Denver Hilton Hotel

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 488 (N.L.R.B. 1984)

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hilton Hotels Corporation, d/b/a the Denver Hilton
Hotel and Local Union No. 1823, of the Inter-
national Brotherhood of Electrical Workers,
AFL-CIO and Thomas R. Harberson. Cases
27-CA-7956 and 27-CA-8139
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 February 1984 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the decision.'
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, 2 and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(3) by refusing to reinstate sympathy
strikers Harberson and Talley following their un-
conditional offer to return to work. In so doing,
the judge rejected the Respondent's contention that
it had permanently replaced Harberson and Talley
with two employees, Bozic and Jude, who had
been hired during the strike. The judge concluded
that neither Bozic nor Jude had, for any apprecia-
ble time, functioned as replacements for Harberson
or Talley. In so concluding, the judge relied on
evidence of the wage rates and work assignments
of Bozic and Jude vis-a-vis Harberson and Talley.
He also relied on the absence of any probative
credible evidence that Bozic and Jude had been
given to expect permanent employment. .
The judge rejected the Respondent's contention
that the Board should defer to a 'board of atbitra-
tion award which had denied grievances pertinent
to the instant dispute. The judge noted that the ar-
bitrators had found that the Respondent had per-
manently replaced Harberson and Talley and had
' Charging Party Thomas Harberson has filed a motion to revoke Re-
spondent's motion for an extension of time to file exceptions. The Charg-
ing Party's motion is denied.
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
Since we have determined, as discussed infra, to dismiss the complaint
herein and defer to the arbitrators' award, we do not reach the merits of
the underlying unfair labor practices alleged Accordingly, the Judge's
credibility resolutions are Irrelevant to our disposition of this case
not discharged them in contravention of the collec-
tive-bargaining agreement because of their partici-
pation in the sympathy strike. Nevertheless, the
judge found deferral inappropriate here because, in
determining that Harberson and Talley had been
permanently replaced, the arbitrators did not con-
sider the factual issue of whether the newly hired
individuals actually assumed the work tasks of
grievants Harberson and Talley on a regular basis.
Thus, even though the board of arbitration had
considered and accepted testimony and other evi-
dence that both grievants had been permanently re-
placed, the judge nevertheless found that, pursuant
to Olin Corp., 268 NLRB 573 (1984), the General
Counsel had established that the fl arbitral decision
was not based on facts relevant to resolving the
statutory claim.
The Respondent excepts to these findings and
contends that the Board should defer to the deci-
sion of the arbitrators and dismiss the complaint.
We find merit in the Respondent's contention. In
Olin Corp., supra, we determined that, unless an
award is "palpably wrong," we would defer to it
where (1) the contractual issue is factually parallel
to the unfair labor practice issue and (2) the arbi-
trator was presented generally with the facts rele-
vant to resolving the unfair labor practice. Finally,
we required that the party seeking to have the
Board reject defetral and consider the merits of the
case show that the above standards have not been
met.
Applying the above criteria to the instant case,
we find that deferral is appropriate and that the
General Counsel has failed to establish any defects
in the arbitral process which would warrant our re-
jecting deferral and considering the merits of the
unfair labor practice alleged. First, we note that
the contractual issue considered by the arbitrators
is factually parallel to the issue presented in the
unfair labor practice allegation. Thus, the resolu-
tion of both the contractual issue and the unfair
labor practice allegation was contingent on the fac-
tual finding of whether Harberson and Talley had
been permanently replaced during the strike, as
contended, by the Respondent. Accordingly, the
contract issue and the unfair labor practice issue
are factually parallel.
