N.L.R.B. v. Hotel Employees and Restaurant

• Decision Date: 28 April 2006
• Docket Number: No. 05-1924.,05-1924.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, v. HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION LOCAL 26, AFL-CIO, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — First Circuit

446 F.3d 200

NATIONAL LABOR RELATIONS BOARD, Petitioner/Cross-Respondent, v. HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONAL UNION LOCAL 26, AFL-CIO, Respondent/Cross-Petitioner.

No. 05-1924.

United States Court of Appeals, First Circuit.

Heard January 10, 2006.

Decided April 28, 2006.

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David Seid with whom Jill A. Griffin, Supervisory Attorney, Arthur F. Rosenfeld, Acting General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel, were on brief for petitioner/cross-respondent.

Ellen C. Kearns with whom Jeffery M. Rosin was on brief for respondent/cross-petitioner.

Before LIPEZ, Circuit Judge, CAMPBELL and BOWMAN,^* Senior Circuit Judges.

BOWMAN, Senior Circuit Judge.

The National Labor Relations Board ("Board") issued an order affirming the decision of an administrative law judge ("ALJ") that the Hotel Employees and Restaurant Employees International Union, Local 26, AFL-CIO ("Union"), violated the National Labor Relations Act ("NLRA") by discharging Emma Johnson because she engaged in protected concerted activity and by telling another employee that the Union discharged Johnson because of such activity. The Board's General Counsel applies for enforcement of the Board's order. The Union petitions for review of the order, asking this Court to set aside the adverse ruling or remand the case for additional findings. We deny the Union's petition for review and grant the General Counsel's application for enforcement of the Board's order.¹

I.

The Union, a local affiliate of the International Union, represents 5800 hotel workers in and around Boston, Massachusetts. In 1997, the Union hired Janice Loux as its president. Loux had exclusive authority to hire and discharge Union employees. Loux created a research department to organize more effectively at Boston area hotels. Martin Leary, a research supervisor for the International Union, assisted the Union in creating its research department. In September 1998, Loux hired Johnson as a researcher. Loux later hired Mark Parker as a researcher.

In May 1999, Leary evaluated Johnson. Leary rated Johnson's overall quality of work as very good and her specific work habits and skills from excellent to satisfactory. Leary wrote that Johnson's strengths were "[m]anaging work tasks, facilitating communication among team members & keeping us on task, and mastery of the details of the development process." As for areas needing improvement, Leary wanted Johnson to show "[m]ore initiative in cultivating new sources & generating issues"; "dig[] deeper to understand target companies"; and increase her "exposure to specific info-gathering techniques." As for Johnson's ability to prioritize work, set work goals, and manage work schedule/time, Leary commented, "Thank God someone on the team can do this!" When Johnson later met with Loux and Leary about the evaluation, Loux did not disagree with Leary's evaluation. And neither Loux nor Leary criticized Johnson's work.

In June 1999, the Logan Airport Ramada Inn (owned by Hilton Hotels) announced that it was closing, it would discharge all employees, Hilton Boston would later open and operate the hotel, and Hilton would not provide a right of employment to hotel employees. In July 1999, Loux decided that the Union would begin a leafletting campaign to advertise its dispute with Hilton. Loux announced, "We're starting a picket line at the Back Bay Hilton. Everyone cancel all your plans for the summer. We're going to be doing this 7 days a week, all summer long. We're going to be leafletting. And it's in 2 hour shifts." Loux alerted employees that the campaign could last until October, that she would assign the shifts, and that the employees could not switch their shifts with each other. The leafletting initially ran from 10:00 a.m. to 8:00 p.m., but later began at 8:00 a.m. Each employee was required to leaflet in a two-hour shift that started at various times from day to day, as opposed to leafletting at the same time each day. While leafletting, employees had to follow certain rules, one of which forbade employees from placing leaflets or personal property on Hilton property. In addition to leafletting seven days per week, employees also were required to perform their other job duties.

After a week of leafletting, Johnson requested that Loux allow employees to switch shifts. Loux denied the request. Johnson then approached co-employees about their interests in switching shifts. Johnson also prepared an alternative schedule so employees could enjoy a day off on the weekend. Johnson's proposed schedule required each employee to work one, four-hour shift each weekend rather than two-hour shifts on both Saturday and Sunday. Some employees were interested in these ideas, and Johnson informed them that she was going to raise her ideas at a staff meeting.

