Pick-Mt. Laurel Corporation v. National Labor Relations Board
625 F.2d 476
3rd Cir.
1980
Check Treatment

*1 her mother need to have child’s against the we ex As testifying.

present while based on error rejecting appeals plained in which were on matters by the trial court attention, “a -the trial court’s called to reversed on not be trial court should urged argued or grounds never that were Corp. Inger v. the court Caisson below.” Co., (3d at 680 soll-Rand 622 F.2d 672 1980). Refining Cf. Walker Sinclair 1963) (en banc). (3d .305 V. To Rule 615 the recapitulate, under changed sequestra- has been granted request. upon should be A party presence who believes that the

witness is “essential” must bear burden of supporting showing allegation

why policy of Rule in favor of sequestration inapplicable automatic desiring The party seques- situation. opportunity tration given must then be to show Fi- why sequestration needed. explicate

nally, the trial court should factors is denied. sequestration considered if Jr., Circuit Higginbotham, A. Leon appellant has not shown Because the opinion. Judge, dissenting filed a prejudice sequester failure judgment we will affirm the the district court. CORPORATION,

PICK-MT. LAUREL Petitioner, RELATIONS NATIONAL LABOR BOARD, Respondent. No. 79-1131. Appeals, Court of United States Third Circuit. Argued Nov. 10, 1980. Decided June *2 OF THE

OPINION COURT VITER, Judge. SLO Circuit

I. Corporation Laurel

Petitioner Pick-Mt. (hereinafter pursuant “Pick”) petitions, Nation- 160(f), 29 U.S.C. for review § January order of al Labor Relations Board’s recognize ordering Pick to Bartenders, Hotel, bargain with Local Union, Employee Motel and Restaurant (hereinafter AFL-CIO “Union”). The Gen- for enforcement cross-petitions eral Counsel to 29 U.S.C. order, pursuant of the Board’s issue 160(e). case raises This employer to bar- obligation of a successor when the Union gain with incumbent good faith successor it entertains alleges majori- the Union’s as to reasonable doubt the circumstances part on ty status of the Union recognition surrounding the six months be- which occurred more than ownership. change fore in employer

II. Associates, 9, 1977, February P-B

On Pick as a partnership limited which included partner, hotel and res- general purchased facilities, Mt. Laurel taurant known Development Com- Inn, Hilton from MLH “MLH”).1 operated (hereinafter pany date hotel and restaurant Associates, pursuant acquisition by P-B (argued), Howard L. Alan Rut- Kastel S. circum- to a management contract. koff, Gray, Chicago, 111.,Fred- Altheimer & initiation surrounding the stances Archer, Read, Rohloff, erick J. Greiner & MLH, prede- relationship Union’s Haddonfield, J., petitioner. N. for Pick’s con- basis of cessor are the employer, Bado, (argued), Jay E. Barbara Shanklin tentions on review. C., B., for Washington, respon- N. R. D. L. operation the hotel began MLH on dent; Counsel, Irving, Gen. E. John S. John February months June 1975. Counsel, Jr., Robert Higgins, Deputy Gen. business, the opened the hotel before Counsel, Allen, Acting E. Associate Gen. began negotiations direct- Union and MLH Moore, Gen. Deputy Elliott Associate Coun- relationship. The subsequent ed to their sel, C., B., N. L. R. D. Washington, MLH had reached substantial Union and counsel. of their agreement on terms ^contract were any employees April 1975 before GIBBONS, Before was executed HIGGINBOTHAM hired. That 1, 1975, VITER, Judges. it was effective Circuit June stated SLO distinguish purposes develop operated there no need our 1. for the The hotel had been them, company by management company, to as ment between both will be referred Services, Hospitality Management “MLH.” Inc. Since At that time there approxi- cations. were of December preceding date unit; bargaining recognized December mately 80 of em- representative There exclusive were February housekeeping, laundry, ployees “engaged operation change no or hiatus in the maintenance, restaurant and repair and hotel. exceptions, some listed bar activities” with Cummings, began operations, After Pick security clause. and contained a union *3 manager, general who remained as hotel employees that who provided That clause employee of reported heard that he had at the time the were members of the Union in late 1976 the Union with dissatisfaction would remain agreement became effective However, 1977.3 through continuing Union, employees that who members of the em- any unit was no evidence that there join would on were not members Union checkoff authoriza- revoked the dues ployee following day ninetieth or after Union, attempted or tion, resigned from that agreement, effective date of the petition. to file a decertification the effective date of employees hired after 23, 1977, members on agreement vice-presi- would become Union February On following their day or after the thirtieth Cummings payment for dent McBride asked hiring.2 to the were owed of funds which he claimed MLH by under Union the collective bar- hiring employees MLH began its initial day gaining On same agreement. in June May throughout and continued signed authoriza- began McBride to solicit until practice, May 1975. In employees. unit Gotta, MLH’s assist- cards from February Wayne director, regularly 24, Cummings gave McBride a beverage ant food and On February for required applica- employees to execute check drawn on bank account MLH’s membership employ- tion for in the Union and a by Union dues withheld MLH dues checkoff authorization card at any make ee’s paychecks, but refused employment, time of rather than within Pick and told payment such on behalf thirty days provided by the written that McBride instructed that he had been agreement. with dealings Pick would not have further the Union. negotiation During the course of hotel, 1976 or sale of the in late in 25, 1977, consultation February On after January general manager hotel with to the lawyer about its doubt as Cummings Ralph Lewy, Daniel told Pick’s representation Union’s Pick filed a treasurer, that he vice-president and be- petition seeking a Board conducted election negotiated lieved the contract had been be- as collective determine the status Union’s any employees fore were hired. On the same bargaining representative. day, Thirty-nine When a strike. operation Pick took over the McBride called unit employees hotel on all of the 103 failed February it retained scheduled work including supervisors; report MLH’s all next employees, to work at their all employees job retained the same classifi- date. Union, department opposed provides her were

