Hollywood Roosevelt Hotel Co.

National Labor Relations Board - Board Decisions

May 4, 1978

235 N.L.R.B. 1397 (N.L.R.B. 1978)

HOLLYWOOD ROOSEVELT HOTEL CO.
Hollywood Roosevelt Hotel Co. and Miscellaneous
Warehousemen, Drivers & Helpers, Local 986,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America and
International Union of Operating Engineers, Local
501. Cases 31-CA-5445, 31-CA-5882, and 31-
CA-5692
May 4, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On November 16, 1976, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and International Union of Operating Engineers,
Local 501, filed exceptions and supporting briefs and
Respondent filed an answering brief, cross-excep-
tions, and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order,2 as
modified herein.
We agree with the Administrative Law Judge that a
finding that Respondent unlawfully unilaterally dis-
continued payments to various Operating Engineers
benefit funds is precluded in Case 31-CA-5692 by
the settlement agreement in Case 31-CA-5389. Our
dissenting colleague, citing Steves Sash & Door
Company,3 argues that the cessation of payments
"was not within the contemplation of the settlement"
agreement and that, therefore, that agreement has no
I As set out in his footnote dissent in Summit Tooling Company, et al., 195
NLRB 479 (1972), Chairman Fanning would find that an employer who
intends to close a part of its business must afford the union an opportunity
to bargain about the decision to discontinue that part of its operation.
However, as the Administrative Law Judge found here that Teamsters Local
986 had notice of Respondent's intent to lease its garage operation but
nonetheless did not request bargaining, Chairman Fanning joins his
colleagues in dismissing that portion of the complaint that alleges Respon-
dent unlawfully failed to bargain about the leasing out of its garage
operation.
I To remedy Respondent's 8(aX5) violations of failing and refusing to
respond to the Teamsters March 7 and August 8, 1975, requests to bargain,
the Administrative Law Judge recommended the issuance of a bargaining
order, notwithstanding the fact that the bargaining unit is comprised of
garage employees and Respondent has leased out the garage operation. We
note that Respoident continues as the owner of the garage facility and there
is nothing appearing on the record which would prevent Respondent from
future resumption of its operation. There is no evidence as to the identity of
the current operator of the garage facility. Therefore, we condition the
bargaining order on finding in the compliance stage of this proceeding that
Respondent resumed the garage operation or is otherwise the Employer of
the employees.
235 NLRB No. 185
relevance to the question of whether a violation of
the Act based on such conduct should be found and
remedied. However, contrary to our colleague, that'
case stands for the proposition that a settlement
agreement disposes of all issues involving presettle-
ment conduct unless prior violations of the Act were
unknown to the General Counsel, not readily discov-
erable by investigation, or specifically reserved from
the settlement by the mutual understanding of the
parties.4
As the Administrative Law Judge found, in Case
31-CA-5389, the charge alleged unilateral changes in
terms and conditions of employment and thus clearly
encompassed the unilateral cessation of payments
into the benefit funds. It is equally clear that the
Operating Engineers was aware of this change prior
to filing the charge in that case. 5 Finally, there is no
evidence that Respondent's discontinuance of bene-
fits came within any of the above-enumerated excep-
tions to the general rule that a settlement agreement
with which the parties have complied bars subse-
quent litigation of presettlement conduct alleged to
constitute unfair labor practices. In these circum-
stances, we conclude that the Administrative Law
Judge properly found that the issue could not be
litigated in this proceeding.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and, subject to the condition that
Respondent is the Employer of the employees in the
garage, orders that the Respondent, Hollywood
Roosevelt Hotel Co., Hollywood, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
Since the Administrative Law Judge failed to conform her recommended
Order and notice with the remedy, we shall modify them accordingly.
3 164 NLRB 468 (1967). enfd. as modified in other respects 401 F.2d 676
(C.A. 5, 1968).
