USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1294
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HORIZONS HOTEL CORPORATION
D/B/A CARIB INN OF SAN JUAN,
Respondent.
____________________
No. 94-1303
HORIZONS HOTEL CORPORATION
D/B/A CARIB INN OF SAN JUAN,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
____________________
ON APPLICATION FOR ENFORCEMENT AND PETITION
FOR REVIEW OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
____________________

Before
Torruella, Chief Judge,
___________
Campbell, Senior Circuit Judge,
____________________
and Boyle,* Senior District Judge.
_____________________
_____________________
____________________
*

Of the District of Rhode Island, sitting by designation.

Luis F. Padilla for Horizons Hotel Corporation.

_______________
David Habenstreit, Attorney, National Labor Relations Board,
_________________
with whom Frederick L. Feinstein, General Counsel, Linda Sher,
_______________________
__________
Acting Associate General Counsel, Aileen A. Armstrong, Deputy
____________________
Associate General
Counsel, and Linda
Dreeben, Supervisory
_______________
Attorney, were on brief for National Labor Relations Board.

____________________
March 3, 1995
____________________

-2-

BOYLE,
BOYLE,

Senior
Senior

District
District

Judge.
Judge

This

case

presents

_______________________
issues concerning a

final order of the

National Labor Relations

Board (the Board) which concluded that Horizons Hotel Corporation

d/b/a

Carib Inn of San

practices

in

violation

National Labor
(3),

(5).

Juan (Horizons) engaged

of

8(a)(1),

Relations Act (the

The claims of

in unfair labor

(3),

and

(5) of

Act), 29 U.S.C.

the

158(a)(1),

unfair labor practices

arose in part

from the conduct of a bankruptcy trustee who was in possession of

the hotel at the time Horizons purchased it.
us under
order,

10(e) of the
which

adopted

recommended order

Board's

with

modification

22, 1993).

the Act, 29 U.S.C.

order,

asserting

the

the Board are contrary to law;

the ALJ, adopted by

the

law judge

its

opinion

and

(ALJ).

312

Horizons petitions us under

160(f), to review
following:

jurisdiction to act in this case;

evidence.

160(e), to enforce

of the administrative

N.L.R.B. No. 200 (Nov.

10(f) of

Act, 29 U.S.C.

The Board petitions

and vacate the

the

Board

lacked

the conclusions of the ALJ and

and the factual determinations of

the Board, are not supported

by substantial

We conclude that the Board's order adopting the ALJ's

opinion and proposed order is without error and is to be enforced

as it stands.

See 29 U.S.C.
___
I.
I.

The

STANDARD OF REVIEW
STANDARD OF REVIEW

appropriate standard

10(e) of the Act, 29 U.S.C.

with respect to
evidence

on

160(e), (f).

questions of
the

record

of review

160(e):
fact if
considered

is provided

in

"The findings of the Board

supported by
as

whole

substantial
shall

be

-3-

conclusive."
violated

Thus, a finding of the Board that the

is upheld

"as

substantial evidence

different conclusion."
Cir.

1994)(citing 29

long as
. .

the

even

finding is

if we

Act has been

supported

would have

reached

3-E Co., Inc. v. NLRB, 26 F.3d

_____________
____
U.S.C.

160(e)).

by

1, 3 (1st

In reviewing

a Board

decision, great weight is afforded the credibility determinations

of

the ALJ,

witnesses

as he

or she

testify, see
___

id.;
__

had the

opportunity to

Holyoke Visiting Nurses Ass'n

______________________________

NLRB, 11 F.3d 302,

____

308 (1st Cir. 1993);

determinations are

disturbed only where it is

ALJ "overstepped the bounds

observe the

of reason."

v.

therefore, credibility

apparent that the

3-E Co., Inc.,

_____________

26 F.3d

at 3; Holyoke Visiting Nurses Ass'n, 11 F.3d at 308 (citing

_____________________________

NLRB
____

v. American Spring Bed Mfg. Co., 670 F.2d

_____________________________

Cir.

1982)).
II.
II.

BACKGROUND
BACKGROUND

1236, 1242 (1st

The record supports the

facts, adopted by
(citing

the Board.

ALJ's finding of the following

See 3-E Co., Inc.,

___ _____________

Cumberland Farms, Inc. v.

______________________

NLRB, 984 F.2d

____

26 F.3d at

556, 558 (1st

Cir. 1993)).
A.
A.

Hotel in Bankruptcy:
Hotel in Bankruptcy:
In

November 1981 - May 14, 1986

November 1981 - May 14, 1986

1981, the Carib Inn

Puerto Rico, was owned

by the Carib Inn of San

(Carib Inn Corporation).

filed
the

hotel and casino

in San Juan,

Juan Corporation

In November 1981, Carib Inn Corporation

a petition for bankruptcy in the U.S. Bankruptcy Court for

District of Puerto

U.S.C.