Second, we note that the arbitrators were pre-
sented generally with the facts relevant to resolv-
ing the unfair labor practice. Thus, in finding that
Harberson and Talley had been permanently re-
placed, the arbitrators were presented with the tes-
timony of Personnel Director Schneider that the
Company has continued to carry these two individ-
uals on the payroll and to pay for certain of their
fringe benefits. The arbitrators also considered evi-
272 NLRB No. 78
DENVER HILTON HOTEL 489
dence that Talley and Harberson had been in-
formed that they were being permanently replaced
and that they were placed on a preferential hiring
list. Further, contrary to the judge, evidence per-
taining to the job tasks assumed by the permanent
replacements was presented to the arbitrators. For
example, Sam Collyer, the arbitrator designated by
the Respondent, testified at the hearing in this case
that in the arbitration proceeding Personnel Direc-
tor Schneider testified that Jude and Bozic were
hired to do electrical work. Accordingly, we find
that although details of the job duties of the perma-
nent replacements were not adduced at the arbitra-
tion hearing, the arbitrators were presented with
sufficient evidence to resolve even this aspect of
the general question. We find, for these reasons,
that the evidence of the permanent replacements'
particular job tasks which the General Counsel
presented to the judge in this case fails to establish
that the arbitrators were not presented generally
with the relevant facts pertaining to the question of
whether Harberson and Talley had been perma-
nently replaced. We conclude that the General
Counsel has failed, under Olin Corp., to show
either that the arbitrators' award is repugnant to
the Act, or that the arbitral process herein was de-
fective.
Accordingly, we shall defer to the award of the
board of arbitration and shall dismiss the complaint
in its entirety.
ORDER
The complaint is dismissed.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge.
These cases were tried at Denver, Colorado, October 20
and 21, 1983. The charges were filed July 14 and No-
vember 5, 1982, by Local Union No. 1823 of the Interna-
tional Brotherhood of Electrical Workers, AFL-CIO
(Union) and Thomas Harberson, respectively, and the
consolidated complaint was issued August 24, 1983. The
primary issue is whether Hilton Hotels Corporation,
d/b/a The Denver Hilton Hotel (Respondent) unlawful-
ly refused to reinstate sympathy strikers Harberson and
Bill Talley on grounds that their jobs had been taken by
permanent replacements, in violation of Section 8(a)(1)
and (3) of the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of witnesses, and after consideration of briefs
filed by the General Counsel and Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation operating a
hotel and convention facility in Denver, Colorado, at
which it annually derives gross revenues in excess of
$500,000. In the course and conduct of these operations
Respondent annually purchases and receives goods and
materials in excess of $50,000 which originated directly
from points outside Colorado. Respondent admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Respondent comprises a large convention hotel with
approximately 500 employees, over 400 of whom are
represented by the Hotel Employee & Restaurant Em-
ployees International Union in basic housekeeping, culi-
nary, and related functions. Of the remaining employees,
22 appear in classifications that include watch engineer,
maintenance, carpenter, painter, and plumber as members
of Local Union No. 1 of the International Union of Op-
erating Engineers (IUOE) A smaller unit of electricians
is represented by the Union, an affiliate of IBEW. Each
of these three labor organizations has an established col-
lective-bargaining relationship with Respondent. As con-
tractualy described, the scope of work for IBEW-repre-
sented employees was installation, maintenance, and
repair or removal of all electrical or electronic equip-
ment, apparatus, devices, or machinery on the premises,
plus operating spotlights, electrical, and electronic equip-
ment as the employer would from time to time require.
Chief Engineer Robert Langdon is in overall charge of
maintenance operations.
On July 1, 1982, IUOE commenced an economic
strike against Respondent.' Electricians initially honoring
the IUOE picket line were Robert Kearney, IBEW stew-
ard, plus journeymen Harberson and Talley and helper
Walt Clinton. Gene Dickens, the fifth member of the
IBEW bargaining unit, was on vacation at material times.
On July 7 Clinton returned to work, while the remaining
three continued their sympathy action. On July 123
IUOE and Respondent reached a strike settlement agree-
ment, which provided that all striking members of that
labor organization would be immediately reinstated.