4 164 NLRB at 473.
s Our dissenting colleague argues that, because the charge in Case 31-
CA-5692 was not filed until after the settlement agreement in Case 31 CA-
5389 was executed, "it is clear that the General Counsel had no knowledge
of this violation at the time of the settlement agreement." However, the mere
fact that the charge was filed after the agreement was negotiated does not
ipsofacto establish that the General Counsel was unaware of Respondent's
discontinuance of the benefit fund payments which was the subject of the
charge. Indeed, inasmuch as this conduct (which, as noted above. was
known to the Operating Engineers) occurred prior to issuance of the
complaint in Case 31-CA-5389, and there is no indication that evidence as
to this issue was unavailable to the Regional Office during its investigation
of the charge in that case, we cannot agree with the dissent that the record
establishes that the General Counsel was unaware of the additional
violation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Add the following as paragraph I(b):
"(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I do not agree with the Administrative Law Judge's
conclusion, adopted by my colleagues, that the
settlement agreement in Case 31-CA-5389 approved
on September 19, 1975, precludes our finding an
unfair labor practice based on Respondent's preset-
tlement conduct of unilaterally discontinuing contri-
butions to the various Operating Engineers benefit
funds and repudiating its agreement to make such
contributions. I am satisfied that a settlement agree-
ment settles only matters intended to be determined
and has no effect on conduct, presettlement or
postsettlement, not within the contemplation of the
settlement. See Steves Sash & Door Company, 164
NLRB 468, 475 (1967); Universal Building Services,
Inc., 234 NLRB 362 (1978). My colleagues disagree
with my reading of Sieves Sash & Door Company and
argue that under the Trial Examiner's decision in the
case, affirmed by the Board, a violation cannot be
predicated upon presettlement conduct "unless prior
violations of the Act were unknown to the General
Counsel, not readily discoverable by investigation, or
specifically reserved from the settlement by the
mutual understanding of the parties." Since the
charge based on discontinuing contributions to the
various benefit funds was not filed until October 31,
1975, it is clear that the General Counsel had no
knowledge of this violation at the time of the
settlement agreement on September 19, 1975. And,
because of the different subject matter involved in
the matters settled, it does not appear that the facts
relating to the benefit funds contributions violations
were readily discoverable in connection with the
investigation of the alleged violations involved in the
settlement agreement.
Most importantly, however, my colleagues seem to
have misconstrued what was meant by the Trial
Examiner's language, "specifically reserved from the
settlement by mutual understanding of the parties."
The application of that test by the Trial Examiner in
Steves Sash & Door Company makes plain that an
express reservation in the settlement agreement is not
required and that the specific reservation may be
inferred from the intention of the parties, gleaned
from all the circumstances, not to encompass other
alleged violations in the settlement agreement. Steves
Sash & Door Company, 164 NLRB at 475. In that
case violations of Section 8(a)(3) were found notwith-
standing the fact that they occurred before the date
of the settlement agreement and were not referred to,
as reserved or in any other manner, in the settlement
agreement. From all the circumstances the Trial
Examiner, nevertheless, found that the parties did
not intend to settle charges other than those express-
ly dealt with and concluded that the alleged viola-
tions of Section 8(a)(3) were therefore "reserved for
possible future litigation." Ibid. It is absolutely clear
from all the circumstances in the present case that
the parties did not intend to dispose of Respondent's
unilateral termination of the benefit funds contribu-
tions when they settled Case 31-CA-5389 which
dealt with other matters. Accordingly, the allegation
of an 8(a)(5) violation based on their unilateral
discontinuance and repudiation should not have
been dismissed in the present proceeding.
In the present case, contributions that Respondent
agreed to make and was making to the Operating
Engineers benefit funds were unilaterally discontin-
ued on or about May 1975. In June, Respondent
repudiated its agreement to make these payments.
The complaint in Case 31-CA-5389, issued on July
30, 1975, which was the subject of the settlement
agreement, alleged two specific violations of Section
8(a)(5) including derivative violations of Section
8(a)(l) and nothing more. The intent to allege
particular violations is clear from the use of the
specifying words "in that." Thus, paragraph 10 of the
complaint alleged that Respondent refused to bar-
gain "in that:
(a) Commencing on or about March 18, 1975,
and continuing to date, Respondent has refused,
and continues to refuse, to recognize or meet with
the Union to negotiate or discuss the terms of a
collective-bargaining agreement.
(b) On or about June, 1975 Respondent, with-
out notifying or bargaining with the Union,
changed the operation of the boiler in the hotel
which affected the hours of work of certain
employees in the appropriate unit .... " [Em-
phasis supplied.]
There is no reference at all to the discontinuation or
repudiation of payments to the various benefit funds.
The notice that is part of the settlement agreement
contains a general statement providing that Respon-
dent will not refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with the Union. This is
obviously in response to the allegation in the com-
plaint that Respondent had refused to recognize,
meet with, or negotiate a contract with the Union.