1101, et seq.
________

Rico under

chapter 11

The chapter 11

of Title

11, 11

proceeding was converted

-4-

to

a chapter 7, 11 U.S.C.

1985.

On

November

701 et seq., proceeding in November

_______

21, 1985,

the

H ctor Rodr guez-Estrada (Rodr guez)

1104.

Bankruptcy Court
trustee under

appointed

29 U.S.C.

As trustee, Rodr guez was ordered to liquidate the assets

of the bankruptcy estate.

At all relevant times, employees of the hotel's service

and casino units1
la

Industria

Employees and
(the

were represented by

Gastron mica

de

Uni n de Trabajadores

Puerto Rico,

Local

Restaurant Employees International

Union).

The

service-

and

casino-unit

610,

de

Hotel

Union, AFL-CIO
employees

were

employed under the terms of a collective bargaining agreement.2

In November

or December 1985,

Horizons considered the

prospect of purchasing the

Carib Inn.

for

in February 1986.

the bankruptcy estate

Horizons's president, Benito Fern ndez,

investigating its operation
point, Fern ndez
office

next to

Prior to the bid,

grounds.

an office at

that of

a bid

spent time at the hotel,

and its physical

began to occupy

was located

Horizons submitted

Rodr guez.

At

some

the hotel.

The

Fern ndez and

Rodr guez shared a secretary.

On April 3, Rodr guez met with Ileana Qui ones, general

manager

of

Professional

Employment

Center

(PEC),

local

____________________

1
For a list of the employment positions within the service and
casino units, see ALJ's Decision and Proposed Order, appended to
In re: Horizons Hotel Corp., et al, 312 N.L.R.B. No. 200 (Nov.
___________________________________
22, 1993).

2
On March 20, 1986, Rodr guez terminated the collective
bargaining agreement pursuant to 11 U.S.C.
365. The propriety
of this action is not in question.
-5-

employment agency.

At the meeting, Rodr guez told Qui ones

PEC's services were needed because

that

the hotel was operating under

new management which sought to hire new employees.

He asked her

if there was a possibility that employees hired through PEC would

be union workers.

She responded

told Qui ones that he

guarantee
hotel.

him that

that they would not.

Rodr guez

would consider retaining PEC if

she could

there would

be no

risk of

a union

at the

He requested that Qui ones indicate in writing that there

was no possibility of a union presence.

The

following

letter to Rodr guez.

day, April

The letter was

4,

1986,

Qui ones sent

addressed as follows:

"Sr.

H ctor M. Rodr guez-Estrada[,] Horizons Hotel" -- Qui ones was of

the
A

belief that Rodr guez was employed as a manager of Horizons.

summary of the items

was included
follows:

with the

letter.

first item

listed was

as

13, 1986, Frankie Rosado-Garc a (Rosado),

in one of the hotel's restaurants, and a union steward,

while on duty, served the Union's

table.

The

previous day's meeting

"1. There is no possibility for a Union."

On May 12 or

a waiter

discussed at the

president, who was seated at a

After Rosado waited on him, Rodr guez, who was present in

the restaurant, approached Rosado, and said:

betrayed me."

"[A-ha] . . .

you

Rosado later went to Rodr guez' office to question

him about the

comment.

Rodr guez asked Rosado

if the

Union's

president had come "to stop the hotel."

He then told Rosado that

if

he would

the Union continued

employees.

On another

to bother him,
occasion in May,

fire all union

Rodr guez told

Rosado

-6-

that the Union was not backing the hotel employees.

He said that

the Union had failed to collect from the Federal court money owed
to the employees.

He further stated that there

was no union in

Puerto Rico that would defend the employees.

B.
B.

Sale of the Hotel:

Sale of the Hotel:

May 14, 1986 - May 31, 1986

May 14, 1986 - May 31, 1986

On May 14, 1986,

purchased the Carib Inn

a deed was executed whereby

from Rodr guez.

The deed

Horizons

provided that

possession of the hotel property would be turned over to Horizons

on May 31, 1986.
On
(G mez) as

May 19,

Rodr guez hired

resident manager.

memorandum (May
had signed

1986,

19 memorandum)

Juan Rafael

That day, Rodr guez

announcing the same.

the memorandum, expressly indicating

G mez' hiring.

