J.L.M., Inc. v. N.L.R.B.
| Decision Date | 03 August 1994 |
| Docket Number | I,AFL-CI,D,No. 1586,1586 |
| Citation | 31 F.3d 79 |
| Parties | 146 L.R.R.M. (BNA) 3079, 129 Lab.Cas. P 11,203 J.L.M., INC., doing business as Sheraton Hotel Waterbury, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, Local 217, Hotel and Restaurant Employees' and Bartenders' Union,ntervenor. ockets 93-4226, 93-4238. |
| Court | U.S. Court of Appeals — Second Circuit |
Vincent J. Falvo, Jr., N.L.R.B., Washington, DC (Charles Donnelly, Supervisory Atty., Daniel Silverman, Acting Gen. Counsel, Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., of counsel), for petitioner/cross-respondent.
Edward F. O'Donnell, Jr., Hartford, CT (Dana Shaw Mackinnon, Kenneth R. Plumb, Siegel O'Connor, Schiff & Zangari, P.C., of counsel) for respondent/cross-petitioner.
Before: MESKILL, ALTIMARI and McLAUGHLIN, Circuit Judges.
J.L.M. Inc., d/b/a/ Sheraton Hotel Waterbury (the "Hotel" or the "Company") petitions this Court under Sec. 10(f) of the National Labor Relations Act (the "Act"), 29 U.S.C. Sec. 160(f) (1988), for review of an order of the National Labor Relations Board (the "NLRB" or the "Board") dated September 23, 1993. The Board's Decision and Order (the "Order"), reported at 312 NLRB No. 61, found that the Company had committed certain unfair labor practices ("ULPs") during the course of an organizational campaign by Local 217, Hotel and Restaurant Employees' and Bartenders' Union, AFL-CIO (the "Union"). The Order directed the Company to cease and desist from the unfair labor practices, to post notices, to make whole all employees who lost earnings as a result of the unfair labor practices, and to recognize and bargain with the Union. The Board, pursuant to Sec. 10(e) of the Act, 29 U.S.C. Sec. 160(e), cross-petitions for enforcement of its Order.
In its petition, the Company challenges certain of the Board's findings that it committed unfair labor practices. It also contends that in any event, given various mitigating circumstances, a second election rather than a bargaining order is warranted in this case. For the reasons discussed below, we reject the Company's challenges to the Board's ULP determinations. We do, however, agree that a bargaining order is inappropriate in this case. Accordingly, with the exception of the portion of the Order requiring the Company to bargain with the Union, we grant enforcement.
The Company operates a 279-room hotel in Waterbury, Connecticut that contains restaurants, bars, a sports complex, and banquet and conference facilities. The Hotel employs between 200 to 250 full-time and part-time employees depending on its level of business. In the spring of 1989, these employees became the target of an organizing campaign by the Union. The Union leafleted the Company, and throughout the summer, Union representatives phoned and visited employees at their homes.
On December 14, 1989, after obtaining a majority of authorization cards from the Hotel's employees (128 out of 220 employees), the Union requested recognition. Upon denial of its request, the Union petitioned for an election which was held on January 25, 1990. The Union lost the election by a vote of 104 against the Union, and 62 for the Union, with 21 challenged ballots.
The Union subsequently brought charges against the Company with the NLRB, alleging that the Company engaged in numerous ULPs before the election which played a strong role in the Union's loss of its majority status. The Union claimed that the Company engaged in the following illegal activities: threatening Union supporters, encouraging anti-union sentiment, overreacting to an alleged Union threat against one employee by using police presence to give the impression of imminent danger from the Union to employees, terminating Union supporters, and reducing the hours of Union supporters. The Union also claimed that the Company continued certain of these ULPs after the election.
The administrative law judge ("ALJ") found that the Company was guilty of some of the charged ULPs, but denied the general counsel's request for a bargaining order, directing a second election instead. The ALJ also ordered reinstatement and backpay for certain employees, and other traditional ULP remedies.
In reviewing the ALJ's determination, the Board found that a bargaining order was a more appropriate remedy than a second election. Having determined that the Company had an obligation to bargain with the Union as of the date of the petition, December 14, 1989, the Board also found that the Company violated the Act by unilaterally implementing certain changes without bargaining over them with the Union.
The Company now petitions for review of the Order, and the Board cross-petitions for its enforcement.
The Company first challenges the Board's findings concerning various ULPs. The Board's findings that an employer has committed unfair labor practices "cannot be lightly overturned." See NLRB v. J. Coty Messenger Serv., Inc., 763 F.2d 92, 96 (2d Cir.1985) (citation omitted). They must be upheld if supported by substantial evidence in the record as a whole. See NLRB v. Heads & Threads Co., 724 F.2d 282, 287 (2d Cir.1983). Where the Board's findings are based on the assessment of witness credibility they are entitled to "particular respect." NLRB v. Pace Oldsmobile, Inc., 681 F.2d 99, 101 (2d Cir.1982) (per curiam) ("Pace I"). Keeping in mind these limits on our scope of review, we briefly address some of the Company's challenges to the Board's ULP determinations.