The only specific conduct contained within the
notice is the statement that Respondent "will not
change the hours of our laundry operations in such a
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HOLLYWOOD ROOSEVELT HOTEL CO.
way that it will affect the wages, hours and/or
working conditions .... " There is no reference at
all to the discontinuance of the benefit funds contri-
butions and the repudiation of the agreement to
make them. The specific inclusion of one unilateral
change and the complete omission of another forci-
bly demonstrate the lack of any intention to deal
with the latter.
It is thus clear, contrary to the contention of my
colleagues, that neither the complaint nor the settle-
ment encompassed the unilateral cessation of pay-
ments to the benefit funds. If the general charge of
unilateral changes in terms and conditions of em-
ployment is interpreted to include the changes in
benefit funds contributions, as my colleagues con-
tend, the general language of the settlement agree-
ment should be interpreted similarly to remedy the
violation with respect to benefit funds contributions.
But the parties have not understood the settlement
agreement to do this and the benefit funds violation
remains unremedied. I refuse to assume that the
settlement agreement intended to encompass this
violation and leave it unremedied. Accordingly, since
it was not comprehended in the settlement, I would
find that the settlement agreement in Case 31-CA-
5389 did not preclude a finding in the present case of
an unfair labor practice based on Respondent's
discontinuing and repudiating its agreement to make
contributions to the various benefit funds.
In a recent decision the Board held that a settle-
ment agreement was properly set aside because it left
"unremedied a clear uncontested violation of the
Act" which antedated the settlement agreement but
was unknown to the Regional Director when he
approved the settlement agreement. Universal Build-
ing Services, Inc., 234 NLRB 362 (1978). In the
present case the Operating Engineers change with
respect to benefit funds contributions was not filed
until more than a month after the Regional Director
approved the settlement agreement and therefore this
violation was not known to him at the time of his
approval. For the same reasons as in Universal
Building Services, therefore, the settlement agreement
should not be deemed a bar to finding Respondent's
presettlement misconduct an unfair labor practice in
this proceeding.
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Miscel-
laneous Warehousemen, Drivers & Helpers, Lo-
cal 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All garage employees employed by Respon-
dent or its successor at 7000 Hollywood
Boulevard, Los Angeles, California, includ-
ing all attendants, but excluding all other
employees, all office clerical employees,
guards and supervisors as defined in the Act.
HOLLYWOOD ROOSEVELT
HOTEL Co.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was heard before me on July 15 and 16 and
August 23, 1976, in Los Angeles, California. The charge in
Case 31-CA-5692 was filed by International Union of
Operating Engineers, Local 501, herein called the Engi-
neers, on October 31, 1975, and served on Respondent on
November 3, 1975. The charge in Case 31-CA-5445 was
filed by Miscellaneous Warehousemen, Drivers & Helpers,
Local 986, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Teamsters, and served on Respondent on July 8,
1975. On July 29, 1975, Respondent entered into a
settlement agreement in Case 31-CA-5445. The charge in
Case 3 1-CA-5882 was filed by the Teamsters on February
4, 1976, and served on Respondent on February 5, 1976.
The first amended charge in Case 3 1-CA-5882 was filed by
the Teamsters and served on Respondent on March 5,
1976. On March 30, 1976, the Regional Director for Region
31 vacated and set aside the settlement agreement in Case
31-CA-5445. The amended consolidated complaint issued
on May 13, 1976, alleging that Respondent has violated
Section 8(a)( 1), (3), and (5) of the Act.
The basic issues herein are:
1. Whether a prior settlement agreement precludes the
finding of a violation in Case 3 I-CA-5692.
2. Whether Respondent is a successor obligated to
bargain with Charging Parties and, if so, whether it has
failed in this obligation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Whether Sadeghi and Rice were discharged in
violation of Section 8(a)(3) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation with its office and
principal place of business in Hollywood, California, is
engaged in the business of operating a hotel. Respondent in
the course and conduct of its business operations annually
receives gross revenues in excess of $500,000 of which in
excess of $5,000 was derived from national credit cards
such as American Express, Bankamericard, and Master
Charge.
