Dearborn Country Club

National Labor Relations Board - Board Decisions

Jun 26, 1990

298 N.L.R.B. 915 (N.L.R.B. 1990)

DEARBORN COUNTRY CLUB
Dearborn Country Club and Hotel Employees and
Restaurant Employees Union , Local 24, AFL-
CIO. Cases 7-CA-28202 and 7-CA-28485
June 26, 1990
DECISION AND ORDER
BY CHAIRMAN STEPH ENS AND MEMBERS
CRACRAFT AND OVIATT
On November 21, 1989, Administrative Law
Judge Thomas R. Wilks issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed a brief
in response to the Respondent's exceptions.
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.'
We affirm, inter alia, the judge's finding that the
Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally discontinuing its established ex-
tracontractual past practice of first offering to its
steady (i.e., full-time) food and beverage servers
the opportunity to work overtime (i.e., the oppor-
tunity for them to work on their regularly sched-
uled days off), and only upon their refusal offering
or assigning to other employees any such available
work. In affirming that finding, and therefore re-
jecting the Respondent's contention that the Union
had contractually waived its right to bargain over
any changes in this practice, we note that United
Technologies Corp., 287 NLRB 198 (1987), enfd. in
pertinent part 884 F.2d 1569, 1575-1576 (2d Cir.
1989), is distinguishable from this case. In United
Technologies, the Board found that the contractual
management functions clause, which provided,
inter alia, that the employer had "the right to make
and apply rules and regulations for production, dis-
cipline, efficiency, and safety," constituted a waiver
on the part of the Union of its right to bargain
about changes in the employer's discipline proce-
dure for absenteeism.
The contractual management-rights clause in the
instant case, however (set forth in full below), is
substantially less specific than the one in United
Technologies. There is no specific reference in the
instant clause to the scheduling of overtime that
parallels or approximates the specific reference in
the United Technologies clause to the creation and
' Substitute Ogle Protection Service, 183 NLRB 682 (1970), for F. W
Woolworth Co, 90 NLRB 289 (1950), in the judge's remedy section.
915
application of rules and regulations for discipline.
Thus, we agree with the judge that the instant
management-rights clause cannot reasonably be
construed to constitute a waiver by the Union of
its right to bargain about the Respondent's unilater-
al discontinuation of its longstanding extracontrac-
tual past practice of assigning overtime. The instant
management-rights clause is as follows:
The Union recognizes the undisputed right of
the Club to operate and manage its business in
all respects in accordance with its commit-
ments and responsibilities to its members and
their guests and to make and alter from time to
time written rules and regulations to be ob-
served by employees, which written rules and
regulations shall not be inconsistent with this
Agreement. The Club shall provide each em-
ployee with a copy of its rules and with alter-
ations when made.
We also find that the other contract clauses on
which the Respondent relies are similarly lacking
in specific authorizations to make the change in
question. Article 13, section 56(b) could be con-
strued merely to acknowledge the Respondent's
right to designate the hours of shifts, determine
which days shall be considered employees' regular
days off, and schedule those who are available for
work, without addressing the question of the distri-
bution of overtime through offering work to
"steady" employees on their designated days off;
and, as the judge noted, article 3, section 11(e) re-
lates to special circumstances of a certain subcate-
gory of "limited shift" employees. Other clauses on
which the Respondent relies simply place certain
constraints on its actions (e.g., prohibiting it from
requiring "steady" employees to work overtime).
Finally, because the issue here is whether the
Respondent unlawfully unilaterally discontinued an
established extracontractual past practice, we find
it unnecessary to pass on the judge's discussion, in
the seventh paragraph of his analysis section, of the
constraints imposed by the Act on employers who
are proposing to change a term or condition of em-
ployment encompassed within an existing collec-
tive-bargaining agreement.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Dearborn
Country Club, Dearborn, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except that the attached
notice is substituted for that of the administrative
law judge.
298 NLRB No. 138
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX DECISION
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Hotel Employees and Restaurant Employees
Union, Local 24, AFL-CIO, as the designated ex-
clusive bargaining agent for an appropriate collec-
tive-bargaining unit at our Dearborn, Michigan
place of business by failing and refusing to timely
furnish it with complete and intelligible information
requested by it in its letter of July 27, 1988, which
is necessary and useful for the investigation and
processing of grievances and general contract ad-
ministration.
WE WILL NOT unilaterally and without proffered
bargaining opportunity to the above-named Union,
effectuate and maintain a new method of assigning
overtime to food and beverage servers.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL immediately furnish the above-named
Union complete and intelligible information it re-
quested in its letter of July 27, 1988.
WE WILL restore the pre-May 1988 method of
assigning overtime to steady food and beverage
servers at their option, according to their seniority,
prior to scheduling for overtime any extras, steady-
extras, or part-time food and beverage servers.
WE WILL make whole, with interest, our steady
food and beverage servers for any loss they may
have suffered as a result of our unilateral effectua-
tion and maintenance of a new method of assigning
overtime on and after June 1988.
