N.L.R.B. v. Horizons Hotel Corp.

• Decision Date: 07 November 1994
• Docket Number: Nos. 94-1294,94-1303,s. 94-1294
• Citation: 49 F.3d 795
• Parties: 148 L.R.R.M. (BNA) 2641, 63 USLW 2592, 129 Lab.Cas. P 11,290 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORIZONS HOTEL CORPORATION D/B/A Carib Inn of San Juan, Respondent. HORIZONS HOTEL CORPORATION D/B/A Carib Inn of San Juan, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 795

49 F.3d 795

148 L.R.R.M. (BNA) 2641, 63 USLW 2592,

129 Lab.Cas. P 11,290

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HORIZONS HOTEL CORPORATION D/B/A Carib Inn of San Juan, Respondent.

HORIZONS HOTEL CORPORATION D/B/A Carib Inn of San Juan, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 94-1294, 94-1303.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1994.

Decided March 3, 1995.

Luis F. Padilla, for Horizons Hotel Corp.

David Habenstreit, Atty., N.L.R.B., with whom Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Linda Dreeben, Supervisory Atty., were on brief for N.L.R.B.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOYLE, ^* Senior District Judge.

FRANCIS J. BOYLE, Senior District Judge.

This case presents issues concerning a final order of the National Labor Relations Board (the Board) which concluded that Horizons Hotel Corporation d/b/a Carib Inn of San Juan (Horizons) engaged in unfair labor practices in violation of Secs. 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(1), (3), (5). The claims of unfair labor practices arose in part from the conduct of a bankruptcy trustee who was in possession of the hotel at the time Horizons purchased it. The Board petitions us under Sec. 10(e) of the Act, 29 U.S.C. Sec. 160(e), to enforce its order, which adopted with modification the opinion and recommended order of the administrative law judge (ALJ). 312 N.L.R.B. No. 200 (Nov. 22, 1993). Horizons petitions us under Sec. 10(f) of the Act, 29 U.S.C. Sec. 160(f), to review and vacate the Board's order, asserting the following: the Board lacked jurisdiction to act in this case; the conclusions of the ALJ and the Board are contrary to law; and the factual determinations of the ALJ, adopted by the Board, are not supported by substantial evidence. We conclude that the Board's order adopting the ALJ's opinion and proposed order is without error and is to be enforced as it stands. See 29 U.S.C. Sec. 160(e), (f).

I. STANDARD OF REVIEW

The appropriate standard of review is provided in Sec. 10(e) of the Act, 29 U.S.C. Sec. 160(e): "The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." Thus, a finding of the Board that the Act has been violated is upheld "as long as the finding is supported by substantial evidence ... even if we would have reached a different conclusion." 3-E Co., Inc. v. NLRB, 26 F.3d 1, 3 (1st Cir.1994) (citing 29 U.S.C. Sec. 160(e)). In reviewing a Board decision, great weight is afforded the credibility determinations of the ALJ, as he or she had the opportunity to observe the witnesses testify, see id.; Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 308 (1st Cir.1993); therefore, credibility determinations are disturbed only where it is apparent that the ALJ "overstepped the bounds of reason." 3-E Co., Inc., 26 F.3d at 3; Holyoke Visiting Nurses Ass'n, 11 F.3d at 308 (citing NLRB v. American Spring Bed Mfg. Co., 670 F.2d 1236, 1242 (1st Cir.1982)).

II. BACKGROUND

The record supports the ALJ's finding of the following facts, adopted by the Board. See 3-E Co., Inc., 26 F.3d at 2 (citing Cumberland Farms, Inc. v. NLRB, 984 F.2d 556, 558 (1st Cir.1993)).

A. Hotel in Bankruptcy: November 1981-May 14, 1986

In 1981, the Carib Inn hotel and casino in San Juan, Puerto Rico, was owned by the Carib Inn of San Juan Corporation (Carib Inn Corporation). In November 1981, Carib Inn Corporation filed a petition for bankruptcy in the U.S. Bankruptcy Court for the District of Puerto Rico under chapter 11 of Title 11, 11 U.S.C. Sec. 1101, et seq. The chapter 11 proceeding was converted to a chapter 7, 11 U.S.C. Sec. 701 et seq., proceeding in November 1985. On November 21, 1985, the Bankruptcy Court appointed Hector Rodriguez-Estrada (Rodriguez) trustee under 29 U.S.C. Sec. 1104. As trustee, Rodriguez was ordered to liquidate the assets of the bankruptcy estate.