Upon the pleadings and the entire record, I find that
Respondent is, and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Unions are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Respondent's Status as a Successor Employer
For a number of years prior to 1975, Roosevelt Hotel
operated the hotel involved herein and was a member of
the Hotel Employer's Council of Los Angeles, herein called
the Council. As such, it was party to collective-bargaining
agreements with various labor organizations, including the
Teamsters and Engineers. The Engineers was the exclusive
collective-bargaining representative of employees in a unit
of garage and parking lot employees.' The most recent
agreement with the Teamsters was effective by its terms
from May 1, 1972, to April 31, 1975, herein referred to as
the Teamsters Hotel Council Agreement. The Engineers
was the exclusive bargaining representative of Respon-
dent's employees in the following unit.2
All chief operating engineers, assistant chief engineers,
watch/maintenance engineers, watch engineers and
apprentice engineers employed by Respondent at 7000
Hollywood Boulevard, Los Angeles, California, but
excluding all office clerical employees, guards and
supervisors as defined in the Act.
The most recent agreement with the Engineers was effec-
tive by its terms from August 1, 1973, to July 31, 1976,
herein referred to as the Engineers Hotel Agreement.
Respondent acquired the hotel, involved herein, from
Hollywood Roosevelt Hotel in January 1975,3 and it is
1 Sometime in April 1975, Respondent ceased operating the parking lot
and the parties stipulate that the appropriate unit at times material herein
was limited to garage employees.
2 Respondent admits in its brief that this unit description is factually
accurate.
admitted that Respondent continued the same business
operation previously conducted by the prior owner under
the same name, at the same location, and with the same
employees and equipment.
Accordingly, I find that Respondent is a successor
employer to Hollywood Roosevelt Hotel and as such is
obligated to recognize and bargain with the Engineers and
the Teamsters in the respective appropriate units. N.L.RtB.
v. William J. Burns International Security Services, Inc., 406
U.S. 272 (1972).
B. Alleged Refusal To Bargain With the Engineers
On or about January 23, the Council notified the
Engineers that Respondent had acquired the hotel and was
not a member of the Council. On February 3, the
Engineers by letter requested Respondent to adopt the
Engineers Hotel Agreement.
On January 13, Donald Radamaker, business representa-
tive for the Engineers, went to the hotel to discuss a
grievance concerning the discharge of the chief engineer,
Richard Freeman. He spoke to the general manager, John
Kirsch,4 who informed him that he had orders from the
new owners that all contacts with union representatives
must be by one of the Rubin family, Respondent's
principal owners. After waiting unsuccessfully for an
opportunity to speak to one of the Rubins, Radamaker told
Kirsch he could not wait any longer but would write a
letter. Kirsch suggested that he make it a strong letter.
Sometime within the next 2 weeks, Radamaker tele-
phoned the hotel and spoke to Chaim Rubin, vice president
of Respondent with responsibility for labor relations
matters. Radamaker said he wanted to get together with
Rubin in regard to signing the Engineers Hotel Agreement.
According to Radamaker, Rubin replied that he wanted 6
months before he signed any union contract. He said he
wanted the hotel to remain a union hotel, that he would
pay the union wages and benefits and live by the grievance
and arbitration procedure. They discussed Freeman's
discharge and agreed to meet at some indefinite future
time. Radamaker said he would send Rubin copies of the
Engineers Hotel Agreement and the Engineers Indepen-
dent Agreement, which was almost identical, and of the
Trust Fund Subscribers' Agreement.5 Rubin does not
recall this conversation.
Thereafter, Radamaker sent Rubin the promised docu-
ments and also a letter of agreement which he requested
Rubin to sign, whereby Respondent would agree to adopt
the predecessor's contract. Rubin did not sign this letter.
On February 11, Radamaker, Painters Representative
Fishman, and Freeman met with Chaim Rubin. Radamak-
er asked him to sign the Engineers Independent Agree-
ment. According to Radamaker, Rubin again stated that
the hotel had financial difficulties and he wanted 6 months
before signing any labor agreement, but Respondent would
continue to be a union hotel and would continue to pay
union wages and benefits, and it would abide by the
3 All dates herein will be 1975 unless otherwise indicated.
4 Kirsch is no longer general manager.
5 Hollywood Roosevelt Hotel was signatory to the subscribers' agree-
ment.
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HOLLYWOOD ROOSEVELT HOTEL CO.
grievance and arbitration procedure. Radamaker suggested
that Respondent follow the direction of other hotels in
Respondent's position, that of seeking financial relief from
the Unions rather than refusing to sign a collective-bar-
gaining agreement which would bind Respondent to the
other terms of the agreement. They discussed Freeman's
discharge and Fishman discussed some Painters matters.
Radamaker said if the other unions agreed to a 6-month
delay he probably would also, but at the moment he was
still requesting that Respondent sign the independent
agreement or the letter of agreement.
