Barney'S Club, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1988

288 N.L.R.B. 803 (N.L.R.B. 1988)

BARNEY'S CLUB

803
Barney's Club, Inc. and Hotel Employees and Res-
taurant Employees Union, Local No. 86, Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL-CIO. Case 32-CA-8603
April 29, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On September 16, 1987, Administrative Law
Judge James S. Jenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' the General Counsel filed a brief in response
to the Respondent's exceptions and in support of
the judge's decision, and the Respondent filed a
reply brief.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.3
We agree with the judge that, despite the
Union's requests, the Respondent failed to afford
the Union an opportunity to bargain about the ef-
fects on employees of the closing of the Respond-
ent's entire operation in violation of Section 8(a)(5)
and (1) of the Act. We find no merit in the Re-
spondent's contention that it made an offer to bar-
gain through the Board agent during the investiga-
tion. The record is devoid of any evidence that the
Respondent ever requested that the Board agent
relay a request to bargain on its behalf to the
The General Counsel filed a motion to strike certain statements and
references in the Respondent's supporting brief The Respondent filed an
opposition to the motion to strike We deny the General Counsel's
motion, but we do not rely on any of the statements in the Respondent's
brief that are not supported by the record.
2 The General Counsel filed a motion to strike the Respondent's reply
brief or, alternatively, certaiu portions of the Respondent's reply brief.
The Respondent filed an opposition to the General Counsel's motion.
The Respondent's reply brief is not allowed under Sec. IO2.46(g) of the
Board's Rules and Regulations, except by special leave of the Board.
That section further states that "Rjequests for such leave shall be m writ-
mg and copies thereof shall be served promptly on the other parties"
The Respondent filed its reply brief without requesting leave from the
Board to do sa Accordingly, we grant the General Counsel's motion to
strike. See Save-It Discount Foods, 263 NLRB 689 fn. 1 (1982) Because
we strike the Respondent's reply brief in its entirety, we find it unneces-
sary to address the General Counsel's alternative motion to strike por-
tions of the Respondent's reply brief.
3 The Judge recommended that the Order include a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing this Order
Under the circumstances of this case, we find it unnecessary to Include
such a clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988).
Accordingly, we shall modify the recommended Order to delete the visa-
tatorial clause
Union. In support of its contention that such a re-
quest was made, the Respondent relies on unsub-
stantiated assertions in its exceptions that are total-
ly without record support. In fact, the only witness
who testified on this issue was Contreras, the
Union's secretary-treasurer, who testified that the
Board agent had told him that Darby and Hill had
indicated a desire to talk about the unfair labor
practice charge. Contreras testified further that the
Board agent had expressed some uncertainty of the
representative status of Darby and Hill, as it was
unclear whether they represented the Respondent
or the property owner. In these cirumstances, it is
unclear from the record that the Respondent even
communicated an offer to bargain to the Board
agent. Further, even if the Respondent had estab-
lished that it had communicated a bona fide offer
to bargain through the Board agent, such a com-
munication to the Board agent would not fulfill the
Respondent's obligation to inform the Union of its
willingness to bargain. Absent some showing of
agency status, clearly not present here, the Re-
spondent has no right to rely on its assertions made
to Board personnel, or on an assumption that such
assertions will be communicated to the Union on
the Respondent's behalf, for its defense to a refusal-
to-bargain allegation. There is absolutely no evi-
dence that the Board agent had apparent or actual
authority to act for either of the parties in this
case. Cf. Brenal Electric, 271 NLRB 1557, 1558
(1984) (clear showing of agency necessary to allow
employer to pass on its obligation to make an offer
of reinstatement to a third party). In addition, it ap-
pears from the record that any statements made to
the Board agent regarding discussion of the charge
were made in the course of settlement negotiations.
If they were, they are inadmissible under the
present circumstances. See East Wind Enterprises,
250 NLRB 685 fn. 2 (1980), enfd. 664 F.2d 754 (9th
Cir. 1981); Fed.R.Evid. 408. Finally, the only testi-
mony regarding this offer being made clearly indi-
cates that the Board agent herself was unsure
whether the offer to discuss the charge emanated
from the Respondent or some other source.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Barney's Club, Inc., Stateline, Nevada,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph (h).
"(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
288 NLRB No. 90
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Elaine D. Climpson, Esq., for the General Counsel.