G mez

circulated a

Fern ndez

his approval of

On

May 21,

1986,

Rodr guez

circulated a

(May 21 memorandum) to all employees of

them

memorandum

the Carib Inn, notifying

that Horizons would assume control

of the hotel on June 1,

1986, and that all employees would be terminated on May 31, 1986.
The memorandum advised
positions

with

Horizons

recruiting office
The

the employees that

by

set up by

recruiting office

submitting

Horizons in

would

they could apply

applications
a nearby

accept applications

for
at

condominium.
for two

days

only.
Later
general
and

that day,

May

steward, and Valent n

21, F lix

Ram rez, the

Hern ndez, the

Union's

Union's secretary

treasurer, went to Rodr guez' office to discuss with him the

-7-

memorandum.

Rodr guez threatened not to meet with them.

He told

them that he didn't have to talk with them because they no longer
represented the

hotel's employees.

He stated: "[T]he

Union is

out," and "Horizons has nothing to do with the Union."

Rodr guez

finally

Hern ndez

agreed

threatened

to

meet

with them,

to report his conduct

however,

after

to the Secretary

of Labor for

the Commonwealth of
Rodr guez
with

Puerto Rico.

told Ram rez

G mez

any

During the meeting,

and Hern ndez

concerns

they

that they

may

have

however,

should discuss

concerning

hotel

administration.
Prior

to

the

May

soliciting

applications for

understood

that PEC was to

new

employees.

21

memorandum,

positions at

PEC

had

the hotel.

begun

Qui ones

be responsible for hiring Horizons's

It advertised in a local newspaper and collected

applications and relevant information on potential employees.

conducted

interviews

candidates.
do

no

and

informed

Rodr guez, however,

independent hiring,

Rodr guez

of

It

appealing

advised Qui ones that PEC would

but

rather

would hire

only

those

individuals whom it was instructed to hire.

Horizons's

recruiting program, announced in the May 21

memorandum, was carried out.

throughout.
G mez

list

A representative of PEC was present

Several days after the

of

individuals to

thereafter conducted at the

hotel.

present during the interviews.

was

interviewed.

At

program, Rodr guez provided

interview.

Interviews were

A representative of

PEC was

Not one employee of the Carib Inn

one point,
-8-

Rodr guez

told a

Carib

Inn

employee

that he had been

authorized to hire

new employees for

Horizons.
C.
C.

Transfer of Control:
Transfer of Control:
On

June 1,

hotel property.

June 1, 1986
June 1, 1986

1986, Horizons

Since that

assumed possession

date, Horizons

of the

has continued

the

business operations previously conducted by Rodr guez as trustee,

and by the

Carib Inn Corporation,

facilities and

using substantially the

equipment, and providing the

the exception of the

same

same services, with

casino, which ceased operation on

June 23,

1986.
After

the

transfer

employees

previously

Horizons,

with the

hired

of

employed at
exception of

possession,
the

hotel

n.2.

Fourteen of

Horizons's

service-unit

were employed

several former

in a supervisory or managerial capacity.

No. 200

no

unit employees

See 312 N.L.R.B.

___

twenty-four casino

employees, however, were previously employed at the hotel.

time

by

unit

At no

did Horizons negotiate or enter into a bargaining agreement

with the Union.

On
consultant.

June

1,

1986,

Horizons

hired

as

He later became Horizons's general manager.

The Bankruptcy

Court confirmed

the sale of

Inn to Horizons by order dated June 6, 1986.

D.
D.

Rodr guez

The Present Action

The Present Action

the Carib

The
1986.

Union

The Board

September

pursued claims

issued a

30, 1987; an

against Horizons

complaint and

notice of

amended complaint and

in August

hearing on

notice of hearing

-9-

was
the

issued on December 21, 1987.

following

allegations:

The amended complaint includes

that

Horizons

interfered

with,

restrained, and coerced employees in the exercise of their rights

in

violation of

creating

the

8(a)(1) of the

impression

of

Act, 29 U.S.C.

surveillance

of

158(a)(1), by

employees' union

activities, threatening employees with discharge because of their

union activities, and
eyes

of employees;

attempting to denigrate

8(a)(3) of the Act, 29

that Horizons refused to

representatives of the
Act, 29 U.S.C.

the

that Horizons refused to hire former service

unit employees in violation of

8(a)(3); and

the Union in

Union in

158(a)(5).

U.S.C.

bargain collectively with

violation of

8(a)(5) of

The amended complaint

the

alleges that

much of the improper conduct was carried out by Rodr guez, acting
as an agent of Horizons.
An ALJ

conducted hearings on various

dates from March

1989
on

through March 1991.

January 15, 1993.

The decision and proposed order issued

The ALJ concluded

that Horizons violated

8(a)(1), (3), and (5) of the Act, 29 U.S.C.

(5).

The

Board, with modification,

findings, and conclusions.