WE WILL notify and, on request, bargain with
the above-named Union regarding changes in the
method of assigning overtime to our employees.
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. This
case was tried before me in Detroit, Michigan, on April
14, 1989, pursuant to an unfair labor practice charge filed
on September 27, 1988, by Hotel Employees and Restau-
rant Employees Union, Local 24, AFL-CIO (the Union),
a complaint and consolidated complaint and amendment
order issued by the Regional Director of Region 7 on
November 2, 1988, and March 31, 1989, against Dear-
born Country Club, the Respondent. The original com-
plaint in Case 7-CA-28485 alleged that Respondent vio-
lated Section 8(a)(1) and (5) of the Act by refusing to
furnish or dilatorily furnishing to the Union, as the em-
ployees' recognized bargaining agent with whom it main-
tains contractual relations, information requested by it by
letter of July 27, 1988, which information is necessary
for the execution of its function as exclusive employee
collective-bargaining representative. The consolidation
and amendment further alleged violation of Section
8(a)(1) and (5) of the Act by Respondent's June 1988 uni-
lateral change in terms and conditions of bargaining unit
employees in that Respondent allegedly effected "a new
method for first assigning overtime to extras, steady
extras, and part-timers rather than the full-time employ-
ees."
Respondent's timely filed answers admitted the bar-
gaining relationship with the Union but 'alleged that all
information requested by the Union had been provided
to "in one form or another." The Respondent denied the
allegations of unilateral changes of employment terms
and conditions, denied that it had effected a new method
of overtime assignment , and affirmatively answered that
the applicable collective-bargaining agreement of the
parties "does not compel the assignment of overtime to
steady employees, before utilizing the services of other
classifications of employees."
At the trial the parties were given full opportunity to
introduce relevant evidence in support of their positions,
to argue orally, and/or to file posttrial briefs. Although
statements of position were stated and argued throughout
the trial, an election was made for briefs which were re-
ceived from all parties between May 16 and 19, 1989.
Having reviewed the entire record, including the testi-
mony, documentary evidence, and briefs, and based upon
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
1. JURISDICTION
DEARBORN COUNTRY CLUB
Richard Czubaj, Esq., for the General Counsel.
Karl R. Bennett (Stringari, Fritz, Kreger, Ahearn, Bennett
& Hunsinger, P.C.), for the Respondent.
John G. Adams, Esq. (Miller, Cohen, Martens & Ice, P. C ),
of Southfield , Michigan, for the Charging Party.
Respondent is, and has been at all times material, a
corporation duly organized under and existing by virtue
of the laws of the State of Michigan. At all times materi-
al, Respondent has maintained its only office and place
of business at 800 North Military, Dearborn, Michigan
(the Dearborn Club). Respondent is a private golf and
country club which is engaged in the business of provid-
ing recreational facilities as well as the retail sales of
food and beverages to members and guests. Detroit Club
DEARBORN COUNTRY CLUB
Managers Association (the Association) has been an or-
ganization composed of employers engaged in the oper-
ation of private recreational clubs and which exists for
the purpose, inter alia , of representing its employer-mem-
bers in negotiating and administering collective-bargain-
ing agreements with various labor organizations, includ-
ing the Charging Party. At all times material, Respond-
ent has been, and is now, an employer-member of the
Association.
During the calendar year ending December 31, 1987,
which period is representative of its operations-at all
times material , Respondent, in the course and conduct of
its operations described above, derived gross revenues in
excess of $500,000, not including dues and initiation fees.
During the same period, Respondent purchased and
caused to be transported to its facility alcohol and relat-
ed products valued in excess of $50,000 from the Michi-
gan Liquor Control Commission located in the State of
Michigan, which received the products directly from
points located outside the State of Michigan.
It is admitted, and I find, that Respondent is now, and
has been at all times material , an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
IL LABOR ORGANIZATION
Charging Party is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Facts
The parties have maintained a collective-bargaining
agreement relationship for 10 or more years. The latest
agreement (CBA) is effective from May 1, 1987, to April
30, 1990. The appropriate collective-bargaining unit is set
forth in schedules "A" through "G" of that document
and generally can be described as covering a wide range
of kitchen employees, bartenders, a multitude of support
staff positions, e.g., porters, janitors, housekeepers, laun-
dry persons, etc., bus persons , cashiers, and, finally, those
classifications of immediate concern to the issues, the
"wait staff and banquet personnel," of whom there are
set forth "steady servers" who work an 8-hour day, and
"extras" who work 3-1/2 hours for luncheon or 4 hours
for dinner. The maitre d' position is set forth but provi-
sion is made for individual negotiation of the terms and
conditions of employment for that position subject to
"verification to be submitted to the Union."