Donald Hill, of Carson City, Nevada, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. I heard
this case in South Lake Tahoe, California, on 5 May
1987, pursuant to a complaint that issued on 26 February
1987. The complaint alleges, in substance, that since the
Respondent terminated its operations in Stateline,
Nevada, on 12 December 1986, it has violated Section
8(a)(5) of the Act by (1) failing and refusing to pay its
terminated employees their accrued vacation pay as pro-
vided for in the collective-bargaining agreement with
Local 86; (2) failing and refusing to process or meet and
bargain concerning a number of contractual grievances,
including a grievance filed over nonpayment of the ac-
crued vacation pay; (3) failing and refusing to furnish
Local 86 with an alleged list created by Respondent con-
taining the names of employees for whom Respondent
had made recommendations for employment; and (4) fail-
ing and refusing to negotiate with Local 86 concerning
the effects of its decision to close its facility. The Re-
spondent denied all allegations in the complaint with the
exception of its admission that it terminated its oper-
ations on 12 December 1986: Respondent also contends:
(1) that the complaint "must be dismissed for lack of ju-
risdiction for the Union's Failure to Exhaust Its Contrac-
tual Remedies Under the Collective Bargaining Agree-
ment"; and (2) that the allegation that it failed to pay ac-
crued vacation pay as provided for under the agreement
should be dismissed because the Board "does not have
jurisdiction to consider actions arising out of the alleged
breach of a Collective Bargaining Agreement." All par-
ties were afforded full opportunity to appear, to argue
orally, and to file briefs. Respondent gave a brief oral ar-
gument, and both Respondent and the General Counsel
filed briefs that have been carefully considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Until 12 December 1986, the Respondent, a Nevada
corporation, was engaged in the operation of a casino,
coffeeshop, bar, and cocktail lounge in Stateline, Nevada.
During the 12 months preceding the closure, Respond-
ent's gross revenue from all sales or performance of serv-
ices was in excess of $1 million, and the gross amount of
purchases of materials or services directly from outside
the State of Nevada exceeded $50,000. On these facts it
is found that at all material times the Respondent has
been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is clear from the record that Local 86 is an organi-
zation in which employees participate and that exists for
the purpose of dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of em-
ployment, and conditions of work and is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent was engaged in the operation of a
casino, coffeeshop, bar, and cocktail lounge in Stateline,
Nevada, until it closed on 12 December 1986. David Lee
is the owner and the corporate president, Ron Darby is
the executive vice president, Dick Young was the per-
sonnel director until John Duignan assumed that posi-
tion, and Bill Tenlin was one of Respondent's casino shift
managers. The uncontroverted testimony and documen-
tary evidence establish that at all material times each of
those individuals was a supervisor and agent of Respond-
ent within the meaning of Section 2(11) and (13) of the
Act. Miguel Contreras is the secretary-treasurer and
Cindy Vincak is a business agent for Local 86. Respond-
ent employed approximately 135 employees, including
about 55 to 65 that were represented by Local 86.
Among the latter are Cathy Zarza, Waldo Paul, Eliza-
beth Alexander, and Elizabeth Kirchoff, each of whom
testified that he or she had accrued compensible vacation
time at the date Respondent closed its operation.
The record shows that in 1982, following a bargaining
order issued by the Board in Barney's Club, Inc., 227
NLRB 414 (1976), enfd. in pertinent part 623 F.2d 571
(9th Cir. 1980), Local 86 negotiated a 3-year collective-
bargaining agreement with Robert Barry, the then owner
of Respondent's business. During the life of the agree-
ment, Barry sold the business to David Lee and informed
Contreras "that David Lee was not going to be union."
Respondent did, however, continue to honor the terms
and conditions of the agreement and recognize Local 86
as the bargaining agent of its employees. Pursuant to the
Union's reopener, a successor collective-bargaining
agreement was negotiated with Young, Respondent's
personnel director at the time, and signed by Darby. The
agreement bears the signature date of 27 February 1985,
and states it "shall be in full force and effect from Octo-
ber 1, 1984 and from year to year thereafter unless sixty
(60) days written notice to change, modify or termina-
tion is given by either party prior to September 30, 1987,
or in any subsequent year thereafter." An addendum to
the collective-bargaining agreement was agreed to during
the term of that agreement, excluding a bar manager
from the bargaining unit and permitting him to perform
bargaining unit work, pursuant to the Respondent's 1
August 1985 request.' On the foregoing facts, it is clear
Although the Respondent objected to the receipt of a copy of the
October 1, 1984-September 30, 1987 collective-bargaining agreement in
evidence (G C Exh 6), there was no objection to receipt of the adden-
dum to that agreement (G C. Exh 8)
BARNEY'S CLUB 805
that Local 86 has been the exclusive collective-bargain-
ing representative of the employees covered by the con-
tract, and that the Respondent has recognized its repre-
sentative status as alleged in paragraph 7 of the com-
plaint. Employees represented by Local 86, as evidenced
by the collective-bargaining agreement, are bartenders,
barbacks, cocktail waitresses, hostesses, food servers, bus
persons, cashiers, cooks, cooks helpers, kitchen employ-
ees, porters, and heavy duty cleaners. Accordingly, it is
found that the unit set forth in paragraph 6 of the com-
plaint is an appropriate unit for the purposes of collec-
tive bargaining, and that Local 86 is the exclusive repre-
sentative of that unit as alleged in paragraph 8 of the
complaint.