IBEW members promptly learned of the strike settle-
ment, and the following morning Harberson and Talley
reported in together at 7 a.m. They conversed with
Langdon about what their assignment might be for the
day. He replied that a work schedule was not yet pre-
pared and they should return the next morning. After
saying this, he referred them to Howard Small, a person-
nel functionary, who advised that they had each been
permanently replaced. This advice was confirmed in a
letter to each of them dated July 14 from General Man-
ager Larry Kirk, explaining that because of a "permanent
1 An dates and named months hereafter are in 1982, unless otherwise
indicated.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike replacement," work was not available to either of
them at the time and that they would be placed on a
preferential reinstatement list according to seniority.
Harberson had been employed by Respondent for 3
years and was paid a journeyman wage of $10.85 per
hour, including an amount in lieu of pension and second-
shift differential of 15 cents. His primary duty had in-
cluded electrical repair work, relamping, and running the
control room. Talley had been employed just under 3
years at $10.70 per hour on days, and primarily engaged
in television repair, electrical maintenance work, and
other duties including the antennas, control room ampli-
fier, and spotlights.
Aside from the entire electrical department, the IUOE
strike had also enlisted sympathy action at the beginning
by about 75 employees of the hotel's main bargaining
unit. Respondent adjusted to this accumulative disruption
by pressing nonunion employees into needed service, and
bringing in key personnel from other Hilton facilities for
temporary assistance. A particular burden fell on Lang-
don who with his assistant, Joe Havey, split the constant
boilerroom watch while handling all repair and mainte-
nance on an emergency basis. On July 6, licensed watch
engineer Dale Warner had returned to work off the
IUOE strike, and this, coupled with Clinton's return to
the electrical department on the next day, alleviated
some of the pressure. Langdon testified that by July 6 he
was interviewing strike replacements, and had soon hired
approximately 20 individuals. Among these were Mike
Bozic who started on July 7, and Tim Jude who started
that midnight at 12:01 a.m. on July 8. Both had answered
a help wanted ad being run by Respondent and came in
to apply. Langdon testified to telling Bozic and Jude that
they would be permanent strike replacements. Langdon
recalled Bozic doing general electrical maintenance work
during the strike, with illustrative duties of motor rewir-
ing, switch repair, and light bulb changing. Jude's appli-
cation had presented a background in electronics, which
as Langdon testified caused his assignment to be princi-
pally television repair for the first couple of weeks of his
employment with some electrical work interspersed.
Bozic and Jude were each recorded as maintenance em-
ployees and paid $9 per hour. In early August they were
each promoted to electrician-helper, with an increased
hourly rate associated to the IBEW contract. Bozic was
eventually laid off in October while Jude has continued
in Respondent's employ.
Warner testified that beginning July 7 the hotel had
three electricians comprised of Clinton, Bozic, and Jude.
The latter two of these had been identified to him by
Langdon as being available for, electrical maintenance
work and television repair, respectively. Following this
he recalled personally introducing Jude to the television
shop where sets awaited repair, and to understanding
that this became Jude's primary duty except for an occa-
sional electrical job. Warner also testified that while the
strike was still in progress he was instrumental in distrib-
uting work assignments of the maintenance department,
and that he distinguished these by giving electrical work
orders only to the three employees so specified. Jude tes-
tified that on his first shift he was toured through the
maintenance facilities by Warner and a person from
Dallas, Texas, after which he returned to the television
shop to commence backed-up repairs. He initially con-
centrated on simpler repairs to older sets, and was also
occasionally called on for electrical repairs or changing
lights.
Kearney had returned to work on the afternoon of
July 13. At that point Clinton had been back to work
nearly a week, and Kearney resumed his own duties by
performing general electrical repair work and operating
microphones. He testified that on the evening of July 13
he had seen Anthony Pinnegar carrying a box of light
bulbs. Pinnegar had been hired as a strike replacement
on July 7 and classified as maintenance at a $9 hourly
rate until his employment terminated on July 14. Lang-
don denied ever issuing instructions for Pinnegar to
change light bulbs and testified that he was without
knowlege of this occurring.