312 N.L.R.B.

No. 200

(Nov. 22,

remedy

and order,

Horizons

cease

and

former

hotel

violation

Act;

who

from

engaging

were

that it

It

ordered the

offer positions

employees

of the

1993).

and

desist

that it

adopted the ALJ's

rulings,

In re: Horizons Hotel Corp., et al,

___________________________________

proposed

practices;

158(a)(1), (3),

of

not

amended the

ALJ's

following:

that

in

unfair

employment to
hired

by

labor

the 65

Horizons

bargain collectively

in

with the

-10-

Union

on request;

employment

that, on request,

conditions which

purchased the Carib Inn;

may have

it cancel any

changes in

been instituted

that, in the event the casino

since it

resumes

operation, it bargain with the Union concerning casino employees,

and

it

employees

offer

positions

to

who were not hired;

publish notice of the order.

those

identified

and that it

former

casino

preserve records and

Both the Board and Horizons petition this Court to act.

The Board petitions

us to

Horizons petitions us
and

order.

As

jurisdiction

enter an order

to review and

grounds,

over this

enforcing its

vacate the Board's

Horizons

matter lies

asserts
with the

that

order.

opinion

exclusive

bankruptcy court,

because much of the allegedly improper conduct was committed by a

bankruptcy
of

trustee.

Horizons further asserts that as

a matter

law it cannot be held accountable for any improper conduct of

Rodr guez, the bankruptcy trustee.

there

is

insufficient evidence

Finally, Horizons argues that

to

support

the findings

that

Rodr guez was an agent of Horizons, and that Horizons violated

8(a)(1), (3),

and (5) of the

Act, 29 U.S.C.

158(a)(1), (3),

(5).
We examine the issues.
III.
III.
Horizons asserts
conduct

of a

jurisdiction
characterizes

bankruptcy
of
the

the

JURISDICTION
JURISDICTION
that,

trustee, it

bankruptcy

present

because this

action
-11-

is

court.
as

within the
In

action

so

"suit[]

concerns

exclusive

arguing,

it

against

the

trustee." Horizons's argument

The issue

was

determined in In re: Carib-Inn of San Juan Corp., 905 F.2d

____________________________________

561

(1st

Cir. 1990), a related

bankruptcy court to
case.

action commenced by

enjoin the Board

In Carib-Inn, we
_________

jurisdiction to

is without merit.

"[t]he [Board's] complaint .

merits of

cases

cited

by Horizons

Barbour, 104 U.S. 126,

_______
Columbia has

of the State

Cir. 1967),

court has

cert. denied,
____________

Id. at 562.
__

District of

suit against receiver

of Virginia without leave

v. Vrooman, 383
_______
390 U.S.

real property);

F.2d 556,

for illegally

925 (1968)(bankruptcy

seizing and

possessing plaintiff's

Vass v. Conron Bros. Co., 59 F.2d

____
_________________

1932)(bankruptcy court

appointing

(D.Idaho

of

560

may

enjoin action

969, 970 (2d

in state

court

against receiver in bankruptcy where not commenced with leave

the

v.

no jurisdiction to enjoin state action against trustee

in bankruptcy

Cir.

Leonard
_______

as

at Horizons

See Baron
___ _____

128, 131 (1881)(court of the

the appointing court);

(9th

present case,

inapposite.

no jurisdiction to entertain

appointed by a court

the

bankruptcy estate."
are

present

Board had exclusive

. . is directed solely

and seeks no remedy against the

The

from pursuing the

concluded that the

determine the

Horizons in the

court);

1981)(permission

In re: Campbell,
_________________
of

the

13

bankruptcy

B.R. 974,
court

of

976
is

prerequisite for state-court action against trustee in bankruptcy

for acts done within his authority as trustee).
action
case

Each concerns an

against a trustee or receiver in bankruptcy;

is

not

Rodr guez,

an

but

action

against

rather against

the

the

trustee

purchaser

the present

in

bankruptcy,

of a

bankruptcy

-12-

estate, Horizons.
The Board acted
the

Act, 29 U.S.C.

under

therein,"

160, in

10(e) and (f),

jurisdiction
and

"of

within its jurisdiction under

29 U.S.C.

the

has

enforcing, modifying,

pursuing the

proceeding

the

power

"to

and enforcing

present claims, and

160(e), (f),
and

the

make

10 of

this Court has

question determined
and

enter

as so modified,

aside in whole or in part the order of the Board."

decree

or setting

-13-

IV.
IV.
A.
A.

ANALYSIS
ANALYSIS

Rodr guez As Agent of Horizons

Rodr guez As Agent of Horizons
______________________________
Horizons

presents

two

objections

to

the

ALJ's

determination, adopted by the

Board, that Rodr guez, the trustee

in bankruptcy, acted as agent for Horizons prior to June 1, 1986,

the date on which possession of the Carib Inn
Horizons.