Included in the unit are "steady employees," i.e., full-
time employees who, according to the contract, regular-
ly are assigned 4 or more days per a 5-day workweek of
8 hours per day for which the sixth and seventh day is
designated by the Respondent for each steady employee
as a day off. In addition to the "extra" employees, i.e.,
part-timers who work less than a full day, or who work
at the "extra" rate, there are "steady-extra" employees
who form a pool of employees who work "on call" for
specific events according to the no-set schedule.
Employees who perform work on their designated off
days are contractually entitled to time and one-half com-
917
pensation and double time, respectively, for the sixth and
seventh designated days, respectively, on condition that
"the employee has worked the regular schedule of
straight time hours."
Article 5, sec. 27, of the CBA, states:
Steady employees may be requested, but shall not
be required, to work as a designated sixth (6th) or
seventh (7th) day, or more than eight (8) hours in
any one day, and shall rotate the overtime equally
in any job classification where scheduling is practi-
cal. The Club shall make this request by seniority,
and if no steady employee volunteers, the Club shall
have the right to require the least senior steady em-
ployees to perform the work.
In October 1987, Lester Royce Graham commenced
his employment with Respondent as general manager.
Prior to that time, he had not worked at any establish-
ment covered by the CBA. Upon his assumption of au-
thority, he familiarized himself with the CBA, and with
an office file reflecting labor relations materials , none of
which, he testified, pertained to the scheduling of work
hours, other than what was stated in the contract. He
testified that it had been his intent to "follow the con-
tract," and that in April or early May, when Martin Cos-
tello was hired as manager of the food and beverage
service staff, he told him to read the CBA and abide by
its terms.
In the summer of 1988, Respondent employed seven
full-time or steady waitresses. The number of extras or
steady extras is not revealed. General Counsel witness,
steady waitress Parthie Flores, a Respondent employee
for 16 years, testified that the busy season during which
"most" of the overtime had been earned was from April
to September, when she worked about 50 to 52 hours
per week . In cross-examination, she testified that she
never worked a seventh day and only occasionally
worked a sixth day. During that prior time, a different
maitre d' had been in charge. She testified, without ob-
jection:
Well, we had a maitre d' there, Albert, that took
care of [distributing overtime assignments], and he
tried to divide it fairly among the steady employees.
But I don't know about keeping any records. It was
just something that we more or less went along
with him. In other words, he was fair.
Flores testified that the maitre d' "asked us if we would
like to work" on their designated off days and that "we
chose not to work some" of those days. She testified,
again without objections, that "they had it lined up that
we alternated [overtime] among the steady employees,
and if we didn't they, you know, gave it to someone
else." She testified without objection that, according to
her knowledge, the steadies alternated overtime among
themselves and that the ratio of steadies and extras who
worked overtime varied from special event to special
event, e.g., the Monday golf outings when the club was
closed to the public on which occasion two or three
steadies worked with an unspecified number of extras.
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Flores testified that in the summer of 1988, her aver-
age workweek was less than her 5-day, 40 hours previ-
ously worked and she received no offers to work over-
time. She testified that during the week of July 4, 1988,
she was scheduled for 3 off days whereas "seven new
employees" worked 5 days and a sixth "new employee,"
a former busboy, had been scheduled a 6-day week. In
cross-examination, there was no challenge to her testimo-
ny as conclusionary nor unfounded, nor was there any
challenge to her competency to testify as to the schedul-
ing and actual working hours of other employees.
Flores testified without contradiction that she com-
plained about the change in overtime assignment method
to Graham, who merely responded that the scheduling
was "up to Martin." Graham did not contradict her as-
sertions of past practice made to him. Accordingly, she
filed a grievance. She testified, without challenge or con-
troversion, that prior to May 1988 extra employees were
not allowed to work on her designated off days without
her having been proffered that opportunity.
When asked in direct examination who actually
worked on her designated off days, she answered:
Extras, I don't know, I sent some schedules and
some floor plans whatever into Local 24. They
have a copy of a lot of it. I don't have a copy of a
lot of it . . . and I can't tell you specifically who
worked on those days ... .
Thus, the premise of some of her conclusions was direct
observation of published work schedules. She also testi-
fied that after May 1988, one steady waitress, without
controversion, frequently worked on a designated off
day but that the other steady waitresses did not. She was
not challenged as to her competency to testify whether
or not all those other five waitresses had been proffered
work on their designated off days, for all the occasions
for such work.
The General Counsel witness, steady waitress Pat
Hinkle of 5 years' tenure, was called upon by the Gener-
al Counsel to testify as to her observation of the past
practice of overtime work scheduling. The parties stipu-
lated that she would testify "as to what her observation
was" with respect to the distribution of overtime. She
also testified, without objection as to foundation or com-
petence, that after May 1988, her overtime work was
drastically reduced: She testified:
Q. Who got the overtime, to your knowledge?
A. The extras, not the steady employees. The
extra employees got most of it.
In cross-examination, she testified that she had "no idea"
of how many overtime hours were worked by the extra
employees.
