National Labor Relations Board v. Dayton Motels, Inc., D/B/A Holiday Inn of Dayton

Counsel, Giannasi, that, opinion A. N.L. Robert Gen. are of the We R.B., Washington, C., findings us, D. brief. of the before record 8(a)(1), respect Board Lawrence, Memphis, Jr., A. Charles by supported are substantial violations Coles, Tenn., respondent; H. Elbert Automatic NLRB v. Howell evidence. McKnight, Coles, Memphis, Hudson & d F.2 Mach. Tenn., on brief. WEICK, Before EDWARDS only colorably that attack valid The Judges. MILLER, Circuit finding against Company makes 8(a)(1) is that violations of Section Judge. WEICK, Circuit predominance was attribut- of activities Branham, one neither able to Collins and This is before Court thé supervisor. Simply stat- application of whom was a for enforcement of Board’s position ed, these reported NLRB No. its at 192 order place the end against Motels, Inc., doing took near Dayton activities busi- regardless Dayton Holiday (Compa- term of the ness as Inn of em- nature ny), application anti-union filed was activities, ployees’ acts cannot their 10(e) National suant to Section Company they imputed were (Act) since amended. Act Labor Relations supervisory employees Compa- Compa- the Union ny’s ny. position, the Union did argument falls short 8(a)(1) successful attack on suggested Compa- It was then Board, found violations ny’s attorney an election be con- First, Ex reasons. activities give ducted in order to an Housekeeper, supervi was who ecutive opportunity express their desires con- sor, alone would be sufficient cerning representation by the Union. 8(a) (1) finding vio was that Section proposal rejected by This Second, Company. strict lated representative. following, day On the agency applicable principles of are not against Unioii called a strike management employee uses where Company. effectuating member, for is a union who found If there a connec its own interests. violated management and the em tion between bargain refusing in to with the Union by way ployee’s actions, of insti either finding June, validity The of this gation, direction, approval, or at the (and of the order of the Board resultant very acquiescence, least then acts of the bargain Company the Board the employee imputed the the will be to depends (1) Union) with the whether Company. Boyle’s Famous Corned Beef actually represented majori- the Union a NLRB, (8th v. Co. F.2d 154 Cir. 400 ty employees, (2) of the or whether the 1968). Company good-faith of had a doubt the employees The Board found that majority Union’s status it refused and had close with Collins Branham ties bargain. to management; fact, they customarily in to an em In order establish that employees to in delivered work recognition ployer’s of withdrawal management. structions from Further bargain to with incumbent refusal an more, Company perhaps did while the transgresses 8(a)(5) of union Section actually of not direct the activities Col proof upon Act, the the of the burden Branham, acquiesced lins and at least actually Board to show that the Thus, the anti-union under efforts represented majority employees of a the principles applica expanded agency the appropriate in an unit. Machinists 8(a)(1) to acts the of ble Section Lodges NLRB, 743 v. 135 U.S. 1746 & employees imputed are union-members App.D.C. 53, 416 F.2d 809 Company Board’s to the the order directed these activities. to prove majority-status of to a Failure any employer of the Union an relieves 8(a)(5) VIOLATIONS SECTION duty bargain. Maphis Chapman to (4th Corp. NLRB, 298, v. 368 F.2d 303 June, 1970, prior to months In three 1966). Cir. bargaining expiration of the collective Furthermore, the Union agreement Union, Company even if the with the actually a proved representative of request ne- to be a the Union to from received employer guilty bargaining majority, a gotiate of a not collective new employ- 8(a)(5) agreement. Company violation if the did not reasonably-grounded request er had belief that spond and thereafter a to this an un- Union did with the Union refused meet However, Sep- majority employees. Pul- its poses bargaining. coerced of ley NLRB, (6th Cir. v. F.2d 870 395 tember date 1968); John Swift S. a Union good-faith 1962). (7th Cir. A came to Inn and met the Com- exculpates employer if pany’s attorney. doubt even of this the course represented meeting majority attorney the Union in fact advised (4th Duth- Mach. 427 F.2d v. Ben Co. NLRB of the 1968). 1970). Inc., ler, Cir. However, agreement giving recognition the Com- full between weight presumption, to the this does pany is relevant help aspects above the Board even if because actually represented First, did not order fact the Union Board stated. employee majority taken in should that an vote unit, Company whether would still have to determine order majority complete actually represented if defense it had a representation. rather, relied NLRB employees; the Board doubt such about Duthler, existing v. Ben 395 F.2d doctrine that presumption of status creates a Second, exclud- Union. Board provides in Company by the offered ed evidence part as follows: tending prove the collective bar- “ Provided, That no com- . . . procured gaining agreement was upon plaint shall issue based company tactics means coercive occurring collaborating supervisor who prior filing of than six tending prove ” . . with the . of this fraudulent concealment fact applies Literally, this section Company the Union when from the complaints filing of with the Board. presented the authorization the Union appears to be a statute On face persuade cards proceed- on of limitations the institution recognize Company to the Union. The ings practices, directed at unfair labor given by the Board exclusion reason application and not have proved that it was also of the evidence practice defense of an unfair labor Union, practice of the an unfair labor charge. recognized However, was it proof by the six- of which was barred policy preventing of the stale that 10(b) in Section months’ time limitation charges practice unfair under labor Sec- of the Act.1 easily 10(b) of cir- tion could be precluded the This same statute Com- provision cumvented if the limitations taking any pany after from action narrowly. was read supervi- complicity of discovered the its Accordingly, Supreme ex- Court of and the sor fraud considerably panded of the effect Sec- discovery than one such made more was Lodge Act, 10(b) tion in Local signed. agreement year after was Mfg. Co.) (Bryan No. v. 411, 822, 4 L.Ed.2d 832 question U.S. S.Ct. be no There seems to company had agreement In that expiring ease that but putative prac- give a presumption committed unfair labor of to a rebuttable rise by signing a tice collective majority of Terrell status the Union. Report Certainly supervisory 2. The the House Committee on of of coer 1. fact very Education and Labor on H.R. as to relevant to a decision cion “It for the has been unusual a states: ma the Union was the choice of whether past complaints years employees. in the to issue jority It has been con of practice alleged 10(b) sistently that, after an labor was unfair held absent Sec. occurred, have after records to have problem, bar there be refusal can no gone destroyed, else- have gain been witnesses of if the in violation Sec. the events purported representative where recollections question dim and confused.” designated have become freely was such p. Rep.No.245, Cong. Sess., 1st majority employees. 