Rubin denies making any statement during this conver-
sation regarding wages or benefits, that he said he wanted
the hotel to be a union hotel, or that there was any specific
discussion of contract terms. Radamaker did ask him to
take the Freeman matter to arbitration but he refused.
Radamaker said he would complain to the Los Angeles
County Federation of Labor. Rubin said Respondent
intended to convert from a high pressure boiler system to a
low pressure one in order to reduce cost. Radamaker said
Kirsch had once pursued that idea but found it too costly.
On February 18, at a county federation meeting, repre-
sentatives from various unions who had contracts with
Respondent's predecessor met with Chaim Rubin and his
mother, Helen Rubin. The principal discussion at this
meeting was the Unions' desire to have Respondent sign
collective-bargaining agreements. According to Radamak-
er, both Chaim and Helen Rubin said that Respondent
would continue to pay union wages and benefits and would
agree to the grievance and arbitration procedure particu-
larly in the case of the Freeman grievance.
Rubin does not recall anything being said about abiding
by the grievance and arbitration procedure in the Engi-
neers agreement. He testified that he asked the Unions to
hold back for I year on their demands, that he would sign
the collective-bargaining agreements, and after the year he
would sign the contracts. After receiving only negative
responses, he requested 6 months. They again refused.
Someone asked Rubin about the employees' present wages.
Rubin replied that for the present time for present
employees he would not make any changes. Mrs. Rubin
does not recall what, if anything, Rubin said with regard to
abiding by the terms of the collective-bargaining agree-
ment.
On March 2, Freeman and Radamaker met with Mrs.
Rubin. During this meeting Radamaker and Mrs. Rubin
got into a heated argument as to whether Freeman quit or
was discharged. Mrs. Rubin said he quit. Radamaker said
Kirsch told him that Mrs. Rubin had given orders to fire
Freeman. Mrs. Rubin insisted that Radamaker's state-
ments amounted to calling her a liar. Chaim Rubin came in
during this argument. They related the argument to him.
According to Radamaker, Rubin asked who would pay for
the arbitration. Radamaker replied that they would share
the costs, whereupon Rubin said "to hell with the Union, to
hell with the Operating Engineers, to hell with Mr.
Fishman."
Mrs. Rubin denies that her son made this latter
statement. She does not recall him saying anything regard-
ing the grievance and arbitration procedure. She admits
that Radamaker did not actually say she was a liar but that
she felt his words had that effect when she suggested calling
in Kirsch for a confrontation and Radamaker responded,
"Why should I call him in? You should call him also a
liar?" She asked him to leave. Then Chaim Rubin came in
and asked Radamaker to leave also. Chaim Rubin agrees
that he asked Radamaker to leave. According to him,
Radamaker asked him to arbitrate the Freeman matter and
he refused.
A week or two later, Radamaker and some other union
representatives including Fishman and White from the
county federation met with Rubin. Rubin asked Radamak-
er to apologize to his mother. Radamaker refused. White
suggested that a meeting be set up between the three of
them. Rubin said that they had a personality conflict with
Radamaker and suggested that someone else represent the
Engineers. Radamaker agreed and left. White said he
would set up a meeting.
Sometime later in March, White telephoned Rubin,
suggested a mid-April meeting, and said Radamaker would
be representing the Engineers. Rubin protested, and White
said the Engineers wanted Radamaker to represent them.
Rubin replied that in that case there was no need to meet
because he didn't think anything could be resolved. White
said he would cancel the meeting.
Thereafter, without notice to or bargaining with the
Engineers, Respondent ceased making payments to the
benefit funds. According to Rubin, Respondent had made
the payments to show the Engineers that it was willing to
negotiate, to show good faith, and to prevent hostile
feelings. Since it was not serving that purpose, the hostile
feelings existed, and the Engineers were not showing good
faith, the payments were ceased.
The parties stipulated that Respondent made contribu-
tions to the pension plan, the health and welfare plan, the
dental plan, and vision plan as provided for in the
Engineers contract for January, February, and March. The
January payment was made on February 14 and the final
payment which was for March was made on April 10. The
April payment became delinquent under the trust agree-
ment after May 20.
On May 15, the Engineers filed an unfair labor practice
charge alleging that Respondent refused to sign the master
labor agreement or to negotiate with the Engineers regard-
ing the discharge of employees Freeman and George
Roehrs, which charge was dismissed on June 24.