In redirect examination, she testified without challenge
or controversion:
Q. Prior to 1988, would an extra employee ever
be assigned, to your knowledge, on the sixth and
seventh day, if you or another steady employee
wanted to work on these days?
A. No. It went down that line of seniority.
The contract excludes extras from seniority accrual.
No other employee testimony nor documentary evi-
dence was adduced by the General Counsel as to the Re-
spondent's alleged past practice of overtime work sched-
uling.
Written grievances were filed with the Union on May
27, 1988, by Hinkle, and on or about June 21, 1988, by
waitresses Bonnie Hartsman, Ingrid Wiseman, employees
Clara Immerfall and Cathy Bulger, as well as Flores and
Hinkle. A copy of Immerfall's and Bulger's grievances
were not adduced into evidence and their substance is
unknown. Hartsman's status as a steady is not clear but
the thrust of her grievance, like that of Flores, claims
violation of article 5, with respect to the nonassignment
of overtime. Hinkle's June 21 grievance asserts that she
had been denied access to the "tip book" and "party
sheets" in violation of schedule D of the CBA. Wise-
man's grievance alleges that she had not been asked to
work the seventh day on occasions when "lower senior-
ities" had been asked to work. She stated further "I had
to ask if I could work."
Hinkle's May 27 grievance related to station assign-
ment disputes.
Union Business Agent Jack Mohr testified that as of
the hearing he had serviced the CBA only since January
1987. He alluded to employee grievances and testified as
to the Union's attempt to process the complaints of non-
overtime assignment. He testified that the Union recog-
nized work schedules, timecards, and other information,
"in order to put it all together to see who was supposed
to work when."
Union Business Agent Carol Bronson commenced
servicing of Respondent in May or June 1988. She testi-
fied that "the employees" told her that in the past stea-
dies had been scheduled to work on the designated off
days for special nonpublic functions; whereas now that
opportunity had been denied them in preference for extra
employees. She testified that certain grievances were
filed also with respect to the scheduling of servers and
kitchen staff, e.g., silver polishing, and that she needed
information to process all these grievances, including the
overtime issue. She testified:
... it was an issue of a past practice, how they
normally had been scheduled due to our investiga-
tion in the past in that club [sic].
She testified that it was necessary to obtain the exact
schedule of work performed by the employees with ac-
curate specificity as to date worked and designated day
off for two reasons:
. . . one is to see if the company has implemented a
change in a normal practice and procedure of how
[they] schedule the employees in the facility and the
other one being as to how overtime is handed out
under the contract.
Bronson testified that based upon employee representa-
tions the Union concluded that the Respondent had
breached a past practice of assigning overtime in defer-
DEARBORN COUNTRY CLUB 919
ence to the option of the steady employees prior to offer-
ing and assigning it to extras.
There appears to be no dispute that several requests
for scheduling information were not adequately and fully
answered and that on July 27, the Union's legal counsel,
by letter of that date, demanded post-May 1, 1988 dining
room and kitchen schedules, identification of kitchen
staff and servers, their seniority dates, their designation
as steady, extra, etc., their designated days off, records of
silver polishing assignment and rates paid, and also infor-
mation with respect to the number of persons served at
each meal and hours worked by steadies, extra, etc., on
certain specific dates. The last category of information
clearly relates to a grievance concerning occasions of
over-staffing which caused reduction in the proportions
of tips earned.
Mohr testified, without contradiction, that a meeting
was held at the club in August 1988 between the union
business representatives, Graham, and Respondent's
counsel at which the overtime issue was discussed, and
repeated requests were made for schedules and timecards
or "some kind of information" from Graham, but that
Graham merely promised to provide the information
after a golf outing and an in-house audit had been com-
pleted. The union agents protested that employees were
not "being scheduled properly per contract," and
Graham retorted that he followed the contract. Mohr
testified without contradiction that the Union then assert-
ed that there had been a past practice which had
changed as described above.
Bronson testified without contradiction that she ex-
plained to Graham at the August meeting that the Union
needed the' information requested because of employees'
assertions of the existence of a past practice of deferen-
tial assignment of overtime to steady servers which had
now been changed. She testified that when Graham was
questioned by Respondent's counsel as to such past prac-
tice, he stated that Costello, not he, did the scheduling
and that he would "check into it and get back" to them.
There is no evidence that Graham or any other Re-
spondent agent, in any communication with the Union,
ever contradicted Bronson's assertion to Graham of the
existence of a past practice as to overtime assignments.
Bronson 's testimony as to the tardiness and inadequacy
of Respondent's compliance with the July 27 request is
not controverted nor even disputed. Respondent explicit-
ly states in its brief that it does not dispute that it was
not timely in its response to the request. Its brief is de-
voted entirely to the unilateral change allegation. As to
the information request allegations, it merely asserts that
any violation is de minimus and that such information is
irrelevant to its contractual right to fix the hours worked
by the employees, i.e., art. 13, sec. 56(b), which states:
The Union recognizes the right of the Club to ar-
range its work schedules, to designate days off and
to fix hours worked by employees . . . the Club
shall not be restricted in carrying on its operations
in an efficient manner.