2. The Act but National Labor Relations expressed only employees shall not be an unfair labor could name six who to make an with a directly opposition that agement Another man- to her. organization requiring labor employment membership “as a condition of opposition employee about testified on or union] [in addition, the Union. was some testi- day following beginning after the thirtieth mony by concerning employees unit their own employment of such . . . .” 29 U.S.C. employees’ or with other unit dissatisfaction 158(a)(3). having the Union. A Union steward testified employ- five to seven with fellow conversations Cummings employees testified that seven ees, pos- four, concerning of whom she named complained directly to him and in addition he replacement as collective sible Union complaints by department was told of other bargaining representative. supervisor opinion heads. A testified as to her per in cent of the 24 or 25 III. Regional April Director of the On complaint Region issued a Fourth Board’s petition of its support in argument Pick’s charges which had Pick, against to review and set the decision aside 4, alleg- on March been filed the Union essentially twofold. is order of the Board committed unfair labor ing that Pick had recog- which Pick that a union refusing to practices by contract and nized by prehire an unlawful sought Director then Regional Union. The employer as- unlawful has received injunction temporary in federal district is not enti- continuously sistance thereafter bargain. Following require court continued tled to presumption 1977, the hearings May days three petition, status. Pick’s second contention district court denied injunction was holding temporary if even view of the “substantial warranted Board erred warranted evidence of the credible and uncontroverted holding that the circumstances good faith doubt” existence of [Pick’s] recognition initial *4 Hirsch majority the Union’s status. v.. predecessor disregarded must be employer 1342, F.Supp. Corp., Pick-Mt. Laurel 436 a determining in Pick entertained whether (D.N.J.1977). 1358 the of Union’s good doubt faith reasonable 27, Regional Director May 1977 the On events oc- those majority status because be- representation petition Pick’s dismissed charges curred before more six months than pending of unfair labor cause the were filed. charge on that charge. hearing A was held has presumption The status majority of Judge Law on before Administrative 31,1977.4 later, year genesis rule, approved by in Almost a its May May on the NLRB 1978, 5, opinion ALJ in NLRB, issued his favor 348 v. Supreme in Brooks Court position which was affirmed of the NLRB’s (1954), 96, 125 176, U.S. 75 L.Ed. 99 S.Ct. by the Board on with minor modifications pre that created an irrebuttable “almost” 12, January The ALJ concluded that 1979. sumption that a a union certified as result employer, Pick was a successor of a elec representation Board conducted es- and the Union MLH

