrawal of recognition from an

incumbent Union by making a case-by-case determi-

nation whether the employer’s asserted doubt as to the

Union’s majority status is in good faith and is supported

by substantial objective evidence.

The problem with this case-by-case approach is that

both the employer and the Union are subject to the

shifting views of the members of the Board and the

courts as to what evidence is sufficiently ‘objective’

and convincing to derionstrate a good faith doubt.”’

‘“. . . [A] clearcut, objective standaré governing the

conditions under which an employer will be permitted

to challenge a Union’s status would seem preferable

to the present procedures and standards which leave

both the Company and the Union in the dark as to when

a challenge can be made, often require years to resolve,

and run a substantial risk of frustrating actual employee

wishes simply because the Board is not satisfied with

the Company’s ability to identify and articulate the

reasons for its doubt about the Union’s suppor:.’’

Peoples Gas System, Inc. v. NLRB, 629 F.2d 35,

43-44 (D.C. Cir. 1980).

Accord, NLRB v. Silver Spur Casino, 623 F.2d 571, 581

(9th Cir. 1980), petition for certiorari filed No. 80-660

(October 11, 1980) (‘‘This issue involves an important and

difficult question which is of current national interest in the

labor relations field’’). In Brooks v. NLRB, 348 U.S. 96

(1954), this Court upheld the Board’s rule that the pre-

sumption of union majority is irrebuttable for the one-year

period following certification. The opinion by Justice Frank-

sceaillioeas

furter also cited with approval the Board rule, enunciated

in Celanese Corp. of America, 95 NLRB 664 (1951), ‘‘that

one year after certification the employer can ask for an

election or, if he has fair doubts about the union’ s continuing

majority, he may refuse to bargain further with it.’’ 348

U.S. at 104 (emphasis supplied). The Board and Courts of

Appeals have held that after such period an employer may

withdraw recognition from an incumbent union if it affir-

matively establishes that, at the time of the withdrawal,

either (1) the union no longer in fact enjoyed majority status,

or (2) the employer’s refusal to bargain was predicated on

a reasonably grounded doubt as to the union’s continued

majority status, asserted in good faith, based upon objective

considerations, and raised in a context free of employer

unfair labor practices. See, e.g., Stoner Rubber Co., 123

NLRB 1440 (1959); NLRB v. Dayton Motels, Inc., 474

F.2d 328 (6th Cir. 1973); Ingress-Plastene, Inc. v. NLRB,

430 F.2d 542, 546 (7th Cir. 1970).

The Board has utilized this and other presumptions os-

tensibly to further the policy of industrial peace which this

Court has recognized as an underlying purpose of the Act.

Brooks v. NLRB, supra. In so doing, however, the Board

has favored incumbent unions to the detriment of employee

free choice, the ultimate right which the Act seeks to protect.

The Ninth Circuit acknowledged its deference to the

Board’s utilization of these presumptions in NLRB v. Silver

Spur Casino, supra, 623 F.2d at 578. That court’s effort

to accommodate the Board’s policy determination has, in

several recent cases, including the case at bar, caused the

Ninth Circuit to enunciate a new standard of proof to be

applied to employers who refuse to bargain with an incum-

bent union based on a reasonable good faith doubt of union

ae

majority status.* This novel theory, which requires an em-

ployer to provide evidence which ‘‘unequivocally indicates

that the union no longer has the majority support of the

employees,’’ Sahara-Tahoe Corp. v. NLRB, supra,

(Appendix, p. 7), is a departure from the Board’s own

standard and conflicts with the standards applied by the

other circuit courts.

The standard which should be applied is not clear, as

evidenced by the multitude of interpretations given by the

various circuit courts and, in many cases, within the same

circuit. See, e.g., Peoples Gas System, Inc. v. NLRB, supra,

629 F.2d at 43-44. The confusion surrounding this issue is

not attributable to divergent fact situations, but rather to the

lack of a uniform standard which can be applied in an even-

handed manner. The confusion is heightened by the fact

that the Board and some courts have applied a less rigorous

standard of good faith doubt when facts concern an initial

duty to bargain rather than the withdrawal of recognition

from an incumbent union, or when the challenge to union

majority status comes from a rival union or the employees

themselves rather than the employer. See, e.g., Upper Mis-

sissippi Towing Corp., 246 NLRB No. 41 (1979); NLRB

v. Frick Co., 423 F.2d 1327 (3d Cir. 1970). The Hotel

submits that the Supreme Court must articulate the ‘‘clearcut

objective standard’’ which this issue requires, and extricate

it from the morass of conflicting theories and presumptions

which now obscure its clear resolution.

The Ninth Circuit has recognized both the fundamental

nature of this issue and the conflict which surrounds it.

“NLRB v. Tahoe Nugget, Inc., et al., 584 F.2d 293 (9th Cir. 1978),

cert. den. 442 U.S. 921 (1979), reh. den. 444 U.S. 887 (1979): Sahara-

Tahoe Corp. v. NLRB, 581 F.2d 767 (9th Cir. 1978), cert. den. 442

U.S. 917 (1979), reh. den. 444 U.S. 888 (1979); NLRB vy. Sierra

Development Co., 604 F.2d 606 (9th Cir. 1979); NLRB v. Cards Hotels,

Inc., 604 F.2d 605 (9th Cir. 1979); NLRB v. Silver Spur Casino, supra;

Sahara-Tahoe Corp. v. NLRB, (9th Cir. 1980) ___. F.2d ___, 90 CCH

LC 412,399, 105 LRRM 3421.

a

NLRB v. Silver Spur Casino, supra. It is the Hotel’s position

that the *‘unequivocal proof’’ standard applied by the Ninth

Circvit to the facts herein was improper and excessive, in

that it effectively requires actual proof of the union’s loss

of majority status to support the employer’s good faith

doubt, thereby eliminating reasonable doubt based upon

objective considerations as an alternative for the employer.

The court thus denies to this and other employers the ability

to establish to the Board’s satisfaction a good faith doubt

of the union’s majority, which is an integral component of

its obligation to refrain from recognizing and bargaining

with a minority representative as well as its defense to a

charge of violation of Section 8(a)(5). While Section 8(a)(5)

of the Act requires an employer to bargain in good faith

with the majority representative of its employees, it is

equally true that Section 8(a)(2) makes it an unfair labor

practice for an employer to bargain with or otherwise support

a minority union. The Ninth Circuit’s decision ignores the

employer’s statutory duty to refrain from bargaining with

a representative of less than a majority of its employees and

makes it impossible for the employer to fulfill its inde-

pendent responsibilities under the Act.

As the record below supports, the Hotel sustained its

burden of proof under the proper standard, namely that all

the factors presented by the Hotel were ‘‘objective, iden-

tifiable acts’’ which, taken together, and arising in a context

free from unfair labor practices by the Hotel, provided the

basis for a reasonable doubt of the Union’s majority status.

The Hotel contends that the Board and the Ninth Circuit,

in the instant case, (1) by the application of a presumption

of union majority support unjustifiable upon the record, (2)

together with the de facto elimination of reasonable good

faith doubt as a rebuttal standard available to the employer,

have forced a bargaining obligation in violation of the prin-

ciples and purposes of the Act. It is imperative that this

Court correct this abuse, resolve the conflict among the

ny eee

circuits, and restore the balance between stable bargaining

relationships and employee free choice which the Act was

intended to preserve.

Il.

A Serious Conflict Exists Between the Ninth Circuit and

Other Federal Courts of Appeal. |

The Ninth Circuit, in its opinion in NLRB v. Silver Spur

Casino, supra, recognized that the position taken by that

court is in conflict with the positions taken by other circuits:

‘“. . . [W]e recognize the force of [respondents’] con-

tention that the Board has accorded too much weight

to the presumption in these cases. This issue involves

an important and difficult question which is of current

national interest in the labor relations field. Respon-

dents cite cases in other circuits which may have found

the presumption rebutted upon similar or even weaker

evidence than was presented in these cases.’’ (Footnote

listing citations omitted). 623 F.2d at 581.

The Ninth Circuit’s application of the ‘‘unequivocal’’ proof

standard in its recent decisions is a departure from the stan-

dard applied in other circuits in two crucial respects: first,

it accords excessive weight to the Board-created presump-

tion of continued union majority support by requiring an

employer to produce evidence which ‘‘unequivocally”’

points to a loss of support for the union; and, second, it

eliminates a cumulative assessment of the employer’s evi-

dence by requiring that at least one factor point unequivo-

cally to a decline in majority status.

A. Evidence Raising a Serious Question Concerning Majority

Status Will Support an Employer’s Good Faith Doubt of

Continued Union Majority Status.

The Ninth Circuit is the only court which requires an

employer to come forward with evidence which ‘‘unequiv-

ocally indicates that employee support for the Union has

declined to a minority’’ in order to support a good faith

doubt of majority status of the union. In contrast, the other

=<

circuits which have dealt with this issue permit an employer

to refuse to bargain with an incumbent union based upon

knowledge of factors which raise a serious question con-

cerning union majority status. The Third Circuit requires

the employer to ‘‘come forward with evidence casting ‘se-

rious doubt on the union’s majority status’ . . . What is

required is a ‘rational basis in fact.’ ’’ NLRB v. Frick Co.,

supra, 423 F.2d at 1331 (3d Cir. 1970). The standard ar-

ticulated in Frick has been cited by the Seventh, Eighth and

Tenth Circuits as well. Jngress-Plastene, Inc. v. NLRB,

supra, 430 F.2d at 548 (7th Cir. 1970) (employer has the

burden ‘‘to come forward with evidence casting serious

doubt on the union’s majority status’’); Royal Typewriter

Co. v. NLRB, 533 F.2d 1030, 1037 (8th Cir. 1976) (em-

ployer’s evidence must have a ‘* ‘rational basis in fact’

which casts a ‘serious doubt’ upon the Union’s majority

status’’); W & W Steel Co. v. NLRB, 599 F.2d 934, 938

(10th Cir. 1979) (employer who doubts a union’s majority

‘“*must show a rational basis in fact for the doubt’’).

The Fourth, Sixth and D.C. Circuits have adopted a stand-

ard wherein the refusal to bargain may be predicated upon

a ‘‘reasonably grounded good faith doubt of majority sup-

port.’’ Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090

(4th Cir. 1970); Automated Business Systems v. NLRB, 497

F.2d 262, 269 (6th Cir. 1974) (‘‘ ‘an employer who has a

reasonable basis in fact to doubt an incumbent union’s ma-

jority status and who asserts that doubt in good faith may

refuse to recognize and bargain with the union’ ’’); Ma-

chinists Lodges 1746 and 743 v. NLRB, 416 F.2d 809, 812

(D.C. Cir. 1969), cert. den. 896 U.S. 1058 (1970) (the

presumption ‘‘becomes rebuttable upon a showing of ‘suf-

ficient evidence to cast serious doubt on the union’s con-

tinued majority status.’ . . . The pertinent standard, ‘serious

doubt,’ has two components: a reasonable basis in fact, and

good faith’’).

The First, Second and Fifth Circuits have adopted stan-

dards under which, ‘‘in order to establish a good faith doubt

the employer must present clear and convincing evidence

of loss of union support capable of raising a reasonable

doubt of the union’s continuing majority.’’ Retired Persons

Pharmacy v. NLRB, 519 F.2d 486, 489-490 (2d Cir. 1975):

NLRB vy. West Sand and Gravel Co., 612 F.2d 1326, 1328

(1st Cir. 1979) (presumption may be rebutted ‘‘with clear

and convincing evidence of lack of majority [or] with a

showing of an objectively based good faith doubt that the

union actually represented a majority of employees at the

time recognition was withdrawn’’); J. Ray McDermott &

Co., Inc. v. NLRB, 571 F.2d 850, 858-859 (Sth Cir. 1978),

cert. den. 439 U.S. 893 (1978) (presumption ‘“‘may be

overcome by ‘objective evidence proffered by an em-

ployer.’. . . there must be convincing evidence’’). The Fifth

Circuit also recognizes that ‘‘the employer need not con-

clusively demonstrate that a majority of his employees no

longer desire to be represented by the Union’’ to establish

a good faith doubt. NLRB v. Randle-Eastern Ambulance

Service, Inc., 584 F.2d 720, 728-729 (5th Cir. 1978).

The General Counsel has the ultimate burden of proof

with respect to the union’s majority status. See, e.g., Au-

tomated Business Systems v. NLRB, supra, 497 F.2d at 270.

Thus, courts dealing with this issue have uniformly held

that upon

‘‘the employer’s production of sufficient evidence to

cast serious doubt [upon the union’s majority] . . . the

presumption then loses its force and the General Coun-

sel must come forward with evidence that on the refusal

to bargain date the union in fact did represent a majority

of employees in the appropriate unit . . . or that the

refusal to bargain was not predicated upon a good faith

and reasonably grounded doubt of the union’s contin-

ued majority status.’’ National Cash Register Co. v.

NLRB, 494 F.2d 189 (8th Cir. 1974).

a)

Accord, Automated Business Systems v. NLRB, supra, 497

F.2d at 270 (‘‘once sufficient evidence has been presented

to cast a doubt on the continued majority status, the burden

shifts to the General Counsel ‘to prove that, on the critical

date, the union in fact represented a majority of the em-

ployees.’ [Machinists] Lodges 1764 and 743, supra, 416

F.2d at 812; Allied Industrial Workers Local 289 v. NLRB,

155 U.S. App. D.C. 112, 476 F.2d 868 (1973); NLRB v.

Frick Co., 423 F.2d 1327 (3d Cir. 1970)’’); W & W Steel

Co. v. NLRB, supra.’ Moreover, the Eighth and Tenth Cir-

cuits have specifically recognized that ‘‘[A] Board created

presumption does not rise to the level of ‘substantial evi-

dence.’ ’’ National Car Rental System v. NLRB, supra, 594

F.2d at 1207 (8th Cir. 1979); W & W Steel Co. v. NLRB,

supra, 599 F.2d at 939 (quoting National Car Rental System

v. NLRB); thus, if the employer produces evidence of a

good faith doubt, the presumption will not sustain the Gen-

eral Counsel’s burden of proof. National Cash Register Co.

v. NLRB, supra; Automated Business Systems v. NLRB,

supra.