As to adequacy of Respondent's untimely response,
Respondent is silent. In late March 1989, Bronson re-
ceived by letter from Respondent dated February 27,
1989, a chart which-was described in the covering letter
as a response to the Union's letter of February 1, 1989,
wherein the Union requested certain employee informa-
tion, i.e., names, hiring dates, designation, hours, and
dates from March 1, 1988. The information in those
charts was neither responsive to the July 27, 1988 re-
quest, complete, nor intelligible. The information failed
to disclose the employees' designated days off, the desig-
nated sixth and seventh day, and does not enable the
reader to make any conclusions as to what amount of
overtime was worked.
Mohr testified that the Union had elected not to
pursue the overtime grievances to arbitration pursuant to
the CBA's arbitration clause because the parties had
fruitlessly attempted informal settlement. No deferral to
arbitration defense had been raised in this proceeding
and no reference was made to the CBA arbitration
clause until it was cited by Respondent's brief in support
of a waiver argument.
Respondent adduced no evidence as to the existence
or absence of a past practice of overtime assignment.
After the General Counsel rested his case, Respondent
moved to dismiss the unilateral charge violation allega-
tions on grounds that a past practice had not been
proven. The General Counsel insisted that such had been
proven. I denied that motion pending review of posttrial
briefs and requested that Respondent move with its
proofs rather than adjourn the hearing to allow partial
briefs on the motion to dismiss. Respondent then pro-
ceeded with very brief testimony of Graham described
above.
Analysis
The Respondent contends alternatively that the Gener-
al Counsel has not proven the existence of a past practice
of assignment of overtime to steady employees upon
their option pursuant to seniority in heu of scheduling
extra employees. The General Counsel and Charging
Party argue in their briefs upon the assumption that such
was obviously proven and admitted by Respondent. Per-
haps they were mislead by Respondent's more vocifer-
ously voiced argument at the hearing that past practice
was subordinate to explicit contract terms, and that the
new manager, Graham, was therefore justified in ignor-
ing it by acting in accord with the contract by schedul-
ing sixth and seventh days to extras as seen fit by the
maitre d'. In any event, no party evaluated the probative
weight of testimonial evidence, although they did set
forth conclusions in the briefs as to what was or was not
proven.
The General Counsel has the burden of proof. In this
case he rested on the generalized testimony of two em-
ployee witnesses which, in turn, may or may not have
been premised in part upon hearsay. However, that testi-
mony was at least partially premised upon their personal
knowledge and observation of longstanding employment
within a limited context of the open scheduling of no
more than five other steady servers. Neither their com-
petency to testify nor the adequacy of the foundation of
their testimony was objected to, challenged, or even
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
questioned by Respondent. Further, Graham's failure to
contradict the Union's assertions in negotiations of a con-
trary pre-May 1988 practice constitutes an implicit ad-
mission against interest during negotiations.
Accordingly, I find, contrary to Respondent's conclu-
sionary assertions to the contrary, that the General
Counsel has adduced sufficiently credible, uncontradict-
ed probative evidence to support the complaint allega-
tion with respect to a unilateral change in the manner of
assigning overtime in the summer of 1988, which had
been effectuated by a new manager who had intentional-
ly ignored and refused to consider past practice and who
impeded bargaining with the Union over grievances aris-
ing therefrom by refusing to submit timely, responsive,
complete, and intelligible information requested by the
Union.
With respect to the information request issue, there is
no factual dispute. The requested data related to the sub-
ject matter of overtime, and other grievances, in turn, re-
lated to terms and conditions of employment covered by
the CBA and suspected breaches of the CRA respecting
those terms and conditions.
Section 8(a)(5) and (1) of the Act obliges an employer
to notify and consult with the designated exclusive bar-
gaining agent concerning changes in wages, hours, and
conditions of employment. NLRB v. Katz, 369 U.S. 736
(1962). Overtime clearly is encompassed as mandatory
bargaining subject. Murphy Oil USA, 286 NLRB 1039
(1987). A union may elect to waive its right to notice
and bargaining by a contractual agreement. Bancroft
Whitney Co., 214 NLRB 57 (1974). A contractual waiver
will not lightly be inferred but, rather, must be expressed
in "clear and unmistakable" language. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693 (1983); Universal Secu-
rity Instruments, 250 NLRB 661, 662 (1980); and Johnson-
Bateman Co., 295 NLRB 180 (1989). Waiver may also be
demonstrated under certain circumstances from the histo-
ry of negotiations, Southern Florida Hotel Assn., "245
NLRB 561 (1979), enfd. in relevant part 751 F.2d 1571
(11th Cir. 1989); Hilton Hotel Corp., 191 NLRB 283
(1971); or from unequivocal extrinsic evidence bearing
upon ambiguous contractual language. Operating Engi-
neers Local 18, 238 NLRB 652 (1978). Furthermore, con-
tractual language which reserves to the employer the
right to make unilateral changes with respect to certain
areas will be strictly construed and will not be interpret-
ed to extend to other areas in the absence of specific evi-
dence of such intent. Southern Florida Hotel, supra at
567-568.