80th Heck’s, F.2d 317 1967) ; H. NLRB Rohtstein & (1st agreement period may with a which did not in tions in and of themselves represent majority matter, constitute, fact of the em- as a substantive ployees practices. There, at More than six that time. unfair labor earlier light subsequent thereto, may la- utilized to on an unfair events be shed practice the true character of occur- bor was filed matters ring alleged period; complaint Board. The that an within limitations 10(b) independent practice purpose labor had that ordinari- ly evidentiary been committed the six-month- does not bar such use within (362 period by company’s con- events.” limitation anterior U.S. at 826) operation tinued under invalid 80 S.Ct. at agreement. recognized The Court may Thus, these earlier events supposed- while the enforcement light be oc utilized to shed what ly-invalid agreement in a was sense period. within the In curred limitation independent practice, it was unfair labor present case these were ad entirely dependent time- on the initial background reflect missible as practice, unfair labor and thus barred ing on the mental or attitude was, effect, a resurrection of a stale doubt of the officials that claim. The Court held that evidence majority represented ever the time-barred unfair employees. way In no does this consti inadmissible, complaint that the validity an attack on the of the ex tute agree- based the enforcement piring agreement presumption or must ment therefore fail. thereby, attack was created however, barred the Act. All case, our dependent shown circumstances is not defense on the time- surrounding gave practice. barred unfair The evi- Company good offered, reason to believe that the dence was considered along good- the uncoerced evidence, did never of its majority choice of faith doubt about the status could The fact this evidence have the Union. prac been the basis of an unfair Bryan, supra, pre- be read as cannot charge tice in is coincidental and 1967 relating venting the use of all evidence ought to render the evidence inad not transpiring to events more six than purpose.3 for missible another prior filing to the of an unfair argument practice charge. If in the the Board’s Justice Harlan so present employers, in opinion adopted, case were stated in the for which he wrote reaching to decision as wheth- a rational the Court: to er the continued 10(b) “It is doubtless true that § employees, could not con- of its prevent does not all of evidence use any occurred more sider events which relating transpiring events previously, if those than six months filing six months and than before the might possibly constituted events have practice service of an unfair practice. an unfair labor charge. However, applying in rules of Hence, it, admissibility the Board would have an to the evidence as decide, expi- employer regard past events, who had to at the for the due contract, poses of an initial whether 10(b) requires ration two of § recognition of an incumbent continue be distin- kinds of situations different approach prob- guished. would have oc- The first is one where following The em- lem in the manner: limita- currences within the six-month 1966) ; (3d Cir. inadmissible 274 3. The that evidence doctrine (3d Evidence, Wigmore, ed. purpose Sec. 13 an- be admitted for for one can purpose firmly in established Livergood Sons J. Groves & law. v. S. Tragniew, by Section “As contended ployer events sur- look at the first would recognition 10(b) not rounding bar all initial statutory outside the six-month cast events could to see if those upon period, of ma- bears lack status on the doubt jority representation within to decide then have He would Union. sup- permissible period.4 It was have facts would those also whether charge. evidence as ported Examiner Trial admit an unfair labor pro- ob- Local they manner in which did not reach level If Act, operated collec- take under its could scription he tained under (Em- agreements.” bargaining they tive constituted If them into account. added). practice, phasis could not an he unfair labor making decision. use them his Company, exactly This is what the is obvious- an artificial standard Such attempted evidence, the excluded ly impractical one which well Tragniew prove. cites Footnote 4 nigh complied impossible It with. to be language Bryan previously which we substantially impair, if not oblit- would quoted. efficacy erate, defense Den- relies on Bryan good-faith doubt. did not involve 1972), ham, de- good-faith evidence of the exclusion of Circuit about cided the Ninth made There the attack was doubt. goes Tragniew. Denham months after validity agreement. previous decision than further Reliance on NLRB v. Mine United It to our attention. which has come America, Workers of 422 F.2d 115 holds that events within 10(b) 1969), misplaced. In that ease period inadmissible limitation are sought in a in- was any purpose, including consideration agreement validate the such because doubt. We do on the issue agreement procured been had supports Bryan believe practice. This was a direct conclusion. on the attack which attack irrespective Tragniew any event, specified was not made the time within Denham, competent it was for the and was therefore Company discovered, to show that barred.4 year one the collective more than after agreement signed, pointed above, may as was As out we supervisor complicity the con- expiring of its sume that in the present perfectly cealment the Union of its misconduct. valid. It did deprive right, Menhaden In NLRB Patterson negotiate agree new asked Man, Corp., Gallant 389 F.2d d/b/a one, upon expiration of ment the old (5th 1968), the held that Court good-faith had doubt that show by captain he that statements a boat representing the a ma about Union ever for the not hire crew members would jority union, they if voted next season by Tragniew, statements were barred which 10(b) prac- Cir., 8, 1972) Sept. establish an unfair labor decided help tice, contrary as Board, admissible but on were nevertheless background supports oth- position. to corroborate There evidence While the Court said: er offered evidence the Board. Carriers, etc. This result was also reached in a number International Hod union. Co.), sought (Roman other cases where Loeal 1298 Stone Const. Lane-Coos-Curry- against charge ; 8(b)(7) (1965) defend Sec. 153 NLRB recognitional picketing by Douglas Bldg. unlawful attack- & C.T.C. Counties ing underlying 415 F.2d 656 time-barred company between the and the incumbent permitted the Board to make this ease as em- for its 10(b), ployees, use of events barred since it felt the union did not good why majority. the same Coincidentally is no reason there employer. should not extend to there rule were numerous efforts two su- pervisory employees persuade the em- The Court stated: sign ployees indicating statements pre-elec- “The Board held these they repudiated union. tion statements not constitute an could At 8(a)(1) they violation since occurred the union a strike called and filed unfair than six months before practice charges, claiming 8(a)(1) labor charge was filed. 29 U.S.C.A. § (coercion) (refusal 8(a>(5) and to bar- 160(b). They properly used, were gain) 158(a)(1), violations. 29 U.S.C. however, background as evidence to (5) Hearing (1970). The Examiner adduced corroborate other evidence testimony 8(a)(1) who heard the found respect pending and viable to the in violations the interference and coer- charges might charges pending supervisory cion employees, and in and of themselves constitute an the Board seeks enforcement of same. practice depending on labor em- opinion The of the court finds substan- (389 ployer at motive.” 702- findings tial evidence to (Emphasis added). 703) grants enforcement words, In the evidence was used order, and I concur. only light” present to “shed aon dispute case, however, real in practice charge. labor respondent’s concerns contention that it Similarly, present Company in hearing was entitled to show at the be- light case seeks shed Hearing fore the Examiner good-faith to the unfair doubt defense original agreement September 16, practice charge. The Board erred procured 1967, was a result of in- excluding According- in such evidence. supervisory employee fluence who it ly, we remand this case the Board organized is claimed into with instructions to receive evidence Hearing the union concerned. Ex- surrounding pro- the circumstances aminer to admit this refused evidence curement of Union authorization cards 10(b), the basis of Section 29 U.S.C. § evidence, and to consider such provides This section along subsequent with other events complaint “no shall issue based thereto, on the issue of whether the upon any occurring unfair labor did in fact have a filing prior six more than as to doubt status of the .” the Board . . . Union. simply itsOn face this section bars granted only Enforcement as to the complaints pertaining to unfair 8(a)(1) violation; enforcement practices over six months But the old. 8(a)(5), denied as to Section Supreme United States Court has inter- manded for further consideration. preted it also as a rule of con- cerning admissibility past EDWARDS, Judge, concurring Circuit which would constitute unfair part dissenting part. practices. respondent company this Bryan Manufacturing In Co. case the union entered into a labor spelled applicable Harlan Justice out years, to run for beginning Sep- three Supreme Court rule: 16, tember 1967. Three months before agreement, the date for of 10(b) It doubtless true that § negotiations requested the union prevent does not of all use evidence newal, company and the relating transpiring informed it that to events longer recognize it would no filing than six months before 336 guage employed Mr. practice above Justice labor unfair of an service situa- However, to describe “the second applying rules Harlan

