NLRB v. Fontainebleau Hotel Corporation

• Decision Date: 23 March 1962
• Docket Number: No. 18992.,18992.
• Citation: 300 F.2d 662
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FONTAINEBLEAU HOTEL CORPORATION d/b/a Hotel Fontainebleau, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

300 F.2d 662 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FONTAINEBLEAU HOTEL CORPORATION d/b/a Hotel Fontainebleau, Respondent.

No. 18992.

United States Court of Appeals Fifth Circuit.

March 23, 1962.

Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lee M. Modjeska, Atty., Stuart Rothman, Gen. Counsel, Allison W. Brown, Jr., Atty., N. L. R. B., Washington, D. C., for petitioner.

Milton E. Grusmark, Sibley, Grusmark, Giblin, King & Levenson, Miami Beach, Fla., for respondent.

Before HUTCHESON, WISDOM and BELL, Circuit Judges.

HUTCHESON, Circuit Judge.

This is a proceeding to enforce orders of the National Labor Relations Board.¹ Finding that respondent had unlawfully discharged an employee,² and that in the light of this discharge had unlawfully interrogated certain employees,³ the Board has ordered respondent to reinstate the discharged employee, with back pay, and to cease and desist from further unlawful interrogation. Respondent, on the other hand, maintaining that dismissal of the employee in question was justified, contends that the conclusions of the Board are without basis in fact and that its orders are therefore unwarranted. We agree with respondent.

The dispute arises in the context of the labor-management relations existing at the Fontainebleau Hotel in Miami, Florida, in May, 1960. At that time, respondent had a consent contract with a union, covering certain classes of hotel employees. The union had attempted unsuccessfully to obtain respondent's acceptance of an interpretation of the contract which would have included the "Checkers and Cashiers", who were not specifically mentioned in the contract, within its coverage. It was therefore decided by union officials that an attempt would be made to achieve Board certification of the checkers and cashiers as a unit, and efforts were commenced to obtain the signatures of a majority of the employees in that unit on union cards.⁴

All of the acts of interrogation found by the Board to be unlawful occurred during the month of May, 1960. In that period, Kaufman, a supervisor, asked one employee if she had signed a union card, and was answered in the affirmative; he asked two others if they had joined the union, and received similar replies. These acts are admitted by respondent. One McCormick, the employee whose discharge the Board found to be unlawful, testified to the occurrence of the following conversation with Kaufman, after the latter had asked McCormick if he had joined the union and was told that he had:

"He Kaufman said, `What are you mad at?\' I said, `I\'m not mad at anything.\' I said, `They have a terrific medical coverage for one thing which I need\', and I said, `besides I would like to have somebody represent me.\' He said, `Why don\'t you take out Blue Cross?\' I said, `The coverage with the union is much cheaper.\' He said, `They will still grab five bucks a month out of your pay.\'"

According to McCormick's testimony, it was his impression that Kaufman then "stormed on down through the dining room." Kaufman denied that the conversation reported by McCormick ever took place.

Evidence adduced before the Trial Examiner reveals that McCormick had delivered union cards for signature to three persons, and had discussed the union with at least one other employee. There is no evidence, however, that anyone employed by respondent in a supervisory or management capacity was aware that McCormick had engaged in this small amount of union activity.

On the 15th of June, 1960, Kaufman, acting on orders from Novack, respondent's president, discharged McCormick. He was told that there had been a complaint about him, but Kaufman refused to reveal to him the nature of the complaint. Kaufman told McCormick at this time that his discharge would be listed as due to a reduction in force, so that he could draw unemployment compensation. Subsequently, on two occasions, in response to inquiries concerning McCormick's discharge from union representatives, Novack stated that the discharge was due to a reduction in force.

At the hearing before the Board, both Kaufman and Novack explained that McCormick's discharge was motivated by a belief or suspicion that he was engaged in dishonest or illegal activity in the performance of his duties as a cashier in the hotel coffee shop. The substance of their testimony is that on or about the 10th of June, a Miss Knight, who was the auditor for another Miami hotel, called Kaufman to report that a friend had boasted to her that she the friend was obtaining merchandise in the Fontainebleau coffee shop for less than its regular price. Kaufman testified that he inferred that the cashier was a male, because, as the report came to him from Miss Knight, her friend was paying a smaller fee "to a he" — "he" was passing the friend through; and that McCormick was the culprit, since he was the only male cashier in the hotel coffee shop. Two or three days after he received the report from Miss Knight, Kaufman was able for the first time to reach Novack and in turn pass the report on to him. After discussing the probable authenticity of the report with Kaufman, Novack told him to discharge McCormick. Kaufman was instructed not to reveal the true reason for the discharge because of fear of an action for defamation in light of the difficulty of proving the charge which had been directed at McCormick. The discharge occurred on June 15th.

As his reason for stating to the union representative that McCormick had been discharged because of a reduction in force, Novack explained to the Board that he did not feel that the true reason was any of the union's business, as it did not represent the cashiers, and that in addition he desired neither to bring shame to McCormick nor to give rise to a defamation action.

Upon learning that the union had complained that McCormick had been the subject of unfair labor practices, Novack obtained...