In United Technologies Corp., 287 NLRB 198 (1987),
the Board found that the contractual authorization to
unilaterally "make and apply" disciplinary rules also nec-
essarily encompasses the authority to unilaterally
"change" such rules as any difference was "semantical"
in nature. However, "zipper clauses" and general man-
agement rights clauses are not supportive of specific uni-
lateral action, Johnson-Bateman Co., supra, Murphy Oil,
USA, supra.
When the proposed change concerning wages, hours,
or conditions of employment encompasses a change or
modification of an existing collective-bargaining agree-
ment, a stricter obligation is imposed upon the employer.
It is well settled law that a modification of a clear and
unambiguous term of contract of fixed duration, regard-
less of economic motivation, must be obtained pursuant
to a positive affirmance by the employees' bargaining
agent, otherwise the requirements of Section 8(d) of the
Act are not met and a violation of Section 8(a)(5) results.
C & S Industries, 158 NLRB 454, 456-457 (1966); Oak
Cliff-Golman Baking Co., 207 NLRB 1063 (1973); Sun
Harbor Manor, 228 NLRB 945 (1977); Fairfield Nursing
Home, 228 NLRB 208 (1977); Precision Anodizing & Plat-
ing, 244 NLRB 846 (1979); Struthers Wells Corp., 245
NLRB 1170 (1979). Thus, contractual modification
cannot be effectuated by merely providing an opportuni-
ty for negotiation to the bargaining agent.
An issue of unilateral midterm modification of a con-
tractual restraint upon the transfer out of a geographical
district of bargaining unit work was considered in NCR
Corp., 271 NLRB 1212 (1984). The administrative law
judge concluded that the bargaining agent had been af-
forded timely notice and bargaining opportunity, but had
not agreed to the transfer of unit work which constituted
an unlawful contractual modification of the article which
prohibited extra district transfer. He reasoned that the
contractual provisions relied upon by the employer re-
garding its right to consolidate, merge, or reorganize a
district in another separate article were too ambiguous to
constitute a clear waiver, either on its face or from un-
equivocal extrinsic evidence. The Board reversed the
judge and viewed the parties as interpreting differently
contractual language which, on its face, was specifically
addressed to the Respondent's prerogative in the reorga-
nization of a district. The bargaining agent viewed the
language as limiting the employer's right to intradistrict
reorganization , whereas the employer viewed it as en-
compassing interdistnct reorganization as was involved
in the case, although the language of the no-extra district
transfer clause was clear and unambiguous on its face.
The Board viewed the matter as a mere dispute between
the parties as to contract interpretation where each party
had plausible interpretations as to the district reorganiza-
tion clause. It found that inasmuch as the Respondent's
conduct was based on a substantial claim of contract
privilege and inasmuch as there was no context of union
animus, the matter was best left to an arbitrator whose
function it would not assume.
The General Counsel argued alternatively at the hear-
ing and in the brief that regardless of the contract lan-
guage, which he characterized as irrelevant, the past
practice of the parties is determinative of the issue or
that, in any event, the past practice was either in accord
with the parties ' past interpretation of the contract or not
inconsistent with the language of the contract.
Similar alternative argument was made by the Union
which, however, more strongly asserts that the language
of the contract explicitly sanctions the past practice, but
that, in any event, the past practice with respect to the
steady employees' first option to overtime "elevates it to
a term of employment not susceptible to unilateral
change," citing Peerless Food Products, 236 NLRB 161
(1978).
DEARBORN COUNTRY CLUB
The Respondent argues that the contract gives the
right to schedule extra employees at its option without
deference to the first option of the steady employees. It
argues that the contract does not explicitly oblige it to
offer overtime to steady employees before it can utilize
extra employees, but rather provides merely that it may
request overtime of the steadies who are not obliged to
accept it. Respondent then goes on to argue that "the
contract contemplates management's right to change a
working condition by requiring the condition to be in
writing," citing article 4, section 21, which states:
No provision of this agreement shall be used to de-
prive a current employee of fringe benefits or work-
ing conditions in excess of those set forth in this
contract, provided the benefits or working condi-
tions be in writing and a copy is mailed to the
Union.
There is no evidence that the overtime distribution prac-
tice had ever been reduced to writing.
Respondent then points out contractual provisions
which permit it to employ extra employees; the manage-
ment rights clause which accords it the right to "manage
its business in all respects"; and article 13, section 56(b),
which states
The Union recognizes the right of the Club to ar-
range, its work schedules, to designate days off and
to fix hours worked by employees. The Club will,
whenever reasonably possible, follow seniority
rights in arranging its schedules, in designating days
off and hours to be worked by employees, but the
Club shall not be restricted in carrying on its oper-
ations in an efficient manner or in complying with
specific requests of members or guests for special
assignments.
