NLRB v. Okla-Inn

Decision Date26 October 1973
Docket NumberNo. 72-1737.,72-1737.
Citation488 F.2d 498
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. OKLA-INN, d/b/a Holiday Inn of Henryetta, Respondent, Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO, Intervenor.
CourtU.S. Court of Appeals — Tenth Circuit

Elliott Moore, Acting Asst. Gen. Counsel, Russell H. Gardner, William F. Wachter, Marjorie S. Godfreed, Peter G. Nash, John S. Irving, and Patrick Hardin, Washington, D. C., for petitioner.

C. A. Kothe and Richard L. Barnes, Koths & Eagleton, Inc., Tulsa, Okl., for respondent.

John M. Keefer, Jarboe & Keefer, Tulsa, Okl., for intervenor.

Before SETH and DOYLE, Circuit Judges, and LARAMORE,* Senior Judge.

LARAMORE, Senior Judge.

This case is before the court pursuant to section 10(e) of the National Labor Relations Act, 61 Stat. 136 (1947), 73 Stat. 519 (1959), 29 U.S.C. § 151 et seq., upon application of the National Labor Relations Board for enforcement of its order issued against Okla-Inn, d/b/a Holiday Inn of Henryetta (herein "the Company") on July 26, 1972. The Company operates a transient motel and restaurant at Henryetta, Oklahoma under a franchise from Holiday Inns of America, Inc.

The Board found that the Company and Lindo Corporation constituted a single integrated enterprise for jurisdictional purposes and that their combined gross volume of business satisfied the Board's discretionary jurisdictional standards. The Board further found that the Company violated section 8(a)(1) of the Act by coercively interrogating employees, soliciting them to withdraw from the Union, asking them to dissuade their fellow employees from supporting the Union, creating the impression of surveillance and threatening discharge, layoff, and business closure. Additionally, the Board found that the Company violated section 8(a)(3) and (1) of the Act by failing and refusing to reinstate the striking maids, by discriminatorily discharging five other employees and by changing the conditions of employment of DeLois Porter and discharging her because of her Union adherence. Finally, the Board found that the Company violated section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union and that a bargaining order was warranted.

The Board's order directs the Company to cease and desist from the unfair labor practices found, and from in any other manner interfering with, restraining or coercing employees in the exercise of their section 7 rights. Affirmatively, the Board's order requires the Company to offer all of the discriminatees, except for one striking maid who did not make an unconditional offer to return to work, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to make them whole for any loss of earnings sustained by reason of the discrimination against them, to bargain with the Union upon request, and to post appropriate notices.

The threshold question presented by the Company in this case is whether the Board has jurisdiction over the respondent Company. The Board combined the operations of the Okla-Inn and the Lindo Corporation, a Holiday Inn in McAlester, Oklahoma, as constituting a "single integrated enterprise" which would permit the combining of their annual gross revenues for the purpose of meeting the Board's jurisdictional test.

The short answer to this contention is that the limitation on the exercise of the Board's jurisdiction is self-imposed, and it can exercise jurisdiction under the statute and related cases under any reasonable circumstances. 29 U.S.C.A., see § 160, Note 36; NLRB v. W. B. Jones Lumber Co., 245 F.2d 388 (9th Cir. 1957); NLRB v. Marinor Inns, Inc., 445 F.2d 538 (5th Cir. 1971); NLRB v. WGOK, Inc., 384 F.2d 500 (5th Cir. 1967).

The Board found that respondent Okla-Inn had violated section 8(a)(1) of the Act by coercively interrogating employees, soliciting their withdrawal from the Union, asking them to dissuade other employees from supporting the Union and threatening discharge, layoff, and closing of the motel. There is abundant substantial evidence in the record respecting these accusations to support the Board's findings.

For example, a few days after the Union authorization petition was circulated, Innkeeper Braasch told kitchen employees Bobby Blair and Danny Brisson that he knew they had signed the petition and wished they would have their names removed. Braasch asked another kitchen worker, Tommy Bryan, whether the other "boys" had been giving him "any trouble about the Union" and asked a cook, Dorothy Bond, how she felt about the pickets, adding, "If I was you, I wouldn't even be talking to them."