First,

purchaser
for

of a bankruptcy

the

conduct of

occurred prior to
that

Horizons argues that

the

was transferred to

as a matter

estate it cannot
bankruptcy

of law, as

be held accountable

trustee, Rodr guez,

the transfer of the estate.

which

Second, it argues

the finding that Rodr guez was acting as agent for Horizons

is not supported by substantial evidence.

The
organize,
bargain

to

Act

guarantees

form,

join,

collectively

activities

for the

. .

employees

or assist
. and

purpose

to

the

labor

29 U.S.C.

"to

self-

organizations,

engage in

of collective

mutual aid or protection."

right

other concerted

bargaining or

157.

to

The

other

Act precludes

employers from conducting unfair labor practices, as that term is

defined in
liable

8 of

for

the Act, 29 U.S.C.

the unfair

labor practices

International Ass'n of Machinists

___________________________________
(1940);

U.S. 1039
are
NLRB,
____

of

v.

3- Co., Inc., 26 F.3d at 3-4;

____________

Trabajadores,
____________

158.

Employers may be
their agents.

NLRB, 311
____

U.S.

72,

See
___

80

NLRB v. Uni n Nacional de

____
_________________

540 F.2d 1, 8-9 (1st Cir. 1976), cert. denied, 429

____________

(1977).

Agents

responsible need

for whose unlawful

not be

employees.

588 F.2d 943, 947-49 (5th Cir. 1979);

-14-

conduct employers

See Cagle's, Inc. v.

______________

Uni n Nacional, 540

______________

F.2d at 8-9.
An

employer

need

subsequently

ratified

the conduct

liable.
the

29 U.S.C.

unlawful

circumstances,
was acting
Inc.
____

v.

not

152(13).

conduct

of

have

actually

of its

agent

omitted);

for it

Rather, an employer
its

agent

when,

or

to be

is liable for
under

all

the

employees could reasonably believe that the agent

for and on behalf of management.

NLRB,
____

authorized

833

F.2d

621,

625

See American Press,

___ _______________

(6th

Cir.

1987)(citation

Uni n Nacional, 540 F.2d at 8-9.

______________

Horizons contends that as a matter of law, a trustee in

bankruptcy
estate

cannot be

for

whose

Horizons

argues

estate,

and the

deemed an

unlawful
that the

authority

conduct
trustee's

transfer of

encumbrances, preclude
whatever

to

argument unpersuasive.

agent of
the

purchase

duties

the property

the possibility.
support its

the purchaser
is

of the

liable.

to the

bankruptcy

"free and

clear" of

Horizons points

contention.

That Rodr guez may have been

We find

to no

its

duty bound

to act for the benefit of the bankruptcy estate is irrelevant and

has no

bearing on whether he

Cagle's, Inc., 588 F.2d

_____________
conduct of city

the

commerce director).

hotel

encumbrances and that it did

the conduct of any

Horizons.

at 947 (private employer liable

chamber of

Horizons purchased

acted on behalf of

"free and

Cf.
__

for the

The fact

clear"

of

that

liens

and

not expressly assume liability

for

prior owner of the estate is also irrelevant.

See In Re: Carib Inn, 905 F.2d

___ ________________
being held responsible simply

at 563-64.

Horizons is not

here

for the conduct or liability

of a

-15-

prior

owner; it is being

acts, which

held responsible for

were carried out

happened to control

its own unlawful

through its agent,

the property

prior to the

Rodr guez, who

transfer of

its

possession to Horizons.
Horizons next

argues that the

finding that

acted as its agent is not supported by substantial

the

record

before

determination,

us,

adopted by

we
the

are

satisfied

Board, that

that

Rodr guez

evidence.
the

On

ALJ's

Rodr guez acted

as

agent

for

Rodr guez

Horizons
occupied

is
an

supported
office in

by
the

Fern ndez, Horizons's president, and

substantial
hotel

next

evidence.
to that

of

the two shared a secretary;

Rodr guez solicited the services of PEC, an employment agency, to

recruit employees for

Horizons;

the May 19 memorandum indicated

that Rodr guez acted with the approval of Fern ndez when he hired
G mez

as

resident

manager;

Rodr guez

announced

to

union

representatives that Horizons "has nothing to do with the Union";

he

told an employee that he was responsible for determining whom

Horizons

would

applicants to

hire;

and he

interview for

provided

positions

to

G mez

a list

with Horizons.

On

of

the

basis of these facts, it is clear that employees of the Carib Inn

could reasonably have believed that Rodr guez was acting
on

behalf of

Horizons.

Rodr guez' conduct;

On

for and

Furthermore, Horizons

never disavowed

the contrary, Horizons

hired Rodr guez

after possession of the hotel was transferred on June 1.

