the Raymond F. Kravis Center for the Performing Arts , Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2008 Decided December 30, 2008
No. 07-1419
THE RAYMOND F. KRAVIS CENTER FOR THE PERFORMING
ARTS , I NC.,
PETITIONER
v.
NATIONAL L ABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 07-1459
On Petition for Review
and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Charles P. Roberts III argued the cause for petitioner.
With him on the briefs were Robert J. Janowitz and Kimberly
Seten.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Ronald E. Meisburg, General Counsel, John H. Ferguson,

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Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Jill A. Griffin, Attorney.
Before: ROGERS , GARLAND, and KAVANAUGH , Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH .
KAVANAUGH , Circuit Judge: This case arises out of a
labor dispute between the Raymond F. Kravis Center for the
Performing Arts in West Palm Beach, Florida, and Local 623
of the International Alliance of Theatrical Stage Employees
and Moving Picture Technicians and Allied Crafts. Kravis
and the union entered into collective bargaining agreements
that established an exclusive hiring hall arrangement: Kravis
would use only employees referred by Local 623 to perform
all stagehand work at Kravis’s Dreyfoos Hall. After the
agreements expired, Kravis declared impasse during contract
renegotiations, withdrew recognition from the union, and did
not request further referrals from it.
The National Labor Relations Board ruled that Kravis
violated §§ 8(a)(5) and (1) of the National Labor Relations
Act by, among other things, unilaterally changing the scope of
the bargaining unit and withdrawing recognition from Local
623. The Board also determined that, as a result of a union
merger, Local 500 was the successor union to Local 623. It
ordered Kravis to recognize and bargain with Local 500 as the
exclusive representative of Kravis’s stagehand employees.
Kravis filed a petition for review in this Court. We deny the
petition for review and grant the Board’s cross-application for
enforcement.

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I
The Kravis Center for the Performing Arts is a concert
hall and theater complex in West Palm Beach, Florida. In
1992, Kravis and Local 623 of the International Alliance of
Theatrical Stage Employees and Moving Picture Technicians
and Allied Crafts entered into a five-year collective
bargaining agreement. The agreement provided for an
exclusive hiring hall arrangement under which Local 623
would provide the stagehand employees at Kravis’s concert
venue, Dreyfoos Hall, as the need arose – specifically,
carpenters, electricians, flymen and riggers, props, and
wardrobe employees. In 1998, the parties renewed the
contract for two more years, effective until June 2000.
In April 2000, Kravis notified Local 623 of its intent to
terminate the 1998 agreement upon its expiration. The parties
negotiated from May to September 2000. After various
proposals were bandied back and forth, Kravis submitted its
final bargaining proposal on September 9, 2000. The
proposal included discretionary use of Local 623 referrals, an
unfettered right to subcontract stagehand work, and contract
terms that would apply only to Local 623-referred workers,
not to other stagehand workers at Dreyfoos Hall.
On September 11, 2000, Kravis declared impasse and
unilaterally implemented its final proposal. On September 24,
2000, Kravis withdrew recognition from Local 623, and
thereafter requested no further referrals from Local 623 for
stagehand employees at Dreyfoos Hall.
In March 2001, Local 623 filed unfair labor practice
charges. After an investigation, the NLRB’s General Counsel
filed a complaint.

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Meanwhile, in February 2002, Local 623 merged with
five other local theater-employee unions in south Florida to
form a new Local 500. Local 623 members did not vote on
the union merger.
After a hearing on the General Counsel’s complaint, an
administrative law judge found that Kravis violated §§ 8(a)(5)
and 8(a)(1) of the National Labor Relations Act by, among
other things, unilaterally changing the scope of the bargaining
unit to exclude non-referred stagehands and by withdrawing
recognition from Local 623. However, the ALJ concluded
that Local 623 ceased to exist as a result of the 2002 merger
that formed Local 500 and that Kravis’s bargaining obligation
had ended on that date. All parties filed exceptions.
The Board affirmed the finding that Kravis violated
§§ 8(a)(5) and 8(a)(1). It reasoned that the parties’
relationship, based on the agreements in effect since 1992,
constituted a § 9(a) collective bargaining relationship,
rendering unlawful Kravis’s unilateral change to the
bargaining unit and withdrawal of recognition from the union.
The Board also rejected the ALJ’s determination that the 2002
union merger terminated Kravis’s bargaining obligation.
Overruling its traditional due process requirement for union
mergers in response to the Supreme Court’s decision in NLRB
v. Financial Institution Employees of America, Local 1182
(Seattle-First), 475 U.S. 192 (1986), the Board concluded that
Local 500 was the successor to Local 623 notwithstanding the
absence of a vote by Local 623 members. Accordingly, the
Board ordered Kravis to recognize and bargain with Local
500 as the representative of its stagehand employees.
Kravis has petitioned for review, and the Board has filed
a cross-application for enforcement. We review the Board’s

