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, INC., 

PETITIONER

v. 

NATIONAL LABOR 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, 
2 

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. 
3 

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. 
4 

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 
5 

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 
6 

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 
7 

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 
8 

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. 
9 

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 timebarred 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). 
10 

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). 
11 

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 SeattleFirst’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 
12 

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.