Article 11 of the collective-bargaining agreement
covers the subject of vacations. Section 11.01 covers the
amount of paid vacation an employee is entitled to re-
ceive based on years of service. It further provides in
section 11.05, Pro Rated Vacation: "In the event an em-
ployee who has completed one year of continuous serv-
ice leaves the employment of the Employer, he shall be
paid the part of his vacation due, pro-rating the vacation
due by the number of manhours worked." Article 16.03,
Successors and Assigns, provides: "In the event that the
Employer sells or assigns his business or in the event that
there is a change in the form of ownership, the Employ-
er shall give the Union reasonable advance notice thereof
in writing and shall make all payments which are due or
shall be due as of the date of transfer of the business for
wages and health and welfare for employees covered by
this Agreement. In addition, the Employer shall be re-
sponsible for accrued vacation payments for each em-
ployee covered by this Agreement."
B. Respondent Closes Its Business
In early December 1986, Contreras and Vincak heard
from employees that there were rumors the Respondent
was selling the business and inquiring whether their jobs
would be protected, as they were the last time the busi-
ness changed hands. Contreras called Duignan and told
him there were rumors of a sale and asked if he knew
anything about it. Duignan professed ignorance, but
stated he would let Contreras know if he heard anything
specific. A few days later, Contreras called Duigman
again on another matter, and again asked if he knew any-
thing about the rumor of a sale. Again Duignan pro-
fessed ignorance, but again assured Contreras that "I'll
get back to you," which he did not.
On 12 December, Contreras and another business
agent were attending a grievance meeting at Del Webb's
High Sierra located across the street from the Respond-
ent and learned that Respondent had closed. Gaining en-
trance to Respondent's premises, however, Contreras
was able to talk to Duignan, whom he asked, "John,
what happened?" Duignan responded, "Miguel, Barney's
sold out to Harrah's," pointing to Darby and three men
in the back whom he identified as men from Harrah's.2
2 Harrah's operates a large hotel, casino, restaurants, and bars, the fa-
cility is located adjacent to Respondent's facility.
Contreras asked "What are the workers going to do?"
and Duignao responded, "I don't know yet, you're going
to have to call me back later, everything is still up in the
air." Contreras called Duignan that afternoon and was
informed that the employees' paychecks would be ready
the following Monday. Contreras asked what was going
to be done about other things such as vacation pay, and
Duignan responded that he did not know, that he would
have to check with Darby, and told Contreras to call
him back on Monday.
Contreras called Duignan again on Monday, 15 De-
zember, , "to find out about what was going on with the
money and the vacation pay," which he wanted to
report to the employees at a meeting scheduled the fol-
lowing day. Duignan stated he did not know anything
about it and that Contreras would have to talk to Darby.
Contreras asked that Duignan have Darby call him so
that he could report back to the employees at the meet-
ing the following day. The evidence does not reveal that
Darby contacted Contreras as requested. Also on
Monday, a number of the bargaining unit employees
picked up their final paychecks at the Respondent's ad-
ministrative office. None received a check for their ac-
crued vacation pay Elizabeth Alexander testified she
"asked the lady at the desk where the vacation money
was," and was told "that there wasn't any money to be
given out for vacations, that we were lucky to get our
last check. . . that if we wanted to talk to anybody we
should talk to Ron Darby and he wasn't around."
Personnel employed by the State of Nevada unem-
ployment department, whom Contreras had contacted to
assist in filing unemployment claims, were present at the
16 December employee meeting, as was Casino Shift
Manager Tenlin. Contreras informed the employees that
the Union wanted to talk to Respondent about the clo-
sure and see what could be done about getting accrued
vacation pay in accordance with the collective-bargain-
ing agreement. He also told them the Union was going
to file a grievance, and if Respondent did not respond, it
would file a charge with the Board and a lawsuit "to
make sure they do right with the workers." Following
the meeting, Tenlin told Contreras that he thought the
Union was doing right, that he thought they should do it
quickly because he felt the Respondent was going to file
for bankruptcy.
That afternoon, Contreras and another union official
went to Respondent's administrative offices and, finding
neither Darby nor Duignan there, left the following
letter from Contreras:
December 16, 1986
Dear Mr. Darby,
We have been informed by John Duignan that
Barney's Club has been purchased by Harrahs and
is to be part of the Lake Tahoe operation.
Under the Successors and Assigns Article in the
Collective Bargaining Agreement, Barney's was re-
quired as a condition of any such sale to acquire
from purchasers Harrahs, a written assumption of
the Collective Bargaining Agreement. Has Barney's
complied with this provision? If so please furnish
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
me with a copy of the assumption agreement. If no
assumption agreement has been obtained, please
confirm in writing. This letter constitutes a griev-
ance by the Union for noncompliance with the Suc-
cessors and Assigns Article, if no Assumption has
been obtained by Harrahs.
