Bartenders Union Local 355, AFL-CIO

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 774 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel, Motel, Restaurant, Hi-Rise Employees & Bar-
tenders Union Local 355, AFL-CIO and Doral
Beach Hotel. Case 12-CB-1841
September 28, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On May 23, 1979, Administrative Law Judge
George Norman issued the attached Decision in this
proceeding, and on June 4, 1979, he issued an erra-
tum to that Decision. Thereafter, Respondent filed
exceptions and a supporting brief, and the Charging
Party filed an answering brief to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Hotel, Motel, Restaurant, Hi-
Rise Employees & Bartenders Union, Local 355,
AFL-CIO, Miami, Florida, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I We concur with the Administrative Law Judge's refusal to hold, in this
proceeding, that a most favored nations clause (MFN) such as the one in
issue here violates Federal antitrust laws. In urging that we so hold, Respon-
dent relies, inter alia, on Connell Construction, Inc. v. United Association of
Journeyen & Apprentices of the Plumbing & Pipefitting Industry of the United
States and Canada, AFL-CIO, 421 U.S. 616 (1975). There, in passing, the
Board did comment on the anticompetitive aspects of an MFN clause. How-
ever, the Court's comments were delivered in a different context. Absent a
determination by a tribunal of competent jurisdiction that the relevant MFN
clause is unlawful under the antitrust laws, we will not find that Respondent
was privileged under the antitrust laws to ignore its contractual obligation to
provide information necessary to administer the MFN clause. However, in
agreeing with the Administrative Law Judge's conclusions that Respondent
violated Sec. 8(b)(3), we disavow his gratuitous comments indicating his
perplexity over the Board's rationale in Dolly Madison Industries, Inc., 182
NLRB 1037 (1970).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with the Southern Florida Hotel and Motel As-
sociation by refusing to supply information rel-
evant and necessary for the bargaining process.
WE WILL NOT engage in any like or related
conduct in derogation of our statutory duty to
bargain.
WE WILL furnish the Association with the fol-
lowing information: Copies of all contracts or
agreements between us and all hotels and motels,
which agreements were entered into after Janu-
ary 15, 1977.
HOTEL, MOTEL, RESTAURANT, HI-RISE EM-
PLOYEES & BARTENDERS UNION, LOCAL 355,
AFL CIO
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This case
was heard in Coral Gables, Florida, on July 28, and August
29, 1978,' pursuant to a charge filed on August 22, 1977, by
Doral Beach Hotel, herein the Employer, and a complaint
which issued March 10. The complaint alleges that Hotel,
Motel, Restaurant, Hi-Rise Employees & Bartenders
Union, Local 355, AFL-CIO, herein the Respondent, com-
mitted certain violations of Section 8(b)(3) and Section 2(6)
and (7) of the National Labor Relations Act, as amended,
herein the Act. Respondent's answer denied the commis-
sion of the alleged unfair labor practices.
Issue
Is Respondent obligated to provide the association of em-
ployers, of which the Charging Party is a member, with
copies of contracts and agreements it has entered into with
"other hotels or motels" since the execution of the associ-
ation collective-bargaining agreement?
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs filed by the General
Counsel, Respondent, and the Employer have been care-
fully considered.
Upon the entire record of the case and my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Charging Party-Employer is a Florida corporation,
with an office and place of business located in Miami, Flor-
I All dates herein refer to 1978, unless otherwise noted.
245 NLRB No. 100
774
BARTENDERS UNION LOCAL 355, AFL-CIO
ida, where it is engaged in the business of operating a hotel.
During the past 12 months, which is a representative period
of time, the Charging Party has had gross revenues in ex-
cess of $500,000 and during the same period has purchased
and received goods, supplies, and materials, valued in ex-
cess of $50,000 which were shipped directly to it from
points located outside the State of Florida. The Charging
Party is now and has been at all times material herein an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, and Respondent admits, that Ho-
tel, Motel, Restaurant, Hi-Rise Employees & Bartenders
Union, Local 355, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Southern Florida Hotel and Motel Association
(herein referred to as the association) is an nonprofit Flor-
ida corporation comprised of nonresidential hotels and mo-
tels in the Miami Beach, Florida, metropolitan area, and
inter alia, exists in part for the purpose of representing its
employer-members in collective bargaining with labor or-
ganizations, including negotiating of collective-bargaining
agreements and thereafter administering said negotiated
agreements. At all times material herein, the association has
been the duly authorized collective-bargaining representa-
tive of its employer-members, including the Charging
Party-Employer.