On June 18, the Engineers filed a charge in Case 31 -CA-
5389, alleging that Respondent had unilaterally changed
the working conditions of unit employees.
Sometime in June, the Engineers learned that Respon-
dent had ceased making contributions to the various
benefit funds. The Engineers Business Manager Robert
Fox telephoned Rubin and told him employee Porferio
SuAy was in the hospital and asked if Respondent was
going to make health and welfare contributions for SuAy,
and Rubin refused.
On September 19, Respondent entered into a settlement
agreement in Case 31-CA-5389, whereby Respondent
agreed to bargain with the Engineers and specifically not to
change unilaterally the hours of its laundry operation in
such a way as to affect the wages, hours, and/or working
conditions of unit employees.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 21, Radamaker and engineers assistant
business Manager Coy Black met with Rubin. Radamaker
submitted a proposal seeking the signing of the hotel
agreement, retroactive implementation of the wage and
benefit portions thereof, and reinstatement and backpay
for certain employees. Rubin said he refused to make any
retroactive payments but felt that they could work some-
thing out for the future. They reviewed the Engineers
proposals but reached no agreement. They agreed to
another meeting to continue negotiations.
Radamaker and Black contend that the meeting was
scheduled for October 28. Rubin contends that it was
scheduled for October 30. In accordance with his under-
standing, Radamaker and another Engineers representative
went to the hotel on October 28. Rubin was not there. A
hotel employee, Howard Shapiro, 6 telephoned Rubin and
reported to Radamaker that Rubin said there must have
been some misunderstanding regarding the date. Rada-
maker left and, thereafter, made no further attempt to
arrange a meeting with Rubin.
According to Rubin, when Shapiro reported to him that
Radamaker had become angry and left, stating, "You'll be
hearing from me," Rubin asked if he specifically told
Radamaker the meeting was for October 30. Shapiro said
yes, and Rubin instructed him to telephone, explain the
misunderstanding, and ask Radamaker if he wanted to set
up another meeting. Shapiro reported back that he had
called Radamaker and explained, but Radamaker did not
ask for another meeting. Rubin was in his office on
October 30 at the scheduled hour. Radamaker did not
appear. Radamaker vaguely recalls that someone from the
hotel, other than Rubin, telephoned him. He does not
recall what was said, but states that no arrangements were
made for a future meeting. The charge herein was filed on
October 31.
General Counsel argues that Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to meet with the
Engineers after October 21, thereby, repudiating its bar-
gaining obligation.7 I find no merit in this argument. At the
most, there was a misunderstanding as to meeting dates,
which misunderstanding Rubin conveyed to Radamaker
through Shapiro. There was no further request for a
meeting and there is no evidence that Respondent repudi-
ated its bargaining obligation. Accordingly, I find that
Respondent did not violate the Act by not meeting
Radamaker on October 28.
The complaint alleges that Respondent agreed to make
contributions to the various Engineers benefit funds and
that, on or about May 5, Respondent unilaterally discon-
tinued such payments and in June repudiated its agreement
to make these payments. Rubin admits that he agreed to
make these payments, but Respondent contends that this
agreement was a limited one-that Rubin agreed only to
continue the existing wages and benefits for the present in
order to demonstrate his good faith and to permit time for
negotiations. The record does not support such contention.
Shapiro is no longer in Respondent's employ.
7 There is no such allegation in the complaint but it was fully litigated.
8 The basis of the charge reads:
Within the six months last past the above named Employer has
refused to bargain with International Union of Operating
True, Rubin gave this explanation during his testimony
herein, but his account of his conversations contain no
such limitations. He admits that he said there would be no
change in compensation for present employees for the
present time, and Respondent in fact made contributions
to the benefit funds for several months. Under these
circumstances Respondent was obligated to notify and
bargain with the Union prior to discontinuing these
contributions. All States Factors, Secured Party in Posses-
sion of North Park Meat Company, 205 NLRB 1122 (1973).
However, Respondent further argues that the finding of a
violation based on the unilateral discontinuance of these
contributions is precluded by the settlement agreement in
Case 31-CA-5389 approved on September 19. 1 find merit
in this contention. It is well established that a finding of an
unfair labor practice cannot be based on presettlement
conduct unless there has been a failure to comply with the
settlement agreement or subsequent unfair labor practices
have been committed. Northern California District Council
of Hodcarriers and Common Laborers of America, AFL-
CIO, et al. (Joseph's Landscaping Service), 154 NLRB 1384
(1965), enfd. 389 F.2d 721 (C.A. 9, 1968); Larrance Tank
Corporation, 94 NLRB 353 (1951). Here Respondent has
done neither.