charge. admissibility tion.” evidence as regard events, past due agreement, negotiated, labor once A 10(b) requires poses of § presumption validity and entitled to be distin- kinds of situations different presumption that once a union is a there oc- guished. is one where first majority recognized, it contin has been six-month limita- within the currences majori proof that ues there is until may period and of themselves tions ty dissipated em or that has been matter, constitute, substantive grounded good reasonably ployer “a has There, practices. earlier unfair labor [the union’s] faith doubt light may utilized to shed be v. support.” Machine Co. Terrell occur- of matters Cir.), the true character (4th NLRB, 1088, F.2d 1090 427 ring period; the limitations within 1821, denied, 929, cert. 398 U.S. 90 S.Ct. purpose ordinari- for that (1970); Bally 26 & 91 Case L.Ed.2d evidentiary ly use not bar such (6th NLRB, 902 Cooler, v. 416 F.2d Inc. situa- The second of anterior events. 910, denied, 1969), Cir. cert. U.S. occurring conduct tion is that where (1970). 2201, 26 L.Ed.2d S.Ct. period can the limitations within evidence admission of the Without practice charged to be an unfair labor original invalidity the claimed through un- on an earlier reliance finding Board’s practice. the use of There fair labor respondent’s re unfair labor practice is not labor earlier clearly supported negotiate is fusal “evidentiary,” it does not merely since which evidence —a conclusion substantial lay putative simply current bare dispute. my colleagues I do not believe Rather, practice. it serves labor grant enforcement I would illegality to cloak with order also. a com- And where lawful. otherwise plaint upon that event is earlier based

