Before: Wald, Silberman and Sentelle, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 1996
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Opinion for the Court filed by Circuit Judge Sentelle.
Parsippany Hotel Management Company ("Parsippany," the "Hotel," or the "Company") petitions for review of a decision of the National Labor Relations Board ("NLRB" or "Board") finding that Parsippany violated the National Labor Relations Act (the "NLRA" or the "Act") by engaging in unlawful surveillance of its employees; giving an unlawful, anti-union speech; and discriminatorily disciplining and discharging a union activist employee. Respondent, the NLRB, cross-petitions for enforcement of its order. Parsippany argues that the administrative law judge ("ALJ") erred in permitting the Board's General Counsel to amend his complaint to include the allegation that Parsippany violated the Act by giving an anti-union speech to company employees, and that there is insufficient evidence on the record as a whole to support the Board's findings on the other charges. We conclude that there is sufficient evidence to support the Board's findings on all charges, and that Parsippany waived any claim that the Board erred in permitting the General Counsel to amend his complaint to include the anti-union speech allegation. We, therefore, dismiss Parsippany's petition and grant in toto the Board's application for enforcement.
Parsippany operates a hotel in Parsippany, New Jersey, at which Joseph LaRussa had been employed as a banquet server from October 1991, until discharged in June 1993. This case arises out of a union organizing effort that began at Parsippany in early 1993. In January 1993, after the Hotel's management decided to amend its method of compensating employees from a gratuity commission to an hourly system, LaRussa approached the Hotel Employees and Restaurant Employees International Union, Local 69 (the "Union") for assistance in organizing the Hotel's employees. Shortly thereafter, union representative John Agatos provided LaRussa with union authorization cards to distribute among the Parsippany employees. LaRussa distributed the cards to employees on company facilities during non-work hours. In addition, he attended several Union-sponsored employee meetings. In February 1993, the Union filed with the Board a petition for a representation election. Upon learning of the union organizing activity, Hotel General Manager Robert Hermany conducted a mandatory meeting of banquet department employees in February. Hermany told the employees that he did not want a third party running the Hotel. Then, holding up a union authorization card, Hermany informed the employees that he did not want to see such cards and that whoever was distributing them had better stop.
On March 3, the Board conducted a hearing to determine the appropriate bargaining unit of employees that would be eligible to vote in the upcoming representation election. LaRussa attended this hearing to testify on the Union's behalf. Numerous company officials were present at the hearing and witnessed LaRussa's participation in the hearings on the Union's behalf. The hearing, however, was held during LaRussa's work hours, and he missed work to attend the meeting without giving proper notice to his employer of his intent to be absent. As a result of his failure to arrive at work as scheduled, LaRussa received a "verbal warning." Two weeks later, on March 17, 1993, LaRussa received his first written warning for screaming abusively and cursing at a female manager, Bianca Sorenson. Less than a month later, on April 4, 1993, LaRussa arrived 54 minutes late for work, and for this Parsippany issued LaRussa his second written warning.
In the meantime, the scheduled date of the representation election was nearing. In the week preceding the election, Parsippany brought four security guards from other hotels to work at the New Jersey facility as part of a "union campaign task force." On April 22, the representation election was held, and the Union lost by a two-to-one margin.
Several weeks later, on May 6, LaRussa received his third written warning for punching into work thirty minutes early two days in a row. Finally, on June 13, LaRussa failed to report for a scheduled shift and received his fourth and final warning two days later. LaRussa was then fired on June 18 in conformity with Parsippany's progressive discipline policy which provides that an employee who receives three written warnings in a twelve-month period is subject to discharge.
In the months following these events, the Union filed several unfair labor practice charges against Parsippany. After investigation of these charges, the Board's General Counsel issued a complaint alleging violations of Sections 8(a)(1), (3), and (4) of the NLRA. 29 U.S.C. 158(a)(1), (3), and (4) (1994). The charges contained in the complaint were heard before an ALJ in May and June of 1994. This complaint contained no allegations relating to the anti-union speech given by Hermany in February 1993. However, in the midst of the hearing before the ALJ, the General Counsel moved to amend his complaint to include an additional allegation that Hermany's speech violated Section 8(a)(1) of the Act. The ALJ allowed the amendment over objection by Parsippany, but recessed the hearing for approximately six weeks. Upon completion of the hearing, the ALJ concluded that Parsippany had violated the Act by discriminatorily disciplining LaRussa on April 4, May 6, and June 13, and discharging him on June 18. The ALJ further found that Parsippany had engaged in unlawful surveillance of its employees and that Hermany's anti-union speech to employees violated the Act. However, the ALJ concluded that neither the verbal warning to LaRussa on March 3 nor the written warning to him on March 17 was discriminatory.
The Hotel appealed the ALJ's findings to the Board. A three-member panel of the Board adopted the ALJ's rulings, findings, and conclusions in part. Parsippany Hotel Management Co., 319 N.L.R.B. No. 22, at 1 (1995). The Board agreed with the ALJ's finding that both the verbal warning issued to LaRussa on March 3 and the first written warning issued on March 17 were nondiscriminatory. Id. As for the ALJ's finding that Parsippany had violated the Act by issuing the second written warning to LaRussa on April 4, the Board adopted the ALJ's finding that the General Counsel had established a prima facie case that that warning was motivated by LaRussa's union activities, but then found that Parsippany would have issued the warning even in the absence of LaRussa's protected activities. As a result, the Board concluded that the April 4 warning did not violate the Act. Id. at 2. The Board affirmed the ALJ's findings concerning the remaining charges against Parsippany. Id. at 1.
As a remedy for these violations of the Act, the Board ordered that Parsippany cease and desist from engaging in the violations. In addition, the Board ordered that LaRussa be reinstated to his former job and be made whole for any losses suffered as a result of Parsippany's unlawful conduct. Parsippany was also required to post a notice at the facility announcing to employees that Parsippany would no longer engage in those violations of the Act which the Board determined Parsippany had committed.
Parsippany petitioned this court to review the Board's findings. In its petition for review, Parsippany argues that the Board erred in affirming the ALJ's decision to permit the General Counsel to amend his complaint to add the allegation that Hermany's anti-union speech violated Section 8(a)(1) of the Act. Further, Parsippany argues that the Board's findings were not supported by substantial evidence in the record.
A. The Amendment of the General ...