Dobbs Houses, Inc. v. NLRB
| Citation | 325 F.2d 531 |
| Decision Date | 11 December 1963 |
| Docket Number | No. 19536.,19536. |
| Parties | DOBBS HOUSES, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Newell N. Fowler, Memphis, Tenn., Robert McD. Smith, Birmingham, Ala., William Fortas, Memphis, Tenn., for petitioner, Lange, Simpson, Robinson & Somervlle, Birmingham, Ala., Fowler & Fortas, Memphis, Tenn., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Warren M. Davison, Atty., Stuart Rothman, Gen. Counsel, Robert Sewell, Atty., N.L.R.B., Washington, D. C., for respondent.
Before RIVES, JONES and BELL, Circuit Judges.
The petitioner, Dobbs Houses, Inc., asks this Court to set aside the decision and order of the National Labor Relations Board holding that it violated Section 8(a) (1) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. The Board seeks the enforcement of the order which directs the petitioner to reinstate sixteen discharged employees and to make them whole for any loss of pay. 135 N.L.R.B. 885.
The employees were discharged because they left their jobs and failed to return. Dobbs contends the employees walked out because of the discharge of a supervisor, that their walkout for such a reason was unprotected, and that their discharge was proper. The Board determined that the employee walkout was motivated by economic considerations and was hence protected. It also determined that if the cause of the walkout was the discharge of the supervisor, he was such a vital link between the employees and top management that walking out on account of his dismissal was nevertheless protected. We conclude that the Board's determination cannot stand.
This case involves the Luau Restaurant in Birmingham, Alabama. The employees named in the complaint were all waitresses, with the sole exception of bartender James Harris. The restaurant opened in December, 1960. The picture drawn by and on behalf of the discharged employees of working conditions was anything but a pretty one. The manager, White, according to credited testimony, was addicted to profane and abusive language in his dealings with the hired help, he was disrespectful to a few of the waitresses, and made promises in regard to meals which were not kept. The assistant manager, Cooper, was well liked by the waitresses and was regarded by them as having tried to alleviate some of the conditions giving rise to complaint, and acted generally as a buffer between the employees and White. Hostess Prickett, a supervisor, was wholly in sympathy with the employees and was uncooperative with the manager.
The critical day was March 2, 1961. Although it was disputed, the Trial Examiner found that White came into the kitchen and made a profane remark which the Trial Examiner interpreted as having been directed to the Negro kitchen employees. The Board found that the language used was such as to be offensive to the white waitresses, although there was evidence from which it might have been inferred that some of them had some familiarity with the objectionable words. The Board, however, decided that the remark would have upset all of the employees who heard it or heard about it. All of the employees, it seems, did hear about it.
At approximately 5:45 P.M. Mrs. Prickett returned to the restaurant, apparently from her afternoon break. Cooper told her and several waitresses that White had accused him of organizing a walkout and asked them to deny this to White. White claimed that he had had communications to the effect that Cooper had been fomenting a strike. The Trial Examiner credited the testimony of Alice Jones, a baker in the kitchen, Robinson, a cook, and Moore, a cook, that Cooper had paid them on Thursday, March 2, and told them that there was going to be a walkout and they need not report the next day. Jones called White and told him this shortly after leaving work at 5:00 P.M. Friday was the usual pay day. In his testimony Cooper did not deny their statements. Nor did he ask any of the kitchen help to tell White that he had not said anything to indicate a belief that no one would be working the next day.
