Ark Las Vegas Restaurant Corp. v. N.L.R.B.

• Decision Date: 11 July 2003
• Docket Number: No. 01-1433.,01-1433.
• Citation: 334 F.3d 99
• Parties: ARK LAS VEGAS RESTAURANT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Culinary Workers Union, Local 226, Local Joint Executive Board and Bartenders Union, Local 165, Local Joint Executive Board, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

334 F.3d 99

ARK LAS VEGAS RESTAURANT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Culinary Workers Union, Local 226, Local Joint Executive Board and Bartenders Union, Local 165, Local Joint Executive Board, Intervenors.

No. 01-1433.

United States Court of Appeals, District of Columbia Circuit.

Argued January 13, 2003.

Decided July 11, 2003.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Celeste M. Wasielewski argued the cause and filed the briefs for petitioner. Michael A. Taylor entered an appearance.

Michael H. Carlin, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick L. Cornnell, Jr., Attorney. Siobhan M. Kelly, Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Ark Las Vegas Restaurant Corporation petitions for review of a decision and order of the National Labor Relations Board (NLRB) finding that Ark committed unfair labor practices by threatening, disciplining, and terminating employees for engaging in protected union activities, and by maintaining and enforcing unlawful work rules. We deny Ark's petition and enforce the Board's order in all respects except one.

I

Ark is a tenant of the New York New York Hotel and Casino, a hotel and gaming facility in Las Vegas, Nevada. Ark operates three public restaurants inside New York New York. It also runs a fast food court, is responsible for banquet functions and room service, and maintains an employee dining room open only to employees of Ark, the hotel, and one other employer. On January 2, 1997, Ark commenced around-the-clock operations seven days per week, employing about 900 persons.

Efforts at unionization began almost as soon as the company started hiring. In a letter dated March 11, 1997, thirty employees identified themselves to Ark Vice President Paul Gordon as members of the Union Volunteer Organizing Committee. The Committee stated that it had "embarked on a campaign to organize our co-workers" into the Culinary Workers Union, Local 226, and Bartenders Union, Local 165 (collectively, the "Union"). At the same time, committee members and other employees began wearing union buttons on their work clothes. Over the next several months, Ark disciplined or terminated eight union supporters.

On September 17, 1997, the Board's General Counsel, acting on charges filed by the Union, issued a consolidated complaint alleging that Ark committed unfair labor practices in violation of the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., by threatening, disciplining, and terminating employees for protected union activities. The complaint also alleged that four of Ark's work rules, published in the company's employee handbook, violated the NLRA.¹ After a seven-day hearing, an Administrative Law Judge (ALJ) sustained the charges that are the subject of this petition. With some modifications, the Board affirmed and, inter alia, ordered Ark to reinstate and to make whole the individuals it had unlawfully terminated. Ark Las Vegas Rest. Corp., 335 N.L.R.B. No. 97, 2001 WL 1149038 (Sept. 25, 2001).

Ark now petitions for review. It does not contest some of the NLRB's unfair labor practice determinations, and we therefore uphold those determinations without further discussion. See W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49 (D.C.Cir.1998); Grondorf, Field, Black & Co. v. NLRB, 107 F.3d 882, 885 (D.C.Cir. 1997). In Part II, we consider Ark's challenges to the Board's findings and remedial order regarding the company's adverse employment actions and threats. In Part III, we address Ark's attack on the Board's determinations regarding the company's work rules.

II

Ark disputes the Board's findings that the company took unlawful adverse actions and made unlawful threats on the ground that those findings are not supported by substantial evidence. Our role in reviewing such a claim is limited. Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.Cir.2001). We must uphold the Board's findings as long as they are "supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e). In making that determination, "we ask only whether on this record it would have been possible for a reasonable jury to reach the Board's conclusion, and in so doing we give substantial deference to the inferences drawn by the NLRB from the facts." Antelope Valley Bus Co. v. NLRB, 275 F.3d 1089, 1093 (D.C.Cir. 2002) (internal quotation marks omitted). Moreover, we "must accept the ALJ's credibility determinations ..., as adopted by the Board, unless they are patently insupportable." Tasty Baking, 254 F.3d at 124 (internal quotation marks omitted).