The following constitutes a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act:
All employees of the dining rooms, bar department,
housekeeping department, service department, mainte-
nance department, telephone department, laundry de-
partment and kitchen department, employed by the
employer-members of the Association, including the
employees employed by the Charging Party-Employer
in said classifications and excluding executives, depart-
ment heads, managerial employees, guards, and super-
visors as defined in the Act.
Respondent has been and is the recognized representative
for the purpose of collective bargaining of the employees in
the unit described above and, by virtue of Section 9(a) of
the Act, is the exclusive bargaining representative of all
employees in that unit for the purpose of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.
On January 15, 1977, the association and Respondent
entered into a collective-bargaining agreement establishing
the wages, hours, and working conditions of employees of
the association members, with an expiration date in July
1980.
Article 12, section 3 of that collective-bargaining agree-
ment provides as follows:
Section 3. The UNION agrees that if during the terms
of this Agreement it enters into any contract with ho-
tels or motels or if any Arbitrator's award or decision
is made providing for lower wages, longer hours, or for
any terms and conditions more favorable to an EM-
PLOYER than those described in this Agreement, then
any EMPLOYER member of this ASSOCIATION
shall immediately have the benefit of such provision or
award or decision and they shall automatically become
part of this Agreement; and upon notice to the
UNION shall immediately become in full force and
effect, superseding any less favorably provisions of this
Agreement. During the term hereof the UNION shall
promptly provide the ASSOCIATION with copies of
the other new contracts or agreements or Arbritrator's
awards or decisions, so that the ASSOCIATION may
compare such contracts and agreements or award or
decision with this Agreement to determine whether
they are, in fact, more favorable.
Since May 9 and August 11, 1977, the Charging Party-
Employer, through its duly authorized collective-bargaining
representative, has requested and is requesting that Respon-
dent make available copies of all contracts or agreements
between Respondent and all hotels and motels, which
agreements were entered into after January 15. 1977. Since
May 9, 1977, Respondent has refused to furnish the Charg-
ing Party-Employer the information requested.
In the spring of 1977 Respondent negotiated a contract
with the Diplomat Hotel, also a member-employer of the
association. On May 9, 1977, the attorney for the associ-
ation wrote to the attorney for the Union requesting a copy
of the contract. No response was received. Whereupon, Joel
Gray, an officer of the Charging Party and president of the
association, wrote to the president of the Union requesting
all the applicable union contracts. Gray received no re-
sponse. The Charging Party-Employer believes that the
Diplomat contract referred to above contained a discharge
clause more favorable to management. The General Coun-
sel and the Charging Party-Employer contend that the
Union's refusal to supply the Diplomat contract or any
other contract in existence is an unfair labor practice.
Discussion and Conclusions
Article 12, section 3 of the collective-bargaining agree-
ment, referred to above as the most-favored-nations clause,
violates, according to Respondent, sections I and 2 of the
Sherman Anti-Trust Act, USC 15. Sections I and 2 are
inconsistent and in derogation of section 7, which permits
employees to join together for the purpose of collective bar-
gaining. Therefore it should not be enforced. Respondent
cites Connell Construction Co., Inc., 421 U.S. 616 (1975).
In that case there existed a "most favored nations" clause
in a multiemployer collective-bargaining agreement. That
clause prohibited the Union from entering into a collective-
bargaining agreement with any other employer, giving to
that employer a competitive advantage over members of
the association. The United States Supreme Court stated in
effect that the "most favored nations" clause in the mul-
tiemployer agreement promised to eliminate the competi-
775
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion between the members of the association and any other
subcontractors that the Union might organize by giving
members of the association a contractual right to insist on
terms as favorable to those given any competitor. It guaran-
teed that the Union would make no agreement that would
give an unaffiliated contractor a competitive advantage
over members of the association. The Court found that the
restriction on subcontracting would eliminate competition
of all subjects covered by the multiemployer agreement,
"even on subjects unrelated to wages, hours and working
conditions." 421 U.S. 616, 624.
Inasmuch as the "most favored nations" clause contained
in the agreement herein is specifically limited to "wages,
hours and working conditions," The Connel Construction
Company case, supra, cited by Respondent, is not appli-
cable. Therefore, the "most favored nations" clause in issue
here is not unenforcable because of the ruling in that case.