contract between status chal majority not may have its presumptive majority tablished the latter’s lenged ordinarily period, “reasonable” not succeed and that Pick did presumption Thereafter, of one year. presumption demonstrat- rebutting continues, but becomes re majority status of ing good a reasonable faith doubt can rebutted presumption The buttable. Union’s ALJ held majority status. The is in if the the union employer shows validity that Pick’s of attempt attack employer had minority or the contract on the basis of the circum- of doubt faith reasonable inception was pre- stances 104, Id. at 75 cluded time. support statute of limitations at relevant 10(b) Act, Vic, of the National Labor 181; Inc., § Relations Vegas 546 S.Ct. at NLRB 160(b). 29 ALJ U.S.C. The did con- denied, § 828, cert. (9th F.2d Cir. 829 illegality sider Pick’s contention that 57, 54 818, L.Ed.2d 434 54 U.S. objective the contract was an consideration NLRB, 427 (1977); Terrell Machine Co. v. supporting reasonably 1088, denied, Cir.), 398 (4th F.2d 1090 cert. The Board con- doubt status. 91 1821, L.Ed.2d U.S. S.Ct. was., argument, sidered held that it too continued presumption of period, precluded by the limitation also applicable status unions has to certified ALJ of the affirmed the conclusions been unions which alia, applied to Pick, recognize ordered inter v. Frick voluntarily recognized. NLRB with the Union. injunction proceeding primarily before the district court. the ALJ case was submitted to transcript portions basis of the no 1970). nary circumstances 1327, 1332(3d challenge Cir. We have to the Un

423 F.2d by the ion’s status launched emerged could have been presumptions these noted that competing union conflicting goals employer, two or a weighing employees, “the in this preserving employ policy: during pendency national years. representa three bargaining ees’ free choice which did not exceed tives, stability for established providing of con- that the relationships.” Id. The same applied not be should tinued status even when the volun apply considerations employ- is a successor in this case because not been tary recognition of the union has originally er, who employer and not v. Broad writing. reduced to Street recognition voluntary accorded the Center, Hospital and Medical a successor em- obligation Union. The (3d 1971). brings play compet- into ployer number of pre has also established a The Board which are ing central policy considerations sumption majority binds the policy. They to labor relations are the need employer period during for the which the flexibility for an to retain peti contract would be a bar to an election assets, right transfer of business NLRB, tion. Pioneer Inn Associates contract, parties to have freedom of 1978); Shamrock security, job interests of the Inc., (1957), Dairy, 119 N.L.R.B. economy in and the interests of the entire (1959), 124 N.L.R.B. 495-96 enforced considering the obli- stability. industrial sub nom. International Brotherhood gations the Su- employers, of successor Teamsters, NLRB, Local 310 v. 280 F.2d 665 preme to balance these attempted Court has denied, (D.C.Cir.), cert. 364 U.S. 81 factors. *5 224, (1960); 5 188 Hexton S.Ct. L.Ed.2d Security In NLRB Burns International 342, Co., (1955); 344 Furniture Ill N.L.R.B. 285, Services, Inc., 272, 92 S.Ct. 406 U.S. see also and Gravel NLRB v. West Sand (1972), the 32 61 Board L.Ed.2d Co., 1326, (1st 1979); 612 F.2d 1331 Cir. argued that “the of labor relations stability Shoe, Inc., 542, NLRB v. Morse 545 and that jeopardized [would] 1979); Trucking v. Marcus gap and a in the uncertainty face [would] Co., (2d 1961). 593 This conditions of em- bargained-for terms and presumption stems previously from a enun ployment . . . unless the [successor] rule, rule, ciated Board the contract-bar assumed, employer to have as a held [was] which bars an election while a con petition law, obligations matter of federal labor tract is in effect specified for a period. into the for- under the contract entered Currently, operates the contract-bar rule this conten- rejecting mer employer.” petition during bar an election the term of tion, the Court stated that: which has a duration of no [H]olding . . . the new employer more than three or is filed years which terms of bound to the substantive an old during agree of an years the first three may contract collective result ment covering longer period. a General inequities. potential employ- in serious A Cable Corporation, 139 N.L.R.B. may er be willing to take over a mori- of the contract- The transformation only bund business if he can make of continued bar rule into presumption structure, composi- changes in corporate majority pending a contract status based on location, force, tion of the labor work substantially enlarged pe has therefore supervi- assignment, task nature majority by riod of the extend presumptive employer with sion. ing year possible Saddling it from one to a such an three employment years. the terms This extension was based on the and conditions collective-bargaining Board’s greater determination of need for a contained in the old changes impos- measure of stability may of labor make these relations. Id. inhibit the discourage As a rule sible and may result of the contract-bar transfer presumption majority capital. under ordi is unmistakable that a good inference 287-88, at 1582. Since the faith Id. at doubt “manifest Act is would relieved Burns of the congressional policy presump- obligation to negotiate any bargain. parties to enable the Since arose from a tion of case appropriate,” majority id. at protection either deems election, did con- Court the Court held that certification at S.Ct. duty sider obligation was limited to a the interaction between the successor’s bargain on the successor bargain imposed with the incum- which it requirement that it employer presumption and the bent union. arising pending contract. status from a ap It follows from Burns that However, gave one of the bases it for re- pearance employer of a successor cannot must jecting the contention that successor deprive presumptive majority union of was that a observe the existent contract question whether might status. One holding contrary would have required the the mainte presumption, rationale for the despite successor “to observe the contract relations, is stability appli nance of in labor good-faith majori- doubts about union’s because the appears, cable when a successor ty the contract during the time that [was] already change disrupted in employers has representation bar to another election.” Id. employer-employee rela stability at Court also 92 S.Ct. at 1583. freedom to re tionship, successor’s and the appeared Board cite approvingly