At all relevant times, employees of the hotel's service and casino units ¹ were represented by Union de Trabajadores de la Industria Gastronomica de Puerto Rico, Local 610, Hotel Employees and Restaurant Employees International Union, AFL-CIO (the Union). The service- and casino-unit employees were employed under the terms of a collective bargaining agreement. ²

In November or December 1985, Horizons considered the prospect of purchasing the Carib Inn. Horizons submitted a bid for the bankruptcy estate in February 1986. Prior to the bid, Horizons's president, Benito Fernandez, spent time at the hotel, investigating its operation and its physical grounds. At some point, Fernandez began to occupy an office at the hotel. The office was located next to that of Rodriguez. Fernandez and Rodriguez shared a secretary.

On April 3, Rodriguez met with Ileana Quinones, general manager of Professional Employment Center (PEC), a local employment agency. At the meeting, Rodriguez told Quinones that PEC's services were needed because the hotel was operating under new management which sought to hire new employees. He asked her if there was a possibility that employees hired through PEC would be union workers. She responded that they would not. Rodriguez told Quinones that he would consider retaining PEC if she could guarantee him that there would be no risk of a union at the hotel. He requested that Quinones indicate in writing that there was no possibility of a union presence.

The following day, April 4, 1986, Quinones sent a letter to Rodriguez. The letter was addressed as follows: "Sr. Hector M. Rodriguez-Estrada[,] Horizons Hotel"--Quinones was of the belief that Rodriguez was employed as a manager of Horizons. A summary of the items discussed at the previous day's meeting was included with the letter. The first item listed was as follows: "1. There is no possibility for a Union."

On May 12 or 13, 1986, Frankie Rosado-Garcia (Rosado), a waiter in one of the hotel's restaurants, and a union steward, while on duty, served the Union's president, who was seated at a table. After Rosado waited on him, Rodriguez, who was present in the restaurant, approached Rosado, and said: "[A-ha] ... you betrayed me." Rosado later went to Rodriguez' office to question him about the comment. Rodriguez asked Rosado if the Union's president had come "to stop the hotel." He then told Rosado that if the Union continued to bother him, he would fire all union employees. On another occasion in May, Rodriguez told Rosado that the Union was not backing the hotel employees. He said that the Union had failed to collect from the Federal court money owed to the employees. He further stated that there was no union in Puerto Rico that would defend the employees.

B. Sale of the Hotel: May 14, 1986--May 31, 1986

On May 14, 1986, a deed was executed whereby Horizons purchased the Carib Inn from Rodriguez. The deed provided that possession of the hotel property would be turned over to Horizons on May 31, 1986.

On May 19, 1986, Rodriguez hired Juan Rafael Gomez (Gomez) as resident manager. That day, Rodriguez circulated a memorandum (May 19 memorandum) announcing the same. Fernandez had signed the memorandum, expressly indicating his approval of Gomez' hiring.

On May 21, 1986, Rodriguez circulated a memorandum (May 21 memorandum) to all employees of the Carib Inn, notifying them that Horizons would assume control of the hotel on June 1, 1986, and that all employees would be terminated on May 31, 1986. The memorandum advised the employees that they could apply for positions with Horizons by submitting applications at a recruiting office set up by Horizons in a nearby condominium. The recruiting office would accept applications for two days only.

Later that day, May 21, Felix Ramirez, the Union's general steward, and Valentin Hernandez, the Union's secretary and treasurer, went to Rodriguez' office to discuss with him the memorandum. Rodriguez threatened not to meet with them. He told them that he didn't have to talk with them because they no longer represented the hotel's employees. He stated: "[T]he Union is out," and "Horizons has nothing to do with the Union." Rodriguez finally agreed to meet with them, however, after Hernandez threatened to report his conduct to the Secretary of Labor for the Commonwealth of Puerto Rico. During the meeting, however, Rodriguez told Ramirez and Hernandez that they should discuss with Gomez any concerns they may have concerning hotel administration.

Prior to the May 21 memorandum, PEC had begun soliciting applications for positions at the hotel. Quinones understood that PEC was to be responsible for hiring Horizons's new employees. It advertised in a local newspaper and collected applications and relevant information on potential employees. It conducted interviews and informed Rodriguez of appealing candidates. Rodriguez, however, advised Quinones that PEC would do no independent hiring, but rather would hire only those individuals whom it was instructed to hire.

Horizons's recruiting program, announced in the May 21 memorandum, was carried out. A representative of PEC was present throughout. Several days after the program, Rodriguez provided Gomez a list of individuals to interview. Interviews were thereafter conducted at the hotel. A representative of PEC was present during the interviews. Not one employee of the Carib Inn was interviewed. At one point, Rodriguez told a Carib Inn employee that he had been authorized to hire new employees for Horizons.

C. Transfer of Control: June 1, 1986

On June 1, 1986, Horizons assumed possession of the hotel property. Since that date, Horizons has continued the business operations previously conducted by Rodriguez as trustee, and by the Carib Inn Corporation, using substantially the same facilities and equipment,...