General Counsel argues, however, that where the circum-
stances show that the parties did not intend a complete
resolution of all their disputes in a settlement agreement,
but reserved for possible future litigation issues excluded
from said settlement agreement, the issues so excluded may
be the subject of subsequent unfair labor practice proceed-
ings. Steves Sash & Door Company, 164 NLRB 468 (1967),
enfd. as modified 401 F.2d 676 (C.A. 5, 1968). This is a
correct statement of the law but the facts herein do not
meet the requirements. There is no evidence that the
parties did not intend that the settlement agreement
constitute a complete resolution of all their disputes
encompassed by the allegations of the charge.s The charge
specifically alleges unilateral changes in terms and condi-
tions of employment and Respondent had discontinued
contributions to the various benefit funds and repudiated
its agreement to make such contributions prior to the filing
of the charge and the execution of the settlement agree-
ment and the Engineers had knowledge thereof.
In these circumstances, I find that the settlement agree-
ment in Case 31-CA-5389 precludes any finding of an
unfair labor practice based on its presettlement conduct of
discontinuing contributions to the various Engineers bene-
fit funds and repudiating its agreement to make such
contributions.
C. Alleged Refusal To Bargain With the Teamsters
After acquiring the hotel, Respondent continued to pay
garage employees the same wage rate that they received
from the predecessor employer. It also continued to make
contributions for these employees to the Teamsters health
Engineers, Local 501, AFL-CIO, designated representative and
has unilaterally changed the terms and conditions of employ-
ment of its employees without bargaining with International
Union of Operating Engineers, Local 501, all in violation of
Sections 8(aX)( I & (5) of the Act, as amended.
1402
HOLLYWOOD ROOSEVELT HOTEL CO.
and welfare trust funds and to deduct Teamsters union
dues until October.
The Council notified the Teamsters on or about March 5
that Respondent was not a member of the Council. On
March 7, the Teamsters sent Respondent a letter demand-
ing the reopening of the Teamsters Hotel Council Agree-
ment.
On or about April 15, according to Rudolph Heredia,
Teamsters business representative, he telephoned the hotel
and learned for the first time that Respondent was the new
owner and that Rubin was the person to whom he should
speak. Rubin was not in, so he talked to Mrs. Rubin. He
identified himself and said he was interested in negotiating
a new contract. Mrs. Rubin said that the hotel intended to
abide by the terms and conditions of the contract, that they
intended to pay union wages and health and welfare
benefits, and did not intend that the hotel should go
nonunion. Heredia said he was just reminding her that the
hotel had a contract with the Teamsters and as long as they
abided by it there would be no problem. Mrs. Rubin then
proceeded to tell Heredia about Respondent's financial
problems.9 Mrs. Rubin denies this conversation and denies
that she ever discussed with Heredia paying union wages
and benefits or remaining union or abiding by the terms of
the Teamsters contract.
In May, Heredia telephoned Rubin. According to Rubin,
Heredia complained that he had not been invited to the
county federation meeting and also complained about the
discharge of a parking lot employee named Neal. Rubin
explained that the parking lot had been leased out, that the
lessee had terminated Neal, and Heredia should speak to
the lessee. Heredia again complained about the county
federation meeting. Rubin said he had not called the
meeting and had no idea that Heredia was not invited or
that Respondent was under any obligation to do so.
Heredia said the Teamsters would picket and strike the
following day. Rubin replied, "If you're going to strike, you
better wear good shoes because you are going to be
walking a long time." At this point Mrs. Rubin took the
telephone.
According to Mrs. Rubin, when she took the telephone
she told Heredia that they could not hold on to the parking
lot because it was losing money. Heredia asked her not to
lease out the parking lot, that he would help her, that they
should be able to get some cheaper help. Mrs. Rubin said it
was too late, the parking lot had already been leased and
Respondent would probably also lease out the garage.
Heredia said, "I am going to send you somebody for the
garage when you have to lease it out." Mrs. Rubin said,
"Fine." Mrs. Rubin states that this is the only conversation
she had with Heredia.
Heredia does not recall this conversation. However, he
testified that he had a telephone conversation with Chaim
Rubin regarding the parking lot on or about August 2 or 3.