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decision to determine whether its factual findings are
supported by substantial evidence and whether the Board
otherwise acted arbitrarily and capriciously. See Beverly
Health & Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 320
(D.C. Cir. 2003).
II
Kravis has raised a variety of arguments to justify its
decision to stop using referrals from Local 623 after
termination of the collective bargaining agreement in 2000.
To analyze Kravis’s arguments, we first review the
statutory background. Section 8(a)(5) of the National Labor
Relations Act makes it “an unfair labor practice for an
employer . . . to refuse to bargain collectively with the
representatives of his employees.” 29 U.S.C. § 158(a)(5).
Section 9(a) defines the term “representatives”:
“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 employees in such unit for the
purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, or other conditions of
employment.” 29 U.S.C. § 159(a).
A union can achieve the status of a majority collective
bargaining representative through either Board certification or
voluntary recognition by the employer – in a contract, for
example. See Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1247
(D.C. Cir. 1994). Under Board precedent, a union with § 9(a)
status enjoys numerous benefits, including “a conclusive
presumption of majority status during the term of any
collective-bargaining agreement, up to three years.” Auciello
Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996). This

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conclusive presumption is “based not so much on an absolute
certainty that the union’s majority status will not erode,” as on
the need to achieve “stability in collective-bargaining
relationships” and allow the union to focus on obtaining and
administering an agreement. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 38 (1987) (quoting Terrell
Machine Co., 173 NLRB 1480, 1480 (1969)). After the
agreement expires or after three years (if the agreement is for
more than three years), a union with § 9(a) status enjoys a
rebuttable presumption of continuing majority support. The
employer can rebut the presumption by presenting evidence
that the union no longer possesses majority support. See
Levitz Furniture Co., 333 NLRB 717, 723 (2001); cf.
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
361 (1998).
When a collective bargaining agreement expires, an
employer is ordinarily obligated to continue bargaining with
the union, absent a showing that the union no longer has
majority support. See Auciello, 517 U.S. at 786-87. Even if
negotiations reach impasse, moreover, an employer cannot
unilaterally change the scope of the bargaining unit. See
Boise Cascade Corp. v. NLRB, 860 F.2d 471, 474-75 (D.C.
Cir. 1988).
A
In this Court, Kravis argues that Local 623 was not a
§ 9(a) union because it was not the exclusive representative of
stagehand employees at Kravis’s Dreyfoos Hall. If this were
correct, Kravis would have had no obligation after 2000 to
bargain with Local 623 regarding employment at Dreyfoos
Hall. But Kravis’s contention flouts the plain language of the
1992 and 1998 collective bargaining agreements. In both
contracts, Article I’s jurisdiction clause and Article II clearly