B. The Cumulative Effect of Objective Factors Must Be Consid-

ered in Evaluating the Employer’s Good Faith Doubt of Union

Majority Status.

The vast majority of cases have required the employer

to present evidence of objective factors which, when viewed

together, support a serious doubt of majority status before

the presumption will be deemed rebutted. The Board, for

‘Decisions of the Sixth and Eighth Circuits have held that, because

the Board has the ultimate burden of proof to show actual union majority

status, an employer who has a reasonably grounded belief that the union

did not represent an uncoerced majority of its employees will not be

guilty of an 8(a)(5) violation even if the General Counsel is able to

prove that the union did in fact represent a majority of the employees

at the time the employer refused to bargain. NLRB v. Dayton Motels,

Inc., supra; National Car Rental System v. NLRB, 594 F.2d 1203 (‘8th

Cir. 1979) (despite the presumption, the good faith doubt of majority

status is a complete defense for the employer).

a

example, has in the past viewed the totality of factors relied

upon by the employer, including such apparently subjective

factors as the opinion of supervisors asked to ‘‘assess’’

union strength that the Union has lost its majority, in up-

holding a refusal to bargain. Lloyd McKee Motors, Inc.,

170 NLRB 1278 (1968); see also, Viking Lithographers,

Inc., 184 NLRB 139 (1970). On the other hand, courts have

admonished the Board that it must not ignore elements

which, standing alone, are insufficient to rebut the pre-

sumption but, when viewed in their totality, support an

employer's reasonable good faith belief. See, e.g., Bellwood

General Hospital Inc. v. NLRB, 627 F.2d 98 (7th Cir. 1980);

National Cash Register Co. v. NLRB, supra.

Several courts have held that the Board’s presumption of

continued union majority status must be examined in the

context of what actually took place, and will accord less

weight to the presumption depending upon the circum-

stances. NLRB vy. Alvin J. Bart and Co., Inc., 598 F.2d

1267 (2d Cir. 1979) (election won by only one vote makes

presumption ‘‘weak at best’’); NLRB v. Nu-Southern Dyeing

& Finishing, Inc., 444 F.2d 11 (4th Cir. 1971) (election

certifying union won by narrow margin combined with high

turnover and other factors, rebuts the presumption). Like-

wise, the Fifth Circuit refused to view in isolation the fact

that employees crossed picket lines, or that union mem-

bership had declined, and instead held that ‘‘resignation

after crossing the picket line in a fairly acrimonious strike’’

was evidence of lack of union support; the reasonable doubt

standard did not require conclusive proof. NLRB v. Randle-

Eastern Ambulance Service, Inc., supra, 584 F.2d at 728.

The Seventh Circuit, in considering the cumulative im-

pact of evidence presented by the employer, evaluated the

entire record, including evidence against the Board’s po-

sition as well as in favor of it, and concluded that the

employer had come forward with evidence casting serious

doubt on the union’s majority status. Jngress-Plastene, Inc.

—

—

v. NLRB, supra. In Star Manufacturing Co. v. NLRB, 536

F.2d 1192 (7th Cir. 1976), the court again assessed the

cumulative impact of factors relied on by an employer in

refusing to bargain, holding that,

‘“[TJo rebut that presumption [of continuing union

majority] the employer need not prove that the union

no longer represents a majority of the employees but

only that at the time it refused to bargain there were

sufficient objective considerations to support a reason-

able doubt of the union’s majority status.’ 536 F.2d

at 1196.

In a recent decision. the Seventh Circuit recognized that

subjective evidence and a lack of other unfair labor practices

committed by the employer may be used to bolster an em-

ployer’s claim of reasonable good faith doubt. Bellwood

General Hospital, Inc. v. NLRB, supra. The Eighth and

Tenth Circuits specifically adopted the approach taken by

the Seventh Circuit. National Cash Register Co. v. NLRB,

supra, 494 F.2d at 195 (8th Cir. 1974) (‘‘whether or not

any one of the above factors would itself support an objec-

tive good faith doubt, it is not true that all reasons collec-

tively would be insufficient,’’ citing Ingress-Plastene, Inc.

v. NLRB, supra); Burns International Security Services,

Inc. v. NLRB, 567 F.2d 945, 949 (10th Cir. 1977) (em-

ployer’s good faith doubt must be evaluated ‘* ‘in the light

of totality of all the circumstances involved in a particular

case,’ ’’ citing Celanese Corp. of America, supra, and

Ingress-Plastene, Inc. v. NLRB, supra).

Evidence of employee dissatisfaction with the union, and

particularly attempts to dissociate from the union, will nor-

mally be accorded great significance when relied upon by

the employer.* Thus the Fifth Circuit held that,

“The Eighth Circuit has adopted the position that a decertification

petition signed by thirty percent of its employees will, by itself, relieve

an employer of the duty to bargain pending the outcome of the decer-

tification election. National Cash Register Co. v. NLRB, supra. The

Board itself has held that a petition signed by thirty percent of bargaining

unit employees raises a ‘‘question concerning representation’? which

suspends the employer’s duty to bargain. Telautograph Corp., 199

NLRB 892 (1972).

=) =

‘The kind of ‘objective evidence’ ordinarily sufficient

to overcome a rebuttable presumption of majority sup-

port would be greater than fifty percent employee sup-

port for a decertification petition . . . or thirty percent

support for decertification with other indicia of non-

support.”’ J. Ray McDermott & Co., Inc. v. NLRB,

supra, 571 F.2d at 859 (Emphasis supplied).

Accord, Automated Business Systems v. NLRB, supra (the

filing of a decertification petition, together with information

that a majority of the employees supported the decertifi-

cation effort, was deemed sufficient evidence to support the

employer’s good faith doubt).

The Ninth Circuit purports to consider the cumulative

impact of factors relied upon by employers to support

reasonable good faith doubt:

‘‘After analyzing each [factor] individually, their com-

bined effect is considered. . . . The Board has con-

sistently held that no single equivocal factor is suffi-

cient to sustain the good faith doubt defense, but that

each will be accorded some weight when the total effect

of the evidence is assessed.’’ NLRB v. Tahoe Nugget,

Inc., supra, 584 F.2d at 305.

However, the decision in the instant case makes clear the

fact that the Ninth Circuit will not uphold the reasonable

doubt defense in the absence of a factor or factors which

‘‘unequivocally indicate[s] that the union no longer has the

majority support of the employees.’’ The Ninth Circuit’s

requirement that at least one factor relied on by the employer

point unequivocally to a decline in union support effectively

negates the cumulative impact of the evidence, since it pre-

cludes the possibility that the cumulative impact of the evi-

dence would be ‘‘unequivocal.’’ This standard conflicts

with earlier decisions in the Ninth Circuit; see, e.g., Dale-

wood Rehabilitation Hospital, Inc. v. NLRB, 566 F.2d 77

(9th Cir. 1977):

‘The courts require an assessment of the cumulative

force of the combination of factors. Royal Typewriter

Company v. N.L.R.B., 533 F.2d 1030 (8th Cir. 1976):

—

Ingress-Plastene, Inc. v. N.L.R.B., 430 F.2d 542 (7th

Cir. 1970). Even when each factor considered alone

is insufficient for a good faith doubt of majority status,

the combination may be adequate. National Cash Reg-

ister Company v. N.L.R.B., 494 F.2d 189, 195 (8th

Cir. 1974).’’ 566 F.2d at 80.

An examination of the Ninth Circuit’s decision in the

instant case reveals that the court dismissed the bulk of the

Hotel’s evidence without discussing it and without following

the procedure which the court outlined for itself in either

NLRB v. Tahoe Nugget, Inc., supra, or Dalewood Rehab.

Hospital, Inc. v. NLRB, supra, relying instead on its de-

cisions upholding the Board in the prior ‘‘casino cases’”®

in which allegedly similar evidence was presented. The

court then analyzes the additional evidence which the Hotel

relied on, namely, the fact that bargaining unit employees

failed to honor a picket line of a separate unit of employees

within the same Union; the twice-frustrated attempt by Hotel

employee Wolchow to file a decertification petition signed

by more than thirty percent of employees in the bargaining

unit; and information that over half the bargaining unit

members were in favor of the petition. The Court discounted

these objective considerations, citing the Board’s view that,

‘* “. . . the employee petition here is a slender thread

which, by itself, is an inadequate consideration to sup-

port a good faith doubt. . . . in absence [sic] of other

probative evidence to support a doubt of majority.” *’

Appendix, p. 6.

Thus, while the most recent Ninth Circuit cases claim to

consider the cumulative impact of factors relied upon by the

employer, the court continued to examine factors individ-

ually to determine if any of them unequivocally indicated

a decline in union support; these factors were accorded only

minimal weight when ‘‘none of these factors pointed un-

*See cases cited at note 2, supra.

=

equivocally to a decline in Union support among petitioner’ s

employees.’’ Sahara-Tahoe Corp. v. NLRB, supra, 58|

F.2d at 771.

C. Conclusion.

In light of the obvious conflict between the Ninth Circuit

and the other circuits mentioned over the proper rebuttal

standard to be applied to an employer's evidence in support

of its good faith doubt of an incumbent union’s majority

status, this Court should resolve the conflict by articulating

a uniform and objective standard. The need for uniformity

is even more compelling in view of the Ninth Circuit’s own

admission that the decisions in W & W Steel Co. v. NLRB,

supra, Ingress-Plastene, Inc. v. NLRB, supra, and Star

Manufacturing Co. v. NLRB, supra, ‘‘present factual sit-

uations in which other circuits may have found the pre-

sumption of majority support rebutted upon similar or

weaker evidence than presented in these cases.’” NLRB y.

Silver Spur Casino, supra, 623 F.2d at 581, fn 9. In defining

the proper standard, this Court should balance the competing

policies under the Act in order to eliminate the confusion

over how much weight should be accorded to the presump-

tion of continued majority status. These issues present re-

curring problems in the administration of the Act, the res-

olution of which should not be dependent upon the location

of the circuit in which the problem arises.

The Standard of Proof Required by the Ninth Circuit

Eliminates the Employer’s Good Faith Doubt as a

Basis for Refusal to Bargain.

A. The Requirement of Unequivocal Proof Exceeds Mere Objec-

tive Considerations or Reasonableness.

The Ninth Circuit has said that the presumption of union

majority support is rebutted,

. if the employer 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 support at the time of the refusal.’” NLRB

v. Tahoe Nugget, Inc., supra, 584 F.2d at 297 (citing

NLRB v. Vegas Vic, Inc., 546 F.2d 828 (9th Cir. 1976),

cert. den. 434 U.S. 818 (1977)).

In Tahoe Nugget and subsequent cases, however, the Ninth

Circuit has imposed the additional requirement that at least

one factor be ‘“‘clearly referable to a decline in union sup-

port.”’ /d., at 305. Thus, while the court in the case at bar

claims to be considering the Hotel’s evidence ‘‘standing

alone or cumulatively,’’ the ultimate basis for upholding

the Board’s conclusion was that none of the evidence

“‘uniquivocally indicates that the union no longer has the

majority support of the employees.’’ Appendix, p. 7.

This is clearly not a case where the Ninth Circuit has

simply endorsed the application of a well-established Board

rule to particular facts; rather, the court has evaluated the

Board’s decision based on a newly-articulated rule, the

scope of which far exceeds the criteria of ‘‘objective con-

siderations’’ or ‘‘reasonableness’’ which the Board itself

ostensibly applied to the Hotel’s evidentiary showing. The

term ‘‘unequivocal’’ is defined in Webster’ s New Collegiate

Dictionary, G. & C. Merriam Co. (1976) as ‘‘leaving no

doubt.’’ The requirement imposed by the Ninth Circuit is

that, in order to support the employer’s good faith doubt,

the evidence must “‘leave no doubt’’; the only evidence

which would *‘leave no doubt’’ of the union’s lack of ma-

jority support would be actual proof beyond a reasonable

doubt of such loss. Thus, the Ninth Circuit has clearly

eliminated good faith doubt as a defense for the employer,

since actual proof would be required in any event.°

“The Board likewise applied an erroneous standard in this case, as

is evidenced by the fact that the Board concluded the evidence presented

by the Hotel was not entitled to substantial weight ‘‘in the absence of

other probative evidence to support a doubt of majority.’’ Appendix,

p. 8. It is clear that the Board required evidence which was probative

with respect to actual majority status, rather than objective consid-

erations which would reasonably give rise to a doubt of union majority

status. By confusing the two standards whereby an employer can justify

refusal to bargain, the Board has negated the effect of an employer's

good faith reasonable doubt of the union’s majority status by requiring

the employer to supply actual proof to support the good faith doubt.

a, |

B. The Employer Is Generally Unable to Prove Actual Loss of

Majority.

This Court has held that an employer who recognizes and

bargains with a union which does not represent a majority

of the bargaining unit employees, ‘‘thereby impressing that

agent upon the nonconsenting majority’’ abridges the Sec-

tion 7 rights of its employees. JLGWU v. NLRB, 366 U.S.

