Fortuna Enters., LP v. Nat'l Labor Relations Bd.
| Citation | 192 L.R.R.M. (BNA) 2257,398 U.S.App.D.C. 432,665 F.3d 1295 |
| Decision Date | 09 December 2011 |
| Docket Number | Nos. 10–1272,10–1298.,s. 10–1272 |
| Parties | FORTUNA ENTERPRISES, LP, Petitioner v. NATIONAL LABOR RELATIONS BOARD, RespondentUnite Here Local 11, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
OPINION TEXT STARTS HERE
On Petitions for Review and Cross–Application for Enforcement of an Order of the National Labor Relations Board.Stephen R. Lueke argued the cause and filed the briefs for petitioner.
Kira Dellinger Vol, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Jill A. Griffin, Supervisory Attorney.
Eric B. Myers was on the brief for intervenor Unite Here Local 11. Richard G. McCracken entered an appearance.
Before: GINSBURG 1 and HENDERSON, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge RANDOLPH.
This is a petition for review of a National Labor Relations Board order finding Fortuna Enterprises, L.P., in violation of § 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3). The Board cross-petitions for enforcement. Unite Here, Local 11, a labor union, has intervened. Fortuna operates the Los Angeles Airport Hilton Hotel and Towers. The case turns on whether Hilton disciplined its employees for engaging in activities protected by § 7 of the Act, id. § 157.
On May 10, 2006, Hilton suspended Sergio Reyes pending an investigation into whether he had stolen property from a hotel guest. Reyes supported an ongoing union organizing campaign at the Hilton led by Unite Here. When other employees learned of Reyes' suspension, they decided to meet the next morning in the staff-only cafeteria to speak about the matter with Hilton's general manager Grant Coonley or Tom Cook, the food and beverage director.
On the morning of May 11 at 8:00 a.m., seventy to one hundred employees gathered in the cafeteria. Hilton supervisors learned of the gathering and its purpose a short time later. Housekeeping director Anna Samayoa addressed the employees on three separate occasions between 8:15 and 9:00 a.m. The first time, she announced that they needed to return to work if they were not on break; the second time, that they needed to return to work or clock out and go home; and the third time, that individuals who failed to choose one of those options would be suspended. A handful of employees returned to work. The rest insisted on staying put until they met with Coonley or Cook. Supervisors suspended the holdouts at 9:00 a.m. and informed them that anyone who did not promptly leave the premises would be considered a trespasser. Undeterred, the suspended employees remained in the cafeteria and repeated their demand for a meeting.
The standoff persisted for roughly ninety more minutes, during which time the employees became increasingly frustrated with the lack of a management response. A delegation of employees told company officials that the group wanted to return to work. Management declined the offer, citing the suspensions. Out of options and faced with the arrival of a police officer, the employees left the cafeteria at approximately 10:30 a.m. All told, seventy-seven protesters were suspended for five days each, due to their “[i]nsubordination” and “[f]ailure to follow instructions.”
The suspensions left Hilton shorthanded for the remainder of the day. Management called in temporary workers; even so, some of Hilton's operations were adversely affected. For instance, Cook had to recruit staff from Hilton's accounting and sales offices to bus tables in the guest café, which converted to buffet-style service due to the staff shortage. In addition, the housekeeping division was unable to clean all of the hotel's guest rooms, which were 99.9% occupied at the time.
Three weeks later, on June 3, a second incident resulted in more disciplinary actions. On that date, a union—the California Teachers Association—held a meeting in the hotel's international ballroom. The Association invited two of Hilton's employees, Isabel Brentner and Patricia Simmons, to speak to its members about the May 11 work stoppage. Brentner and Simmons did so during their lunch breaks. When management learned of this, it issued each of them a written warning for violating Hilton's facilities use policy, which prohibits on-duty employees from entering the hotel's public areas without authorization. Three other Hilton employees, Lilia Magallon, Juana Salinas, and Joanna Gomez, received similar warnings after management determined that they had also attended the meeting. Although these employees denied entering the ballroom, video footage taken by a nearby security camera showed each of them disappearing from view near its entrance for brief periods as they cleaned an adjacent lobby area.
The Board's general counsel issued a complaint based on the May 11 suspensions, the June 3 warnings, and several other incidents. An Administrative Law Judge found the May 11 suspensions unlawful under § 8(a)(1) because the employees were engaged in concerted action for the “mutual aid or protection” of Reyes, their co-worker, and were thus protected by § 7 of the Act. See 29 U.S.C. § 157. After considering the factors mentioned in Quietflex Manufacturing Co., 344 N.L.R.B. 1055 (2005), the ALJ concluded that the employees' organizational interests outweighed Hilton's property rights. The ALJ also found that the June 3 warnings violated § 8(a)(1) and (3), for two reasons. First, the warnings resulted from Hilton's disparate application of its facilities use policy to employees who Hilton knew had engaged in union activity. Second, Hilton's investigation was inadequate, and thus pretextual, inasmuch as Hilton made no attempt to interview the employees before disciplining them.