Langdon's version of the morning visit on July 13 by
Harberson and Talley is that they spoke with him out-
side his office asking what they were then supposed to
do. Langdon said he had no work scheduled for either of
them that day, and left them standing there while he
went into his office to telephone the personnel depart-
ment for clarification of whatever legalities were in-
volved. He recalled personnel telling him to have them
report to that department, but when his call was over
they had apparently walked away. Langdon denied
having told Harberson and Talley to report back the
next morning.
The maintenance department utilizes sign-in sheets
which are ordinarily headed for the three discrete func-
tions of electrical, watch engineer, and maintenance. In
normal times these are typed in advance for given work-
weeks, employees sign in and out with their starting and
quitting time. The week ending July 10 was the first on
which the strike dynamics were reflected, as Warner
reappeared starting July 6 as a watch engineer, Clinton
resumed his duties as an electrician-helper on July 7,
Dickens was recorded on vacation, and numerous re-
placements for IUOE striking maintenance employees
were shown on the payroll by July 7. Bozic and Jude
both signed in throughout week ending July 10 under
the maintenance heading, while for week ending July 15
Bozic and Pinnegar signed as electricians (the latter
having shown on maintenance the week before) and Jude
still showed on the maintenance list. By the separate
week ending recorded as July 17 both Bozic and Jude
were appearing as electricians. Talley testified that when
he entered his 'signature on the sign-in sheet around 7
a.m. on July 13, there were no handwritten names ap-
pearing on it below a typed listing of the customary five
employees.
B. Analysis-
The issue of this case arises in a hectic factual setting
in which a withdrawal of services affected all phases of
hotel operations. The maintenance department was most
clearly impacted with all bargaining unit personnel at
first unavailable, and then only token reporting to cover
the key watch engineer and electrical maintenance func-
tions. Further relief did not materialize until the various
DENVER HILTON HOTEL 491
replacement employees began reporting by July 7 This
is the general contegt of applying established principles
under which sympathy strikers such as Harberson and
Talley possess an entitlement to be reinstated upon an
unconditional offer to return to work, unless the employ-
er meets a burden of showing that replacements are in
fact permanently positioned in their jobs or that some
substantial business justification for refusing reinstate-
ment is present Laidlaw Corp, 171 NLRB 1366 (1968),
Hood River Hospital, 235 NLRB 455 (1978), Trinity
Valley Iron Co, 158 NLRB 890 (1966)
I first credit Harberson and Talley with regard to the
July 13 episode involving Langdon Each of these wit-
nesses for the General Counsel was of persuasive de-
meanor, and I find from their testimony that they com-
municated their willingness to immediately resume work
and were told by Langdon to reappear the next morning
From this the issue devolves to whether either had been
permanently replaced in their position of journeyman
maintenance electrician On that key point I discredit
much of Langdon's offerings, finding his demeanor un-
convincing, his testimony unreliably at odds with perti-
nent documentations and the operational probabilities of
this strike squation Contrary to what Langdon now as-
serts I am satisfied that no objective showing has been
made that either Bozic or Jude constituted a replacement
employee, let alone one of permanent character They
were each identified in the hiring process merely as
maintenance workers, a fact harmonizing with contents
of Respondent's help wanted ads Then they were paid
an arbitrarily established wage rate at the outset and,
more importantly, there is no probative evidence to es-
tablish that they were given to expect permanence Bozic
did not testify, Jude was evasive on the point, and I dis-
credit Langdon's claim that he explained such status to
either of them Insofar as their anticipated task assign-
ments are concerned, they were officially registered to
the IUOE jurisdiction Most critically, I disbelieve Lang-
don's assertion that the personnel authorization records
for each of these individuals contains a bona fide nota-
tion of their permanence, for I am satisfied that such en-
tries were an afterthought implemented only to deceive
This warrants an inference that Respondent's agent in-
tended a rebuke to those engaging in sympathetic strike
action, and singled out two particular IBEW members
for retaliatory treatment