731, at 737 (1961). Furthermore, Section 8(a)(2) of the Act

makes it an unfair labor practice for an employer to ‘‘sup-

port’’ any labor organization, thereby prohibiting an em-

ployer from granting exclusive recognition to a union which

has only minority support. JLGWU v. NLRB, supra; First

National Maintenance Corp., 254 NLRB No. 28 (1981)

(unlawful for an employer to execute a collective bargaining

agreement if parties know that the union is not the majority

representative). Thus, it is critical to the administration of

the Act that an employer be able to rebut the presumption

of continuing union majority in order to fulfill its inde-

pendent duty under the Act to refrain from bargaining with

or otherwise contributing support to a minority union. The

origin of the good faith doubt defense as one means of

rebutting the presumption of continued union majority status

was a recognition by the Board and courts that ‘‘an employer

can hardly prove that a union no longer represents a majority

since he does not have access to the union’s membership

lists and direct interrogation of employees would probably

be unlawful as well as of dubious validity.’’ Stoner Rubber

Co., supra, quoted in Automated Business Systems v. NLRB,

supra, 497 F.2d at 270; NLRB v. Randle-Eastern Ambulance

Service, Inc., supra. Moreover, the union is itself in a far

better position to prove its majority status than is the em-

ployer; the burden of proof of a fact of this type should rest

with the person or party with the competence to prove the

fact, which in this case is the union. See, Automated Busi-

ness Systems v. NLRB, supra; NLRB v. Laystrom Manu-

—-:,

facturing Co., 359 F.2d 799 (7th Cir. 1966); NLRB vy.

Downtown Bakery Corp., 330 F.2d 921 (6th Cir. 1964).

Despite the practical impossibility of an employer estab-

lishing actual loss of majority support short of an election

or an employee poll, this is exactly what the Ninth Circuit

requires the employer to show under its ‘‘unequivocal

proof’’ standard. The employer who has refused to bargain

based on a reasonable doubt of the union’s majority, when

faced with the dilemma of supplying ‘‘unequivocal proof”’

to support the reasonable doubt, has the option of (1) polling

employees to determine their support for the union, a pro-

cedure which courts have deemed to be ‘‘too coércive,”’

Retired Persons Pharmacy v. NLRB, supra, 519 F.2d at

491; (2) petitioning the Board for an election, the holding

of which would be blocked by the union filing unfair labor

practice charges based on the refusal to bargain (thus ren-

dering the filing of the election petition a futile act); or (3)

presenting the objective factors upon which the good faith

doubt is predicated, knowing that the Ninth Circuit will

dismiss the evidence as ‘‘insubstantial.’’’ Since the court

has never indicated or suggested what type of evidence other

than actual proof would ‘‘point unequivocally’’ to a loss of

union majority, employers are left without guidance as to

how the reasonable good faith doubt defense can be satis-

"A fourth alternative would be for the employer to continue to rec-

ognize and bargain with the union while petitioning the Board for an

election. Under those circunistances, the Board still requires that the

employer, ‘‘in addition to showing the union’s claim for continued

recognition, must demonstrate by objective considerations that it has

some reasonable grounds for believing that the union has lost its majority

Status since its certification.’’ U.S. Gypsum Co., 157 NLRB No. 60

(1966). Thus, by applying the same standard of proof to a request for

election as a refusal to bargain, the Board renders the distinction mean-

ingless; given the statutory duty of an employer to refrain from bar-

gaining with a minority union, an employer with evidence sufficient by

Board standards to request an election would be compelled to cease

bargaining in order to avoid possible violations of Section 8(a)(1) and

8(a)(2) of the Act.

—< -

fied, particularly given the virtual impossibility of proving

actual loss of majority.

The problem is exemplified by the court’s statement at

the end of its decision in this case that,

‘*. . . by this decision, we do not imply that a petition

which unambiguously indicated a desire not to be rep-

resented by the union and was signed by a substantial

number of employees could not be considered by an

employer in arriving at its good faith doubt, if that

petition had not been filed with the Board.’’ Appendix,

p. 6.

Earlier in this decision, the court had deemed the employee

petition an ‘‘insubstantial factor,’’ inter alia, because it was

signed by ‘‘barely 30 percent of the unit.’’ Yet, in discussing

decertification petitions, the court also stated that:

‘*The Board has determined that a ‘substantial number

of employees’ shall mean at least 30% of the employees

within the bargaining unit. 29 CFR §101.18(a). This

30% showing can be made by the submission of a

petition containing the signatures of at least 30% of the

employees.’’ Appendix, pp. 3-4.

Thus the court said that (1) the employer can consider a

petition signed by a ‘substantial number’’ of unit employees

as a factor supporting good faith doubt; (2) a ‘‘substantial

number’’ of employees has been defined as thirty percent

by the Board, yet; (3) notwithstanding the above, the Hotel

in this case was not allowed to rely on a petition signed by

thirty percent of the unit employees, because ‘‘the petition

relied on by the employer did not, by itself or together with

the other evidence presented, unequivocally indicate that

the union support had declined to a minority.’’ (emphasis

supplied).

It is clear from the foregoing that the Ninth Circuit has

promulgated a standard which precludes the employer from

ever rebutting the presumption of union majority status by

making inaccessible the evidence which would constitute

‘unequivocal’ proof of employee lack of support for the

"a

union. Such inequity and confusion must not be allowed to

continue by this Court: a clearly articulated and evenhanded

rule would further the ultimate goal of industrial peace by

supplying employers with a standard against which their

reasonable good faith doubt can be objectively and

uniformly measured.

IV

The Ninth Circuit Failed to Perform Its Function as

a Reviewing Court in Permitting the Board to

Sacrifice Employee Free Choice for the Sake of

Bargaining Stability in Violation of the Act.

The purpose of the presumption of continued majority

support of a certified incumbent union is to deter frivolous

challenges to union majority status which would undermine

the right of employees to choose a bargaining representative.

Automated Business Systems v. NLRB, supra, 497 F.2d at

270. This Court has recognized, however, that at some point

the presumption of majority support might cease to reflect

the preferences of employees, and so noted that once the

initial certification year has passed, an employer who

‘*. . . has fair doubts about the union’s continuing majority,

. . . May refuse to bargain further with it.’’ Brooks v. NLRB,

supra, 348 U.S. at 104. Thus this Court has affirmed that

the ultimate purpose of the Act, industrial peace, can only

be furthered by insuring that the bargaining representative

of employees continues to represent a majority of those unit

employees. The Ninth Circuit, on the other hand, has ar-

ticulated a new standard of rebuttal for employers attempting

to justify refusal to bargain on the basis of a reasonable

doubt defense which is impossible for employers to meet

and thereby enshrines the incumbent union. Where the court

allows the Board to apply the presumption of continuing

majority support together with a rebuttal standard which

precludes rebuttal, the court sanctions the Board’s abuse of

that discretion owed its administrative expertise and permits

a, |

the Board to engage in substantive lawmaking beyond its

authority and also of a nature clearly contrary to the leg-

islative directive contained in Section 7 of the Act.

A. Employers Have an Independent Duty Under the Act to Refrain

From Bargaining With a Minority Representative.

A fundamental right guaranteed by the Act is the Section

7 right of employees ‘‘. . . to bargain collectively through

representatives of their own choosing . . . [or] to refrain

[from such bargaining] . . .’” This Court expressed its con-

cern for the principles of free choice and majority rule in

the employee selection of bargaining representatives in its

opinion in NLRB vy. Iron Workers Local 103, 434 U.S. 335

(1978), as follows:

‘* “There could be no clearer abridgement of §7 of the

Act, assuring employees the right ‘to bargain collec-

tively through representatives of their own choosing’

or ‘to refrain from’ such activity’ than to grant ‘exclu-

sive bargaining status to an agency selected by a mi-

nority of its employees, thereby impressing that agent

upon the nonconsenting majority.” Garment Workers

v. NLRB, 366 U.S. 731, 737, 6 L.Ed.2d 762, 81 S.Ct.

1603 (1961). This is true even though the employer

and the union believe in good faith, but mistakenly,

that the union has obtained majority support. ‘To coun-

tenance such an excuse would place in permissib!y

careless employer and union hands the power to com-

pletely frustrate employee realization of the premise

of the Act—that its prohibitions will go far to assure

freedom of choice and majerity rule in employee se-

lection of representatives.’ Id., at 738-739, 6 L.Ed.2d

762, 81 S.Ct. 1603.’ 434 U.S. at 344. (Emphasis

supplied).

This Court’s construction of the federal labor statutes is

clear. To permit a minority of employees to become the

exclusive representative of all employees would not comport

with the freedom of choice granted to employees under the

Act to select a majority representative. Congress and this

Court have thus given to employers a responsibility to insure

= =

that they do not bargain with representatives of less than

a majority of their employees.

The Ninth Circuit’s decision, on the other hand, refuses

to recognize the employer’s independent responsibility in

this regard:

‘“*[A]s we stated before, ‘[I]n refusing to bargain be-

cause of an alleged decline in union adherents, the

employer is acting as vicarious champion of its em-

ployees, a role no one has asked it to assume.’ NLRB

v. Tahoe Nugget, 584 F.2d at 301.’’ Appendix, p. 7.

The Ninth Circuit’s position is thus in direct conflict with

this Court’s holdings in JLGWU v. NLRB, supra, and NLRB

v. Iron Workers Local 103, supra, that an employer who

recognizes and bargains with a minority union violates Sec-

tions 8(a)(1) and (2). The Ninth Circuit’s standard for re-

butting the presumption elevates bargaining stability over

employee freedom of choice in a manner contrary to stat-

utory intent: it assumes that representation by an incumbent

union, even if that union no longer represents a majority

of the employees, is preferable to no union representation,

thus eviscerating the provision in Section 7 which guarantees

an employee’s right to refrain from bargaining activities,

and it ignores the statutory proscription against an employer

bargaining with a union that does not represent a majority

of the unit employees.* To allow ‘‘minority rule’’ under

these conditions, in the face of an employer’s doubt of

majority status supported by objective considerations, would

not further bargaining stability or industrial peace.

*The Ninth Circuit has held that the balance between bargaining

stability and free choice is weighed differently when the employer is

asserting the rights of its employees. NLRB v. Tahoe Nugget, Inc.,

supra, 584 F.2d at 302, fn. 31. The court would accord the presumption

less weight in instances where employees are challenging the status of

the union. Thus the Ninth Circuit, in deference to policy decisions of

the Board, will uphold a presumption in the face of an employer's

objective considerations which it would deem rebutted by the same

evidence if offered by employees or a rival union, thereby placing an

inequitable and unfair burden on the employer.

a_i

=;

B. The Election Process Is the Favored Method to Effectuate

Employee Free Choice.

The federal labor statutes make the secret ballot election

the primary mechanism to maintain the critical tension be-

tween the often antithetical goals of democratic majoritar-

ianism in employee selection of bargaining representatives

on the one hand, and stability in bargaining relationships

on the other. These goals are, of course, not strictly anti-

thetical since industrial stability flows from the exercise of

employee choice. Where a bargaining agent is imposed on

employees against their will, the consequent dissatisfaction

of employees will be expressed in ways which undermine

industrial stability. As this Court noted, in NLRB v. Gissel

Packing Co., 395 U.S. 575 (1969):

‘*The Board itself has recognized and continues to do

so here, that secret elections are generally the most

satisfactory—indeed the preferred—method of ascer-

taining whether a union has majority support.’’ /d., at

602.

When, as in the case at bar, the employer has refused to

bargain with an incumbent union based upon a good faith

doubt supported by objective factors from which the union’s

lack of majority status may reasonably be inferred, the union

should be required to come forth with actual proof that it

retains the support of a majority of the unit employees by

agreeing to a Board-conducted election. See, Automated

Business Systems v. NLRB, supra. The Board’s routine uti-

lization of the presumption of continuing majority support,

together with the imposition of a calculatedly unmeetable

rebuttal standard upon employers, results in the frequent

insulation of incumbent unions from any duty to demonstrate

continued majority support. The Ninth Circuit’s deferral to

this practice of the Board, which seriously frustrates the

purposes of the Act and endangers peaceful labor relations,

makes it imperative for this Court to rule on this aspect of

the Board’s administration of the Act.

A, a

The Hotel’s belief that the Union had lost its majority

status among these unit employees was buttressed by its

knowledge that Wolchow had twice attempted to file a de-

certification petition with the Board, together with Wol-

chow’s statements that a majority of the employees sup-

ported decertification. Great significance should be accorded

to employee efforts to dissociate from the Union, particu-

larly when, as here, they were accompanied by other factors

indicating non-support. J. Ray McDermott & Co., Inc. v.

NLRB, supra. In addition, the filing of this petition was

thwarted by the Board’s own actions in applying its pro-

cedural rules, which served only to confuse and discourage

the employee decertification effort. Moreover, for the Hotel

to have requested an election to resolve the disputed status

of the union would have been a futile gesture, given the

practices of the Board. Had the Hotel filed an election pe-

tition following its refusal to bargain, the unfair labor prac-

tice charge filed by the Union would have blocked the elec-

tion, causing the Board to dismiss the Hotel’s petition. This

places an employer with evidence to support a good faith

doubt of majority union support in an intolerable position.’

