Restaurant Corp. of America v. N.L.R.B.
| Decision Date | 25 August 1987 |
| Docket Number | No. 85-1475,85-1475 |
| Citation | 827 F.2d 799 |
| Parties | 126 L.R.R.M. (BNA) 2129, 264 U.S.App.D.C. 148, 56 USLW 2163, 107 Lab.Cas. P 10,144 RESTAURANT CORPORATION OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before MIKVA and BORK, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge MacKINNON.
The Restaurant Corporation of America, Inc. (the "Company") petitions for review of a decision and order of the National Labor Relations Board. The Board determined that the Company had violated section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (3) by disparately enforcing its absolute no-solicitation rule by suspending and discharging employees Dameron and Herbekian because of their union activities. 271 N.L.R.B. 171 (1984). The Board cross-petitions for enforcement of its order. For the reasons set forth below, we grant the Board's cross-petition to enforce its order as to Dameron and deny it as to Herbekian. 1 Our colleague concurs in our opinion insofar as it upholds the Company's suspension and discharge of Herbekian but dissents from our refusal to uphold the suspension and discharge of Dameron. Thus, the pivotal issue within the court is whether the Company disparately enforced its no-solicitation rule in discharging Dameron, who, when off-duty, made one isolated union solicitation (lasting less than five minutes) of two non-working employees seated together, while not enforcing the rule against employees who made numerous social solicitations of working employees.
The Company owns and operates food service facilities in the Watergate complex in the District of Columbia, including Les Champs Restaurant, the Peacock Lounge, the Terrace Restaurant, the Espresso Cafe, a pastry shop, and a delicatessen. Approximately 230 persons, fourteen of whom are supervisory employees, are employed by the Company in the aforementioned enterprises. The Company's food service employees are not represented by a union. Approximately thirty food service employees and three supervisory employees work in Les Champs Restaurant and the Peacock Lounge. In 1975 the Company adopted the following absolute no-solicitation rule applicable to all employees:
Solicitation of any kind, including solicitation for clubs, organizations, political parties, charities, etc. is not permitted on working time or in customer areas. Distribution of literature of any kind is not permitted on working time or working areas. Offshift employees are not allowed on the premises.
(Joint Appendix (J.A.) 5) (emphasis in original).
In early 1981 Roxie Herbekian inquired of the Hotel and Restaurant Employees Union, Local 25, AFL-CIO, as to the possibility of finding work in a restaurant with an organized union. When told that such work was not available, Herbekian asked whether she might find work in a restaurant that had the prospect of being organized. The union advised her that an organizing campaign was underway in the Watergate facilities operated by the Company.
Herbekian obtained employment from the Company in January 1981 to work half-time as a morning room-service operator. The union organizing campaign, however, did not reach fruition. In mid-March Herbekian took on additional work for two or three days a week as a cocktail waitress in the Peacock lounge. Herbekian then spoke with the union about an organizing effort among the thirty or so food service employees of the Company. With the approval of the union, Herbekian, sometime in May 1981, began speaking to her co-workers about organizing a union local. At this point Herbekian was speaking only with employees in the physically adjacent Les Champs Restaurant and Peacock Lounge. Herbekian testified that her solicitation ran as follows:
Generally, what I would say to them is that, in January I had attended a meeting with employees of the Terrace [Restaurant], a Union meeting. And, several of the employees there were interested in organizing. Yet, in order to continue the campaign, we would have to include people in the other restaurants and shops of the Watergate.
And, are you--the individual I was speaking to--would you be interested in pursuing getting a Union?
(Hearing Transcript (Tr.) 32). At this time Herbekian had neither union authorization cards nor union literature. Herbekian testified that she spoke with twelve people on work time concerning the union campaign prior to June 2, 1981 (Tr. 70-77).
Among those solicited by Herbekian was Sherwood Dameron, a waiter at Les Champs. Dameron, Herbekian, and six other employees attended a union-sponsored meeting outside their work places on June 2, 1981 to discuss the prospect of organizing the employees of the Watergate complex. At this meeting each person received a list containing the names of fellow employees to contact about signing union authorization cards. Herbekian's list contained five names; Dameron's contained six (Tr. 81, 297).