In addition, this letter also serves as a grievance
of nonpayment of accrued vacation payments,
under Article 1603. Also for nonpayment of check
off dues to the Union for the months of October,
November, and December.
We wish to meet with you on this grievance and
other questions related to the effect on employees
because of the sale.
We wish to do this as soon as possible. Please
contact me to arrange a convenient date, time, and
place for this meeting.
Thank you.3
The following day, 17 December, Contreras called
Duignan and was informed that Duignan had seen the
letter of the previous day, but that Contreras would have
to contact Darby, who was not in. Duignan went on to
tell Contreras, "[B]etween you and I . . . you should sue
this company. . . because they're not going to go along
with this. . . . Don't tell anybody that I told you that."
Later the same day Contreras tried to reach Darby again
by telephone and was advised by Duignan that he was
not in and that Duignan had not talked to him. Contreras
asked that Duignan have Darby call him
Contreras' first word from Darby was the following
letter dated 18 December:
Barney's Club, Inc. has not been sold to Harrah's
or any affiliate of Harrah's.
Harrah's has not assumed and will not assume the
Collective Bargaining Agreement between Barney's
Club, Inc. and your Union.
Contreras tried several times without success to reach
Darby after receiving the above letter.
On 5 January 1987, Local 86 filed a complaint for
damages in the United States District Court, District of
Nevada, seeking recovery of the vacation pay. Having
learned from employees that they had been unable to get
their work records or letters of reference from Respond-
ent, and having seen a newspaper article reporting the
Respondent had prepared a list of recommended employ-
ees that it distributed to other employers in the area,
Vincak sent the following letter dated 7 January 1987 to
Darby:
Pursuant to Nevada Revised Statutes, Section
613.240, Local 86 hereby demands on behalf of the
employees and former employees of Barney's Club,
Inc., in the bargaining unit represented by Local 86
who were layed [sic] off in connection with the
closing of Barney's Club, that they each be provid-
ed with a statement showing their length of service
at Barney's Club and that the reason for their seper-
ation [sic] from service was that the business closed.
3 Numerous typographical errors have been corrected.
We understand from news reports that Barney's
Club prepared a list of "recomended" [sic] employ-
ees and gave it to other employers in the Lake
Tahoe area. Please furnish a copy of this list, any
communications with other Casinos concerning
preparation, distribution, or use of this list. If there
have been any communications on these subjects
which have not been reduced to writting [sic],
please inform us of the substance of such communi-
cations.
Please furnish these service letters and other in-
formation concerning the list of "recomended" [sic]
employees within ten days of the date of this letter.
If there are any questions, please contact me im-
mediately.
Local 86 will be happy to supply a form letter
for your use, if ypu [sic] desire.
Local 86 did not receive a response to the letter. A form
letter, however, addressed to Local 86 dated 16 January
1987 and signed by David Lee, president, reads:
Dear Creditor:
As you know, Barney's Casino closed on Decem-
ber 12, 1986. Barney's Club, Inc. is presently being
audited by the Nevada State Gaming Control
Board, Employment Security and various other
governmental agencies.
We anticipate having the results of these audits
by the end of February.
You can anticipate hearing from us the first part
of March, 1987, regarding the payment of your out-
standing bill.
Thank you for your time and consideration.
On 20 February 1987 Contreras sent the following
letter to Darby:
Please be advised that H.E.R.E. Local 86 is re-
questing bargaining over the closure and/or sale of
Barney's Club, Stateline, Nevada.
This letter will reiterate our earlier demand that
Barney's Club, Inc. contacts us immediately con-
cerning negotiations over this matter. Please re-
spond to our office by Wednesday, February 25,
1987 concerning this request.
Thank you for your time and attention on this
matter.
The complaint in this matter issued on 26 February.
Respondent's response to Contreras' 20 February letter
was from Respondent's counsel, is dated 27 March 1987
and reads
Your letter of February 20, 1987, has been re-
ferred to my office for response. Please be advised
that representatives of Barney's Club, Inc., continue
to be available to negotiate over the closing of Bar-
ney's Club at a mutually convenient time and place.
You were previously advised of this in January,
1987, by Ms. Louise Brooks of the N.L.R.B. but re-
fused to do so at that time.
BARNEY'S CLUB 807
Please contact my office to set up a time for such
a meeting. At present my calendar is full through
the end of April, 1987.
Contreras testified that since the hearing in this matter
was already scheduled for 5 May 1987, he did not think
the Respondent's belated offer to meet was serious.