Given the futility of an employer’s election request, it

should be up to the union, rather than the employer, to

request an election and resolve the issue of its majority

status. Indeed, a union confident of its majority status would

logically welcome the opportunity to prove its majority and

avoid years of uncertainty and costly litigation. In fact, a

union’s refusal to demonstrate its continuing majority

through an expeditious election, and an insistent reliance

***On one hand, the evidence might not be held to amount to adequate

support for a good faith doubt; on the other hand, it might be an unfair

labor practice for the employer to bargain with a minority union in light

of the cumulative evidence indicating a loss of the Union’s majority

status, and yet it might also be an unfair labor practice for the employer

te interview the employees regarding their preferences. We refuse, on

the present record, to place this burden on the [employer]}.’’ Bellwood

General Hospital, Inc. v. NLRB, supra, 627 F.2d at 104.

= a

upon the presumptions obtaining in the much more pro-

tracted unfair labor practice proceedings, merit a suspicion

that the union is not confident of its majority support and

thus would be unable to come forward with evidence to

prove its majority status. As the court stated in NLRB v.

Laystrom Mfg. Co., supra:

‘‘Good faith is not a one-way street. The union’s re-

fusal, when challenged, to submit the issue to an elec-

tion where each employee would be permitted in se-

crecy to make his choice, leads to the inescapable

inference that it, too, was doubtful and fearful of the

result. As the Trial Examiner stated:

‘and it is equally reasonable to speculate that a union

may prefer to let the Board handle its hot chestnuts

with tongs of technicalities instead of going to an

election. A suspicion is not alien in the setting de-

scribed above that perhaps the union doubts that it

could win an election today.’ ”’

359 F.2d at 801.

This suspicion is particularly warranted under the facts of

the instant case, in which the General Counsel has relied

exclusively on the Board-created presumption of majority

support rather than come forward with proof of the Union’s

majority and where the record reveals a multitude of factors

indicating that the Union lacks the support of a majority of

the Hotel’s employees.

Conclusion.

The decision of the Ninth Circuit in this case promulgates

a new burden of proof which (1) requires an employer to

shw unequivocally that a union does not represent a ma-

jority of its employees, (2) protects established bargaining

representatives at the expense of employee freedom of

choice and majority rule, thus raising a question of excep-

tional importance concerning the proper administration of

the Act, and (3) conflicts with the law as applied in other

circuits, thereby requiring the intervention of this Court to

articulate a uniform rule.

pan ae

For all the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Ninth

Circuit.

Dated: February 25, 1981.

Respectfully submitted,

PARKER, MILLIKEN, CLARK

& O’HARA,

ANTHONY T. OLIVER, JR.,

WILLIAM H. EMER,

LINDA S. KLIBANOW,

CATHERINE B. FRINK,

By WILLIAM H. EMER,

Attorneys for Petitioner,

Sahara-Tahoe Corporation.

a

APPENDIX.

Opinion.

In the United States Court of Appeals, for the Ninth

Circuit.

Sahara-Tahoe Corporation, Petitioner, v. National Labor

Relations Board, Respondent and Hotel, Motel, Restaurant

Employees and Bartenders Union Local 86, Hotel and

Restaurant Employees and Bartenders International Union,

AFL-CIO, Intervenor. No. 79-7152.

Filed: Nov. 28, 1980.

On Petition for Review and Cross Application for En-

forcement of an Order of the National Labor Relations Board

Argued and submitted June 12, 1980.

Before: ANDERSON, FERGUSON and NELSON, Circuit

Judges. J. BLAINE ANDERSON, Circuit Judge:

The National Labor Relations Board (Board) found that

Petitioner, Sahara-Tahoe Corporation, had committed unfair

labor practices under 29 U.S.C. § 158(a)(5) and (1) by

withdrawing recognition and refusing to bargain with the

Union. Petitioner argues that its actions were justified be-

cause it had a good faith reasonable doubt that the Union

represented a majority of the employees in the bargaining

unit.

After a thorough evaluation of the record on appeal, we

have determined that the Board’s decision is supported by

substantial evidence and we therefore enforce its order.

DISCUSSION

Refusal to bargain

Where an employer has been charged with a violation of

29 U.S.C. § 158(a)(5), refusal to bargain, the General Coun-

sel 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

Sax, Saas

F.2d 293 (9th Cir.), cert. denied, 442 U.S. 921, 61 L.Ed.2d

290, 99 S.Ct. 2847 (1979). In its attempt to meet this burden

of proof, the General Counsel is assisted by a presumption

of majority union support. ‘‘For a reasonable time, usually

one year, after certification or voluntary recognition, ma-

jority support is irrebuttably presumed absent ‘unusual cir-

cumstances.’ After one year, the presumption becomes re-

buttable.’’ Jd. at 297. Where sufficient proof to rebut the

presumption is not presented by the employer, the pre-

sumption carries the General Counsel’s burden of proof

regarding the union’s majority status. /d.

To rebut the presumption, an employer may show that

it had a good faith reasonable doubt of the union’s majority

support at the time it refused to bargain. NLRB v. Silver

Spur Casino, 623 F.2d 571, 577 (9th Cir. 1980). ‘‘If the

presumption is deemed rebutted, then the General Counsel

must come forward with evidence to satisfy its burden of

proof regarding the union’s majority status. National Cash

Register Co. v. NLRB, 494 F.2d 189 (8th Cir. 1974).”” Id.

at 577. ‘‘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 decision will be

upheld if it is supported by substantial evidence on the

record as a whole.’’ /d. at 579, citing Sahara-Tahoe Corp.

v. NLRB, 581 F.2d 767, 771 (9th Cir.), cert. denied, 442

U.S. 917, 71 L.Ed.2d 284, 99 S.Ct. 2837 (1979).

In the prior ‘‘casino cases,’’' some evidence was pre-

sented of employee discontent with the union, high e.n-

ployee turnover, low union membership, financial difficul-

ties of the union, and a vigorous union membership drive.

‘See, NLRB v. Tahoe Nugget; Sahara-Tahoe Corporation v. NLRB;

NLRB v. Sierra Development Co., 604 F.2d 606 (9th Cir. 1979); NLRB

v. Carda Hotels, 604 F.2d 605 (9th Cir. 1979); NLRB v. Silver Spur

Casino,

—_

——

=

However, we concurred with the Board’s decision that the

evidence, standing alone or cumulatively, presented only

an ambiguous inference that the union had lost its majority

support.

While Sahara-Tahoe presented similar evidence of em-

ployee discontent, high employee turnover, low union mem-

bership, financial difficulties of the union, and a vigorous

union membership drive, Sahara-Tahoe argues that its ad-

ditional evidence was sufficient to establish its good faith

reasonable doubt. Sahara-Tahoe also presented evidence

that bargaining unit members failed to honor a picket line

of a separate unit of employees within the same union. The

Board, however, deemed the crossing of the picket line to

be only marginally relevant as the employer had not shown

that the picket line had been instituted to create a work

stoppage. The record supports the Board’s conclusion.

More significantly, however, Saraha-Tahoe additionally

showed that a petition which was captioned ‘Employees

. . who do not want to belong to any culinary union,”’

was signed by more than 30% of the employees in the

bargaining unit. Though the petition had not been accepted

for filing by the Board, Sahara-Tahoe was aware of the

existence of the petition prior to its refusal to bargain.

Petitions for Decertification

Employees may seek to decertify their bargaining rep-

resentative by filing a petition with the Board alleging that

a substantial number of employees assert that the union is

no longer the representative of a majority of the employees

within the unit. 29 U.S.C. § 159(c)(1)(A)(ii). The Board

has determined that a ‘‘substantial number of employees”’

shall mean at least 30% of the employees within the bar-

gaining unit. 29 CFR § 101.18(a). This 30% showing can

paae a

be made by the submission of a petition containing the

signatures of at least 30% of the employees.

In Telautograph Corporation, 199 NLRB 892 (1972),

the Board stated that where a decertification petition is

timely filed by employees and there is no evidence of unfair

labor practices that may have induced a decline in uniow

support, the employer must discontinue bargaining with the

incumbent union until the question of representation has

been settled by the Board.’ Thus, the filing of a decertifi-

cation petition with the requisite 30% showing alone might

justify an employer’s refusal to bargain with the union.

National Cash Register Co. v. NLRB, 494 F.2d 189 (8th

Cir. 1974); but see, Allied Industrial Workers, AFL-CIO

Local Union No. 289 v. NLRB, 476 F.2d 868, 881 (D.C.

Cir. 1973).* In any event, evidence of a 30% support for

decertification with other indicia of nonsupport for the union

can establish an employer’s good faith reasonable doubt of

the union’s majority status and justify its refusal to bargain.

J. Ray McDermott & Co., Inc. v. NLRB, 571 F.2d 850,

859 (Sth Cir.), cert. denied, 439 U.S. 893, 58 L.Ed.2d 238,

99 S.Ct. 250 (1978); National Cash Register Co. v. NLRB,

494 F.2d at 194; see also, Pioneer Inn Associates v. NLRB,

578 F.2d 835, 840 (9th Cir. 1978), and NLRB v. Tahoe

Nugget, Inc., 584 F.2d at 305.

In the present situation, an employee in the bargaining

unit, Wolchow, attempted to file a decertification petition

"But see, Lammert Industries, 229 NLRB 895 (1977), where two

members of the Board disavowed the statement in Telautograph Cor-

poration that the filing of a decertification petition suspends an em-

ployer’s bargaining obligation; two members felt that statement was still

valid and the last member of the Board felt that it was unnecessary to

rule on the continuing vitality of Te/autograph Corporation at that time.

‘However, it should be noted that A/lied made no mention of Telau-

tograph Corporation in deciding that a petition with only a 30% showing

of support is an insufficient basis for refusing to bargain.

a,

with the Board. The petition, however, was rejected. The

letter Wolchow received from the Board stated that an elec-

tion could not be held in the unit because unfair labor prac-

tice charges concerning that unit were pending before the

Board. However, the unit that the Board’s letter referred

to was a different unit than which Wolchow’s petition con-

cerned. Wolchow explained the situation in a subsequent

letter to the Board. But the Board then informed Wolchow

that the petition was time barred until after the expiration

of the contract on November 30, 1976.* Wolchow did not

attempt to refile the petition after the expiration of the con-

tract period.

There is no claim by Sahara-Tahoe that the petition should

now be considered to have been filed when it was originally

submitted by Wolchow. Thus Sahara-Tahoe does not con-

tend that there was a timely filing of the petition such that

under Telautograph Corporation it would have been justi-

fied in refusing to bargain with the union. Rather, Sahara-

Tahoe contends that even though the petition was not ac-

tually filed, its knowledge of the petition, along wiih the

other factors, establish that its refusal to bargain was based

upon good faith reasonable doubt of the union’s majority

support. Its knowledge was that Wolchow had attempted

to file the petition twice, but that the petition had been

“In order to stabilize the employer-union relationship the Board has

established a ‘contract bar’ doctrine whereby a valid contract will or-

dinarily prevent the holding of an election for a certain period of time."’

C. MORRIS, THE DEVELOPING LABOR LAW, 167 (1971). Under

this doctrine, employees have two periods in which to file a decertifi-

cation petition. From 90 to 60 days before the end of the contract, called

the open period, employees may file petitions to have a representation

election. Also, after the termination of the contract, if no new contract

is reached during the last 60 days of the contract, employees may

petition for a representation election.

In this case, Wolchow’s attempt to refile the petition that had been

rejected earlier came after the open period and prior to the termination

of the contract and it was thus deemed barred.

a aan

rejected both times on purely procedural grounds; in the

course of rejecting the petitions, the Board at no time stated

that the petition was defective in content or form: the petition

had been signed by 83 employees; and it had been informed

by Wolchow that approximately 70 more employees out of

the 250-280 total bargaining unit members were also in

favor of the petition though they did not wish to sign.

The Board, however, discounted the significance of the

petition. The Board stated,

‘in our view, the employee petition here is a slender

thread which, by itself, is an inadequate consideration

to support a good faith doubt. The petition is signed

by barely 30 percent of the unit: it is undated; the

wording, as noted by the Administrative Law Judge

does not unambiguously indicate a desire not to be

represented by the Union; and although more than 2

weeks elapsed between the expiration of the last col-

lective bargaining agreement and the Respondent’s

withdrawal of recognition, no attempt was made to

refile the petition with the Board. We therefore cannot

accord much weight to this insubstantial factor in ab-

sence of other probative evidence to Support a doubt

of majority.”’

241 NLRB No. 12 n.1.

We concur with the Board’s conclusion under the facts

of this case. The petition relied upon by the employer did

not, by itself or together with the other evidence presented,

unequivocally indicate that the union support had declined

to a minority. However, by this decision, we do not imply

that a petition which unambiguously indicated a desire not

to be represented by the union and which was signed by a

substantial number of employees could not be considered

by an employer in arriving at its good faith doubt, if that

petition had not been filed with the Board.

_

But, as we stated before, ‘‘[I]n refusing to bargain be-

cause 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.’’ NLRB v. Tahoe Nugget, 584

F.2d at 301. Thus, before refusing to bargain with a union,

an employer should have before it evidence which unequi-

vocally indicates that the union no longer has the majority

support of the employees. The evidence considered by Sa-

hara-Tahoe did not justify its refusal to bargain.

The Board’s order is ENFORCED.

ae

Decision and Order.

United States of America, Before the National Labor

Relations Board. 241 NLRB No. 12.

Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel and

Hotel, Motel, Restaurant Employees & Bartenders Union

Local No. 86, Hotel & Restaurant Employees & Bartenders

International Union, AFL-CIO. Case 32—CA—159, (For-

merly 20—CA—12499).

