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fortuna Enterprises, LP v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

June 12, 2015

FORTUNA ENTERPRISES, LP, PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, UNITE HERE LOCAL 11, INTERVENOR

Argued: March 17, 2015.

Page 155

Stephen R. Lueke argued the cause for petitioner. With him on the briefs was Stefan H. Black.

Edward D. Swidriski III, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.

Eric B. Myers was on the brief for intervenor Unite Here, Local 11, in support of respondent.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SENTELLE, Senior Circuit Judge. OPINION filed by Senior Circuit Judge SENTELLE.

OPINION

Page 156

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

SENTELLE, Senior Circuit Judge:

Fortuna Enterprises, L.P., petitions for review of a National Labor Relations Board order finding that Fortuna violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by suspending seventy-seven employees for participating in an on-site work stoppage. See Fortuna Enters., L.P., 360 NLRB No. 128 (May 30, 2014), 2014 WL 2448880. The Board filed a cross-application for enforcement of the challenged order; and labor union Unite Here, Local 11, intervenes in favor of enforcement. For the reasons stated below, we will deny Fortuna's petition to review the Board's order and grant the Board's cross-application for enforcement.

I. Background

A. Factual Background

Petitioner Fortuna Enterprises operates the Los Angeles Airport Hilton Hotel and Towers (hereinafter " Hilton" ). Beginning in January 2006, intervenor union, Unite Here, Local 11, conducted a public campaign to organize Fortuna's employees at the Hilton. On May 10, 2006, Fortuna suspended employee Sergio Reyes pending an investigation of allegations of theft. Suspecting that Reyes's suspension was related to his union activities, several employees decided to meet the following morning in the staff cafeteria to induce management (specifically, Hilton's general manager Grant Coonley or Hilton's food and beverage director Tom Cook) to address the employees' concerns over Reyes's suspension.

At 8:00 a.m. on May 11, 2006, seventy to one hundred employees gathered in the cafeteria. Upon arriving at the cafeteria, the employees asked a security guard to inform Coonley and Cook that the employees wanted to meet with them. When housekeeping director Anna Samayoa arrived at the cafeteria at approximately 8:13 a.m., the security guard notified Samayoa that the employees had requested a meeting with Cook or Coonley. The guard told Samayoa that Cook was on his way, but

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Coonley was not at the hotel. Samayoa attempted to reach Cook by telephone, but received no answer.

At approximately 8:26 a.m., Samayoa ordered the employees gathered in the cafeteria to return to work if they were not on break. Employee Michael Vargas responded that the employees were not leaving until they spoke to Coonley or Cook. Samayoa told Vargas that Coonley was not available, and Vargas responded, " Then we need to speak to [Cook]." Fortuna, 2014 WL 2448880, at *2. At 8:32 a.m., Samayoa again ordered the employees to return to work if they were not on break. The employees did not comply. At 8:57 a.m., Samayoa reiterated her order, this time adding that employees would be suspended if they remained in the cafeteria. Vargas then asked Samayoa to try to reach Coonley on his cell phone; Samayoa responded that she would try.

A few minutes after the third warning, Samayoa began suspending employees one by one. Vargas intervened and asked Samayoa to " focus on contacting Mr. Coonley." Samayoa responded, " Yes, I will try," and left the cafeteria. Id. About this time, Hilton's chief of security Grant Taylor announced that he was going to call the police if the employees failed to leave. Despite this threat, however, Taylor also promised Vargas that he would try to contact Coonley. A half an hour later, at approximately 9:30 a.m., Vargas asked Samayoa if she had contacted Coonley. Samayoa responded, " No, we're still waiting just like you are." Id. Vargas also asked hotel chief steward Rogelio de la Rosa to contact Coonley, Cook, or human resources manager Sue Trobaugh. De la Rosa responded, " Okay, let me go and see what I can do." Id.

At approximately 10:15 a.m., having received no response from Coonley or Cook, a delegation of eight to ten employees informed management that they wanted to return to work. Kitchen supervisor David Aragon, after speaking with Cook, informed the employees that they were suspended and could not return to work. Shortly thereafter, Samayoa, accompanied by a police officer, confirmed to the delegation that the employees who participated in the work stoppage were suspended and could not return to work. Having been informed of their suspensions by the returning employee delegation, the remaining employees left the cafeteria at approximately 10:30 a.m. Ultimately, seventy-seven employees who participated in the work stoppage were suspended for five days for " [i]nsubordination" and " [f]ailure to follow instructions." Id. at *3.

B. Procedural Background

The National Labor Relations Board's general counsel issued a complaint against Fortuna based on the May 11 suspensions and other alleged anti-union conduct. An Administrative Law Judge found the suspensions violated § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), because the employees participating in the work stoppage were engaged in concerted action for " mutual aid or protection" under § 7 of the Act, 29 U.S.C. § 157. Fortuna Enters., L.P., 354 NLRB 202, 211 (2009) (Board adopting and appending ALJ's decision). In determining whether the concerted activity was protected under § 7, the ALJ undertook to apply the Board precedent set forth in Quietflex Manufacturing Co., 344 NLRB 1055 (2005). See id.

In Quietflex, the Board identified ten factors " that the Board ha[d] considered in determining" whether the organizational rights of employees engaged in a work stoppage outweighed the property rights of the employer. 344 NLRB at 1056. The

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factors listed by the Board in Quiet ...


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