Hotel Employees & Restaurant Employees Union, Local 11 v. National Labor Relations Board

Hotel Employees and Restaurant Employees Union, Local 11 (petitioners), petition to review the decision of the National *1007 Labor Relations Board (the Board) in Rossmore House, 269 N.L.R.B. No. 198, 116 L.R.R.M. 1025 (1984). Petitioners contend that the decision establishes a standard for evaluating the legality of employee interrogations that is inconsistent with the National Labor Relations Act (the Act). Petitioners also challenge the Board’s ruling that the interrogations do not violate the Act. We affirm the Board’s adoption of the standard and its application of the standard in this case.

Facts

Warren Harvey worked as a cook and waiter for Rossmore House, a residential retirement hotel owned by Shyr-Jim Tsay and managed by Ronald Tvenstrup. In July, 1982, Harvey called union representatives and held an employee meeting in his home. The union sent a mailgram to Ross-more House which notified Rossmore House that Harvey and others had formed an organizing committee with the knowledge that their union activities were protected under the Act.

On August 1, 1982, when Tvenstrup received the mailgram, he walked into the kitchen and talked to Harvey. Harvey and Tvenstrup…

concurring:

I am pleased to concur in Judge Solomon’s cogent opinion. Candor requires recognition, though, that our holding is not consistent with a broad statement in one of our recent precedents. In Financial Institution Employees of America, Local 1182 v. NLRB, the court stated “[i]t is irrational to discard an effective procedure ...” even when the Board has determined that a new rule is preferable. 752 F.2d 356 , 366-67 (9th Cir.1984). See also Machinists Local 1327 v. NLRB, 725 F.2d 1212 , 1218 (9th Cir.1984). In my view, both the holding and the quoted statement in Financial Institution Employees were wrong; but the court declined to take the case en banc. See Financial Institution Employees of America, Local No. 1182 v. NLRB, 750 F.2d 757 , 757-58 (9th Cir.1985) (dissents from failure to take en banc). Confronted with the quoted statement in the context of the case now before us, we must either apply it and reverse the Board, or announce it was a dictum unnecessary to the decision in Financial Institution Employees. I adopt the latter course, though it is not a very good way to run the circuit. I see no alternative, however, if the court declines to take en banc those…