In a similar vein, restaurant supervisor Louchery told waitress Juanita Green that she knew which employees had signed cards, and that if they wanted to keep their jobs they had better watch what they were doing. She also said she had been told that Green had signed a card. Additionally, Louchery requested another waitress, Cora Bryan, to help dissuade other employees from signing authorizations. She also asked whether Bryan had signed the petition and when Bryan said "no," she stated that she knew Bryan had not signed the petition, but that she also knew Bryan had signed a card and that was "just as bad." On September 8, housekeeper Bartholic told a new maid, Myrtle Mouser, that she would be fired if she signed a Union card.

As we hold infra, the Company also discriminatorily discharged five card signers on September 12 and 14. In October, Braasch asked desk clerk DeLois Porter why she "was walking out there with her friends, the sorry sons of bitches" meaning the pickets, and said that they were wasting their time. In November, Braasch told Porter that the Inn would close "before the Union would come in." In December, Louchery told Porter that the Union "just couldn't get in" because if it did Braasch would lose his job. Porter said she didn't think Braasch would lose his job and Louchery retorted that if Porter voted for the Union and the Company found out, Porter would lose her job. Later that month, Louchery's husband asked waitress Janet Ashley whether she was going to vote for the Union and Louchery spoke up before Ashley could answer, saying, "you know she is not going to vote for the Union." On another occasion, Louchery asked Ashley whether she would like to work the morning shift. She said that if Ashley did not vote for the Union, Cora Bryan would be fired and Ashley could have her shift. In January, Louchery told Ashley that if the Union came in, the Company "would go to short orders and close the buffet." She also said that Cora Bryan, Esther Johnson and DeLois Porter would be fired if the Union lost the election identifying them as Union supporters.

Also in January, Louchery asked waitress Beverly Poulton whether she had decided which way she would vote and stated that the Company would find out if she voted for the Union, that they had "ways of finding out" and Poulton would lose her job. Louchery also called Poulton at her home on several occasions, engaging in substantially the same conversation. She also called Poulton when a Union representative was present at Poulton's house and asked whether the Union man was there. Finally, a few days before the election, Louchery asked waitress Linda Whitlock how she was going to vote and warned that if Whitlock did vote Union, she would not have a job because the Company would have to recall the other girls who were laid off.

These facts amply support the Board's findings of section 8(a) (1) violation and require no further discussion. NLRB v. Miller Trucking Service, Inc., 445 F.2d 927, 930-931 (10th Cir. 1971); NLRB v. Wylie Manufacturing Company, 417 F.2d 192, 194-195 (10th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 915, 25 L. Ed.2d 94; NLRB v. Hawthorne Aviation, 406 F.2d 428, 429 (10th Cir. 1969); Betts Baking Co., Inc. v. NLRB, 380 F. 2d 199, 201 (10th Cir. 1967); Hendrix Manufacturing Company, Inc. v. NLRB, 321 F.2d 100, 104 (5th Cir. 1963).

Next the Board found that the Company violated section 8(a) (3) and (1) of the Act by failing and refusing to reinstate the striking maids. The respondent claims that the maids quit because their supervisor was fired and relies on the cases of Dobbs Houses, Inc. v. NLRB, 325 F.2d 531 (5th Cir. 1963); American Art Clay Company v. NLRB, 328 F.2d 88 (7th Cir. 1964); and NLRB v. Coal Creek Coal Co., 204 F.2d 579 (10th Cir. 1953) for the principle that concerted activity over supervisory personnel per se is not protected by the National Labor Relations Act. The argument continues that the employees' concerted activity is not protected by law, that there is not substantial evidence for the Board's findings, and that the Board's request for reinstatement of the strikers is wrong.

The issue as to whether the maids have a right to be reinstated turns on whether the walkout was a protected activity. We hold the maids were engaged in legal and protected activities, a bona fide protest over unfair work conditions, for their mutual aid and protection as guaranteed by section 7 of the Act, 29 U.S.C. § 157 (1970), as amended. Section 7 protects concerted activity by workers to alleviate oppressive working conditions, regardless of whether their activity is channeled through a union, through collective bargaining, or through some other means. United Packinghouse, Food and Allied Workers International Union, AFL-CIO v. NLRB, 135 U.S.App.D.C. 111, 416 F.2d 1126, cert. denied, Farmers' Co-op Compress v. United Packinghouse etc., 396 U.S. 903, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969). To be protected by section 157, the concerted activity of employees who stage a walkout must be directed toward a dispute concerning conditions of employment. Hagopian & Sons, Inc. v. NLRB, 395 F.2d 947 (...

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