ject con the terms and conditions suc- non-assuming cases permitted employees of perforce tract deprives cessor doubt as to raise a faith job expectations.5 their security and How union’s a refusal a defense ever, inevitably argument would lead term of the old charge during the the requirement to a conflict with enunciat Id. at 1583 contract. at 290 n. S.Ct. employer ed Burns that a successor has (citing n. 12 Randolph Rubber N.L. obligation bargain. R.B. (1965) Standard and Mitchell given status to an incumbent Corp., (1963)). 140 N.L.R.B. 496 union should be viewed as a concomitant of obligation We believe it employer’s to bar follows successor if a gain. doubt as to the union’s successor sufficient to relieve the hand, On the other clear from the it is *6 bargain from to notwith- obligation the employer Burns decision that the successor election, a fortiori standing a certification bargain would not to if obligation have an obligation the will relieve a successor about the it entertained a faith doubt for the not status challenge to a union’s majority union’s status in the it is not re- duration of a contract unit. noted specifically Thus the Court Accordingly, quired we hold to assume. light that in there had of the fact that been that successor Pick’s status aas at which election a few earlier months duty bargain did not relieve it the to bargain- union had been the designated the ma- presumptive a union which had ing agent employees in the for the unit and contract, jority but pending because the majority had employees of those that bargain Pick was to refuse entitled to by hired the successor work iden- if it had a good faith doubt reasonable unit, not tical “it was unreasonable for the majority. Union’s Board to that union conclude certified represent employees to all unit still argues presumption Pick that the of ma- represented majority jority quo which is the sine non reasonably and that obligation Burns could not its cannot bargain, support good-faith doubt about that because entertained a order to in this case both at 1577. fact.” Id. The is based was un- at S.Ct. which it Bargaining Obligations Note, of Suc- 5. See Employers, cessor 88 Harv.L.Rev. 762-64 (1975). employment only “on or after inception and because it has

lawful at day beginning thirtieth following it had a doubt as to shown that employment the Union at the . . ..” status of time 29 U.S.C. 158(a)(3). The Board re- has held that arguments These are bargain. it refused to sign quiring applicants employment they rely on factually because both related applications membership and dues inception the circumstances for union commence- before and checkoff authorizations relationship of the between despite ment of their a con- predecessor employer. argu- employment, The first gave grace period tract which them the give operative ment effect to the asks us Act, assist- by allowed them the is unlawful by holding in 1975 events that occurred 8(a)(2) section initio, ance in NLRA they prevented, presumptive ab violation of (1). Co., Luke arising; status from ever Construction 211 N.L. argument is directed to the extent R.B. second regard- subsequently acquired information presumption contin- that a ing the 1975 used in a later events can be out of an ued cannot arise majority status