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provided that Kravis would exclusively use Local 623
referrals as stagehand workers at Dreyfoos Hall. Article I
defined the union’s work jurisdiction as “All carpentry,
electrical, sewing, fitting, and related work performed on or in
connection with the sets and props, costumes and wardrobe
used in the Theater.” Article II provided that the Kravis
Center “agrees that the work described in ARTICLE I above
shall be performed by qualified workers referred by the
Union.” Both contracts thus explicitly stipulated that all
Dreyfoos Hall stagehands within the prescribed categories
were to be referred by Local 623 – and would be subject to
the terms and conditions negotiated by Kravis and Local 623
in the collective bargaining agreement. See Strand Theatre of
Shreveport Corp. v. NLRB, 493 F.3d 515, 519-20 (5th Cir.
2007) (finding a § 9(a) collective bargaining agreement based
on exclusive language in the contract). To be sure, this case
involves a hiring hall referral arrangement, not the typical
situation where an employer hires its employees directly. But
for Dreyfoos Hall stagehand workers, the hiring hall was
exclusive, and the Board reasonably equated Local 623 to a
traditional union representing a bargaining unit of employees.
Kravis also cites NLRA § 8(f), which provides an
exception for employers in the construction industry to the
usual rule requiring continued bargaining at the end of a
contract. 29 U.S.C. § 158(f). But § 8(f) is a narrow statutory
exception carved out for employers in the construction
industry only. See M & M Backhoe Serv., Inc. v. NLRB, 469
F.3d 1047, 1048 (D.C. Cir. 2006) (describing the § 8(f)
exception as “specific to the construction industry”); Nova
Plumbing, Inc. v. NLRB, 330 F.3d 531, 534 (D.C. Cir. 2003)
(describing § 8(f) as “a limited exception” due to “the unique
nature of the [construction] industry”); Strand Theatre, 493
F.3d at 520 (“[E]xcept in the construction industry, a Union is
entitled to a presumption of majority support . . . and the

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agreement need not expressly reflect the Union’s majority
status.”). Kravis may have a good policy argument for
equating itself with a construction employer given that it hired
stagehand employees through a hiring hall arrangement. But
the statutory text simply does not extend to non-construction
employers. Kravis’s attempts to nudge its contracts into the
§ 8(f) paradigm are thus unavailing.
For those reasons, the Board reasonably concluded that
Local 623 was a § 9(a) union and was the exclusive
representative of stagehand employees at Dreyfoos Hall.
B
Having upheld the Board’s conclusion that Local 623
was a valid § 9(a) union and that Local 623’s presumption of
majority support therefore continued to apply as of 2000, we
next consider Kravis’s argument that it rebutted the
presumption of majority support. Kravis contends, in
particular, that it demonstrated a good-faith reasonable doubt
about Local 623’s continued majority support, consistent with
Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361
(1998).1 But Kravis provides no evidence to support its
alleged doubt about Local 623’s continued majority support.
Cf. BPH & Co. v. NLRB, 333 F.3d 213, 217 (D.C. Cir. 2003)
(finding good-faith doubt where employer showed
decertification petition signed by majority of bargaining unit);
1 The Board has since modified the Allentown Mack standard
so that reasonable doubt of a union’s majority status is no longer
sufficient to justify an employer’s unilateral withdrawal of
recognition. Now, the Board requires an actual showing that the
union no longer has majority support. See Levitz Furniture Co.,
333 NLRB 717, 723 (2001). The Board declined, however, to
apply the new standard to cases pending prior to the Levitz decision
and thus did not apply it here. Id. at 729.

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see also NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.
775, 778 (1990) (requiring “sufficient objective evidence of a
good-faith doubt”).
To sustain its good-faith doubt argument despite the lack
of evidence, Kravis creatively contends that the union never
had majority support at the time of the 1992 or 1998
agreements. To the extent Kravis is questioning the union’s
original majority status, that argument is time-barred by
NLRA § 10(b). 29 U.S.C. § 160(b). The case law
interpreting Section 10(b) requires that any challenge to the
initial majority status of a union be made within six months of
recognition by the Board or the employer. See Local Lodge
No. 1424 v. NLRB, 362 U.S. 411, 423 (1960). The six-month
time period for challenging Local 623’s alleged lack of
majority support in 1992 and 1998 passed long before Kravis
first raised this challenge.
To the extent Kravis is raising this point in a circuitous
effort to prop up its claim of good-faith doubt about the
union’s majority support in 2000, it is entirely unavailing.
Kravis had the burden to show good-faith doubt as to the
union’s continued majority support in 2000. Raising a time-
barred argument about an alleged lack of majority support in
1992 or 1998 does not alone suffice to meet Kravis’s burden
to show its doubt about Local 623’s lack of majority support
in 2000.
In short, the Board reasonably concluded that Kravis
“was not privileged to withdraw recognition from Local 623
without demonstrating a good-faith reasonable doubt or
uncertainty as to the Union’s support among employees.
Because [Kravis] failed to meet this burden, the withdrawal of
recognition was unlawful.” 351 NLRB No. 19, at 2-3 (2007).