After the waitresses, in Cooper's presence, asserted to White that Cooper had not attempted to organize a walkout, White and Cooper had a meeting in White's office where Cooper was suspended or discharged. Cooper claimed that he thought he had been discharged. The waitresses thought he had been discharged. Walking from White's office to the door, Cooper told several of the waitresses not to leave on his account. According to Mrs. Prickett White followed Cooper out of the building and was told by Cooper that the waitresses were planning to walk out. White profanely answered that no one had walked out on him in his twenty years in the business. Mrs. Prickett testified that this was the "last straw" and the basis of her determination to lead the waitresses out. The Trial Examiner did not believe her. After Cooper left Mrs. Prickett called Dean, resident manager of Dobbs House snack bars in the Birmingham area, even though the Luau fell without his jurisdiction. The first thing Mrs. Prickett told him was that Cooper had been fired. Mrs. Prickett also mentioned the unfulfilled promises relating to meals and White's cursing earlier in the day. She indicated to him that the waitresses were planning to walk out and she did not intend to stop them. Dean asked to speak to Cooper whom Mrs. Prickett called from outdoors. He said that he had gotten a raw deal.
Following her conversation with Dean, Mrs. Prickett attempted to call Mr. Dobbs, the President of Dobbs Houses, Inc., who was in Memphis. Apparently the Luau was too noisy to permit the completion of the call. Mrs. Prickett then went to a nearby Howard Johnson's Restaurant, taking the waitresses with her. Almost all of the waitresses employed at the Luau were involved in this incident. There are numerous references to the day shift, the night shift, and split shifts, but it is not clear which of the shifts were present and participated in the walkout. The Trial Examiner concluded that the walkout occurred at least an hour after the last of the night shift had come on duty. The record does not show that Harris walked out with the waitresses but he failed to appear for work the next day. White followed the waitresses out and attempted to tell them that Cooper had not been fired but they would not linger to listen. As they walked away, Cooper, standing outside, said, "Girls, you don't know how much I appreciate this."
The call to Dobbs was completed. Mrs. Prickett told him that the waitresses had walked out because Cooper had been discharged. This was Dobbs' version which the Trial Examiner expressly credited. Dobbs admitted that Mrs. Prickett mentioned working conditions and meals in their conversation. Dobbs told Mrs. Prickett that she and the others should go back to work and that he or his executive vice president would meet with them the next morning. It was established that when the waitresses left the front door had been locked to prevent patrons, who could not be served without waitresses, from entering. Dean arrived shortly after the walkout and was admitted at the front door by a bartender who had remained on duty. This employee testified and the trial examiner found that he was at the door for twenty or thirty minutes after the arrival of Dean and that the waitresses did not appear. Mrs. Prickett testified, as did some of the waitresses, that after the call to Dobbs, and within fifteen minutes of their initial leave-taking, she and the waitresses attempted to return to work but found the door locked although they saw Dean enter and although they admitted that they made no attempt to use the rear door, which was not locked. There was an express finding by the Trial Examiner that there was no intention on the part of White or anyone else to exclude the waitresses.
Mrs. Prickett and the waitresses, or most of them, reported for work the next morning at eight o'clock. Dobbs, who had already come to Birmingham, met and discharged them all for failing to go back to work the night before. He refused to give them a hearing. The employees left, but came back about a half hour later and indicated to Dobbs that they were "ready to go back to work on his terms and conditions." Dobbs turned them down again and asked them to leave. The employees contacted a union representative and began picketing the restaurant. The placards they carried indicated that there was a dispute over the hourly rate of pay. This was the first indication of any wage controversy.
At this point mention should be made of the peculiar situation relating to one of the waitresses. She was off duty on March 2 and hence took no part in the walkout, but in response to a call from Mrs. Prickett, made that evening, she appeared the next morning for the meeting with Dobbs although she was not due to report for work until four o'clock that afternoon. She made common cause with the strikers and made no effort to report for work. The Trial Examiner found, and it appears that such a finding was required, that Dobbs had no knowledge that she had not participated in the walkout. The Examiner concluded that her position was no different than those who had walked out, especially since she made no effort to disassociate herself from those who had engaged in the walkout.
The Trial Examiner made an exhaustive analysis of the facts. He concluded that the strike was called to protest the action of management with respect to supervisory personnel, and hence unprotected. The Board took a different view. It held that the walkout was in protest of working conditions. After enumerating the complaints over employment most of them regarding White, the Board commented:
"Accordingly, while the timing of the walkout decision may justify inferring that it was `triggered\' by the discharge of Cooper, we are...
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