NLRB v. Hotel Conquistador, Inc.

• Decision Date: 10 July 1968
• Docket Number: No. 22330.,22330.
• Citation: 398 F.2d 430
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOTEL CONQUISTADOR, INC., d/b/a Hotel Tropicana, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

398 F.2d 430 (1968)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOTEL CONQUISTADOR, INC., d/b/a Hotel Tropicana, Respondent.

No. 22330.

United States Court of Appeals Ninth Circuit.

July 10, 1968.

Gary Green (argued), N.L.R.B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Thomas Smith, Attys. N.L. R.B., Washington, D. C., Paul A. Cassady, Riector, N.L.R.B., Los Angeles, Cal., for appellant.

David Self (argued), Nathan R. Berke of Severson, Werson, Berke & Bull, San Francisco, Cal., Sidney R. Korshak, Chicago, Ill., Albert M. Dreyer, Las Vegas, Nev., for appellee.

Before: BARNES and CARTER, Circuit Judges, and SWEIGERT,^* District Judge.

BARNES, Circuit Judge:

Pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) (1964), the National Labor Relations Board has petitioned for enforcement of an order issued by the Board against Hotel Conquistador, Inc., doing business as the Hotel Tropicana. The decision and order of the Board, announced on June 24, 1966, are reported at 159 N.L.R.B. No. 105.

In its decision the Board found, in accord with the trial examiner, that the respondent

(a) discharged from its employ one Frank Yockmen because of his union activity, thereby violating sections 8(a) (1) and 8(a) (3) of the N.L.R.A., 29 U.S.C. § 158(a) (1), (3) (1964);

(b) interrogated Yockmen concerning his union activity, in violation of section 8(a) (1) of the Act; and

(c) gave Yockmen the impression, contrary to section 8(a) (1), that it was conducting surveillance of persons engaging in union activity.

Respondent claims that no charge was ever filed with the Board concerning the latter two issues, and that those issues therefore should not have been considered by the Board. In addition, and alternatively, respondent contends that none of the findings set out above is supported by substantial evidence.

Respondent operates the Hotel Tropicana, one of the large casino-hotels that dot the Las Vegas "Strip." Yockmen, the employee in question, was during the period here in question respondent's head slot machine mechanic. On April 7, 1964, Yockmen became a member of the American Federation of Casino and Gaming Employees, and subsequently became recording secretary of the union, and a member of its executive board. In May 1964 he took a key part in an organizational drive undertaken by the union at the Tropicana.

The direct evidence supporting the Board's findings of unfair labor practices may be briefly set out:

1. In June 1964 Harry Farnow, supervisor of respondent's slot machine department, entered the repair shop where Yockmen was working, and on the wall of which was posted a petition for representation that had been filed by the union. Yorkmen's entire testimony concerning the encounter is as follows:

"Q. Will you tell us what was said in the conversation?

"A. Well, he Farnow pointed to me the petition on the wall and he asked me if I knew anything about this.

"Q. And what did you say, if anything?

"A. I said, `Yes\' that I was a member and officer of the union.

"Q. Did he make any reply to this?

"A. No, none whatsoever. He walked out to the casino.

* * * * * *

"Q. * * * Was there anything further that happened after this conversation?

"A. Well, Mr. Farnow had gone home and Phil Daly an employee in the slot machine department walked into the slot machine shop, oh, maybe an hour later, and I asked him if Mr. Farnow had said anything to him or if he was hot and Phil replied, `No, he wasn\'t hot about anything.\'

He was just a little disturbed that I didn\'t mention to him about this activity before the petition for election was held." R.T. 84-85.

2. On August 6, 1964, Yockmen was making his rounds in the Tropicana casino and stopped to talk to George Harvey, a supervisor of respondent's dealers. Their conversation as recalled by Yockmen is fully set out in the following excerpt from the record:

"A. * * * I said, `I hear there is a list in the pit\'.

"Q. Can you tell us what list you are referring to?

"A. I was referring to a list of nominees.

"MR. RICHMAN counsel for respondent: Objection, Mr. Trial Examiner. That is a conclusion on the part of the witness. This is a state of mind — subjective state of mind that he may have had at the time of the conversation. The proper evidence would be what the conversation was between he and Harvey.

"TRIAL EXAMINER: The objection is overruled. The witness may answer.

* * * * * *

"A. Well, it was a list of nominees and officers of the American Federation of Casino and Gaming Employees.

"Q. Now, what did Harvey say in reply to your question?

"A. He says, `Yeah,\' and he says, `and your name\'s on there with two stars behind them.\'

* * * * * *

"Q. What, if anything, did you say to this?