While Respondent's counsel sought to elicit from Con-
treras an admission that Board Agent Brooks, mentioned
in his 27 March letter to Contreras, had conveyed an
offer of Respondent "to sit down and negotiate with you
over the . . . effects of the [closing]," Contreras testified
Brooks told him that she had met with Darby and Re-
spondent's counsel and "that they wanted to talk about
the charge," (emphasis added) but that she did not know
whether they represented the Respondent or the proper-
ty owner.4
None of Respondent's employees had received any ac-
crued vacation pay as of the date of the hearing.
C. Contention of the Parties
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) of the Act by: (1) failing
and refusing to negotiate with the Union concerning the
effects of its decision to close its facility; (2) failing and
refusing to pay its terminated employees their accrued
vacation pay as required by the collective-bargaining
agreement; (3) failing and refusing to process or other-
wise meet with the Union concerning contractual griev-
ances, including a grievance over nonpayment of the ac-
crued vacation; and (4) failing and refusing to furnish the
Union with a list allegedly created by Respondent con-
taining the names of employees for whom Respondent
had made recommendations for erriployment.
Denying that it has committed any unfair labor prac-
tices, the Respondent argues that: (1) "It was prejudicial
error to admit an alleged copy of the alleged Collective
Bargaining Agreement over Respondent's objection
. . . . Without the original Collective Bargaining Agree-
ment in evidence, the N.L.R.B. has no contractual or
statutory rights to assert on behalf of the Union. Thus,
the complaint against Respondent should be dismissed
for lack of evidence and proof of a prima facie case"; (2)
that the Board lacks jurisdiction to consider an alleged
breach of a collective-bargaining agreement; (3) that the
Board lacks jurisdiction because of the Union's failure to
exhaust the grievance procedures set forth in the con-
tract, thereby waiving its rights under the contract; (4)
that the Respondent has offered to bargain over the ef-
fects of the closing, but that the Union has declined to
meet with Respondent's representatives; and (5) that the
allegation concerning Respondent's refusal to furnish the
alleged list containing the names of employees whom
Respondent had recommended for employment should
be dismissed for lack of evidence such a list existed.
Discussion
Respondent called no witnesses nor introduced any
documentary evidence. The record, therefore, is ground-
ed totally onevidence produced by the General Counsel.
Respondent's first two Contentions, that prejudicial
error was committed in admitting into evidence a copy
of the collective-bargaining agreement, and that the
Board lacks jurisdiction to consider this matter, require
initial consideration.
Rule 1002 of the Federal Rules of Evidence provides
that the original writing is required to prove its contents,
"except as otherwise provided in these rules or by Act of
Congress." Rule 1003 provides that "A duplicate is ad-
missible to the same extent as an original unless (1) a
genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original." Rule 1004
provides that the original is not required if the "original
was under the control of the party against whom offered
and he was put on notice, by the pleadings or otherwise,
that the contents would be a subject of proof at the hear-
ing, and he does not produce the original at the hear-
ing." No genuine question has been raised concerning the
authenticity of the copy or the original collective-bar-
gaining agreement, and in fact the Respondent relies on
some of its provisions. Further, the Respondent was put
on notice by the pleadings that the contents of the agree-
ment would be a subject of proof at the hearing and has
failed to show that it would be unfair to admit the dupli-
cate in lieu of the original. Respondent's first contention
is without merit.
Respondent's contentions that the Board lacks jurisdic-
tion (1) to consider alleged breaches of collective-bar-
gaining agreements, and (2) because the Union failed to
exhaust contractual grievance procedures, are also merit-
less. Cases on which Respondent relies do not involve al-
leged unfair labor practices under Section 8 of the Act,
but are lawsuits brought in the district courts of the
United States pursuant to Section 301 of the Act. 5 It is
well settled that the Board is not precluded from resolv-
ing an unfair labor practice issue calling for appropriate
remedial relief under the Act simply because, as an inci-
dent thereto, it may be necessary to construe the scope
of a contract that may also be construed through griev-
ance-arbitration procedures. Section 10(a) of the Act,
which confers on the Board power to prevent unfair
labor practices, provides that "[t]his power shall not be
affected by any other means of adjustment or prevention
that has been or may be established by agreement, law,
or otherwise . . . ." Thus, deferral to grievance-arbitra-
tion procedures lies in the discretion of the Board, and it
is well established that the Board will not defer to arbi-
tration a party's request, as here, for bargaining informa-
tion to which it is statutorily entitled. Further, Respond-
ent's conduct has evidenced a total rejection of the col-
lective-bargaining agreement and process since 12 De-
cember 1986, including its failure to designate a repre-
sentative to meet with the Union over its grievance, as is
Respondent's counsel represented to me that the Respondent and the
property owner are separate enttties. 5 29 U.S.C. § 185(a).
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contemplated in article 18.03 of the collective-bargaining
agreement.