The Company first challenges all the Board's findings relating to employee Eliza Svehlak, claiming that any actions taken against her were not unlawful because she was a supervisor within the meaning of Sec. 2(11) of the Act. See, e.g., Robert A. Gorman, Basic Text on Labor Law, Unionization & Collective Bargaining 34 (1976) ("Supervisors normally may not invoke the employer unfair labor practice provisions of section 8(a), since they are not 'employees' whose joining of unions or engaging in concerted activities is protected by section 7"). That section defines a "supervisor" as
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
29 U.S.C. Sec. 152(11). The Board's findings regarding supervisory determinations are entitled to "special weight." See J.J. Newberry Co. v. NLRB, 645 F.2d 148, 154 (2d Cir.1981) (quotations omitted).
After reviewing Svehlak's duties as "laundry supervisor," the Board adopted the ALJ's determination that because Svehlak did not possess "any of the significant indicia of supervisory status" she was not a supervisor under the Act. Although Svehlak may have worn an identification tag noting that she was a supervisor, and was paid fifty-five cents an hour more than the other laundry employees, her supervisory duties were limited to deciding which department's laundry to do first and to assigning laundry duties to the other employees in the department. Given that Svehlak's decision-making responsibilities were of a routine nature, and there is no evidence that she was responsible for evaluating or disciplining the employees, we find that the Board's determination that she was not a supervisor is supported by substantial evidence.
The Company challenges the Board's finding that employee Roger Sauvageau was discharged for engaging in union activities. Such employer action, if it occurred, violates both Sec. 8(a)(1) and Sec. 8(a)(3) of the Act. See, e.g., J. Coty Messenger, 763 F.2d at 98.
Sauvageau, an ardent and vocal union supporter, was fired after a confrontation concerning another employee took place between Sauvageau and a company supervisor, Kathy Tavares. Notably, Sauvageau's discharge took place before the Union had obtained its card majority. According to Sauvageau's version of the events leading up to the discharge, the version explicitly credited by the ALJ, Sauvageau accompanied a co-worker accused by Tavares of slacking off on the job to discuss the matter with Tavares. Tavares became enraged that Sauvageau was in her office, and, using profanity, demanded that he leave immediately. Sauvageau was later discharged by the Company's owner, Richard Calabrese, for "screw[ing] up" in his exchange with Tavares. The ALJ concluded that this reason was pretextual, and the true motivation behind the discharge was Sauvageau's organizing activities.
The record clearly supports the ALJ's determination. Tavares and Calabrese by their own admissions were aware of Sauvageau's union activities. In fact, the ALJ had found that Tavares had previously warned Sauvageau to "watch out" because he was on the Company's short list of union sympathizers. Calabrese, who only rarely became involved in employee discipline, fired Sauvageau without investigating the incident surrounding Sauvageau's alleged insubordination, despite the presence of other witnesses to the exchange. Sauvageau was not even given an opportunity to relate his version of the incident. Given these facts, it appears that the Company departed from its usual practice of assessing insubordination charges against employees on the basis of relevant mitigating circumstances. Such departure clearly supports the Board's determination that the Company used the exchange in Tavares's office as a pretext in order to discharge Sauvageau for his union activities. See, e.g., NLRB v. Del Rey Tortilleria, Inc., 787...
To continue reading
Request your trial
-
Be-Lo Stores v. N.L.R.B.
...the face of significant employee turnover risks unjustly binding new employees to the choices made by former ones," J.L.M., Inc. v. N.L.R.B., 31 F.3d 79, 84 (2nd Cir.1994). See Apple Tree Chevrolet II, 671 F.2d at 841-42 (declining to enforce a Gissel order in light of a 75% employee Over s......
-
Flamingo Hilton-Laughlin v. N.L.R.B.
...of a fair rerun election when combined with other changes in the bargaining unit, such as employee turnover. See J.L.M., Inc. v. NLRB, 31 F.3d 79, 84 (2d Cir.1994). Over five years have now elapsed since the tainted representation election. In its initial decision, the Board adopted the ALJ......
-
N.L.R.B. v. Goya Foods of Florida
...conditions at the time of the order are relevant considerations for the issuance of an affirmative bargaining order); J.L.M., Inc. v. NLRB, 31 F.3d 79, 84 (2d Cir. 1994). The Eighth Circuit has said succinctly: "[W]e adopt the view that the Board must consider any change of circumstances, i......
-
Empress Casino v. National Labor Board, s. 99-1990
...that this is a ruse or puffing. Compare International Longshoremen's Ass'n v. Davis, 476 U.S. 380, 396 n. 13 (1986); J.L.M., Inc. v. NLRB, 31 F.3d 79, 82 (2d Cir. 1994); NLRB v. Adco Electric Inc., supra, 6 F.3d at 1117. The evidence for the supervisory status of the captains and chief mate......
-
Labor and Employment - W. Christopher Arbery, Valerie N. Njiiri, and Leslie Eanes
...Id. at 1133 n.22. 60. Id. at 1133 & n.23 (citing NLRB v. Cell Agric. Mfg. Co., 41 F.3d 389, 397-98 (8th Cir. 1994); J.L.M., Inc. v. NLRB, 31 F.3d 79, 84 (2d Cir. 1994)). 61. 705 F.2d 1537 (11th Cir. 1983). 62. Id. at 1543. 63. Goya, 525 F.3d at 1134. 64. Id. 65. Id. at 1134-35. 66. Id. at 1......