On February 1, 1978, Administrative Law Judge James

S. Jenson issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief.

Pursuant to the provisions of Section 3(b) of the National

Labor Relations Act, as amended, the National Labor Re-

lations Board has delegated its authority in this proceeding

to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and brief and has decided

to affirm the rulings, findings,’ and conclusions of the

‘Respondent places particular reliance on an employee petition as

evidence of a loss of employee support for the Union, and therefore

asserts that the evidence in this case is stronger than that in Schara-

Tahoe Hotel, 229 NLRB 1094 (1977), enfd. 581 F.2d 767 (9th Cir.

1978), in which the Board found that Respondent did not have sufficient

objective bases to support a good-faith doubt of the Union’s majority

status in a unit of kitchen and culinary employees. In our view, the

employee petition here is a slender thread which, by itself, is an in-

adequate consideration to support a good-faith doubt. The petition is

signed by barely 30 percent of the unit; it is undated; the wording, as

noted by the Administrative Law Judge, does not unambiguously in-

dicate a desire not to be represented by the Union; and, although more

than 2 weeks elapsed between the expiration of the last collective-

bargaining agreement and Respondent’s withdrawal of recognition, no

attempt was made to refile the petition with the Board. We therefore

cannot accord much weight to this insubstantial factor in the absence

of other probative evidence to support a doubt of majority.

—_

— a

Administrative Law Judge and to adopt his recommended

Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board adopts

as its Order the recommended Order of the Administrative

Law Judge and hereby orders that the Respondent, Sahara-

Tahoe Corporation, d/b/a Sahara-Tahoe Hotel, Stateline,

Nevada, its officers, agents, successors, and assigns, shall

take the action set forth in the said recommended Order,

except that the attached notice is substituted for that of the

Administrative Law Judge.

Dated, Washington, D.C. March 16, 1979

John A. Penello, Member

Betty Southard Murphy, Member

John C. Truesdale, Member

NATIONAL LABOR RELATIONS BOARD

(Seal)

—10—

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

After a hearing at which all parties had the opportunity to

present evidence, the National Labor Relations Board has

found that we violated the National Labor Relations Act

and has ordered us to post this notice.

WE WILL NOT refuse or fail to do the following

and WE WILL NOT in any like or related manner

interfere with, restrain, or coerce our employees in the

exercise of the rights guaranteed them by Section 7 of

the Act.

WE WILL recognize, and upon request, bargain

with Hotel, Motel, Restaurant Employees & Bartenders

Union Local No. 86, Hotel & Restaurant Employees

& Bartenders International Union, AFL—CIO, as the

exclusive bargaining representative of the employees

in the appropriate unit described below, with regard

to the wages, hours, working conditions, and other

terms and conditions of employment of the unit em-

ployees and, if an understanding is reached, embody

such understanding in a signed agreement. The unit

found appropriate for the purposes of collective

bargaining is:

All employees employed by the Respondent in its

hotel-service operations at its Stateline, Nevada op-

erations, including housekeeping personnel; parking

lot attendants; front desk employees; timekeepers;

Casino porters; and bellmen, excluding casino em-

ployees; bartenders and-culinary workers; office

clerical employees; carpenters; employees in the en-

gineering department; warehouse employees; stage

<— |

hands; guards and supervisors as defined in the

National Labor Relations Act.

SAHARA-TAHOE CORPORATION,

d/b/a SAHARA-TAHOE HOTEL,

(employer)

idvedavsacess

By (Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or compliance with its provisions may be directed

to the Board’s Office, 2201 Broadway, Second Floor, P. O.

Box 12983, Oakland, California 94604, Telephone 415—

273—6122.

_,

Decision.

United States of America, Before The National Labor

Relations Board, Division of Judges, Branch Office, San

Francisco, California.

Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel and

Hotel, Motel, Restaurant Employees & Bartenders Union

Local No. 86, Hotel & Restaurant Employees & Bartenders

International Union, AFL-CIO. Case No. 32-CA-159,

(formerly 20-CA-12499).

Marcia Canning, of San Francisco, Calif. , for the General

Counsel. Anthony T. Oliver, Jr., and William H. Emer, of

Los Angeles, Calif., for the Respondent. Howard Law-

rence, for the Charging Party.

Statement of the Case

JAMES S. JENSON, Administrative Law Judge: This

case was tried before me in South Lake Tahoe, California

on July 12 and 13, 1977. The complaint, which issued on

April 15, 1977 pursuant to a charge filed on February 18,

1977, alleges that Sahara-Tahoe Corporation, d/b/a Sahara-

Tahoe Hotel, herein called Respondent, has engaged in un-

fair labor practices within the meaning of Section 8(a)(5)

and (1) of the Act. Admitting that it has withdrawn rec-

ognition and refused to bargain collectively with the Union,

the Respondent contends such action was lawful on the

ground that its belief that a majority of the employees no

longer desired union representation was based upon objec-

tive considerations. All parties were given full opportunity

to appear, to introduce evidence, examine and cross-

examine witnesses, to argue orally and to file briefs. Ex-

tensive briefs have been filed by both the General Counsel

and the Respondent and have been carefully considered.

Upon the entire record in the case, and from my obser-

vation of the witnesses and their demeanor, I make the

following:

Findings of Fact

1. Jurisdiction

Respondent is a Nevada Corporation with a place of busi-

ness in Stateline, Nevada where it is engaged in the oper-

ation of a combination hotel, bar, restaurant, and gambling

casino. During the year immediately preceding issuance of

the complaint, Respondent, in the conduct of its business

Operations, received gross revenue in excess of $500,000

and purchased and received goods and materials valued in

excess of $50,000 directly from outside the State of Nevada.

The Respondent admits and I find that Respondent is an

employer engaged in commerce and in operations affecting

commerce within the meaning of Sections 2(2), (6), and

(7) of the Act.

II. The Labor Organization Involved

The Union is a labor organization within the meaning of

Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. Background and Issue

The Respondent operates a combination hotel, bar, res-

taurant and gambling casino in Stateline, Nevada, some-

times referred to as Lake Tahoe and South Lake Tahoe. At

times material herein, Dietrich Mayring has been the

Respondent’s vice-president and general manager. Thomas

Aro was the assistant manager, and Vesta Valentine has

been the director of personnel. Al Bramlet was the union’s

international trustee, Howard Lawrence was the union’s

director of administration, Bobbi Swan was the union’s

business representative, as were Russ Robinson and Robert

Weber. Joseph Coniglio and Peggy Wagner were employees

on whose behalf the union filed grievances.

—" a

On May 13, 1970, the Union was certified as the

collective-bargaining representative of all employees em-

ployed by the Respondent in its hotel-service operations at

its Stateline, Nevada operations, including housekeeping

personnel; parking lot attendants; front desk employees;

timekeepers; casino porters; and bellmen, excluding casino

employees; bartenders and culinary workers; office clerical

employees; carpenters; employees in the engineering de-

partment; warehouse employees; stage hands; guards and

supervisors as defined in the National Labor Relations

Act. Thereafter, the parties entered into two successive

collective-bargaining agreements covering the employees

in the certified unit, the first expiring November 30, 1973

and the last on November 30, 1976. At the time both agree-

ments were negotiated, the Respondent was a member of

the Reno Employers Counsel;' however, both agreements

were signed individually by the Respondent, and it is clear

that the employees involved herein were not part of a multi-

employer unit.”

By letter dated September 27, 1976, the Union notified

the Respondent that it desired ‘‘to change and modify for

the period following November 30, 1976 the terms and

conditions of our current collective-bargaining agreement

with you.’’ By letter dated September 28, 1976, the Respon-

dent advised the Union that it, too, desired to ‘‘modify,

amend, or terminate’’ the agreement, and that it was willing

to meet at a mutually agreeable date. There was no further

'The Respondent resigned from the Reno Employers Counsel in

August 1974.

“Paragraph VI of the complaint alleges the certified unit described

herein as an appropriate unit. While the Respondent’s answer denied

the appropriateness of said unit, it failed to offer any evidence to rebut

its appropriateness. Accordingly, it is found that the unit set forth above

is appropriate for the purposes of collective bargaining within the mean-

ing of Section 9(b) of the Act.

_—" i

communication between the purties regarding negotiations

until the Union’s letter of November 29, 1976 transmitting

copies of its proposed agreement to the Respondent and

asking that the Respondent advise it ‘‘of a date, time, and

place convenient to you to begin contract negotiations.’’ By

letter dated December 16, 1976, the Respondent advised

Howard Lawrence, the Union’s director of administration,

that **. . . we do not believe that your organization currently

represents a majority of any employees and the Sahara-

Tahoe Hotel in an appropriate bargaining unit. For this

reason we respectfully decline your request to commence

negotiations.’”’

On February 18, 1977, the Union filed the charge initi-

ating this proceeding. In a recent case involving the parties

to this proceeding’ the Board stated:

It is well settled that tbe existence of a prior contract,

lawful on its face, raises a dual presumption of majority

— a presumption that the Union was the majority rep-

resentative at the time the contract was executed, and

a presumption that its majority continued at least

through the life of the contract.’ Following the expi-

ration of the contract, the presumption continues and,

though rebuttable, the burden of rebutting it rests on

the party who would do so.* To withdraw recognition

lawfully, either this presumption must be overcome by

competent evidence that the Union in fact did not rep-

resent a majority at the time of the withdrawal,” or the

Employer must establish on the basis of objective facts

that it had a reasonable doubt as to the Union’s con-

tinuing majority status. This latter test, which Respon-

dent claims it meets, requires more than mere evidence

‘Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel, 229 NLRB

No. 151, pending before the Court of Appeals for the Ninth Circuit on

a petition for review and a cross application for enforcement.

ca’ ae

of the Employer’s subjective state of mind.° For the

test to be met, the assertion must be supported by

objective considerations; that is, some reasonable

ground for believing that the Union has lost its majority

status.’

‘Shamrock Dairy, Inc., Shamrock Dairy of Phoenix, Inc., and

Shamrock Milk Transport Co., 119 NLRB 998 (1957), and 124

NLRB 494 (1959), enfd. 280 F.2d 665 (C.A.D.C., 1960), cert.

denied 364 U.S. 892. See also Bartenders, Hotel, Motel and

Restaurant Employers Bargaining Association of Pocatello,

Idaho, 213 NLRB 651 (1974).

“Barrington Plaza and Tragniew, Inc., 185 NLRB 962 (1970),

enforcement denied on other grounds sub nom. N.L.R.B. v. Trag-

niew, Inc., and Consolidated Hotels of California, 470 F.2d 669

(C.A. 9, 1972).

*No such evidence is present in this record.

°Celanese Corporation of America, 95 NLRB 664 (1951).

’Laystrom Manufacturing Co., 151 NLRB 1482, 1483 (1965),

enforcement denied 359 F.2d 799 (C.A. 7, 1966). See also

Emerson Manufacturing Company, Inc., 200 NILRB 148 (1972),

and Terrell Machine Company, 173 NLRB 1480 (1969), enfd.

427 F.2d 1084 (C.A. 4, 1970), cert. denied 398 U.S. 929.

As in the earlier case, the record herein does not disclose

by competent evidence that the Union in fact did not rep-

resent a majority at the time of the withdrawal. Hence, the

sole issue here is whether the Respondent had a reasonable

doubt based upon objective considerations that the Union

did not represent a majority of its hotel-service employees

when it withdrew recognition and refused to bargain with

the Union as the collective-bargaining representative of said

employees on and after December 16, 1976.

B. Sequence of Events

1970

May 13 - Union certified by Board.

September 28 - First collective-bargaining agreement signed

for term of 3 years. No grievances filed during term of

contract.

1973

December | - Second collective-bargaining agreement

signed for term ending midnight November 30, 1976.

|)

1974

June 7 - Union placed under trusteeship.

July - Union opened office at South Lake Tahoe and com-

menced membership drive in both hotel service and food

and beverage employee units.

August 2 - Respondent resigned from Reno Employer’s

Counsel.

September 16 - Respondent advised the Union that unless

it objected by September 20, Respondent proposed to in-

stitute additional benefits for hotel-service employees, in-

cluding additional holidays, increased sick pay and vacation

benefits and one meal per 8-hour shift. The union did not

respond to the letter and the changes were instituted.

September 19 - Letter from Respondent to Union objecting

to paid organizers soliciting employees on the Respondent's

premises to join the Union, and advising that supervisors

had been instructed not to respond to requests for infor-

mation from union representatives without the approval of

the Respondent’s vice-president and general manager.

October | - Letter from Respondent to union trustee re-

garding food and beverage unit matter, and calling attention

to fact union representatives had made visits to hotel-service

employees without giving advance notice to Respondent as

required by Article III of the collective-bargaining agree-

ment.”

“Article Ill, entitled /nterviews, reads:

The Union will submit in writing the name of one (1) and an

alternate Representative authorized to visit the Employer’s prem-

ises during the period of this Agreement for the purpose of as-

sisting in the administration of this contract. Whenever a visit to

the Employer’s premises is required, the Representative shall no-

tify the Hotel Manager or his designated representative in advance

of each visit. It is understood that said visits will be at such times

and in such a manner as to least interfere with the performance

of work by employees.

mm! Nese

November 18 - Respondent advised the Union by letter that

a group of hotel-service employees had requested Respon-

dent pay overtime after 5 instead of 6 consecutive days

worked, and that it therefore proposed to pay 1% times after

40 hours per week and 2 times after 48 hours if the Union

did not object. The Union did not respond to the letter and

the change was instituted.”

November 30 - Food and beverage contract expired and

Respondent refused to negotiate a new food and beverage

agreement on ground it doubted the Union’s majority status.°

Union commenced picketing Respondent’s premises and

picketed until September 1975. The record fails to show

whether any of the Respondent’s employees engaged in a

work stoppage or whether the picketing was directed at

Respondent’s customers. In any event, it does not appear

that any of the Respondent’s employees declined to cross

the picket line.

