National Labor Relations Board v. Southern Florida Hotel & Motel Ass'n

751 F.2d 1571
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 8, 1985
DocketNo. 83-5452
StatusPublished
Cited by12 cases

This text of 751 F.2d 1571 (National Labor Relations Board v. Southern Florida Hotel & Motel Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Southern Florida Hotel & Motel Ass'n, 751 F.2d 1571 (11th Cir. 1985).

Opinion

TJOFLAT, Circuit Judge:

On Christmas Day in 1976, the Hotel, Motel, Restaurant and Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO (Union) called a strike and established picket lines at several Miami Beach hotels. The Union’s collective bargaining agreement with the hotels had expired on September 26, 1976, and contract negotiations between the Union and the hotels’ bargaining representative, Southern Florida Hotel & Motel Association (Association), had collapsed. The parties soon reached an accord, however, and the strike was called off on January 14, 1977, when the Union members ratified the new contract.

On January 17, after many of the strikers had returned to work, several Union employees began to picket one of the hotels, the Doral Beach Hotel, and the hotel, invoking the contract’s no-strike clause, [1575]*1575fired them.1 Between January 20 and 22, three hotels, the Doral Beach Hotel, the Doral Hotel and Country Club, and the Carillon (which, because they were under common management, will sometimes be referred to collectively as the “Doral” or the “Doral hotels”), purportedly relying on a contract provision that entitled them to terminate “unqualified” employees regardless of seniority when reducing the hotels’ work force, laid off over 200 returning strikers. The Beau Rivage Hotel2 also discharged one returning striker, a bartender, for being “unqualified” and refused to reinstate three breakfast waitresses because their positions had been terminated during the strike.

The Union, contending that the hotels’ conduct was motivated by anti-union animus, brought several unfair labor practice charges against these hotels and the Association. After extensive hearings, the National Labor Relations Board concluded that the respondent hotels and the Association had violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 158(a)(1), (3), and (5) (1982).3 The Board ordered the Association and the hotels to cease and desist from such conduct. The Board further ordered the hotels to offer unconditional reinstatement to those employees whom they unlawfully discharged and to make them whole for any loss of wages. Southern Florida Hotel & Motel Association, 245 N.L.R.B. 561 (1979). The Board now seeks enforcement of its order.

We uphold the Board’s determination that the Doral hotels violated the Act by discharging the returning strikers because they supported the strike and that the hotels’ justification that they had a contract right to discharge these strikers was pre-textual. In a similar manner, we uphold the Board’s decision that the Beau Rivage violated the Act by terminating one returning striker, the bartender, for being “unqualified.” We set aside the Board’s determination, as not supported by substantial evidence, that the Doral Beach Hotel violated the Act by discharging the post-strike picketers and that the Beau Ri-vage did likewise by not reinstating the three breakfast waitresses.

I.

A.

The Union’s Christmas strike received broad support from the employees at the respondent hotels; most of them walked out immediately.4 The hotels succeeded in replacing about half of the strikers and continued operating, although some of their services were curtailed. On December 30, the parties resumed their contract negotiations. Both sides desired a quick settlement, not wishing to lose the benefits of the profitable mid-winter season.

During the negotiations, the parties used their expired contract as the basis for negotiating a new collective bargaining agreement. The major problem they faced was how to reduce the oversized work force [1576]*1576that would result when the strikers returned to work and were added to the nonstrikers and the newly-hired replacements. Joel Gray, an executive vice president of the Doral hotels and president of the Association, told the Union negotiators that the hotels felt that many of the replacements hired during the strike were far better employees than some of the strikers and that the hotels wanted to terminate these strikers under a provision, drawn from the expired collective bargaining agreement, which would authorize the employer, in reducing its work force “due to reduction in business,” to lay off “unqualified” employees.5 The Union, sensing that only Union members would be deemed unqualified, insisted that all the strikers return to work and that the hotels discharge the replacements. The Union, accordingly, opposed the inclusion of the layoff provision in the new contract. The Association’s negotiators ultimately gave in. If the Union would agree to the retention of the layoff provision, the hotels would agree that all of the strikers could return to work; if any employees were laid off, they would be the replacements. There would be only one exception to this policy: the hotels could refuse to reemploy a striker whose position had been abolished. This arrangement was acceptable to the Union, and it agreed to a draft contract which included the layoff provision.

On Thursday, January 13, the parties, having resolved their reduction-in-force problem, agreed to the terms of a collective bargaining agreement, and the Union officials promised to recommend it to the membership for ratification. The next day, the Union rank and file ratified the agreement, and the parties announced to the public, by radio, television, and newspaper, that they had settled their dispute and that the strike was over. Their announcement said that the strikers would begin returning to work on Monday, January 17.

B.

The Doral Beach Hotel, the Doral Hotel and Country Club, and the Carillon were, as we have indicated, under common ownership and management. During the strike, numerous supervisors at the three Doral hotels made comments evidencing anti-union animus to other supervisors and pro-management employees. For example, they said “there’s not going to be any more union here”; “whoever walks out won’t be back”; and “the Union really messed things up for themselves with the strike, and now the hotel is going to give it to them.”

After the strike was settled but before the strikers returned to work, Joel Keiler, the Association’s lawyer, spoke to a large meeting of the Doral hotels’ supervisors and department heads. The lawyer told the group that the strike was over and that an agreement had been reached. He felt management had won the strike, but they were not going to broadcast that because the Union was still there and it had to “save face.” He explained that, under the new contract, the hotels had to take back all of the strikers. Disregarding the Association’s promise to the Union, however, he went on to say that, once the strikers were reinstated, the hotels could reduce the expanded work force by laying off anyone, returning strikers and replacements alike, whom they regarded as inefficient, unquali[1577]*1577fied, or “dead wood.” Each department head would be asked to prepare a list of those “unqualified” for their position; all unqualified strikers would be laid off and the unqualified replacements would be fired. The lawyer also instructed the supervisors not to be vindictive and not to consider Union membership or activity, or their personal feelings toward an employee, in determining who was unqualified.

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Bluebook (online)
751 F.2d 1571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-southern-florida-hotel-motel-assn-ca11-1985.