Loux later informed two employees, including Calvin Wu, that Johnson complained about the leafletting schedule. Loux asked whether they preferred two, two-hour shifts or one, four-hour shift on weekends. Wu said he preferred one shift per weekend.

During the campaign, Loux acknowledged at a staff meeting that she knew "people were getting frustrated" and that there were "some grumblings on the picket line." At another staff meeting, Johnson twice asked Loux if employees could switch shifts. Loux denied the requests. Johnson told Loux that "the issue of the weekends is becoming a big issue so how about . . . changing the two hour blocks into the four hour blocks and giving people one weekend day off." Loux responded, "No. There will be no switching the schedule. It stays as it is."

Johnson later gave Loux a revised schedule that allowed employees to have an early shift on one weekend day to avoid having two, mid-day shifts on the weekend. Loux did not allow Johnson to discuss the proposed schedule but said she would look at it. The schedule contained a cover letter stating, "Could we do weekend shifts of 4 hours each, thus letting everyone have one weekend day off? One person would do 4 hours one weekend day and none the other day. Or, if not, could those who want to, switch with each other so that they do a 4 hour shift one weekend day and take the other weekend day off? Then get it approved by you."

In late July 1999, Loux complained to Leary, "I'm really at the end of my rope with Emma Johnson and I'm thinking very seriously about terminating her." Loux complained about Johnson's temper, her failure to "put[] in the time," and her complaining about the picket line schedule.

Loux later increased the number of hours that employees would leaflet to four hours per day. At a staff meeting on August 5, 1999, Johnson asked Loux if they could talk about scheduling. Loux "got really angry"; "slamm[ed] her hand on the table"; and responded, "No. We cannot talk about scheduling. There are going to be no changes. . . . No! I am the boss! I make the rules!"

On Friday, August 6, 1999, Loux announced that the Union had reached an agreement with Hilton and that the leafletting would end. Loux then was out of the office until Monday, August 16, the same day Johnson left for a one-day research conference. When Johnson returned on August 18, she asked Loux for a meeting to request time off. Loux responded, "We need to talk about what happened on the picket line. . . . I am just not comfortable with this. . . . I can't have that attitude that you displayed on the picket line. . . . I'm just not comfortable. You're a really good researcher and we'll just do this as a layoff." Johnson asked, "You're firing me for something I did on the picket line?" Loux responded, "It's just not a good fit any more. But, I'll give you a good recommendation and you'll get two weeks pay." Loux then ordered Johnson to pack her things and leave under an escort. Before the discharge, neither Loux nor Leary told Johnson about any problems at work that might require discharge.

On the day of Johnson's discharge, Wu asked Johnson why she had been discharged. Johnson replied that she was discharged for complaining about the Hilton campaign. Shortly after the discharge, Brian Lang, the Union's director of organizing, told Wu that Johnson was discharged because of her complaints about the Hilton campaign.

Johnson filed an unfair labor practice charge against the Union for discharging her because she engaged in protected concerted activity. The General Counsel filed a complaint with the Board, charging the Union with violating § 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1) (2000) (prohibiting employers from interfering with employees in the exercise of their NLRA rights), by interfering with the exercise of rights guaranteed by § 7 of the NLRA, 29 U.S.C. § 157 (providing employees the right to engage in "concerted activities for the purpose of . . . mutual aid or protection"). Specifically, the General Counsel alleged that Johnson had "engaged in concerted activity with other employees for the purpose of mutual aid and protection by discussing terms and conditions of employment"; "Johnson concertedly complained to [the Union about] the wages, hours and working conditions of [the Union]'s employees by requesting that [the Union] discuss scheduling issues"; the Union "implicitly threatened its employees with discharge if they engaged in protected concerted activity"; and the Union discharged Johnson.

The Union contends that it discharged "Johnson for four reasons: (A) failure to follow the rules for leafletting during the Hilton campaign; (B) failure to complete required assignments for the Hilton campaign; (C) poor performance as a researcher; and (D) poor attitude." At a hearing conducted by an ALJ, the Union submitted evidence that Johnson (A) violated leafletting rules by placing leaflets and personal property on Hilton property and by sitting down, (B) failed to organize staff to...