What is further evident in this case is that unstructured
utilization of various new hires was undertaken as best as
circumstances would allow during the eventful early
July period, and the extent to which Bozic performed
electrical maintenance work was no more than random
happenstance The situation with Jude is even more pro-
nounced, for he was at best of marginal experience in tel-
evision repair It is simply unlikely that Respondent
would confine him to such work, on a midnight shift,
something no other electrician had ever done Finally, I
credit Talley's convincing testimony to the effect that he
found little indication of substantial progress with unre-
paired televisions, comparing prestrike status to that
when he next saw the shop This is also a reflection of
his infinitely superior qualifications in television repair as
compared with Jude In so concluding I further discredit
Warner, whose testimony impressed as artificially slanted
to assist his employer's case Respondent's claim of
having replaced both IBEW members is best exposed as
sham by Kearney's credible testimony of having compre-
hended that Pinnegar was even overlapping with normal
tasks of electricians Overall there is simply not the clear
assumption of total job obligations that would permit it
to be successfully said Bozic and Jude actually func-
tioned for any appreciable time, or to any recognizable
degree, as craft replacements of Harberson or Talley
C Respondent's Affirmative Defense
This dispute had been presented to a board of arbitra-
tion in August On October 5 a written award was ren-
dered in which pertinent grievances were denied The
essential reasoning of the award was that employees'
contractual entitlement to avoid discipline or discharge
for engaging in a sympathy strike was not violated by
the employer making permanent replacements of both
Harberson and Talley The majority of the board of arbi-
tration accepted testimony that neither grievant was dis-
charged from employment, but in fact retained certain
residual fringe benefits and the inclusion on a preferential
hiring list Respondent contends that deferral should be
given to this award under the standards of Spielberg Mfg
Co, 112 NLRB 1180 (1955)
The National Labor Relations Board now requires that
in resisting such a deferral argument the General Coun-
sel must affirmatively demonstrate defects in the arbitral
process or award Olin Corp, 268 NLRB 573 (1984) Ad-
ditional standards for deferral under Olin are a showing
that the contractual issue was factually parallel to the
unfair labor practice issue, and that the abitrator was pre-
sented generally with the facts relevant to resolving the
unfair labor practice Here the 14-page award covers
several doctrines of labor law, alludes to the pending
unfair labor practice charge, and expressly refers to Sec-
tion 8(a)(3) of the Act However, the board of arbitration
did not in any remote way deal with the factual issue of
whether certain new individuals actually assumed the es-
tablished task patterns of the grievants and did so on a
regular basis This is separate and apart from my further
express finding that Langdon has attempted to deceive
respecting the true utilization of Bozic and Jude during
the disordered days of early July, and he has proffered
spurious records in the process For this reason the factu-
al issue that was present in the arbitral process was dis-
similar to that of the unfair labor practice charge, and
was not in even a general way presented to the board of
arbitration On this basis the General Counsel has met
the burden of demonstrating how this arbitral decision
was not based on facts relevant to resolving the statutory
claim I therefore reject Respondent's contention that de-
ferral to the award be given
CONCLUSION OF LAW
By failing and refusing to reinstate Harberson and
Talley following their unconditional offer to return to
work, Respondent engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it is necessary to order it to cease
and desist and to take certain affirmative action designed
to effectuate policies of the Act.
Respondent having discriminatorily failed and refused
to reinstate Harberson and Talley, it must offer them re-
instatement, dismissing, if necessary, any persons hired as
claimed replacements on or after July 7, and make them
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis during the period from 5 days
after the date on which they unconditionally offered to
return to work to the date of reinstatement, less any net
interim earnings, as prescribed in F.W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in Florida
Steel Corp., 231 NLRB 651 (1977).
[Recommended Order omitted from publication.]