period. Pick construes illegal agreement. prehire Con- in R. J. Smith the Board’s decision findings The factual of the AU in (1971), en- struction 191 N.L.R.B. this case of the illegality origi confirm the 150, In- nom. Local forcement refused sub nal contract. The ALJ found “[t]he Engineers Operating ternational Union of agree Union and substantial MLH reached NLRB, (D.C.Cir. 480 F.2d ment on the terms of their collective-bar of a execution holding that even when the 22, 1975, 6 to 7 gaining agreement by April it is in the prehire legal, Inn weeks before the Mt. Laurel Hilton industry pursuant construction to section began operations two weeks be and about 8(f) Act, 8(f) agreement the section any employees fore MLH had hired at those give does not of ma- rise presumption to a By granting bargaining facilities.” Therefore, jority. according Pick, it fol- agency not been selected had lows can arise if no such any of its employees, much less a prehire illegal. agreement was of such employees, MLH violated section . interpreta- Pick’s disputes General Counsel 8(a)(1) (2) by abridging NLRA to the effect respect tion of the law with employees’ right bargain collectively prehire construction indus- contracts in through representatives of their own choos try, have held that arguing that courts ing and by contributing support a labor 8(f) agreement where a is followed section organization. International Ladies’ Gar clause, NLRB, security union operation ment of a Workers’ Union v. 366 U.S. arises, 731, 737-738, rebuttable presumption 6 L.Ed.2d 762 S.Ct. Irvin, (1961); accord, citing, alia, NLRB v. Local Interna inter Workers, supra. (3d Iron Bridge, 1975) tional Association of Structural & However, Workers), *7 (Iron Ornamental Iron Workers the Counsel does General 335, 344, 651, 434 directly pre- U.S. 54 L.Ed.2d meet Pick’s contention that a (1978). Furthermore, 586 sumption the ALJ found of status can- continued agreement. that MLH “from May February 1975 until not arise illegal prehire from an Instead it regularly required employees, new precluded contends Pick is that at the time the employment, of to execute an making argument from because application for membership 10(b) period in the Union as bars the com- section limitation well as a union authorization pany attacking dues checkoff the (emphasis added). Although card.” these six months more than which arose taken by expiration position were not activated until the earlier. This is the same Pick’s execution, rejected days ruled, 30 from the date of the ALJ the ALJ who “I have surround- recognized proce illegality such contention circumstances that the in 1975 ing dure. The NLRA allows the execution of that contract require validity.” membership in the union as a condi- could its now be used to attack

483 1972); 30, NLRB v. did not District expressly Board United The comment on America, 115, 122 issue, position the ALJ’s on this but con- Mine Workers denied, 959, 10(b) 398 period limitation U.S. 90 strued section cert. (1970); exclusionary which Bender effecting 2173, a total bar 543 S.Ct. 26 L.Ed.2d 615, relying on the circum- precluded Ship Repair 188 N.L.R.B. recognition surrounding stances the initial Pick conceded At argument, oral n reasonably support MLH as a basis to it from precludes that Bryan decision status. based doubt of agreement, in relying prehire on the illegal itself, bargain. refusal It to defend its IV. coupled when agreement, 10(b) assistance, provides, illegal Section NLRA in is rel with continuing part, that: evant. complaint upon any

no shall issue contends, If, as the General Counsel practice occurring unfair labor more than employers means that Bryan decision six months filing events occurred any cannot consider charge with the Board the service of 10(b) period any pur beyond the section a copy upon the person against thereof be at an end. pose, inquiry then would our whom such charge is made Pick failed estab finding ALJ’s Lodge Local No. 160(b). U.S.C. § grounds based lish had reasonable 1424, of Machin- Association International believing that objective considerations for Manufacturing Co.), (Bryan ists v. NLRB support at enjoy Union did not 822, 4 L.Ed.2d 832 U.S. S.Ct. with the the time of its refusal to (1960), interpreted this section as the Court substantial is probably supported filing of an unfair precluding only evidence if the events the in of a charge based on execution relationship ception of the Union-MLH filing before contract more than six months at that beginning the unlawful assistance charge, charge filing but also the 10(b) time period and carried over into the based on of that continued enforcement However, the Court itself are disregarded. during period. the six month a contrary Bryan provided expressly Congress Court noted that enacted section It 10(b), past 10(b). noted that part, litigation bar over construction of “to section events ‘after “earlier events destroyed, records have certain circumstances elsewhere, gone may light have and recol- on the true .witnesses utilized to shed question occurring lections of the within the events be- character of matters ” come purpose dim and confused.’ Id. at for that limitations period; H.R.Rep. citing S.Ct. at No. 80th not bar such ordinarily does 10(b) section Sess., Therefore, 1st Cong., p. Court events.” evidentiary use of anterior Therefore, used the to hold “a same considerations we U.S. at at 826. S.Ct. finding inescapably which is a violation agree Gerry with who noted in his Judge grounded predating on events limita- injunction even request on the opinion at odds with period directly tions pre-10(b) if Pick not use evidence could Id. at purposes 10(b) proviso.” contract, why reason nullify the no 80 S.Ct. at 829. permitted Pick should not be to admit “surrounding the 1975 contract’s evidence language