1975

January - Dietrich Mayring became Respondent’s vice-

president and general manager.

February 14 - Union protested termination of Joseph Con-

iglio and requested that he be reinstated. |

February 18 - Respondent letter to Union denying reinstate-

ment of Coniglio.

February 22 - Union advised Respondent it intended to

arbitrate Coniglio’s discharge.’

‘Section 3 of Article V, entitled Salaries, provided:

Nothing in this contract shall be interpreted to preclude the em-

ployer from giving employees an increase in the scale for any

class, or individual class, during the period that this contract is

in full force and effect.

*Sahara-Tahoe Corporation, d/b/a Sahara Tahoe Hotel, supra.

On October 17, the Union's attorney advised Arbitrator Sam Kagel

that he had been selected to arbitrate the Coniglio dispute. On December

17, the Respondent’s attorney advised Mayring that the Union's attorney

had received no response from Kagel regarding the matter. Lawrence

testified that the matter was never arbitrated because Coniglio disap-

peared.

bf

—

April 9 - In accordance with Article III of contract, Union

advised Respondent by letter that Bobbi Swan was the

Union’s representative authorized to visit the Respondent’s

premises to enforce the agreement, and that Russ Robinson

was the alternate representative.

April 11 - Letter from Mayring to Lawrence reminding him

that Article III of the agreement provided that the designated

representative notify the hotel manager in advance of each

Visit.

April 21 - Mayring letter advising Lawrence that soliciting

membership in the Union is not within the purview of

‘‘administration’’ as used in the contract, and further ad-

vising that the Company had a long standing ‘‘no solici-

tation’’ rule, which the Respondent expected the authorized

representative to abide by.

April 23 - Mayring letter to Lawrence confirming telephone

conversation of that date wherein it was agreed that only

one union representative at a time would be allowed on

Respondent’s premises to assist in administration of the

contract, and that the visits would not be used to solicit

membership in the Union.

Mid-year - Union commenced holding monthly meetings

with hotel-service employees. In addition, informal meet-

ings were held from time to time at coffee shops, bars, and

the union hall.

October 17 - Letter from union attorney advising Arbitrator

Sam Kagel that he had been selected to arbitrate the Coniglio

grievance.

October 21 - Respondent’s attorney advised Mayring that

an arbitrator had been selected to hear the Coniglio griev-

ance.

October 30 - Letter from Lawrence to Mayring requesting

names, addresses and phone numbers of unit employees,

——. wo

and for permission to post meeting notices on hotel prem-

ises.

November 5 - Letter from Mayring to Lawrence declining

request for names, addresses and phone numbers of unit

employees and for use of bulletin board to post notices of

union meetings. Letter contains offer to meet to discuss

alternatives to request.

November 11 - Letter from Lawrence to Mayring renewing

request for names, addresses and telephone numbers of unit

employees and for use of bulletin board.

November 14 - Letter from Lawrence to Mayring advising

that pursuant to Article III of the contract, Swan would

continue as the Union’s representative authorized to enforce

the agreement, and that Robert Weber was replacing Russ

Robinson as the alternate representative.

November 18 - Letter from Mayring to Lawrence in response

to the latter’s November 11 letter, again declining to furnish

names, addresses and telephone numbers of unit employees

and denying use of bulletin board.

December 8 - Letter from Mayring to Lawrence wherein

Mayring objected to the fact that when Swan visited the

hotel premises, she solicited employees to attend union

meetings. Letter advised, in pertinent part, that contract

permitted visits by authorized representative ‘‘only, ‘for the

purpose of assisting in the administration of this contract.’

In my opinion soliciting union membership or soliciting

employees to attend union meetings is not within the pur-

view of ‘assisting in the administration’ of the contract.

. . . However, in view of her utter disregard for the contract,

we now find it necessary to have your representative ac-

companied by a security guard until the purpose of her visit

has been determined.’’ Mayring issued instructions to se-

curity department to accompany Swan and to make written

reports on her visits to the hotel.

oat, van

December 10 - Letter from Lawrence to Mayring renewing

for a second time the Union’s request for the names, ad-

dresses and telephone numbers of unit employees. The letter

states in pertinent part: ‘‘We need this information to ad-

minister our contract in the following areas. First, we have

received reports that some unit employees are receiving a

paid lunch and some are not. We wish to survey the em-

ployees to discover the extent of this practice. Second, the

Union has received many inquires from unit employees con-

cerning the amount and type of insurance coverage that may

be available. Once again, the most efficient method avail-

able to the Union is to survey unit employees. There are

other areas of administrating the contract where the infor-

mation we request would be an invaluable aid.”’

December 12 - Letter from Mayring to Lawrence again

denying request for list of names, addresses and telephone

number of unit employees, and advising that while the con-

tract makes no mention of unit employees entitlement to

paid lunches, that all employees of the hotel, including unit

employees, ‘‘receive a meal ticket entitling them to a paid

lunch.’’ Booklets explaining insurance coverage available

to unit employees were also enclosed. First of five security

reports (Respondent’s Exhibit No. 11(a)) that Swan had

been on premises that day advising unit employees, inter

alia, of a union meeting.*

Late December - Limo driver Wolchow first learned his job

was covered by a union contract and expressed dissatisfac-

tion with that fact to officials of the Respondent.

1976

“The other reports were made on February 24, April 7, June 21, and

July 22, 1976.

ae, ., Soom

January 26 - Lawrence’s letter protesting termination of

Peggy Wagner and requesting grievance meeting.

February 4 - Union and Respondent representatives met on

Wagner grievance.

February 24 - Letter from Valentine to Lawrence confirming

telephone conversation of February 12 to the effect that the

termination of Wagner ‘‘will stand.’”’

Second of five security reports that Swan was on hotel

premises. (Respondent’s Exhibit No. 11(c)).

April 7 - Third of five security reports that Swan had been

on hotel premises. (Respondent’s Exhibit No. 11(d)).

June 21 - Fourth of five security reports that Swan on prem-

ises. (Respondent’s Exhibit No. 11(b)). The report states,

inter alia, ‘‘She [Swan] told me that they had a good turn

out at last meeting they had.”’

July - Union’s Lake Tahoe office closed. Thereafter, Lake

Tahoe area serviced from Union’s Reno office.

July 22 - Fifth security report that Swan on hotel premises.

(Respondent’s Exhibit No. 1 1(e)).

Summer (July and August) - Two union meetings with unit

em loyees to discuss new contract proposals.

September - Wolchow requested address and phone number

of NLRB from Mayring, and was warned that his proposed

petition had to be circulated on his own time. Wolchow

called NLRB Regional Office in San Francisco and was

informed of the procedures for filing decertification petition.

Wolchow testified Valentine told him there were approxi-

mately 250 employees in the unit. Valentine testified she

told him there were ‘‘somewhere in the neighborhood of

280.’’ Wolchow circulated among unit employees a petition

*Lawrence testified the Union had concluded there was no merit to

the Wagner grievance.

—,

headed ‘‘The undersigned are employees of Sahara-Tahoe

Hotel, who do not want to belong to any culinary union.’’

(Respondent’s Exhibit No. 5.) Eighty-two signatures are

affixed to the document. Wolchow testified he ‘‘contacted

about 150 people, and out of the 150 I didn’t run into anyone

that was objecting to getting rid of the Union, and out of

that I got 83 [sic] signatures out of 150 . . . . There was

some of them that was reluctant to sign the petition’’. . .

but that no one refused to sign because they wanted to keep

the Union in. Wolchow testified he told employees the pur-

pose of the petition was ‘‘So we could get out from un-

derneath the contract and do our own bargaining.’’ Respon-

dent learned Union’s Lake Tahoe office had been closed.

September 27 - Letter from Union (Bramlet) notifying Mayr-

ing of the Union’s desire to ‘change and modify’’ contract

due to expire November 30, 1976.

September 28 - Letter from Aro notifying Union (Bramlet)

of Respondent’s desire to ‘‘modify, amend, or terminate’’

contract.

September 29 - Wolchow forwarded paper with signatures

to 20th Region Office of the Board with following covering

letter: ‘“The undersigned employees of Sahara-Tahoe Hotel,

do not want to be represented by the Culinary Union and

are requesting an election.’’'”

October 5 - Letter from Board agent to Wolchow advising

that an election could not be held ‘‘in the culinary unit’’ in

The unit was not spelled out.

a "on

view of charges pending before the Board in Washington,

ae.”

October 19 - Having learned from Aro that the case then

pending before the Board in Washington involved the bar

and culinary unit, Wolchow wrote Field Examiner Engler

of the Board’s San Francisco Regional Office as follows:

Referring to your letter dated Oct. 5, 1976. The con-

tract that is before the National Labor Relations Board

in Washington, D.C. does not cover Transportation,

Front Desk, Housekeeping, Reservations, P.B.X., and

Hotel Services. This contract runs from December 1,

1973 thru November 30, 1976. The contract disputed

covered Food and Beverage Employees and had dif-

ferent dates.

October 21 - Letter from Field Examiner Engler to Wolchow

informing him of the Board’s procedures for filing a de-

certification petition, and that in view of the insulated pe-

riod, one could not be filed until after the collective-

bargaining contract expired on November 30.

Letter from Wolchow to Mayring outlining his efforts and

correspondence with the NLRB regarding the filing of a

decertification petition, and enclosing a copy of the petition

containing employee signatures. In Mayring’s absence, the

letter was directed to Aro.

October 28 (approximately) - Wolchow met with Aro in

Mayring’s absence. Wolchow informed Aro that he had

"On January 21, 1976, Administrative Law Judge Richard D. Taplitz

issued a decision in Case No. 20-CA-9623 recommending dismissal of

a complaint alleging violations of Sections 8(a)(1), (3), and (5) of the

Act. The Charging Party there, as here, was the Union, and involved

a unit of Respondent’s bar and culinary workers. Contrary to the ad-

ministrative law judges’s findings, on June 2, 1977, the Board issued

its decision in Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe Hotel,

supra, finding the Respondent violated Section 8(a)(5) of the Act. As

previously noted, that case is presently before the United States Court

of Appeals for the Ninth Circuit on a petition for review and a cross

application for enforcement.

a.

contacted 150 employees and that none of them seenied

interested in the Union; that they all wanted to withdraw

from it; and that he would like some help. Wolchow also

told him that the employees who had declined to sign the

petition **. . . wanted to get out from the Union, but they

just didn’t want to be bothered signing the petition, didn’t

want to get involved in the petition.’’

Aro discussed the meeting with Mayring and had Valentine

check the validity of the 82 signatures on the petition.

At Mayring’s request, Valentine determined the employee

turnover among the hotel-service employees was 278 per-

cent in 1973, 325 percent in 1974, and 290 percent in 1975.

November 29 - Letter from Lawrence to Aro enclosing two

copies of Union’s proposed agreement and requesting date,

time, and place to commence contract negotiations.

December 16 - Letter from Aro to Lawrence reading as

follows:

This will acknowledge receipt of your letter of No-

vember 29, 1975.

As I am sure you are aware, a number of factors have

occurred over the past months in connection with your

claim to be the bargaining representative of certain of

our employees. In view of these considerations, you

should know that we do not believe that your organi-

zation currently represents a majority of any employees

at the Sahara Tahoe Hotel in an appropriate bargaining

unit.

For these reasons we respectfully decline your request

to commence negotiations.

C. Findings and Conclusions Regarding Factors

Relied on by Respondent for Withdrawing

Recognition From the Union

In its brief, the Respondent enumerates the following

factors Mayring relied upon in reaching his conclusion that

the Union did not represent a majority of the employees in

oe

the hotel service unit: (1) Valentine’s explanation of the

trusteeship and other details of the June 1974 meeting of

the Reno Employers Counsel,'? (2) the lack of hotel-service

employees support for the Union picket line established at

the hotel in 1975; (3) the fact that the majority of the union

activity which took place seemed to consist of solicitation

of members rather than administration of the contract; (4)

the high turnover rate in the unit; (5) the fact only two

grievances had been filed in the last 6 years; (6) the changes

in terms and conditions of employment without union ob-

jection; (7) the fact the Union office had closed; (8) the

attempted filing of the decertification petition supported by

more than 30 percent of the employees in the unit; (9)

statements made by Wolchow that more than SO percent of

the employees in the unit stated they did not want the Union.

The withdrawal of recognition in the hotel-service unit

took place in a context free of any other alleged unfair labor

practices. '

“Valentine testified she learned the Union ‘‘was in the process of

bankruptcy, that it was going to be put into trusteeship, that Al Bramlet

was probably going to be appointed the trustee out of Las Vegas, that

there was a possibility of a merger with the Las Vegas Culinary Union

and the Reno Local, and . . . that they were going to import union

organizers from Las Vegas to assist in boosting the membership in the

northern Nevada area.’’

"On September 15, 1974, the Respondent advised the Union that

unless the Union objected, it proposed to make certain changes and

additions to employee fringe benefits. Also in 1974, the maids requested

a meeting with the hotel manager, wherein they requested overtime pay

after 5 instead of 6 consecutive days work. By letter dated November

18, 1974, the Respondent informed the Union that it proposed to institute

the change if the Union did not object. The Union did not object in

either instance.

‘Pending, however, in the Ninth Circuit Court of Appeals is the

petition for review and the cross application for enforcement of the

Board’s decision, heretofore cited, involving a similar withdrawal of

recognition and refusal to bargain issue in the bar and culinary workers

unit.