The Board affirmed the ALJ's rulings, findings, and conclusions, subject to several minor modifications. Fortuna Enters., L.P., 355 N.L.R.B. No. 122, 2010 WL 3365299, 2010 NLRB LEXIS 280 (Aug. 24, 2010).2 With respect to the May 11 gathering, the Board explained that “the length of the work stoppage in the cafeteria and the potential for interference with the provision of [hotel] services” made the § 8(a)(1) question a “close” one. 2009 WL 1311468, at *2 n. 8, 2009 NLRB LEXIS 136, at *4 n. 8. But “the unrepresented employees did not lose the protection of the Act, particularly when [Hilton's] officials failed to make it clear that the employees would not be able to meet with senior management at that time and would have alternative opportunities to present their concerns.” Id. at *1 & n. 8, 2009 NLRB LEXIS 136, at *4 & n. 8; see also 2010 WL 3365299, at *1 n. 3, 2010 NLRB LEXIS 280, at *3 n. 3 (converting Member Schaumber's position in the 2009 decision into the Board's holding). As to Hilton's policy regarding employees in public areas, the Board found that Hilton “disparately applied” the policy “to the employees and used th[e] policy as a pretext to discipline known union supporters who did not even violate the rule.” 2009 WL 1311468, at *1 & n. 5, 2009 NLRB LEXIS 136, at *3 & n. 5; see also 2010 WL 3365299, at *1 n. 3, 2010 NLRB LEXIS 280, at *3 n. 3. This conclusion obviated the need to pass on the ALJ's alternative ruling that the warnings violated § 8(a)(1) and (3) because Hilton's investigation was inadequate. 2009 WL 1311468, at *2 n. 5, 2009 NLRB LEXIS 136, at *3 n. 5.
Section 7 of the Act grants employees “the right to self-organization ... and to engage in other concerted activities for the purpose of ... mutual aid or protection....” 29 U.S.C. § 157. Section 8(a)(1) prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of” those rights. 29 U.S.C. § 158(a)(1).
On-the-job work stoppages may qualify as concerted economic pressure entitled to protection under § 7. Quietflex, 344 N.L.R.B. at 1056; see also Molon Motor & Coil Corp. v. NLRB, 965 F.2d 523, 525 (7th Cir.1992) (citing NLRB v. Wash. Aluminum Co., 370 U.S. 9, 15, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962)). But the protection is not absolute because on-site work stoppages trench upon employers' private property rights. See Quietflex, 344 N.L.R.B. at 1056 (citing Hudgens v. NLRB, 424 U.S. 507, 522, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976)). The Board's task is to accommodate these competing interests, preserving each “with as little destruction of one as is consistent with the maintenance of the other.” Hudgens, 424 U.S. at 521, 96 S.Ct. 1029 (quoting NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 100 L.Ed. 975 (1956)). The proper resolution in a given case “depend[s] on the nature and strength of the respective § 7 rights and private property rights” involved. Id. at 522, 96 S.Ct. 1029.
In Quietflex the Board offered a list of factors it had “considered” in previous cases “in determining which party's rights should prevail in the context of an on-site work stoppage....” 344 N.L.R.B. at 1056–57.3 The Board did not quantify the particular weight of any factor and several of them appear to overlap. See id. at 1056; cf. PDK Labs. Inc. v. DEA, 362 F.3d 786, 797 (D.C.Cir.2004). For instance, determining “whether the work stoppage was peaceful” may often involve the same considerations as “whether the employees attempted to seize the employer's property.” See Quietflex, 344 N.L.R.B. at 1056–57. And the seizure question may amount to the same thing as whether the employees “deprived the employer of access to its property.” Id. Although the sort of multi-factor balancing “test” suggested in Quietflex may be incapable of predictable application, see Exacto Spring Corp. v. Comm'r, 196 F.3d 833, 834–38 (7th Cir.1999), we shall assume its validity.
Hilton asks us to set aside the order with respect to the May 11 suspensions on the ground...
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Nlra Case Notes
...Id. at n.4.12. 344 NLRB 1055 (2005).13. Los Angeles Airport Hilton Hotel, 2014 NLRB LEXIS 413 at *22.14. Fortuna Enters., LP v. NLRB, 665 F.3d 1295, 1301 (D.C. Cir. 2011).15. Los Angeles Airport Hilton Hotel, supra note 13 at *24 (emphasis in original).16. Id.17. Id. at *27.18. Id. at *29.1......