While the literal of section refusal inception light upon to shed applies filing complaints only to the buttress Board, bargain, background evidence the Board and courts have used *8 ing analysis of the various reasoning respondent’s the Bryan case to extend gave rise timely allegedly which prevent section to defense an unfair events good status.” charge exclusively on conduct faith doubt Corp., 436 pre-10(b) Hirsch v. Laurel period. which occurred in the Pick-Mt. (9th' Tragniew, F.Supp. F.2d 673 at 470 relationship that when reflected in the compelling ment highly Such a result earlier refer to the contract. which seeks party not involved who was period is a successor any appel- Although we are not aware of original em- in Unlike the those events. court case the effect analyzed late that has agreement; to the ployer, party it was not a period on a of the 10(b) section limitation caused may have the considerations a refusal ability successor’s to defend accept bargaining rela- predecessor did arise NLRB issue charge, the may be minority union tionship with a (9th Cir. Tragniew, Inc., it; prior opportuni- had no known to and it 1972), that the succes- where the court held during the six ty raise a faith doubt from introduc- sor employer was not barred question. following the events months in which ing manner evidence “as to the noted, light Supreme As the Court has “[I]n under its operated obtained and [the Union] difficulty successorship ques- of the agreement.” collective tion, myriad factual circumstances contention agreed employer’s court with the arise, and the legal contexts in which it can all evidence 10(b) not bar that does “Section congressional absence of guidance as to its statutory six-month of events outside the resolution, facts of each emphasis on the period, lack of upon which bears appropriate.” especially case as it arises is period.” representation within that Id.6 Employees, Howard Johnson Co. v. Hotel not a suc- Even when the 2236, 2240, U.S. cessor, has been held rel- pre-10(b) evidence L.Ed.2d 46 along evant other when it was offered 10(b) If a succes- applied section were faith doubt company’s good evidence of the sor in form and to the precisely the same In about the union. status of prede- same to the apply extent as it may Dayton Motels, Inc., NLRB v. cessor, Burns case rationale of the (6th 1973), the court held: holding would be undercut. that a suc- In Thus, these earlier be uti- may events exactly cessor does not stand in the same light lized to shed with- on what occurred predecessor shoes as its because it will not period. the limitation present In the previously bargained bound to the case these events were admissible terms, pol- the Court construed the relevant reflecting on the background evidence icies prevent imposing on the successor doubt of good-faith mental attitude or an obligation by past to be bound events Company officials If arrangements. the successor is not of its em- ever represented a contract, by employer’s past bound no constitute ployees. this In no does way why valid reason exists it should be bound validity expiring an attack on the not to refer to the actions. employer’s past created presumption or on the change When has no in the been thereby, was barred Sec- which attack month employer, application of the six rule that is shown is 10(b) All of the Act. in the context of the of contin- the circumstances ued majority arising voluntary agreement gave Company good rea- recognition clearly congres- carries out son to believe that never did the Union policy existing sional relation- protecting represent choice of a ma- uncoerced ships. That policy fully cannot be served jority employees. of its fact where there is a employer, successor who evidence could have the basis of never had existing relationship charge with the unfair labor Union and who is free to not to render the reject ought the embodi- coincidental and Id. at the issue doubt. 245. How- 6. The relies on NLRB v. Den- General Counsel ham, ever, 469 F.2d 239 same did refer to decided court regarding original recognition the Ninth evidence Circuit several months after hearing. Id. Tragniew thirty years prior decision. that case the court held the union Thus, most, at 243-44. at the events before the section limitation the decision is precedent period equivocal parties. for either of the were inadmissible in consideration *9 relationship, any, if make clear the between for inadmissible another pur- evidence during the omitted). (footnote pose. the assistance unlawful doubt. good faith period and its claim (cid:127) evidence considered The Board itself has by previously This issue was not considered before the executed prehire of a left to is best the we believe Board and purpose for the 10(b) period background “as first in- the consideration Board’s which fell with events throwing light Banff, Bee by stance. Sweater the period.” Ltd., enforcement (1972), 197 N.L.R.B. 805 the Board erred believe that we Because Banff, by Bee granted, N.L.R.B. Sweater to evidence total exclusion applying a Ltd., 1973). (2d Cir. remand the pre-10(b) we period, from the on NLRB Ta reliance General Counsel’s it an give to case the order to Board in Inc., Nugget, hoe finding opportunity to reconsider the ALJ’s denied, cert. U.S. grounds reasonable that Pick did not have (1979), misplaced. is 61 L.Ed.2d 289 for believ- objective based on considerations did state Although the court there enjoy majority not ing that the Union did 10(b) precluded employer from section bargain. refused to support at time Pick minority, showing the union was case, substantially different the date facts were in this purposes For some was not a succes employer those here. The peri- limitations from which the six-months original sor, a beyond series of contracts may be critical. The od be measured should ratified, was evidence one been had ap- ALJ and the argues, Genera! Counsel already the union’s had the benchmark date parently agreed, once, employer did not established 4,1977, was March for exclusion of evidence which the court promptly take the action charge practice when the unfair labor resolving ma deemed most for appropriate correct, filed. If General Counsel petition filing a jority disputes, i. e. to show evidence available an contrast, Pick did In in this election. severely re- good its faith doubt could contempora request membership election by delay in filing charge. stricted This to bargain with its refusal neously promptly of section seems construction questionable employer. took after it over as a successor here, when, as 10(b). Pick proffering its defense of faith applica- literal being given statute is not doubt union’s Pick practice labor filing unfair reasonably consider it could contends that bar evidence charge, used being but is because the pre-10(b) circumstances practice labor defending unfair used in by relationship evidenced “sweetheart” should be period charge, the six-months light with- on events prehire contract sheds Pick’s refusal measured the time period. Specifically, Pick in the limitations using the date of The reasons bargain.7 requiring union practice refers to MHL’s charge rather filing than the a condi- membership checkoff as and dues were of the refusal date indepen- tion of which was an employment by the ALJ and should be con- developed occurring dent unfair Board on remand. sidered further employees new within the six-month hired reasons, deny we will foregoing For the such, provide period. As serve to it could and re- enforcement of Board’s order temporal the relevant anchor which con- consideration for further mand the case sideration events could be tied. note, however, opinion. does not with this We that Pick’s brief consistent produced fact of unlawful assist- recognize to use the seeks We has not that Pick evidence, conjunction only specific ance with other evidence number expressions employee practices such who dissatisfac- were tainted coercive tion, doubt, to show date of its and not within six months of the refusal minority bargain. question actual status of the Union. whether of a We evidence necessary in this case tainted where *10 HIGGINBOTHAM, Jr.,