—

herein or other employees in the Lake Tahoe area,|the Board

considered, and rejected, a number of the factors relied upon

by Mayring as the basis for the Respondent’s withdrawal

of recognition from the Union.

In several recent cases involving either the it Bor

The first factor relied upon by Mayring, that the Union

was to be placed under trusteeship because of financial

difficulties, was considered by the Board in Sierra Devel-

opment Company, d/b/a Club Cal-Neva, 231 NLRB No.

5. Citing Nevada Lodge, 227 NLRB No. 73, the Board

stated, at page 6, slip op., ‘‘. . . it would be sheer specu-

lation to make an evaluation of employee support for the

Union based on the fact the Union was placed in trusteeship

by its International because of its poor financial condition.”’

This factor was also considered by the Board in Finally,

Inc., d/b/a Palace Club, 229 NLRB No. 169. Thus, while

the appointment of a trustee, rumors of bankruptcy, and a

concerted organizing effort in the northern Nevada area may

indeed indicate the Union was in financial trouble, these

factors may not be used as a basis for a belief that the Union

lacked majority support.

Another factor cited by Mayring was the lack of employee

support for the picket line established by the Union in 1975.

It is clear from the record that the dispute between the Union

and the Respondent at that time was over withdrawal of

recognition in the bar and culinary unit, not involved herein.

While the record tends to show that Respondent’s employees

crossed the picket line, the Respondent, upon whom the

burden rests to show ‘‘objective considerations’’ sufficient

to rebut the presumption of the Union’s majority status, has

failed to show whether the picket line was intended to cause

a work stoppage or was instead intended to exert economic

pressure on the Respondent through its customers. More-

over, citing Palmer Asbestos & Rubber Corp., 160 NLRB

as,

723, the Board reiterated its position in Coca-Cola Bottling

Works, 186 NLRB 1050, 1053 that ‘*. . . the mere failure

of employees to support a strike called by their bargaining

representative does not give rise to a presumption that these

employees have repudiated the Union as their bargaining

representative.”’

The next factor cited by the Respondent in deciding to

withdraw recognition from the Union was the fact the ma-

jority of the union activity which took place seemed to

consist of soliciting members rather than administrating the

contract. As noted by the General Counsel, ‘‘because Ne-

vada is a right to work state, an ongoing function of any

active union is the solicitation of membership.’’ Further,

the Board held in the earlier Sahara-Tahoe case that:

. even if Respondent had a reasonable basis for

believing that a majority of its employees were not

union members or did not financially support the

Union, such knowledge does not establish a reasonable

basis for believing that the Union had lost majority

support. '*

‘Moreover, Respondent’s attempt to use low union member-

ship as a gauge mr ares support is especially tenuous because

Nevada is a ‘‘right to work’’ state. See Wald Transfer and Storage

Co., and Westheimer Transfer and Storage Co , Inc., 218 NLRB

592 (1975), enfd. 535 F.2d 657, (C.A. 5, 1976).

The Board held similarly in Finally, Inc., d/b/a Palace

Club, supra, and Nevada Club, Inc., supra. Moreover, the

correspondence between the parties and the testimony of

the witnesses shows clearly that the Union’s activities were

not limited to recruiting new members. In addition to seek-

ing enforcement of the collective-bargaining agreement,

Respondent held both formal and informal meeting with

employees, visited the Respondent’s premises, solicited

employee complaints, filed two grievances, discussed bar-

a, oe

gaining demands with employees, and drafted a contract

proposal for the Respondent’s consideration.

The Respondent cites the high turnover rate among em-

ployees in the unit as a basis for believing the Union lacked

majority support, 278 percent in 1973, 325 percent in 1974,

and 290 percent in 1975. While high turnover is one cir-

cumstance to be considered, the Board has stated in this

regard:

Finally, Respondent relied on the turnover of em-

ployees to support its belief that the Union has lost

majority support. This argument must be rejected. The

Board has ruled, with court approval, that turnover

among employees cannot, by itself, be used as a basis

for a belief that a union has lost majority support since

it is presumed that, absent evidence that would justify

a contrary conclusion, new employees will support the

Union in the same ratio as those whom they have re-

placed.'' Here there is no independent evidence from

which it may be inferred that Respondent’s new em-

ployees did not want the Union to represent them.

Therefore, given our findings above, the turnover of

employees cannot, by itself, be used as a basis for

belief that the Union had lost majority support.

''Laystrom Manufacturing Co., 151 NLRB 1482 (1965); Wash-

ington Manor, Inc., d/b/a Washington Manor Nursing Center

(South), 211 NLRB 315 (1974).

Dalewood Rehabilitation Hospital, Inc., d/b/a Golden State

Habilitation Convalescent Center, 224 NLRB 1618 (1976).

Accord, Sierra Development Company, d/b/a Club Cal-

Neva, supra; Finally, Inc., d/b/a Palace Club, supra; Ne-

vada Club, Inc., supra.

Still another factor in Mayring’s decision to withdraw

recognition from the Union was the fact only two grievances

had been filed by the Union in the last 6 years. Similar

tions

contentions have been rejected by the Board in situations,

as here, where Respondent has not demonstrated that griev-

ances existed and were unprocessed by the Union, or that

the Union was lax in carrying out its obligations in this

regard. Sierra Development Company, d/b/a Club Cal-

Neva, supra; Finally, Inc., d/b/a Palace Club, supra; Ne-

vada Club, Inc., supra. In fact Director of Personnel Val-

entine testified the Respondent abided by the terms of the

collective-bargaining agreement, a fact not necessarily con-

ducive to the filing of grievances. Further, the record does

not show that the Union ever abandoned its representative

status; nor has the Respondent pointed to a single instance

where the Union failed to represent an employee properly

or where an employee expressed dissatisfaction because the

Union failed to represent him. Sahara-Tahoe Corporation,

d/b/a Sahara-Tahoe Hotel, supra. In that case the Board

stated further that the Union’s limited contacts with the

Respondent may merely indicate that the Union and Respon-

dent enjoyed a harmonious relationship and that the Union

was given no reason to file written grievances.

Lack of employee support for the Union’s ability to ad-

minister the contract, contends the Respondent, is demon-

strated by the fact that in 1974 the maids requested a meeting

with the hotel manager, instead of proceeding through their

collective-bargaining representative, when they sought

overtime pay after 5 instead of 6 consecutive days work.

Respondent contends also that the Union’s failure to respond

to its notification of the resulting proposed changes in over-

time pay, and to notification that the Respondent proposed

to make changes and additions to the fringe benefits of the

unit employees, is evidence of the Union’s failure to prop-

erly represent the unit employees. Respondent also points

out that some of the wages paid unit employees were greater

than those negotiated and listed in the contract wage scale.

= om

The simple answer to the latter point is that the collective-

bargaining agreement contains a scale for ‘‘minimum

wages,’’ and under Article V, Section 3, the Respondent

retained the right to increase wages.'* With respect to the

employees 1974 act of bypassing the Union and contacting

the Respondent’s hotel manager directly with respect to

overtime pay after 5 instead of 6 consecutive working days,

such conduct merely shows, at most, that some employees

may not have known that the Union already represented the

employees and that the Union already had a contract with

the Respondent. As discussed infra, while there was a high

rate of turnover among the unit employees, there is a pre-

sumption that the new employees will be presumed to sup-

port the Union in the same ratio as those whom they have

replaced. This act, however, could hardly be construed to

indicate that they did not want the Union to represent them.

See, for example, Sahara-Tahoe Corporation, supra, page

5 of slip op. Nor can the Union’s failure in 1974 to object

to beneficial changes and additions to the fringe benefits be

construed as an abandonment of its representatives respon-

sibilities, or as evidence that the Union was either unable

to administer the contract or that the employees did not want

the Union to represent them. In this regard, it is noted that

in 1974 the Respondent recognized the Union’s Capacity as

the representative of all of the unit employees by not insti-

tuting the proposed changes until after giving the Union an

Opportunity to object.

The fact the Union closed its Lake Tahoe office in the

summer of 1976 is cited by Mayring as another factor he

‘Article V, Section 3 reads:

Nothing in this contract shall be interpreted to preclude the em-

ployer from giving employees an increase in the scale for any

class, or individual class, during the period this contract is in fuil

force and effect.

<a

considered when he withdrew recognition from the Union.

The record shows the office was initially opened in July

1974; that prior to that time the Union serviced the Respon-

dent’s employees irom its Reno office; and that after the

off ‘e closed in the summer of 1976, the Union continued

to service the unit employees with representatives from the

Reno office. Moreover, on July 22, 1976, Swan was known

by the Respondent to have been servicing the unit employees

as is evidenced by the security report of that date (Respon-

dent’s Exhibit 11(e)). That report recites that Swan went

from floor to floor in both the main hotel and annex, and

then to the employees cafeteria, advising the maids of a

union meeting that evening. This constitutes clear evidence

within the knowledge of the Respondent that the Union had

not abandoned the unit employees. Moreover, whether the

Union chose to service the unit employees from its Reno,

South Lake Tahoe or perhaps some other office, is an in-

ternal union matter and does not in any way reflect a lack

of employee support for the Union.

Another factor which Mayring testified contributed to his

decision to withdraw recognition from the Union was the

attempt of employee Wolchow to file a decertification pe-

tition with the Board supported by slightly more than 30

percent of the unit employees. The document containing 82

employees’ signatures was introduced into evidence by the

Respondent. Of significance in making a determination

whether the document signifies a rejection of the Union as

their collective-bargaining representative, is the legend writ-

ten at the top, which reads: ‘*The undersigned are employees

of Sahara-Tahoe Hotel, who do not want to belong to any

culinary union.’’ (emohasis added.) The Respondent’s con-

tention with respect to the meaning of the document fails

to distinguish between wanting to be a union member, and

desiring to have union representation. Sierra Development

a

Company, d/b/a Club Cal-Neva, supra, page 8 of slip op.

As noted heretofore, Nevada is a ‘‘right to work’’ state.

Hence, contrary to the Respondent’s contention that the

document represents a rejection of the Union’s represent-

ative status, the signatures affixed thereto may more logi-

cally be taken as an indication that the employees are voicing

their right under state law not to belong to a union. In any

event, a decertification petition was not in fact filed, nor

do the signatures of slightly more than 30 percent of the

employees indicate a rejection of the Union by‘a majority

of the employees. !

The Respondent contends further, however, that the loss

of majority representative status is further bolstered by

Wolchow’s representation that he had been advised by more

than 50 percent of the unit employees that they didn’t want

the Union. It is clear from the record that Wolchow was

the only employee with whom Respondeut’s representatives

spoke regarding the employees likes or dislikes regarding

the union. Aro testified that Wolchow told him he had talked

to “‘around 150 some - odd people . . . [and] there was

very little, if no interest whatsoever in the union; that the

people that did sign obviously were definitely against it.

And those that didn’t — he said they just didn’t want it,

but were afraid to really get involved with getting their

names on a piece of paper.’’ Wolchow testified that he

contacted about 150 people and that he ‘‘didn’t run into

anyone that was objecting to getting rid of the union. .

[that] there was some of them that was reluctant to sign the

petition,’’ and that no one told him they were refusing to

sign because they wanted to keep the Union. Wolchow’s

version of his conversation with Aro was to the effect that

he had ‘‘contacted 150 people and that none of them seemed

to be interested in the union; that they all wanted to withdraw

from it. . . “‘that the difference between 82 signatures and

pe ee

150 people with whom he talked, was due to the fact ‘‘they

just didn’t want to be bothered signing the petition, didn’t

want to get involved in the petition.’’

In Dalewood Rehabilitation Hospital, Inc., etc., supra,

at page 1619, the Board acknowledged that while employees

statements are some indication of employee dissatisfaction,

‘‘they are entitled to little weight to the extent they purport

to convey the sentiments of employees other than them-

selves. Otherwise, a few anti-union employees could pro-

vide the basis for a withdrawal of recognition when in fact

there is actually an insufficient basis for doubting the union’s

continued majority.’’ As noted before, Wolchow is the only

employee who expressed employee sentiments to the

Respondent’s executives. His sentiments, insofar as they

purport to convey the sentiments of other employees, are

entitled to little, if any, weight. When a comparison is made

between the wording at the top of the petition signed by the

82 employees, — that ‘‘The undersigned . . . employees

. . . do not want to belong to any culinary union’’ — with

the September 29, 1976 letter that Wolchow sent the Re-

gional Office of the Board enclosing the petition'® that ‘‘The

undersigned . . . do not want to be represented by the cu-

linary union and are requesting an election’’ — the danger

inherent in giving weight to statements or representations

by one employee as to the sentiments of employees other

than himself, is all too obvious. It may well be that Wolchow

did not want to be represented by the Union. However, the

signers of the petition indicated that they did not want to

belong to the Union. The distinction between not wanting

to belong and not wanting to be represented by the Union

‘*Respondent’s Exhibit No. 6.

oe a

has been long recognized by the Board and courts, as set

forth heretofore."

After considering the evidence in the light of the Board

and court precendents cited above, I conclude that the

Respondent has failed to show that it had a reasonably based

doubt upon objective considerations that the Union did not

enjoy majority status at the time it withdrew recognition

from the Union, and that by withdrawing recognition and

refusing to bargain with the Union on December 16, 1976,

the Respondent violated Section 8(a)(1) and (5) of the Act.

IV. Conclusions of Law

1. Sahara-Tahoe Corporation, d/b/a Sahara-Tahoe

Hotel, is an employer engaged in commerce within the

meaning of Section 2(6) and (7) of the Act.