Dolly Madison Industries, Inc., Richmond Dairy Division,
182 NLRB 1037 (1970).
In the Dolly Madison case, supra, the Board reasoned that
the "most favored nations" clause was a mandatory subject
of bargaining and not in violation of antitrust laws and that
the clause in that case "was manifestly not an effort to im-
pose wages and working conditions on other employers or
employees in other bargaining units but was designed only
to assure that this employer could be relieved of any disad-
vantage that it might otherwise suffer if the Union subse-
quently negotiated more favorable wage and benefits levels
with other employers." That appears to be the situation in
the instant case. However, in that case it is difficult to un-
derstand the Board's rationale. The Union, in negotiating
such a clause with the association, abandoned the rights to
which its employee-members were entitled under the Act to
have a representative bargain for them and to obtain the
best possible benefits from their employer. The "most fa-
vored nations" clause, when implemented, may result in
those benefits being taken away without any bargaining or
other recourse. It subjects the employees to the conditions
of employees of other employers which are usually not the
same as those with their own employer. In other words, if,
indeed, the Diplomat contract does not provide a manda-
tory arbitration procedure for the benefit of an employee
who is terminated and the association contract does provide
for such arbitration, then without the benefit of any further
negotiations, the employees covered under the association
contract would, at the will of their employer, lose that bene-
fit because the Union was not able to win mandatory arbi-
tration in bargaining with another employer. On the other
hand, it may be argued that the employees covered by the
association contract probably accepted the "most favored
nations" clause with their eyes open and therefore should
not be heard to complain of its consequences.
Respondent Claims "Waiver"
Respondent further contends that because the association
never filed a grievance over the Union's refusal to turn over
copies of collective-bargaining agreements and in the past
dismissed the idea of filing a grievance and going before a
permanent arbitrator to obtain the Union's compliance that
it has, therefore, waived its right to obtain copies of other
collective-bargaining agreements in this case. The contract
between Respondent and the association was entered into
in January 1977. Not only is there no example of a waiver
of the "most favored nations" clause in the record, the fact
that neither the association nor its members in almost 20
years ever requested copies of these other collective-bar-
gaining agreements does not make a request under the lat-
est of these agreements subject to a claim of waiver. The
American Smelting and Refining Company, 192 NLRB 1217,
1218 (1971). The clause has been held legal, and the fact
that it has not been implemented until the instant case
arose does not make it any less legal or less enforceable on
the basis of waiver. Respondent argues "Unclean Hands."
Finally, Respondent claims that the Charging Party-Em-
ployer comes into this case with unclean hands. It claims
that the Charging Party "is clearly a recidivist, having en-
gaged in numerous flagrant unfair labor practices which are
all documented." The Charging Party and the association,
according to Respondent, refused and continue to refuse to
arbitrate grievances pursuant to the grievances and arbitra-
tion procedures. All that may be so, and certainly in some
cases, where the relief sought by the Charging Party is di-
rectly related to certain alleged misconduct on an employ-
ee's part, the Board, after finding such misconduct or abuse
of the Board's processes, either has denied or limited the
relief. However, the record is devoid of proof that any al-
leged past misconduct of the Charging Party-Employer or
the association is related to the issue in the instant case. A
charge may be filed by any person, and the doctrine of
"clean hands" is not applicable against the Charging Party.
United Brotherhood of Carpenters and Joiners of America,
A FL-CIO, Local 621 (Consolidated Constructors and Build-
ers, Inc.), 169 NLRB 1002, 1003 (1968), enfd. 406 F.2d 1081
(Ist Cir. 1969); International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
294, (Island Dock Lumber, Inc.), 145 NLRB 484, fn. 11
(1963). The Board's processes have been, and continue to
be, available to Respondent for the remedy of any past
misconduct of the Charging Party herein.'
The Board has held that "unclean hands" estops neither
a company from filing a charge against one who violates the
Act nor the Board from vindicating and protecting the pub-
lic rights inherent in the Act, which have been infringed.
Milk Drivers and Dairy Employees, Local 546, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, 133 NLRB 1314, 1322 (1961), enfd.
F.2d 761 (8th Cir. 1963). Local 20, Sheet Metal Workers
International Association, AFL-CIO (Bergen Drug Com-
pany, Inc.), 132 NLRB 73 (1961); Plumbers Union of Nassau
County, Local 457, United Association of Journeymen and
Apprentices of the Plumbing and Pipefiltting Industry of the
United States and Canada, A FL-CIO (Bomat Plumbing and
Heating), 131 NLRB 1243 (1961), 299 F.2d 497 (2d Cir.
1962).