After reviewing the record in detail, we conclude that substantial evidence supports each of the contested findings. In the following sections we provide only illustrative examples. We address the adverse employment actions in Part II.A, and the threats in Part II.B. In Part II.C, we address Ark's challenge to a portion of the Board's remedial order.

A

It is well settled that an employer violates the NLRA by taking an adverse employment action in order to discourage union activity. Tasty Baking, 254 F.3d at 125; see Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 264-65 (D.C.Cir. 1993). The central question is the employer's motivation in taking the adverse action, and in addressing that question the NLRB uses what is known as the Wright Line test. See Wright Line, 251 N.L.R.B. 1083, 1089, 1980 WL 12312 (1980), enforced, 662 F.2d 899 (1st Cir.1981); see also NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 401-04, 103 S.Ct. 2469, 2474-76, 76 L.Ed.2d 667 (1983) (approving the Wright Line test). Under that test, "the General Counsel is required to make a prima facie showing sufficient to support the inference that protected [i.e., union-related] conduct was a motivating factor in the ... adverse action." TIC-The Industrial Co. Southeast, Inc. v. NLRB, 126 F.3d 334, 337 (D.C.Cir.1997) (internal quotation marks omitted). In determining whether the employer had a discriminatory motive, "the NLRB may consider such factors as the employer's knowledge of the employee's union activities, the employer's hostility toward the union, and the timing of the employer's action." Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C.Cir.2000) (internal quotation marks and alteration omitted). "Once a prima facie case has been established, the burden shifts to the company to show that it would have taken the same action in the absence of the unlawful motive." Tasty Baking, 254 F.3d at 126.

Substantial evidence supports the NLRB's finding of a prima facie case that protected conduct was a motivating factor in all of the adverse employment actions at issue here. Each of the eight employees involved was a known union activist or sympathizer: four of the eight had signed the March 11 organizing letter, and all had worn pro-union buttons. In addition, the Board reasonably concluded that Ark harbored hostility toward the union. For example, on March 12, after asking waiter Saam Naghdi what kind of button he was wearing and being told that it was a button supporting the union, restaurant general manager Christina Flores told Naghdi: "I don't think you can wear that here.... I don't think they would like it." J.A. at 304-05. Ark supervisors twice threatened employee Clara Montano for wearing a union button, once saying that it "could probably cause some discomfort among co-workers" and "that that would be bad for [her]." J.A. at 82-84. And after observing line cook Randy Kiddy's union button, supervisor Don Meza told him: "That's not good.... That's gonna cause you problems.... [T]hey don't like that kind of thing around here." J.A. at 139. When Kiddy asserted his right to wear the button, Meza tore it off his shirt, threw it on the floor, and walked away laughing.²

The timing of many of the adverse actions provides further support for the Board's inference of discriminatory animus. For example, supervisor Bobbie Rihel fired Sandra Jordan only minutes after Jordan refused to remove her union button. Similarly, line cook Ron Isomura's chef discharged him less than an hour after Ark supervisors had censured Isomura for distributing union literature in the employee locker room while off-duty. Cooks Jorge Aguilar and David Schafer were terminated just weeks after they began to wear pro-union buttons. Ark terminated Vertis Manuel one day after he was cited in a local newspaper article for his prounion views. And dishwasher Jesus Serna's supervisor fired him only twelve hours after he participated in a union rally — and after the supervisor made derisive comments about Serna's participation in the rally.

There is also substantial evidence to support the Board's conclusion that Ark failed to meet its burden of showing it would have taken the contested adverse actions in the absence of an anti-union motive. For example, the Board reasonably declined to credit general manager Flores' claim that she had disciplined Naghdi for failing to keep the restaurant's salt and pepper shakers filled, since she admitted that she had personally approved Naghdi's performance of that task when he left for the day and that she did not notice that the shakers were low until hours later. Rihel's shifting explanations for terminating Jordan — first saying that work was slow and only later claiming that Jordan's performance problems and absenteeism motivated the decision — undermine Ark's nondiscriminatory explanation for that adverse action. See Property Res. Corp. v. NLRB, 863 F.2d 964, 967 (...