Substantial evidence on the
the ALJ's

finding,

adopted by

the
-16-

record as a whole supports

Board, that

Rodr guez

was

acting as an agent of Horizons prior to the transfer of the Carib

Inn on June 1.
B.
B.

See 3-E Co., Inc., 26 F.3d at 3.

___ _____________

Violations of the Act

Violations of the Act
_____________________
1.
1.

Section 8(a)(1), 29 U.S.C.

Section 8(a)(1), 29 U.S.C.

The

Board

determined

Rodr guez, attributable

Act, 29 U.S.C.

that

to Horizons,

158(a)(1).

158(a)(1)
158(a)(1)
certain

violated

statements
8(a)(1)

of

of the

Horizons asserts that the finding is

not supported by substantial evidence.

Section

8(a)(1)

of

provides that it is an unfair

"interfere with,
of their rights

of

others,

employees."
Farms, Inc.,
___________
252, 256 (1st
conduct,

U.S.C.

either

directly

3-E Co., Inc., 26

______________
984 F.2d at

be

of the

at 3

threatening

(citing Cumberland
__________

Otis Hospital,
_____________

545 F.2d

examining assertedly violative

mindful

employer statements,

671 F.2d 11, 18

or indirectly

F.3d

When

their union

activities or sentiments

559; NLRB v.
____

Cir. 1976)).

to

"An employer violates

sentiments, or about the

and by

158(a),

in the exercise

interrogating employees about

constitutes a violation
Inc.,
____

29

labor practice for an employer

guaranteed by the Act.

courts must

tendency of

Act,

restrain, or coerce" employees

8(a)(1) by coercively
activities or

the

that

"[i]t is

not their actual

Act."

NLRB
____

coercive

effect, that

v. Marine Optical,
________________

(1st Cir. 1982)(citations

Board's inference of coercive tendency

the

omitted).

will not be disturbed

The

if

reasonable, even if susceptible of an alternative interpretation.

Id. (citations omitted).
__
The

Board's

determination

that

Horizons

violated

-17-

8(a)(1)

of the

Act, 29

U.S.C.

158(a)(1), is

substantial evidence and stands without

hotel

employee, Rosado,

talking

to the

about his

that

These

interrogation

he

Thereafter,

hotel employees would be

him.

he (Rosado)

Union's president;

conversation.

error.

supported by

Rodr guez told a

had betrayed

then
he told

questioned Rosado
Rosado that

fired if the Union continued

statements are
and direct

reasonably interpreted

threats.

him by

Considered in

all

to bother

as coercive

context, the

statements could reasonably have interfered with or coerced hotel

employees in the exercise of their organizational rights.
E Co., Inc.,
___________

26 F.3d at 3;

See 3___ __

Cumberland Farms, Inc., 984 F.2d at

_______________________

559.
2.
2.

Sections
Sections

8(a)(3) and (1),

8(a)(3) and (1),

29 U.S.C.
29 U.S.C.

158(a)(1),
158(a)(1),

(3)
(3)
The Board, in adopting
that

Horizons's refusal to hire

former
Act,

the findings of the ALJ,

all but several

service-unit employees violated

29 U.S.C.

158(a)(1),

determination is

(3).

not supported

found

of the hotel's

8(a)(3) and (1) of the

Horizons argues

that this

by substantial evidence,

and is

therefore erroneous.
Section

8(a)(3) of

the

declares that it is an unfair labor

Act, 29

U.S.C.

158(a)(3),

practice for an employer "by

discrimination in regard to hire or tenure of employment . . . to

encourage or discourage
Where

an employer

8(a)(3),

by

membership in

violates

8(a)(3)

discriminating

in

its

any labor
of

organization."

the Act,
hiring

29

U.S.C.

practices

to

-18-

discourage a union presence, it necessarily violates

the

Act,

29 U.S.C.

"interfere with,

8(a)(1),

which disallows

restrain, or coerce" employees

of their organizational rights.

8(a)(1) of
employers

to

in the exercise

See, e.g., American Press, Inc.,

___ ____ ____________________

833 F.2d at 624; NLRB v. Horizon Air Services, Inc., 761 F.2d 22,
____
__________________________
26-28 (1st Cir. 1985); Kallman v. NLRB, 640 F.2d
_______
____

1094, 1100 (9th

Cir. 1981).
Generally,

successor

employer

operate its business as it wishes.

has

the

right

to

See Elastic Nut Shop Div. of

___ ________________________

Harvard Ind. v. NLRB, 921 F.2d 1275, 1279 (D.C. Cir. 1990)(citing
____________
____
NLRB
____

v. Burns International Security Services, Inc.,

_____________________________________________

272, 287-88 (1972)).

freedom to hire
labor

Within this prerogative is

its own

work force:

laws "requires that

406 U.S.

the successor's

"'nothing in the

an employer .