"A. I said — well, I says that I feel pretty bad, and I asked him first, I says, who has the most stars behind their names and I didn\'t ask him who I meant — I asked what was the most stars behind the names and he said three, so I said that I feel pretty bad and I said I was elected to the executive board and I should have three stars myself, and he laughed and I walked away, went about my rounds.

"Q. Is that the end of the conversation?

"A. Yes." R.T. 87-89.

3. Sometime in August 1964¹ Thomas Hanley, business manager for the union, requested that the Nevada Industrial Commission investigate an accident involving Yockmen at respondent's place of business. Shortly thereafter Yockmen was called to the office of respondent's paymistress. Lucretia Rozelle. Again we quote his testimony:

"Q. Can you tell us what was said?

"A. Well, she said what does Mr. Hanley have to do with this place.

"Q. What, if anything, did you say?

"A. I said why.

"Q. What did she say?

"A. She said that the Nevada Industrial Commission was coming down to take a report, and investigate my accident report there, the request of Mr. Hanley.

"Q. And what, if anything, did you say to that?

"A. I said — well, she said that they had been down here at 10:00 o\'clock in the morning and that it was around 9:00 o\'clock in the morning.

"Q. Was there any further conversation?

"A. No." R.T. 90-91.

4. On September 1, 1964, at Farnow's direction, Yockmen was dismissed from his position with respondent.²

I. THE PROPRIETY OF THE INTERROGATION AND SURVEILLANCE ALLEGATIONS

The charge filed with the Board by the union on September 29, 1964, alleged only that Yockmen had been discharged for union activity, in violation of sections 8(a) (1) and (3) of the Act. The Board's complaint, however, which was issued on April 2, 1965, included also the allegation that Harvey's comments had given an impression that respondent was engaging in "surveillance" of the union activities of its employees, contrary to section 8(a) (1). And on the second day of the hearing before the trial examiner, the Board successfully moved for an amendment to the complaint, to include an allegation that Farnow, in his repair-shop conversation with Yockmen, had "interrogated" the latter concerning his union activity, contrary to section 8 (a) (1). Respondent's initial contention is that the latter two allegations were not properly before the trial examiner, since they were not included in the original charge.

In NLRB v. Osbrink, 218 F.2d 341 (9th Cir. 1954), cert. denied, 349 U.S. 928, 75 S.Ct. 770, 99 L.Ed. 1259 (1955), this court was faced with a similar argument. There we stated that section 10(b) of the Act³

"`has been uniformly interpreted to authorize inclusion within the complaint of amended charges — filed after the six months\' limitation period — which "relate back" or "define more precisely" the charges enumerated within the original and timely charge.\'" 218 F.2d at 345, quoting NLRB v. Gaynor News Co., 197 F.2d 719, 721 (2d Cir. 1952).

In NLRB v. Dinion Coil Co., 201 F.2d 484, 491 (2d Cir. 1952), cited in our Osbrink opinion and recently reaffirmed as authority in Exber, Inc. v. NLRB, 390 F. 2d 127 (9th Cir. 1968), the rule for determining whether a complaint issued by the Board is properly supported by the charge is set out as follows:

"If a charge was filed and served within six months after the violations alleged in the charge, the complaint (or amended complaint), although filed after the six months, may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) occurred within six months before the filing of the charge."

Here the additional allegations are sufficiently "closely related" to those contained in the original charge so that the "relation back" theory may properly be applied. Those allegations concern actions by respondent purportedly indicating its opposition to Yockmen's participation in the union, and presaging his allegedly improper dismissal. The Board's responsibility for vindicating the public interest would be unnecessarily restricted if it were strictly limited to the specific allegations contained in the charges filed with it. See Texas Indus. v. NLRB, 336 F.2d 128, 131-132 (5th Cir. 1964); NLRB v. Kohler Co., 220 F.2d 3, 6-8 (7th Cir. 1955).⁴ Respondent does not contend here that it was prejudiced in any way by the "relation back."

II. THE "INTERROGATION" FINDING

The Board found that Farnow's question to Yockmen — the question whether Yockmen "knew anything about" the representation petition — constituted an impermissible "interrogation" of the latter concerning his union activities. We are unable to conclude that this finding is supported by substantial evidence.

The question just referred to constituted the whole of Farnow's part of the conversation; after Yockmen's reply, Farnow "walked out of the casino." There was no testimony that Farnow's demeanor was in any way threatening. We think the Second Circuit's opinion in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.1964) (per curiam), provides helpful guidelines for dealing with the question of...