Respondent further cites article 3, section 11(e), which
states:
A limited shift utility and bar porter is an employee
scheduled to work less than eight (8) hours but not
less than four (4) hours in a day. Only employees
hired after May 1, 1984 may be assigned to this cat-
egory. The Club and the Union will enter into writ-
ten understanding for continuance of special situa-
tions. However, without a break in service, current
employees will not be classified as limited shift em-
ployees. There will be no specific weekly hours or
set schedules for limited shift employees. A limited
shift employee will not substitute for or displace a
steady employee for any part of the basic eight (8)
hour day or forty (40) hour week. A Club will not
use two or more limited shift employees when the
Club's required work can be performed by one
eight (8) hour employee, whether steady or extra.
The club retains the option to employ extras, including
steady-extras, in the same job classification as limited
shift employees for flexibility in scheduling and under
the extra and steady-extra provisions of this con-
tract.
921
Upon those provisions, Respondent premises its implied,
if not explicit, prerogative to assign overtime to extra
employees without first offering it to steady employees,
notwithstanding 16'years of past practice to the contrary.
Respondent finally argues that the contractual provi-
sion providing for arbitration for "any dispute arising out
of any of the provisions of this collective-bargaining
agreement" constitute a waiver by the Union of its statu-
tory remedies. Article 15, however, sets time limits to
proceed to arbitration which may only be waived in
writing. There is no evidence of such waiver. Moreover,
Respondent does not seek deferral to arbitration nor does
it waive the time limit provision, rather it argues merely
that the Union has waived its statutory right by the very
existence of the arbitration clause. Respondent argues
that there is a disparity between the statutory remedy
which "permits a binding practice to arise whether or
not there is agreement to institute, continue, or terminate
the practice by the Union," and arbitral law which it
contends requires evidence of express mutual agreement
as a condition precedent for the effectuation of past prac-
tice as a condition of employment, citing "Mittenthal's
opinion" in Wyandotte Chemical Corp., 39 LA 65, 67
(1962).
In view of Respondent's refusal to raise deferral to ar-
bitration as a defense, and its apparent refusal to waive
contractual time limits and to seek arbitration, I conclude
that this matter is not appropriate for such deferral.
United Technologies Corp., 268' NLRB 557, 568 (1984).
Furthermore, in light of Respondent's conduct with re-
spect to the Union's request for information necessary to
investigate and process grievances over this issue, such
deferral would appear to be additionally inappropriate.
As in the NCR case, respecting the district reorganiza-
tion clause, I do not agree with either the Union or Re-
spondent that article 5, section 27, regarding overtime
can be interpreted to encompass the deferential assign-
ment of overtime to steady servers at their option prior
to scheduling of any extra servers. I do not believe the
contract as a whole disposes of the issue but is rather
silent. I conclude that the past practice found above ex-
isted, notwithstanding contractual language.
I do not agree, however, that the NCR Board analysis
is applicable to this case. This case does not involve mid-
term contractual modification. It involves a longstanding
practice that had become an extra contractual condition
of employment. The disposition of this case does not ne-
cessitate an arbitral-like process of interpreting equally
plausible contract interpretations. The past practice is
clear and unambiguous. The contract analysis required of
the Board is whether the contract contains a clear and
unambiguous waiver of the Union's right to notification
and bargaining over changes in conditions of employ-
ment. None of the contractual provisions cited by Re-
spondent satisfy that criteria, nor do they even reveal a
clear inconsistency between past practice and contractual
language. The contractual citations by Respondent, at
best, are too broad or too ambiguous to constitute a
claimed prerogative as to overtime distribution. Re-
spondent's so-called discretion as to the use of extras in
scheduling, referred to in article 3, section 11 (e), is tem-
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pered by the fact that the section refers to limited shift
utility and bar porter limited shift classification and is
silent as to limited shift servers.
Thus there being nothing in the contract that would
clearly obviate the overtime distribution, as it had been
done in past practice, article 4, section 21, is inapt.
That the Board adheres to its pre-NCR policy of
strictly continuing waiver of a Union's bargaining rights
is made manifest by the Board's discussion of NCR in
Johnson-Bateman Co., supra, wherein it distinguished
NCR as inapplicable to unilateral imposition by the em-
ployer of a drug/alcohol testing program pursuant to a
broad management 's right clause. Therein it cited South-
ern California Edison Co., 284 NLRB 1205 fn. 1 (1987),
wherein it also distinguished NCR as inapplicable to an
asserted privilege to unilaterally change temporary work-
ing assignments. In both cases, the Board found that the
factual situation did not encompass specific contractual
language addressed to the subject of the unilateral action.
In Johnson-Bateman, the Board cited with approval
Southern Florida Hotel, supra.