"When an employer decides to terminate or close its
entire operation it must, once that decision is made,
afford the employees' collective bargaining representa-
tive the opportunity to bargain over the impact and
effect of that decision on unit employees." Nathan Yorke,
Trustee, 259 NLRB 819, 826 (1981). Modifying and en-
forcing the Board's decision in that case in 709 F.2d 1138
(7th Cir. 1983), the court stated at 1143:
The law in question—the duty to bargain over
the effects of a decision to terminate operations—
strikes us as critical to protect employees from the
ravages of economic dislocation. NLRB v. Royal
Plating & Publishing Co., 350 F.2d 191, 196 (3rd Cir.
1965); NLRB v. Adams Dairy, Inc., 350 F.2d 108,
115 (8th Cir. 1965), cert. denied, 382 U.S. 1011
(1966); Burgmeyer Bros., Inc., 254 NLRB 1027, 1028
(1981). So-called "effects" bargaining provides the
Union with an opportunity to bargain in the em-
ployees' interest for such benefits as severance pay,
payments into the pension fund, preferential hiring
if the employer continues operating at other plants,
and reference letters with respect to other jobs.
First National Maintenance Corp. v. NLRB, 452 U.S.
666, 681-682 (1981).
In Textile Workers v. Darlington Co., 380 U.S. 263, 271
(1965), the Supreme Court stated: The Act "does not
compel a person to become or remain an employee. It
does not compel one to become or remain an employer.
Either may withdraw from that status with immunity, so
long as the obligations of any employment contract have
been met." An employer's duty to bargain with the em-
ployees' collective-bargaining representative over the ef-
fects of closing was confirmed by the Supreme Court in
First National Maintenance Corp. v. NLRB, supra. The
Court made it clear that an employer must respond and
bargain "in a meaningful manner and at a meaningful
time." "The duty to bargain over the effects of a deci-
sion to close entails more than pro forma bargaining at a
time after the dissipation of the Union's economic
strength." Thompson Transport Co., 184 NLRB 38 (1970).
In Walter Pape, Inc., 205 NLRB 719 (1973), it was found
that an offer to engage in effects bargaining more than 2
months after a portion of an operation was transferred to
another location did not operate to excuse its failure to
notify the union beforehand.
The record establishes that when the Union first
learned of rumors about Respondent's selling the busi-
ness, Contreras called Duignan, who professed igno-
rance, but assured Contreras that he would let him know
if he heard anything, which he failed to do. It was not
until 12 December, after the entire operation had closed
down, that Contreras learned about it from a source
other than Respondent. The same day, in addition to
asking when the employees' paychecks would be avail-
able, Contreras also inquired about vacation pay and was
told he would have to talk to Darby. Contreras asked on
at least two occasions that Duignan have Darby call
him. Darby never did. On 16 December, Contreras hand-
delivered a letter to Respondent's administrative office
addressed to Darby, requesting, inter alia, bargaining
over the effects of the closure. In a telephone call the
following day, Duignan suggested the Union sue Re-
spondent "because they're not going to go along with
this." Darby's five-line letter of 18 December, while de-
nying that the business had been sold to Harrah's, thus
refuting Duignan's statement to the contrary, also fails to
address the issue of effects bargaining, accrued vacation
pay, and other matters raised in Contreras' 16 December
letter. By letter dated 7 January 1987, Union Representa-
tive Vincak requested information regarding a list alleg-
edly created by Respondent containing names of employ-
ees for whom Respondent had made recommendations
for employment. This information was relevant and nec-
essary to properly carry out its duties as the collective-
bargaining representative of Respondent's employees and
if such a list did not exist, it was incumbent on the Re-
spondent to so advise the Union. That request was also
ignored. A request to bargain over the closure was made
again by letter dated 20 February. It was not until after
the Section 301 suit was filed on 5 January 1987, and the
complaint in this matter issued on 26 February 1987, that
Respondent's counsel responded, by letter dated 27
March, stating he would not be available to bargain over
the closing until at least May, which is long after the
Union's economic strength had been dissipated by the 12
December closure.
Respondent's failure to respond to the Union's numer-
ous requests for information and bargaining can most ap-
propriately be characterized as "stonewalling." 6 Such
conduct does not fulfill its bargaining obligation under
the Act to meet at reasonable times and confer in good
faith regarding wages, hours, or other terms and condi-
tions of employment.
Accordingly, I find, on the basis of the entire record
and the authorities cited above, that the Respondent has
failed and refused to bargain collectively in good faith
with the Union as alleged in paragraphs 9 and 10 of the
complaint.
