Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1016 (9th Cir. 1991)

No. 90-70199.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and RYMER, Circuit Judges, and McDONALD, District Judge** .

MEMORANDUM*** 

The United Food and Commercial Workers Union, Butchers Local 126, AFL-CIO ("Union"), petitions for review of the National Labor Relations Board's ("Board") dismissal of its complaint charging an unlawful refusal to extend a collective bargaining agreement to the employees of the meat department at a new Save Mart grocery store. The Union contends that a remand is necessary because when the Board determined that the Union did not show that it enjoyed majority support at the new store, it erred by failing to consider allegedly unlawful conduct of Save Mart. We reject the Union's contention and deny the petition.

The Union does not dispute that under the "after-acquired stores" doctrine an employer has an obligation to recognize the union in a newly opened facility only if the union presents the employer with "concrete evidence" that a majority of the employees in the group desire Union representation. See, e.g., Alpha Beta Co., 294 N.L.R.B. No. 13 (1989); Joseph Magnin Co., 257 N.L.R.B. 656, 657 (1981) (discussing Houston Div. of Kroger Co., 219 N.L.R.B. 388 (1975)), enforced, 704 F.2d 1457 (9th Cir. 1983), cert. denied, 465 U.S. 1012 (1984). The burden to introduce this evidence is on the Union; the employer does not have to show a lack of majority support. Here, both the ALJ and the Board concluded that the Union failed to present concrete evidence of majority support when it requested recognition.

The Union contends that a remand is necessary to enable the Board to consider whether Poole's and Sharp's requests for union withdrawal cards were unlawfully coerced and whether Save Mart acted unlawfully in selecting these individuals to transfer to the new store. While we are inclined to believe that the Board did consider this information, even assuming that it did not, a remand is not necessary. The proffered information, if proven, tends only to cast doubt on Save Mart's evidence of anti-union sentiment. However, it cannot cure the Union's failure to point to any evidence indicating that Poole or Sharp affirmatively desired Union representation.1  The failure to meet its burden on the issue of majority support is fatal. See Williams and Lane, Inc., 254 N.L.R.B. 609, 609 n. 2 (1981). The Board's conclusion that the Union failed to adduce concrete evidence of Union support is amply supported by the record and a remand for further consideration is unnecessary.

PETITION DENIED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

The Honorable Alan A. McDonald, United States District Judge for the Eastern District of Washington, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The only evidence in the record that might suggest that the employees did desire continued representation was the fact that they were still carried as Union members at the time the Union asked for recognition. Consistent with Board precedent, however, the Board correctly held that this alone was insufficient to show that the employees favored representation at the new store. See Williams and Lane, Inc., 254 N.L.R.B. 609, 609 n. 2 (1981)

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