A. Circuit LEON Judge, dissenting. KELLY, Petitioner, Mary Ann

We are asked to consider in this case the certain events which relevance of occurred RAILROAD RETIREMENT years almost two to the six-month BOARD, Respondent. period 10(b) statute of limitations of Section No. 79-1959. of the National Labor Relations Act. I agree with part majority’s the first Appeals, Court of United States decision which holds that Local Bar- Third Circuit. tenders, Hotel, Motel and Restaurant Em- Argued Jan. 1980. ployee Union, (the Union) AFL-CIO contin- June Decided ues enjoy a presumption 10(b). within the period six-month Although there illegal recognition

the Union prior hiring employees, 10(b)

Section precludes raising after six months this unfair labor as a basis for eliminating of minority

status. I cannot agree with the illegal same evidence of recogni- (two years earlier) must be considered to help rebut that presumption once estab- lished; and that the failure of the National (the

Labor Board) Relations Board to con- contrary sider this evidence was Section 10(b) and reversible error. Board’s de- cision is entirely consistent with the under-

lying purposes of Section to further stability Supreme and with the

Court’s Lodge decision in Local No.

International Association of Machinists v.

NLRB (Bryan Co.), Manufacturing 362 U.S. L.Ed.2d 832 While I uphold would the Board’s decision

to consider such evidence under its discre- Sloviter, Circuit Judge, concurred and tion to probative evaluate the value of evi- opinion. filed dence, not, I does, would as the require they do so. Without this evi-

dence, there clearly is substantial evidence

to support the Board’s conclusion that

employer lacks a good faith doubt of the

Union’s majority status.

The Board’s order should be enforced.