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Int'l Alliance of Theatrical Stage Emples., Local 15 v. NLRB

United States Court of Appeals for the Ninth Circuit

March 4, 2020 Seattle, Washington, Argued and Submitted, Seattle, Washington; April 29, 2020, Filed

No. 19-70651

Opinion

HUNSAKER, Circuit Judge:

At issue in this collective bargaining case is whether the employer, Audio Visual Services Group d/b/a PSAV Presentation Services ("PSAV"), effectively retracted its claim of inability to pay the union's wage and benefits proposals, thereby limiting its obligation to produce financial documents to the union, and whether PSAV failed to bargain in good faith. Petitioner International Alliance of Theatrical Stage Employees, Local 15 ("Local 15" or "Union") is the certified collective-bargaining representative for PSAV's employees. The National Labor Relations Board ("NLRB") found that PSAV did retract its inability-to-pay claim and that PSAV's conduct both at and away from the bargaining table did not establish that it acted in bad faith in violation of the National Labor Relations Act ("Act"), 29 U.S.C. §§ 151-169. Rather, the NLRB concluded that Local 15 "did not sufficiently [*4]  test [PSAV]'s willingness to bargain prior to filing its bad-faith bargaining charge." Audio Visual Servs. Grp., Inc., 2019 NLRB LEXIS 173, 367 N.L.R.B. No. 103, 2019 WL 1198973, at *10 (Mar. 12, 2019). We hold that substantial evidence supports the NLRB's findings, and we affirm.

I. BACKGROUND

PSAV provides event technology services to hotels and conference centers nationwide, and it maintains offices in Washington state and Pennsylvania. In December 2015, Local 15 was certified as the exclusive collective-bargaining representative for the riggers and technicians 2 in Washington who provide audio visual support services for PSAV. PSAV challenged the union's certification and refused to bargain with Local 15 from January 2016 until the NLRB denied PSAV's request for review in May 2016. 3 Audio Visual Servs. Grp., Inc., 2017 NLRB LEXIS 270, 365 N.L.R.B. No. 84, 2017 WL 2241025, at *3 (May 19, 2017). A few days after its request for review failed, PSAV acknowledged Local 15 as the collective-bargaining representative and promptly responded to Local 15's request to begin negotiations. 4 From mid-2016 through early 2017, PSAV and Local 15 engaged in the bargaining process and held multiple in-person bargaining sessions, but they did not reach agreement.

The parties' first in-person bargaining session was in June 2016, and the parties primarily focused on establishing ground rules for their bargaining [*5]  process. The following month, Local 15 presented its first contract proposal, which sought wages of $33 to $45 per hour, representing a 73-to 120-percent increase depending on job classification. Local 15 also sought, among other things, overtime pay in circumstances where it is not legally required, contributions to Local 15's pension and health plans, limits on PSAV's ability to subcontract work, progressive discipline measures and "just cause" limits on termination and discipline, and an arbitration provision. A few weeks later, PSAV presented a counter-proposal to pay wage rates from $15 to $30 per hour depending on job classification. PSAV also proposed, among other things, that current employees would "maintain their current rate of pay and not be subject to a reduction in pay as a result of this Agreement," overtime would be paid as required by law, the same benefits provided to unrepresented employees would be provided to the employees represented by Local 15, discipline would be based on a "reasonable belief" standard, and arbitration proceedings would be final.

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2020 U.S. App. LEXIS 13739 *

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, LOCAL 15, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Prior History:  [*1] On Petition for Review of an Order of the National Labor Relations Board. NLRB Nos. 19-CA-186007 19-CA-192068.

PSAV Presentation Servs., 2019 NLRB LEXIS 173 (Mar. 12, 2019)

Disposition: AFFIRMED.

CORE TERMS

bargaining, negotiations, bad faith, employees, documents, good faith, requests, wages, proposals, retracted, parties, inability-to-pay, bargaining process, benefits, discipline, asserting, bargaining session, bargaining table, inability to pay, rates, contracts, refuse to bargain, increases, quotation, marks, duty to bargain, business model, sessions, demands, suicide

Administrative Law, Judicial Review, Standards of Review, Substantial Evidence, Labor & Employment Law, Collective Bargaining & Labor Relations, Judicial Review, Business & Corporate Compliance, Labor & Employment Law, Bargaining Subjects, Duty to Bargain, Employment Relationships, At Will Employment