In this case there is no specific, clear contractual lan-
guage addressed to pro-rationing of sixth and seventh
day overtime between steady employees and extras upon
which Respondent can premise a substantial claim of
contractual prerogative. The contract as a whole is silent
or ambiguous at best. Accordingly, I find that Respond-
ent violated Section 8(a)(1) and (5) of the Act, as alleged
in the complaint amendment, by unilaterally changing a
16-year past practice of assigning overtime to steady
food and beverage servers at their option according to
their seniority prior to scheduling extras.
With respect to the requested information, Respond-
ent's failure to timely supply complete, accurate, intelligi-
ble information requested by the Union that was neces-
sary and useful to the Union for the investigation and
processing of grievances relating to overtime and other
contractual claims with respect to conditions of employ-
ment was violative of Section 8(a)(1) and (5) of the Act
as alleged in the complaint. NLRB v. Acme Industrial
Co., 385 U.S. 432, 435-436 (1967); Ohio Power Co., 216
NLRB 987, 991 (1975); Pfizer, Inc., 268 NLRB 916
(1984); Eazor Express, 271 NLRB 495 (1984); United
Technologies Corp., 274 NLRB 504, 506 (1985); Blue
Cross & Blue Shield of New Jersey, 288 NLRB 434 (1988)
(where the employer unlawfully refused to furnish the
union with the names of employees who were doing
overtime work even though the union had contractually
waived its right to bargain over the implementation of a
work-at-home program).
CONCLUSIONS OF LAW
1. Respondent, Dearborn Country Club, is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Hotel Employees and Restaurant Employees Inter-
national Union, Local 21, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act and
has been designated, and is, the exclusive bargaining rep-
resentative in a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act, consisting of all employees set forth in schedules
"A" through "G" of the 1987-1990 collective-bargaining
agreement between the Union and Respondent as
member of the Detroit Club Managers Association, ex-
cluding managerial, confidential, admistrative, office cler-
ical, and supervisory employees and guards as defined in
the Act.
3. Respondent violated Section 8(a)(1) and (5) of the
Act and thereby committed unfair labor practices affect-
ing commerce by failing and refusing to timely furnish to
the above-named Union complete and intelligible infor-
mation requested by it in its letter of July 27, 1988,
which is necessary and useful for the investigation and
processing of grievances and general administration of
the collective-bargaining agreement, and by its conduct
on and after June 1988 whereby it, unilaterally and with-
out proffered bargaining opportunity, changed terms and
conditions of employment of the above unit employees
by effectuating and maintaining a new method of assign-
ing overtime to extras, steady-extras, and part-timers
rather than to full-time steady food and beverages serv-
ers.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be directed to
cease and desist therefrom and to take certain affirmative
action to effectuate the policies of the Act. Having found
that Respondent violated Section 8(a)(1) and (5) of the
Act by unilaterally changing the method of assigning
overtime to its food and beverage servers, I recommend
that Respondent be ordered to restore the pre-May 1988
method of assigning food and beverage server overtime
and make whole its steady food and beverage servers for
any loss of pay they may have suffered as a result of its
unlawful unilateral action , to be calculated as prescribed
in F W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as computed according to New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Dearborn Country Club, Dearborn,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Hotel Em-
ployees and Restaurant Employees Union, Local 24,
AFL-CIO as the designated exclusive bargaining agent
in the appropirate collective-bargaining unit by failing
and refusing to timely furnish to it complete and intelligi-
ble information requested by it in its letter of July 27,
1988, which is necessary and useful for the investigation
and processing of grievances and general contract admin-
i 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
DEARBORN COUNTRY CLUB 923
istration and by, unilaterally and without proffered bar-
gaining opportunity , effectuating and maintaining on and
after June 1988 a new method of assigning overtime to
its extras , steady-extras , and part-timers rather than to
full-time steady food and beverage servers.
The collective-bargaining unit is:
All employees set forth iii schedules "A" through
"G" of the 1987-1990 collective -bargaining agree-
ment between the Union and Respondent as
member of the Detroit Club Managers Association,
excluding managerial , confidential , administrative,
office clerical, and supervisory employees and
guards as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately furnish the above-named Union com-
plete and intelligible information it requested in its letter
of July 27, 1988 , which is necessary and useful for the
investigation and processing of grievances and general
administration of the collective-bargaining agreement.
(b) Restore to the status quo ante the pre-May 1988
method of assigning overtime to steady food and bever-
age servers at their option , according to their seniority,
prior to scheduling for overtime any extras , steady-
extras, or part-time food and beverage servers.
(c) Make whole its steady food and beverage servers
for any losses they may have suffered as a result of the
unlawful unilateral action of June 1988 in the manner de-
scribed above in the remedy section.
(d) Notify and , on request , bargain with the above-
named Union regarding changes in the method of assign-
ing overtime to employees.
(e) 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.
(f) Post at its place of business in Dearborn , Michigan,
copies of the attached notice marked "Appendix."2
Copies of the notice , on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent 's authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced , or covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
2 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 "