time-barred, permit itself the event in re- in effect results

to be so used

viving legally defunct unfair 1424,

practice. IAM v. NLRB Local Mfg. 411, (Bryan Co.), 416- 362 U.S. 822, 417, 826-827, 4 L.Ed.2d S.Ct. omitted.) (Footnote al., Appellants- et Marie WILCOX Mfg. Bryan Co. The rule tiffs, Plain and oth been extended this court has v. sought apply to be to bar ers to CITY, KANSAS BANK OF COMMERCE alleged unfair introduced to defend Appellee-Defendant. corporation, UMW, 30, practices. District No. 72-1494. 1969), (6th de cert. 422 F.2d 115 Cir. Appeals, United States Court 2173, 959, nied, 26 L. 90 S.Ct. 398 U.S. Tenth Circuit. Tragniew, (1970); NLRB v. Ed.2d 543 1972); Argued Nov. 1972. Submitted Bldg, Lane-Coos-Curry-Douglas Counties Decided Feb. 656, 659, n. 7 19,1973. Rehearing Denied March point present case in our The crucial which the as to is that the evidence clearly evi- remands this case

court legally defunct unfair dence of “a lan-

practice” hence barred

Case Details

Case Name: National Labor Relations Board v. Dayton Motels, Inc., D/B/A Holiday Inn of Dayton

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 14, 1973

Citation: 474 F.2d 328

Docket Number: 72-1078

Court Abbreviation: 6th Cir.