The General Counsel contends that the plain language of
the "most favored nations" clause establishes both the ne-
cessity and relevancy of the requested information; that it
establishes a procedure whereby the terms of the associ-
ation's agreement with Respondent can be changed to con-
form with those more favorable terms which may be em-
bodied in any contract which Respondent may
2 Subject, of course, to the Sec. 10(b) time penod.
776
BARTENDERS UNION LOCAL 355, AFL-CIO
subsequently enter into with other hotels and motels. The
General Counsel further contends that inasmuch as these
contracts with other employers may potentially alter the
terms of the association's agreement with Respondent "that
these other contracts should to be considered presumptively
relevant to the administration of the Association's agree-
ment." I agree. Thus, wage and related information pertain-
ing to employees in the bargaining unit is presumptively
relevant. Curtiss-Wright Corporation, Wright Aeronautical
Division v. N.L.R.B., 347 F.2d 61 at 69 (3d Cir. 1965); The
A. S. Abell Company, 230 NLRB 1112 (1977). In a case
involving a union's refusal to provide information concern-
ing the union's implementation of contractual provisions
dealing with employee referral to the bargaining unit, the
Board found that the information sought "was relevant and
necessary" for the employer "to evaluate the present refer-
ral practices under the existing contract, to test the validity
of its proposals, and to formulate future contract proposals
on referrals." Local 13, Detroit Newspaper Printing and
Graphic Communications Union, International Printing and
Graphic Communications Union, AFL CIO (The Oakland
Press Co.) 233 NLRB 994 (1977).
For the foregoing reasons, I find that Respondent has
refused to bargain and continues to refuse to bargain collec-
tively with the Charging Party-Employer as the duly autho-
rized collective-bargaining representative of the employees
in the unit described above. By refusing to furnish to the
Charging Party-Employer the information requested, said
information being relevant and necessary to administer the
collective-bargaining agreement, Respondent has com-
mitted and is engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(3) and Sec-
tion 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with the Company's opera-
tion described in section I, above, have a close and intimate
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend that
it be required to refrain therefrom and take certain affirma-
tive action designed to effectuate the purposes and policies
of the Act. I shall recommend that Respondent supply the
association with the requested information; to cease and
desist from refusing to bargain collectively by refusing to
furnish the association with information relevant and neces-
sary to the bargaining process; to cease and desist from
engaging in any like or related conduct in derogation of its
statutory duty to bargain; and post appropriate notices.
CONCLUSIONS OF LAW
I. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Doral Beach Hotel is an employer engaging in com-
merce within the meaning of Section 2(6) and (7) of the Act.
3. The Southern Florida Hotel and Motel Association is
a nonprofit Florida corporation comprised of nonresiden-
tial hotels and motels in the Miami-Miami Beach, Florida,
metropolitan area, and, inter alia, exists in part for the pur-
pose of representing its employer-members in collective
bargaining with labor organizations, including negotiating
collective-bargaining agreements and thereafter administer-
ing said negotiated agreements. At all times material herein,
the association has been the duly authorized collective-bar-
gaining representative of its employer-members including
the Doral Beach Hotel.
4. The unit set forth below is appropriate for collective
bargaining within the meaning of Section 9(b) of the Act:
All employees of the dining room, bar department,
housekeeping department, service department, mainte-
nance department. telephone department, laundry de-
partment, and kitchen department employed by the
employer-members of the association, including the
employees employed by the Doral Beach Hotel in said
classifications and excluding executives, department
heads, managerial employees, guards and supervisors
as defined in the Act.
5. At all times material to this proceeding, Respondent
was, and continues to be, the exclusive representative of the
employees in the appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
6. Respondent has violated Section 8(b)(3) of the Act by
failing and refusing to supply, pursuant to the Doral Beach
Hotel and the association's request, information relevant
and necessary to the bargaining process.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, s amended, I hereby issue the following recommend-
ed:
ORDER 3
The Respondent, Hotel, Motel, Restaurant, Hi-Rise Em-
ployees & Bartenders Union, Local 355, AFL-CIO, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Southern
Florida Hotel and Motel Association by refusing to furnish
the association and the Doral Beach Hotel, a member
thereof, with information relevant and necessary to the bar-
gaining process.
(b) Engaging in like or related conduct in derogation of
its statutory duty to bargain.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
777
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Supply the association with the following informa-
tion requested since on or about May 9 and August I1,
1977: Copies of all contracts or agreements between Re-
spondent and all hotels and motels, which agreements were
entered into after January 15, 1977.
(b) Post at Respondent's business offices and meeting
places copies of the attached notice marked "Appendix."4
Copies of said notices, on forms provided by the Regional
Director for Region 12, after being duly signed by Respon-
4 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
dent's authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Forward to the association and its member, the Doral
Beach Hotel, for posting at their premises, if they are will-
ing, copies of such notices duly signed by Respondent's rep-
resentative.
(d) Notify the Regional Director for Region 12, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
778