THE REMEDY
It having been found that Respondent engaged in
unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act, it will be recommended that Respondent
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
As a result of Respondent's unlawful failure to bargain
about the effects of the closure of its Stateline, Nevada
facility, unit employees have been denied an opportunity
to bargain through their collective-bargaining representa-
tive at a time when Respondent was still in need of their
services and a measure of balanced bargaining powers
existed. Meaningful bargaining cannot be assured until
some measure of economic strength is restored to the
Union. A bargaimng order alone, therefore, cannot serve
6 In these circumstances, I conclude the General Counsel's request that
a visitatonal clause be included in the Order is appropriate.
BARNEY'S CLUB 809
Interest on all sums set forth above shall be paid in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).7
as an adequate remedy for the unfair labor practices
committed.
Accordingly, it is deemed necessary, in order to effec-
tuate the purposes of the Act, to require Respondent to
bargain with the Union concerning the effects of its clo-
sure of the Stateline, Nevada facility, to include a limited
backpay requirement designed both to make whole the
employees for losses, if any, suffered as a result of the
violation, and to recreate in some practicable manner a
situation in which the Union's bargaining position is not
entirely devoid of economic consequences for Respond-
ent. This will be done in this case by requiring Respond-
ent to pay backpay to its employees in a manner similar
to that required in Transmarine Corp., 170 NLRB 389
(1968). Accord: Garwood-Detroit Truck Equipment, 274
NLRB 113 (1985); Contris Packing Co., 268 NLRB 193
(1983); Mertyweather Optical Co., 240 NLRB 1213 (1979).
Accordingly, Respondent will be ordered to bargain
with Local 86, on request, about the effects on its em-
ployees of the closing of the S tateline, Nevada facility,
and to pay these employees amounts at the rate of their
normal wages when last in Respondent's employ from 5
days after the date of this decision until the occurrence
of the earliest of the following conditions: (1) The date
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the sale and
closing of the Stateline, Nevada facility; (2) a bona fide
impasse in bargaining; (3) the failure of Local 86 to re-
quest bargaining within 5 days of this or to
commence negotiations within 5 days of Respondent's
notice of its desire to bargain with the Union; or (4) the
subsequent failure of Local 86 to bargain in good faith;
but in no event shall the sum paid to any of these em-
ployees exceed the amount each would have earned as
wages from the time Respondent terminated its Stateline,
Nevada facility to the time each secured equivalent em-
ployment elsewhere, or the date on which Respondent
shall have offered to bargain, whichever occurs first;
provided, however, in no event shall this sum be less
than such employees would have earned for a 2-week
period at the rate of their normal wages when last in Re-
spondent's employ.
As a result of Respondent's unlawful failure and refus-
al to pay its terminated unit employees their accrued va-
cation pay as required by the collective-bargaining agree-
ment with Local 86, which conduct constituted a unilat-
eral change in a term and condition of employment in
violation of Section 8(a)(5) and (1) of the Act, Respond-
ent will be required to make them whole by paying them
the accrued vacation pay as required by article 11 of the
collective-bargaining agreement between Local 86 and
the Respondent, plus interest.
In order to effectuate the purposes of the Act, the Re-
spondent will be required, on request, to meet and bar-
gain with Local 86 concerning all contractual griev-
ances. It will also be required to respond to the request
of Local 86 for the list allegedly created by Respondent
containing i he names of unit employees for whom Re-
spondent made recommendations for employment and, if
such list was created, furnish Local 86 with a true and
accurate copy.
CONCLUSIONS OF LAW
I. At all material times, the Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. At all material times, Local 86 has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. At all material times, David Lee, Ron Darby, John
Duignan, and Bill Tenlin were supervisors and agents of
Respondent within the meaning of Section 2(11) and (13)
of the Act.
4. All full-time and regular part-time bartenders, bar-
backs, cocktail waitresses, hostesses, food servers, bus
persons, cashiers, cooks, cooks helpers, kitchen employ-
ees (including dishwashers), porters, and heavy duty
cleaners employed by Respondent at its Stateline,
Nevada facility; excluding all other employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for collective-bargaining within the meaning
of Section 9(b) of the Act.
5. At all material times, Local 86 has been the exclu-
sive representative of the employees in the above appro-
priate bargaining unit within the meaning of Section 9(a)
of the Act.
6. On or about 12 December 1986, Respondent termi-
nated all of its employees in the above appropriate unit.
7. By failing to afford Local 86 an opportunity to bar-
gain about the effects on its employees of the closing of
its entire operation, the Respondent has violated Section
8(a)(5) and (1) of the Act.
8. By failing to pay its terminated unit employees their
accrued vacation pay as required by the collective-bar-
gaining agreement between it and Local 86, the Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
9. By failing to process or otherwise meet and bargain
with Local 86 concerning contractual grievances, includ-
ing a grievance over nonpayment of accrued vacation
pay, the Respondent has violated Section 8(a)(5) and (1)
of the Act.
10.By failing to respond to the request of Local 86 for
a list allegedly created by Respondent containing the
names of employees Respondent had recommended for
employment, the Respondent has violated Section 8(a)(5)
and (1) of the Act.