. .

federal

who purchases the

assets of a business be obligated to hire all of the employees of

the predecessor

. . . ."'"

Id. (quoting Howard Johnson Co. v.

__
___________________

Detroit Local Executive Board,

_____________________________
omitted)).

417 U.S. 249, 261 (1974)(citation

The successor employer may not, however, discriminate

against union employees

Finishing Corp.
________________

v.

in its hiring.

NLRB,
____

482

U.S.

See Fall River Dyeing &

___ ____________________
27,

40

(1987)(citations

omitted).
Thus, where

a successor

predecessor's employees
may violate
follows:
conduct

because of

8(a)(3), 29
If it is

was

U.S.C.

proved that the

substantial

or

employer refuses to

hire its

their union

affiliation, it

158(a)(3).

The test

is as

former employees' protected

motivating

factor

for

the

-19-

successor's

refusal

8(a)(3), 29

U.S.C. 158(a)(3), unless

______

preponderance
action for

to hire,

the

refusal to

the successor proves

wholly permissible reasons."

U.S. 393,

Services, Inc., 761 F.2d at

______________

399 (1983).

27.

See also
________

at 1280;

Elastic
_______

Horizon Air
___________

"[I]f the employer

[refuses to

an employee for having engaged in union activities and has

no other basis
proffers

for the discharge,

are pretextual,

practice."

or if the

the employer

reasons that

commits an

[it]

unfair labor

Transportation Management Corp., 462 U.S. at 398.

_______________________________
In

the present

General Counsel sustained

service-unit

substantial or
them.

by a

NLRB v. Transportation
____
______________

Stop Nut Div. of Harvard Ind., 921 F.2d

_______________________________

former

violates

of the evidence that it "would have taken the same

Management Corp., 462

________________

hire]

hire

case,

the Board

determined that

the

its burden of proving that the hotel's

employees'

motivating factor

union

affiliation

in Horizons's refusal

This determination is supported

was

the

to hire

by substantial evidence:

Rodr guez, Horizons's agent, indicated to

would
no

Qui ones that Horizons

utilize PEC's services only on the condition that there be

risk of

a union

at the

letter confirming that

told

employees

would be fired if

Rodr guez

told union leaders

Union";

Carib

not

Qui ones responded

"[t]here is no possibility

Rodr guez

with the

hotel;

Inn

union

employee

that "Horizons

for a Union";

that

the Union continued

all

union

to bother him;

has nothing

one union-affiliated former

to do

employee who

submitted an application with Horizons was interviewed;

exception of several individuals

with a

with the

who were offered supervisory or

-20-

managerial positions, no former service-unit employees were hired

by Horizons.
The
proffered
employees.
evidence.

Board

lawful

disqualified

reason

for

as

refusing

This determination also is

Horizons

that the former

were not needed,

asserted at the

employees were

pretext
to

hire

Horizons's
the

former

supported by substantial

administrative proceedings

not hired because

and because they were not

many of

them

competent employees.

Fern ndez

testified that

determined

after he

the

personally

incompetence is evidenced
into

bankruptcy.

discredited
proffered

former

The

Fern ndez'

and that

their

fact that the

hotel had

gone

adopting

testimony

justification,

was

observed them,

by the
Board,

employee's unfitness

noting

that

and

the

ALJ's

rejected

Horizons

findings,

Horizons's
submitted

no

evidence tending to prove that Fern ndez personally observed each

former

employee, and that it failed to prove its contention that

the service employees

concluded

that

services,

and

caused the hotel's bankruptcy.

Horizons's
its

retention

solicitation

of

of

PEC

for

applications

The Board

recruiting
from

former

service-unit employees, was conduct intended as a smoke screen to

conceal

its scheme

to keep

the

Union out

of

the Carib

Inn.

Again, this conclusion is well supported by substantial evidence.

The Board,
that

in adopting

Horizons violated

8(a)(1), (3).

This

the ALJ's

8(a)(3) and (1)

findings, concluded

of the Act, 29 U.S.C.

determination is supported by substantial

evidence and stands without error.

-21-

3.
3.

Sections
Sections

8(a)(5) and (1),

8(a)(5) and (1),

29 U.S.C.
29 U.S.C.

158(a)(1),
158(a)(1),

(5)
(5)
The Board
ALJ, that
U.S.C.

determined, in adopting the

Horizons violated

8(a)(5) and (1)

8(a)(1), (5), by refusing to

the Union,
units.

findings of the
of the Act,

29

bargain collectively with

which represented employees of the service and casino

Horizons

asserts

that

this

finding

is

in

error,

unsupported by substantial evidence.