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C
Kravis argues that, even if it had an obligation to
recognize and bargain with Local 623, it did not violate
NLRA §§ 8(a)(5) and 8(a)(1) because it did not unilaterally
change the scope of the bargaining unit at impasse. Changes
in the scope of the bargaining unit may not be implemented
unilaterally. Boise Cascade, 860 F.2d at 474. In Boise
Cascade, we defined unit scope as referring to “what
employees the unit represents.” Id. (emphasis omitted). We
explained that this was distinct from jurisdiction, which
referred to the “type of work.” Id (emphasis omitted). The
parties’ dispute over coverage of non-referred stagehands at
Dreyfoos Hall plainly related to what employees Local 623
represents. Under our precedent, therefore, the Board
reasonably concluded that Kravis acted unlawfully in
unilaterally changing the scope of the bargaining unit.
III
Kravis contends that, contrary to the Board’s
determination, any obligation it otherwise had to bargain with
Local 623 ceased upon Local 623’s merger with other unions
to form Local 500.
In cases involving union mergers or affiliations, the
Board traditionally had required an employer to continue
bargaining with a union (i) if the union merger or affiliation
was conducted by a vote with adequate due process
safeguards, and (ii) if the organizational changes were not so
dramatic that the post-merger entity lacked substantial
continuity with the preexisting entity. See Sullivan Bros.
Printers Inc., 317 NLRB 561, 562 (1995).

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In the decision in this case, however, the Board expressly
overruled its precedent and jettisoned the first factor in light
of the Supreme Court’s decision in NLRB v. Financial
Institution Employees Local 1182 (Seattle-First), 475 U.S.
192 (1986). In Seattle-First, the Supreme Court rejected a
Board rule requiring that all bargaining unit members be
allowed to vote on affiliation. Id. at 201-04. The Court
reasoned that an employer’s obligation to recognize a union
may not be discontinued unless the affiliation raises a
question concerning representation. Id. at 202-03. “In many
cases, a majority of employees will continue to support the
union despite any changes precipitated by affiliation” and
therefore no such question will be raised. Id. at 203.
In this case, the Board reasonably concluded that Seattle-
First’s rationale applied to a merger. As the Board
reasonably determined, when there is “substantial continuity”
between the pre-merger and post-merger union, the lack of a
membership vote on the merger does not cast doubt on
employee support for the union because the union is “largely
unchanged.” 351 NLRB No. 19, at 5 (2007).
Kravis, “as the party seeking . . . displacement, has the
burden of proving its claim of discontinuity.” News/Sun
Sentinel Co. v. NLRB, 890 F.2d 430, 432 (D.C. Cir. 1989).
Kravis emphasizes various factors – including size
differences, reduced participation, different levels of
organization, and different numbers of hiring halls – which, in
its view, highlight the distinctions between Locals 623 and
500. The Board, however, acknowledged such changes but
reasonably explained that countervailing considerations
outweighed any differences: There was no substantial change
in fee structure. There was no change in the hiring hall
system in terms of where the employees would be
geographically placed. Employers continued their benefit

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contributions to the union’s vacation and pension funds.
Local 623 officials continued to have leadership roles in
Local 500. And representation and resources for the union
members were arguably enhanced, rather than diminished,
given the former financial straits of Local 623.
Substantial evidence supports the Board’s finding that the
changes were not “so great that a new organization” came into
being. 351 NLRB No. 19, at 6 (quoting Western Commercial
Transp., Inc., 288 NLRB 241, 217 (1988)). We therefore
uphold the Board’s order that Kravis recognize and continue
to bargain with Local 500 as the successor to Local 623.
* * *
We deny the petition for review and grant the Board’s
cross-application for enforcement.
So ordered.

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