11.The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
7 See generally Isis Plumbing Go, 138 NLRB 716 (1962)
8 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Barney's Club, Inc., Stateline,
Nevada, its officers, agents, successors, and assigns, shall
I. Cease and desist from
(a) Failing and refusing to bargain with Local 86, re-
garding the effect on its employees of its decision to
close its operations.
(b) Failing and refusing to pay its terminated unit em-
ployees their accrued vacation pay as required by the
collective-bargaining agreement between it and Local 86.
(c) Failing and refusing to process or otherwise meet,
and bargain with Local 86 concerning contractual griev-,
ances, including a grievance over nonpayment of ac-
crued vacation pay.
(d) Failing and refusing to respond to the request of
Local 86 for a list allegedly created by Respondent con-
taining the names of unit employees for whom Respond-
ent had made recommendations for employment.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with Local 86 con-
cernmg the effects on its employees of its decision to ter-
minate its operations, and reduce to writing any agree-
ment reached as a result of such bargaining.
(b) Make whole its unit employees by paying those
terminated on or about 12 December 1986, when Re-
spondent terminated its operations, normal wages plus in-
terest for the period and in the manner set forth in the
remedy section of this decision.
(c) Make whole its employees by paying those em-
ployees who were laid off on or about 12 December
1986, when Respondent terminated its operations, the ac-
crued vacation pay as required by article 11 of the col-
lective-bargaining agreement between Local 86 and the
Respondent, plus interest, as set forth in the remedy sec-
tion of this decision.
(d) On request, meet and bargain collectively with
Local 86 concerning contractual grievances, including a
grievance over nonpayment of accrued vacation.
(e) Respond to the request of Local 86 for a list alleg-
edly created by the Respondent containing the names of
unit employees for whom Respondent made recommen-
dations for employment, and if such list was created, fur-
nish Local 86 with a true and accurate copy.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Mail an exact copy of the attached notice marked
"Appendix" 9 to Hotel Employees and Restaurant Em-
9 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
ployees Union, Local No. 86, Hotel Employees and Res-
taurant Employees International Union, AFL-CIO and
to all employees in the appropriate collective-bargaining
unit who were employed at its former place of business
at Stateline, Nevada. Copies of the notice, on forms pro-
vided by the Regional Director for Region 32, after
being signed by the Respondent's authorized representa-
tive, will be mailed immediately on receipt, as directed.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For purposes of determin-
ing of securing compliance with this Order, the Board or
any of its duly authorized representatives may obatain
discovery from the Respondent, its officers, agents, suc-
cessors or assigns, or any other person having knowledge
concerning any compliance matter, in the manner set
forth by the Federal Rules of Civil Procedure. Such dis-
covery shall be conducted under the supervision of the
United States court of appeals enforcing this Order and
may be had on any matter reasonably relating to compli-
ance with the Order, as enforced by the court.1°
1 ° See Hilton Inn North, 279 NLRB 45 (1986)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to recognize and bargain
with Hotel Employees and Restaurant Employees Union,
Local No. 86, Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO as the exclusive rep-
resentative of the employees in the following appropriate
bargaining unit:
All full-time and regular part-time bartenders, bar-
backs, cocktail waitresses, hostesses, food servers,
bus persons, cashiers, cooks, cooks helpers, kitchen
employees (including dishwashers), porters and
heavy duty cleaners employed by Respondent at its
Stateline, Nevada facility; excluding all other em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to bargain in good faith with the
Union about the effect on our employees of our decision
to close our operations.
WE WILL NOT refuse to meet and bargain with the
Union concerning contractual grievances.
WE WILL NOT refuse to pay our employees their ac-
crued vacation pay as required by our collective-bargain-
ing agreement with the Union.
WE WILL NOT refuse to respond to the Union's request
for the list allegedly created by us containing the names
BARNEY'S CLUB 811
of employees for whom we had made recommendations
for employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make our unit employees whole by paying
those terminated on or about 12 December 1986 when
we closed our operations, normal wages for a period
specified by the National Labor Relations Board, plus in-
terest.
WE WILL, on request, bargain collectively with the
Union regarding the effects on our unit employees of our
decision to close our operations, and reduce to writing
any agreement reached as a result of such bargaining.
WE WILL make our unit employees whole by paying
those terminated on or about 12 December 1986, when
we closed our operations, their accrued vacation pay as
required by our collective-bargaining agreement, plus in-
terest.
WE WILL process or otherwise meet and bargain in
good faith with the Union concerning contractual griev-
ances.
WE WILL respond to the Union's request for a list al-
legedly created by us containing the names of employees
we recommended for employment, and if such a list was
created, furnish the Union with a true and accurate
copy.
BARNEY'S CLUB, INC.