Section
provides that it
refuse to

Act, 29

158(a)(5),

with the representatives

Where an employer violates

8(a)(5),

disallows

U.S.C.

is an unfair labor practice for an employer "to

by

necessarily violates
which

the

bargain collectively

employees."
U.S.C.

8(a)(5) of

refusing
8(a)(1)

employers

to

8(a)(5) of the Act,

bargain

collectively,

of the Act, 29 U.S.C.

to

of his

"interfere

with,

29

it

8(a)(1),

restrain,

or

coerce" employees in the exercise of their organizational rights.

See, e.g.,
___ ____
n.2.

Fall River Dyeing & Finishing Corp., 482 U.S. at 34 &

___________________________________

Under

obligated

8(a)(5), 29
to

bargain

predecessor's
'successor'
successor's
predecessor."

employees
to

the

old

employees
Asseo v.
_____

U.S.C.
with

if:
.

the
(1)

. and

previously

158(a)(5),
union
the
(2)
were

"an employer is
representing

new
a

employer
majority

employed

Centro M dico Del Turabo, 900

________________________

its
is

of
by

the

the

F.2d 445,

450-51 (1st Cir. 1990)(citing Fall River Dying & Finishing Corp.,
__________________________________

482

U.S. at 43-52).

If

rebuttable presumption

these two

of majority

criteria are

satisfied, "a

status arises, leading

to a

-22-

consequent duty to bargain in good faith."

Id. at 451.
__

Where a successor employer's unlawful

preclude

the possibility of a majority status in its work force,

however, the successor

collectively

with

violates the Act

the

union

predecessor's employees.
921

F.2d

employees
Board's

at

1282.

of the

Thus,

with

unit,

bargain

represented

the

to

our affirmance
8(a)(3)

union

of the

of the

8(a)(3).

of

affirmance of the determination

8(a)(5),

Harvard Ind., 921 F.2d at 1282.

the former

refusing to hire them because

bargain with the employees'

violation of

had

Horizons violated

158(a)(3), by

that Horizons violated

from the

regard

hotel's service

union affiliation compels

duty to

that

by refusing to

Elastic Stop Nut Div. of Harvard Ind.,

_____________________________________

determination that

Act, 29 U.S.C.
their

hiring practices

29 U.S.C.

158(a)(5), as

union representatives arose

See Elastic Stop Nut Div. of

___ _________________________

____________
With regard
Board's

finding of

to the hotel's casino-unit

a

158(a)(5), is supported
adopting

the ALJ's

violation

of

employees, the

8(a)(5),

by substantial evidence.

findings,

found that

operations after transfer of possession

29

U.S.C.

The Board, in

the casino

continued

of the hotel to Horizons

on June 1, and that Horizons operated the casino through June 23,
1986.

The

operations,
Horizons's

Board

determined

Horizons

was a

that,

with

successor

twenty-four casino-unit

respect

employer.

employees were

to

casino

Fourteen

of

former union

employees of the hotel's casino unit.

The fact that greater than one-half of the employees in

-23-

Horizons's

casino unit

had been

union employees

of Horizons's

predecessor raises a rebuttable presumption that there existed in

the casino unit a "majority status."
51.

Horizons does not assert that

presumption.

Horizons

See Asseo, 900 F.2d at 450___ _____

it was able to overcome this

therefore had

duty to

representatives of the former casino-unit employees.

bargain

with

Its failure

to do

so violated

8(a)(5) and

(1) of

the

Act, 29

U.S.C.

158(a)(1), (5).
C.
C.

The Board's Order

The Board's Order
_________________
Horizons argues

that the portion of

requiring it to "cancel, on request by

the Board's order

the Union, any changes in

wages and benefits that [Horizons] made when it began operations"

is

"inappropriate."

that the

Board's

After a

order was

review of the
a

reasonable remedy

address Horizons's violations of

Act, 29 U.S.C.
Inc.,
____

761

32-33

(citations

to

of the

See Horizon Air Services,

___ _____________________
omitted)("We respect

Board's special competence and expertise in

And, where the

fashioned

8(a)(1), (3) and (5)

158(a)(1), (3), (5).

F.2d at

record, we conclude

the

fashioning remedies.

Board's design is planned out with

due regard to

supportable findings, sensible reasoning, and an accurate view of

the governing law, there is no room for judicial intervention.").

V.
V.

CONCLUSION
CONCLUSION

The ALJ's findings, adopted by the Board, are supported

by

substantial evidence

without

error.

on

the record

as

a whole

and

stand

Horizons's request for review is denied, and the

______

Board's request for enforcement of its order is granted.

_______
-24-