760 F.2d 1006 (9th Cir. 1985), 84-7353, Hotel Employees and Restaurant Employees Union, Local 11 v. N.L.R.B.
|Citation:||760 F.2d 1006|
|Party Name:||HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES UNION, LOCAL 11, affiliated with the Hotel Employees & Restaurant Employees International Union, AFL-CIO, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Rossmore House Hotel, Respondent-Intervenor.|
|Case Date:||May 16, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted Jan. 8, 1985.
Ellen Greenstone, Levy, Ansell & Goldman, Los Angeles, Cal., for petitioners.
Daniel R. Pollitt, N.L.R.B., Washington, D.C., for N.L.R.B.
Michael Schmire, Schmire & Schmire, Los Angeles, Cal., for Rossmore House Hotel.
Petition for Review of the Decision of the National Labor Relations Board.
Before KENNEDY and ALARCON, Circuit Judges, and SOLOMON, [*] District Judge.
Hotel Employees and Restaurant Employees Union, Local 11 (petitioners), petition to review the decision of the National
Labor Relations Board (the Board) in Rossmore House, 269 N.L.R.B. No. 198, 116 L.R.R.M. 1025 (1984). Petitioners contend that the decision establishes a standard for evaluating the legality of employee interrogations that is inconsistent with the National Labor Relations Act (the Act). Petitioners also challenge the Board's ruling that the interrogations do not violate the Act. We affirm the Board's adoption of the standard and its application of the standard in this case.
Warren Harvey worked as a cook and waiter for Rossmore House, a residential retirement hotel owned by Shyr-Jim Tsay and managed by Ronald Tvenstrup. In July, 1982, Harvey called union representatives and held an employee meeting in his home. The union sent a mailgram to Rossmore House which notified Rossmore House that Harvey and others had formed an organizing committee with the knowledge that their union activities were protected under the Act.
On August 1, 1982, when Tvenstrup received the mailgram, he walked into the kitchen and talked to Harvey. Harvey and Tvenstrup disagree on the content of their conversation. Tvenstrup testified that he asked Harvey, "Is this true?," that Harvey answered, "Yes," that Tvenstrup said, "Okay, thank you" and then walked away. Tvenstrup further testified that as he walked back to his office, Harvey stated, "I am sorry; it is nothing personal."
Harvey testified that Tvenstrup approached him with the mailgram in his hand and said, "What is this about a union?," and Harvey responded, "That's right about the union. We're going to have a union because of the lack of benefits, lack of insurance, lack of job security, vacations without pay." Harvey testified that Tvenstrup said the owners would fight the union, and that, as manager, Tvenstrup would have to fight it, too.
The second interrogation took place on August 7, 1982. According to Harvey's testimony, which the Administrative Law Judge (ALJ) credited, Tsay, the owner, approached Harvey as Harvey was leaving work. Tsay said, "The manager tells me you're trying to get a union in here," and asked why. Harvey said that low pay, lack of benefits, and lack of job security caused the union effort. Tsay then asked if the union...
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