2. Hotel, Motel, Restaurant Employees & Bartenders

Union Local No. 86, Hotel & Restaurant Employees &

Bartenders International Union, AFL-CIO is a labor orga-

nization within the meaning of Section 2(5) of the Act.

3. The following employees constitute a unit appropri-

ate for the purposes of collective bargaining within the

meaning of Section 9(b) of the Act: All employees employed

by the Respondent in its hotel-service operations at its State-

line, Nevada operations, including housekeeping personnel,

parking lot attendants; front desk employees; timekeepers;

casino porters; and bellmen, excluding casino employees;

bartenders and culinary workers; office clerical employees;

carpenters; employees in the engineering department, ware-

house employees; stage hands; guards and supervisors as

defined in the National Labor Relations Act.

"Casting further doubt on the probative value of the petition is the

fact that at least some of the employees apparently took it lightly and

signed spurious names, e.g. Babe Ruth and Johnny Bench.

a, em

4. Atall times material herein, the Union has been, and

is, the exclusive representative of all employees in the above

described appropriate unit for the purposes of collective

bargaining.

5. By withdrawing recognition from the Union and by

refusing to bargain with the Union as the exclusive bar-

gaining representative of the employees in the unit described

above, concerning the wages, hours, working conditions

and other terms and conditions of employment of the em-

ployees in the unit, the Respondent has engaged in unfair

labor practices within the meaning of Section 8(a)(1) and

(5) of the Act.

6. The aforesaid unfair labor practices affect commerce

within the meaning of Section 2(6) and (7) of the Act.

V. The Remedy

Having found that the Respondent has engaged in unfair

labor practices in violation of Section 8(a)(1) and (5) of the

Act, I shall recommend that it be ordered to cease and desist

and that it take certain affirmative action to effectuate the

policies of the Act.

Upon the basis of the foregoing findings of fact, conclu-

sions of law and the entire record in this proceeding, and

pursuant to the provisions of Section 10(c) of the Act, I

hereby issue the following recommended:'*

ORDER

The Respondent, Sahara-Tahoe Corporation, d/b/a

“In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board,

the findings, conclusions, and recommended Order herein shall, as

provided in Section 102.48 of the Rules and Regulations, be adopted

by the Board and become its findings, conclusions, and Order, and all

objections thereto shall be deemed waived for all purposes.

pan, ee

Sahara-Tahoe Hotel, its officers, agents, successors and as-

signs shall:

1. Cease and desist from:

(a) Refusing to recognize and bargain with Hotel,

Motel, Restaurant Employees & Bartenders Union Local

No. 86, Hotel & Restaurant Employees & Bartenders In-

ternational Union, AFL-CIO, as the exclusive bargaining

representative of the employees in the appropriate unit de-

scribed below, with regard to the wages, hours, working

conditions, and other terms and conditions of employment

of the unit employees:

All employees employed by the Respondent in its hotel-

service operations at its Stateline, Nevada operations,

including housekeeping personnel; parking lot attend-

ants; front desk employees; timekeepers; casino por-

ters; and bellmen, excluding casino employees; bar-

tenders and culinary workers; office clerical employees;

carpenters; employees in the engineering department;

warehouse employees; stage hands; guards and super-

visors as defined in the National Labor Relations Act.

(b) In any like or related manner interfering with, re-

straining or coercing its employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action which is nec-

essary to effectuate the policies of the Act:

(a) Recognize and, upon request, bargain collectively

with Hotel, Motel, Restaurant Employees & Bartenders

Union Local No. 86, Hotel & Restaurant Employees &

Bartenders International Union, AFL-CIO, as the exclusive

bargaining representative of the employees in the appro-

priate unit described below, with regard to the wages, hours,

working conditions, and other terms and conditions of em-

ployment of the unit employees, and if an understanding

is reached, embody such an understanding in a signed agree-

=< =

ment. The unit found appropriate for the purpose of col-

lective bargaining is:

All employees employed by the Respondent in its hotel-

service operations at its Stateline, Nevada operations,

including housekeeping personnel; parking lot attend-

ants; front desk employees; timekeepers; casino por-

ters; and bellmen, excluding casino employees; bar-

tenders and culinary workers; office clerical employees;

carpenters; employees in the engineering department;

warehouse employees; stage hands; guards and super-

visors as defined in the National Labor Relations Act.

(b) Post at its Stateline, Nevada, place of business cop-

ies of the attached notice marked ‘*Appendix.’’'’ Copies of

the notice on forms provided by the Regional Director for

Region 32, after being duly signed by an authorized rep-

resentative of the Respondent, shall be posted by the

Respondent immediately upon receipt thereof and be main-

tained by it for a period of 60 consecutive days thereafter,in

conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by the Respondent to insure that the notices are

not altered, defaced or covered by any other material.

(c) Notify the Regional Director for Region 32, in writ-

ing, within 20 days from the date of this Order, what steps

the Respondent has taken to comply herewith.

Dated: Feb. 1, 1978.

/s/ James S. Jenson

James S. Jenson

Administrative Law Judge

"In the event that the Board’s Order is enforced by a Judgment of

a United States Court of Appeals, the words in the notice reading

‘*POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD”’ shall be changed to read ‘“‘POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD..”’

—

APPENDIX

Notice to Eniployees

Posted by Order of the

National Labor Relations Board

an Agency of the United States Government

After a trial at which all parties had the opportunity to

present evidence, the National Labor Relations Board found

that we violated the National Labor Relations Act and has

ordered us to post this notice.

WE WILL recognize, and upon request, bargain with Hotel,

Motel, Restaurant Employees & Bartenders Union Local

No. 86, Hotel & Restaurant Employees & Bartenders In-

ternational Union, AFL-CIO, as the exclusive bargaining

representative of the employees in the appropriate unit de-

scribed below, with regard to the wages, hours, working

conditions, and other terms and conditions of employment

of the unit employees and if an understanding is reached,

embody such understanding in a signed agreement. The unit

found appropriate for the purposes of collective bargaining

is:

All employees employed by the Respondent in its hotel-

service operations at its Stateline, Nevada operations,

including housekeeping personnel; parking lot attend-

ants; front desk employees; timekeepers; casino por-

ters; and bellmen, excluding casino employees; bar-

tenders and culinary workers; office clerical employees;

carpenters; employees in the engineering department;

warehouse employees; stage hands; guards and super-

visors as defined in the National Labor Relations Act.

WE WILL NOT refuse or fail to do the foregoing and WE

WILL NOT in any like or related manner interfere with,

—

restrain or coerce our employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

SAHARA-TAHOE CORPORATION, d/b/a

SAHARA-TAHOE HOTEL

(Employer)

RAE saditsavas

By (Representative) (Title)

—'

JUDGMENT.

United States Court of Appeals, for the Ninth Circuit.

Sahara-Tahoe Corporation, Petitioner, v. National Labor

Relations Board, Respondent, and Hotel, Motel, Restaurant

Employees and Bartenders Union Local 86, Hotel and Res-

taurant Employees and Bartenders International Union,

AFL-CIO, Intervenor. No. 79-7152.

Before: ANDERSON, FERGUSON and NELSON, Circuit

Judges.

THIS CAUSE came on to be heard upon a petition filed

by Sahara-Tahoe Corporation d/b/a Sahara-Tahoe Hotel, to

review an order of the National Labor Relations Board is-

sued against said Petitioner, its officers, agents, successors,

and assigns on March 16, 1979, and upon a cross-application

filed by the National Labor Relations Board to enforce said

Order. The Court heard argument of respective counsel on

June 12, 1980, and has considered the briefs and transcript

of record filed in this cause. On November 28, 1980, the

Court being fully advised in the premises, handed down its

decision granting enforcement of the Board’s Order. In con-

formity therewith, it is hereby ORDERED AND AD-

JUDGED by the Court that:

Petitioner, Sahara-Tahoe Corporation d/b/a Sahara-Tahoe

Hotel, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to recognize and bargain with Hotel, Mo-

tel, Restaurant Employees & Bartenders Union Local No.

86, Hotel & Restaurant Employees & Bartenders Interna-

tional Union, AFL-CIO (hereinafter called the Union), as

the exclusive bargaining representative of the employees in

the appropriate unit described below, with regard to the

wages, hours, working conditions, and other terms and con-

ditions of employment of the unit employees:

—,

All employees employed by the Petitioner in its hotel-

service operations at its Stateline, Nevada operations,

including housekeeping personnel; parking lot atten-

dants; front desk employees; timekeepers; casino

porters; and bellmen, excluding casino employees;

bartenders and culinary workers; office clerical em-

ployees; carpenters; employees in the engineering de-

partment; warehouse employees; stage hands; guards

and supervisors as defined in the National Labor Re-

lations Act.

(b) In any like or related manner interfering with, re-

straining or coercing its employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action which is nec-

essary to effectuate the policies of the Act:

(a) Recognize and, upon request, bargain collectively

with the Union, as the exclusive bargaining representative

of the employees in the appropriate unit described below,

with regard to the wages, hours, working conditions, and

other terms and conditions of employment of the unit em-

ployees, and if an understanding is reached, embody such

an understanding in a signed agreement. The unit found

appropriate for the purpose of collective bargaining is:

All employees employed by the Petitioner in its hotel-

service operations at its Stateline, Nevada operations,

including housekeeping personnel; parking lot attend-

ants; front desk employees; timekeepers; casino por-

ters; and bellmen, excluding casino employees; bar-

tenders and culinary workers; office clerical employees;

carpenters; employees in the engineering department;

warehouse employees; stage hands; guards and super-

visors as defined in the National Labor Relations Act.

(b) Post at its Stateline, Nevada, place of business

copies of the attached notice marked ‘‘Appendix.’’ Copies

of the notice on forms provided by the Regional Director

for Region 32, (Oakland, California) of the National Labor

ae

Relations Board, after being duly signed by an authorized

representative of the Petitioner, shall be posted by the Pe-

titioner immediately upon receipt thereof and be maintained

by it for a period of 60 consecutive days thereafter, in

conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by the Petitioner to insure that the notices are not

altered, defaced or covered by another material.

(c) Notify the aforesaid Regional Director, in writing,

within 20 days from the date of this judgment, what steps

the Petitioner has taken to comply herewith.

SO ORDERED:

JUDGES:

J. Blaine Anderson

J. BLAINE ANDERSON, CJ

/s/ Warren J. Ferguson

WARREN J. FERGUSON, CJ

/s/ Dorothy W. Nelson

DOROTHY W. NELSON, CJ

Endorsed, Judgment Filed and Entered.

/s/_ Richard H. Deane

Richard H. Deane

Clerk

A TRUE COPY,

ATTEST: Richard H. Deane

Clerk

ees

APPENDIX

NOTICE TO EMPLOYEES

POSTED PURSUANT TO A JUDGMENT OF THE

UNITED STATES COURT OF APPEALS ENFORCING

AN ORDER OF THE NATIONAL LABOR RELATIONS

BOARD

An Agency of the United States Government

After a hearing at which all parties had the opportunity to

present evidence, the National Labor Relations Board has

found that we violated the National Labor Relations Act

and has ordered us to post this notice.

WE WILL NOT refuse or fail to do the following

and WE WILL NOT in any like or related manner

interfere with, restrain, or coerce our employees in the

exercise of the rights guaranteed them by Section 7 of

the Act.

WE WILL recognize, and upon request, bargain

with Hotel, Motel, Restaurant Employees & Bartenders

Union Local No. 86, Hotel & Restaurant Employees

& Bartenders International Union, AFL—CIO, as the

exclusive bargaining representative of the employees

in the appropriate unit described below, with regard

to the wages, hours, working conditions, and other

terms and conditions of employment of the unit em-

ployees and, if an understanding is reached, embody

such understanding in a signed agreement. The unit

found appropriate for the purposes of collective bar-

gaining is:

All employees employed by the Respondent in its

hotel-service operations at its Stateline, Nevada op-

erations, including housekeeping personnel; parking

lot attendents; front desk employees; timekeepers;

casino porters; and bellmen, excluding casino em-

ployees; bartenders and culinary workers; office

clerical employees; carpenters; employees in the en-

a om

gineering department; warehouse employees; stage

hands; guards and supervisors as defined in the Na-

tional Labor Relations Act.

SAHARA-TAHOE CORPORATION,

d/b/a SAHARA-TAHOE HOTEL

(Employer)

DE sie secnrnsy ans

By (Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or complaince with its provisions may be directed

to the Board’s office, 2201 Broadway, Second Floor, P. O.

Box 12983, Oakland, California 96404, Telephone 415—

273—6122.

a

CERTIFICATE OF SERVICE.

United States Court of Appeals, for The Ninth Circuit.

Sahara-Tahoe Corporation, Petitioner, v. National Labor

Relations Board, Respondent and Hotel, Motel, Restaurant

Employees and Bartenders Union Local 86, Hotel and Res-

taurant Employees and Bartenders International Union,

AFL-CIO, Intervenor. No. 79-7152.

The undersigned certifies that one copy of the Board’s

proposed judgment in the above captioned matter has this

day been served by first class mail upon the following coun-

sel at the addresses listed below:

Parker, Milliken, Clark

O’ Hara

Att: William H. Emer

333 South Hope Street,

27th Floor,

Los Angeles, CA 90071

Davis, Cowell & Bowe

117 Att: Geoffrey V. White, Esq.

118 351 California St., Suite 420

119 San Francisco, CA. 94104

/s/ Elliott Moore

Elliott Moore

Elliott Moore

Deputy Associate General Counsel

NATIONAL LABOR RELATIONS BOARD

Dated at Washington, D.C. this 10th day of December,

1980