Herbekian met with approximately ten people following the June 2, 1981 meeting. All of the meetings apparently occurred on work time. Herbekian testified that she met with "[a]bout ten" people following the June 2 meeting (Tr. 40), talking with nine specific employees on work time and in the workplace (Tr. 82-92). Herbekian described these meetings as follows:
I spoke to employees, and I asked employees to sign cards. And, I took those cards. I asked them to sign them, and then they gave them back to me. And, I reported to a number of people who asked me about the meeting, what had happened at the meeting.
(Tr. 40). As a result of these solicitations, Herbekian received seven signed authorization cards (Tr. 42).
Meanwhile, Sherwood Dameron spoke with seven employees about the union organizing effort. Five of the conversations took place entirely outside of work time (Tr. 297-300). Dameron spoke with Tiep Bui and Charatsri Maneepanth, cashiers at the Espresso Cafe, while Dameron was off the clock but while Bui and Maneepanth were sitting down together behind the counter, not actually working but during work time (Tr. 287, 299). Dameron gave Bui and Maneepanth union authorization cards. He testified that Bui and Maneepanth were not busy, and that the solicitation of Bui and Maneepanth lasted a total of "[l]ess than five minutes" (Tr. 287, 299).
One of Dameron's non-work time conversations was with Victor Sangster, a chef's helper at Les Champs. Richard Sultoni, a chef at Les Champs affiliated with management, thereafter asked Sangster whether he had been approached recently by anyone concerning a union. Sangster replied negatively. Sultoni asked Sangster what he thought of unions; Sangster replied that he did not know much about unions, but that he would inform Sultoni if he were approached regarding a union (Tr. 248-49). Tiep Bui, the cashier in the Espresso Cafe, was also questioned by Sultoni. Bui told Sultoni that Dameron had given her a union authorization card, but that she had left it at home (Tr. 109). Charatsri Maneepanth was questioned by Sultoni the day after receiving an authorization card from Dameron. Maneepanth named Dameron as the source of the card.
On the morning of Tuesday, June 9, 1981 Roxie Herbekian was summoned to the office of Gene Flick, the general manager of the Company's Watergate facilities. Flick inquired whether Herbekian was aware of the Company's no-solicitation rule. Herbekian answered that she was unaware of the rule. Flick gave Herbekian a copy of the rule and reminded her that the rule was prominently posted by the timeclock, in the employee locker room, and on the employee bulletin board in Les Champs and the Peacock Lounge. Flick then suspended Herbekian for three days pending investigation of her alleged violations of the no-solicitation rule. When Herbekian returned to work the following Monday, she was fired by Flick.
Flick called Dameron into his office the afternoon of June 9, 1981, and likewise gave Dameron a three-day suspension pending investigation into the alleged solicitations. Dameron called Flick the next day to inquire about his employment status, whereupon Flick informed him that he had been fired.
On June 21, 1981 the Union filed a charge with the NLRB alleging that the Company had violated Sec. 8(a)(1) and (3) of the National Labor Relations Act. 2 Of importance in the present appeal, the union alleged that the Company had promulgated an overly broad no-solicitation rule, had engaged in several instances of unlawful interrogation of employees, and had disparately enforced its no-solicitation rule in discharging Herbekian and Dameron, thus violating the statutorily protected right of employees to form a labor union. On August 26, 1981 the NLRB General Counsel issued a complaint.
Following a hearing the Administrative Law Judge held that Sultoni's interrogation, for the Company, of Sangster, Bui, and Maneepanth constituted an unfair labor practice under Sec. 8(a)(1) (J.A. 20-21). With respect to the discharges of Herbekian and Dameron, the Administrative Law Judge held that the Company's no-solicitation rule was facially valid, but that the no-solicitation rule had been disparately enforced in violation of Sec. 8(a)(3) (J.A. 21-23). The decision of the Administrative Law Judge that the Company had...
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