Arlington Hotel Co., Inc. v. N.L.R.B., AFL-CIO
| Citation | 785 F.2d 249 |
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-1006,AFL-CIO,85-1006 |
| Parties | 121 L.R.R.M. (BNA) 2926, 104 Lab.Cas. P 11,806 ARLINGTON HOTEL COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Southern Missouri-Arkansas District Council, International Ladies' Garment Workers' Union,, (Charging Parties), Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Russell Gunter, Little Rock, Ark., for petitioner.
Robert Bell, Washington, D.C., for respondent.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
This case is before the Court on the petition of Arlington Hotel Co., Inc. (the Hotel) for review of an order of the National Labor Relations Board. The Board found that the Hotel violated sections 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(3) and (1), by implementing a striker recall policy which restricted
the recall of strikers to their pre-strike positions and resulted in the preferential hiring of new employees in jobs that the strikers were qualified to perform. For reversal, the hotel argues that its recall system complied with the law inasmuch as returning strikers were offered their old jobs or substantially equivalent jobs, and that it is not obligated to offer returning strikers any available job for which they are qualified. We enforce the Board's order.
On March 12, 1981, the Southern Missouri-Arkansas District Council, International Ladies Garment Workers Union, AFL-CIO (the Union) notified Horst Fischer, general manager of the Hotel, that employees seeking Union representation would strike the next day. The Union's purpose in organizing the strike was to obtain recognition as collective-bargaining representative for a unit of service workers at the Hotel. On March 13, 1981, approximately sixty-six employees--including waitresses, maids, busmen, kitchen help, bellmen, and maintenance workers--did not report to work.
This strike occurred during the busiest time of the year for the Hotel. The Hotel was ninety-nine percent full with over one thousand guests registered. Consequently, Fischer immediately began hiring replacement workers in order to carry on business.
On March 16, 1981, three days after it began, the strike ended. At 5:00 p.m., the Union sent the Hotel the following telegram:
On behalf of all striking employees we hereby apply unconditionally for reinstatement to their old positions and/or their maximum employments rights under the law.
On March 17, the striking employees began returning to the Hotel, individually, and presented management with a form letter:
I hereby apply unconditionally for my old job back, or if my old job is not available, my maximum employment rights under the law.
Upon notification of the strike's end, the Hotel ceased hiring replacements. Fischer then devised and administered a system for recalling strikers. Striking workers were categorized by their job titles, and were listed by Hotel-wide seniority within each title. Where no opening existed in the employee's pre-strike position, the employee was required to wait for such an opening, and was not considered for any other job regardless of his qualifications. The Hotel was fully aware that the strikers were qualified to fill many different hotel jobs, because it employed a practice of cross-training employees. Using this system, thirty-one strikers were immediately reinstated. Ten were recalled within several weeks. Twenty-five striking employees were not recalled and were locked into a job-specific chart.
From the end of the strike until December 11, 1981, when the record in this case closed, the Hotel hired over two hundred new employees in positions that the unrecalled strikers were qualified to fill. Also during that period, consistent with its policy of cross-training and developing multiple capabilities for its employees, the Hotel filled numerous vacancies by transferring employees, who had not been strikers, between departments.
On March 23, 1981, the Union filed an unfair labor practice charge alleging that the Hotel had violated section 8(a)(1), and (3), and (5) of the Act. This charge was subsequently amended and consolidated with a second charge. An administrative hearing was held on December 9, 10, and 11, 1981 before Administrative Law Judge Robert A. Gritta. On August 9, 1982, the ALJ issued his opinion, finding that the Hotel had violated sections 8(a)(1) and (3) of ...
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