On July 8, Heredia filed the charge in Case 31-CA-5445
alleging that Respondent had refused to bargain in good
faith. On August 4, the Regional Director approved a
settlement agreement in that matter in which Respondent
agreed to recognize and upon request bargain with the
9 Rubin descnbed this problem as running a $50,.000 monthly deficit for
the entire operation and expenses in excess of income in the garage probably
due to inability to keep track of cash receipts.
Teamsters as the representative of its garage employees. By
letter dated August 8, Heredia notified Respondent of the
Teamsters desire to reopen the "prevailing collective-bar-
gaining agreement" and requested a meeting for the
purpose of discussing and determining certain amendments
thereto.
Heredia testified as to the alleged August 2 or 3
conversation, that he told Rubin he wanted to negotiate a
contract. Rubin said he was in no position to negotiate a
contract but that he was going to abide by the terms and
conditions of the contract and pay contract wages and
health and welfare benefits. They then scheduled a meeting
for August 15. Then Heredia testified that he spoke to
someone who identified himself as Chaim Rubin by
telephone on August 9. He told Rubin he wanted to
negotiate a contract. Rubin agreed and they scheduled a
meeting for August 15.
On August 14, Heredia telephoned the hotel and was
told that Rubin had gone to Israel to bury a relative.
According to Heredia, starting about 3 weeks later and
continuing for about a month, he telephoned the hotel to
see if Rubin had returned. He had not. On October 8, he
telephoned and talked to Rubin. They agreed to meet in
the hotel restaurant on October 15. Heredia went to the
restaurant as scheduled. Rubin was not there. Later that
day he telephoned the hotel, identified himself, and was
told that Rubin had not come in that day because he had
the flu.
Rubin testified that he was in Israel from July 25 to
August 25 and had no conversations with Heredia on
August 2 or 8, and did not agree to a meeting on August 15
or on October 15.
Rubin testified that Heredia telephoned him in mid-
October and said that he had heard that Respondent
intended to lease out the garage. Rubin said that was
correct, that they were having a problem controlling the
cash in the garage and were not receiving enough money to
cover the payroll. Heredia said he knew Respondent had
problems with stealing and he would help Respondent find
a lessee. Heredia suggested someone named George Ull-
man as a potential lessee. He stated that the other hotels
would scream if the garage went nonunion and that if
Ullman leased the garage he could make a deal with him to
keep the garage under the master labor agreement and give
Ullman certain concessions at certain of Ullman's many
other parking facilities. Rubin said he had met with
Ullman and had almost had a deal but Ullman refused free
parking to the Rubin family. Heredia said he would
arrange the free parking. Rubin said Ullman's attitude
seemed too hard and tough, that he was an uncomfortable
person with which to deal. Heredia said he would try to
find someone else.
Heredia admits only to having a conversation with
Rubin concerning Ullman in March 1976.
In October Respondent ceased checking off Teamsters
union dues. Around the first part of November, according
to Heredia, he telephoned the hotel and talked to Romeo
Raiez about the failure to transmit dues to the Union.
Raiez said the check was on Rubin's desk for his signature.
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raiez also told him the garage had been leased out.
Heredia claims prior to this he had not been told that the
garage had been leased. In August, during their first
conversation, Rubin said he might have to lease out the
garage at a later date, but did not say definitely that he was
going to do so.
In November, shortly after his conversation with Raiez,
according to Heredia, he talked to Rubin on the telephone,
requesting that they commence contract negotiations.
Rubin said he intended to abide by the wages and
conditions of the contract, but that his attorney had told
him he did not have a contract with the Union. Rubin
denies this conversation and Heredia's prehearing affidavit
states that he had a conversation with Rubin in May in
which Rubin said his attorney had advised him that
Respondent was not covered by the Teamsters master
agreement. Heredia insists however that it was in Novem-
ber when Rubin told him Respondent was not covered by
the contract.
Karr testified that in mid-November he received a
telephone call from Heredia. Heredia said, "I understand
you are operating the garage." When Karr replied affirma-
tively, Heredia asked if he was going to keep the union
employees. Karr said he did not know too much about it.
Heredia said Karr had gotten rid of the union employees.
Karr said, "Just a minute, I got rid of no one. I didn't fire
anyone or reduce anyone in grade." Karr then told
Heredia he had to rush and asked him to call back.
Heredia said he would not call back, that Karr should call
him. Karr again asked Heredia to call him. Heredia said
Karr had better have a lot of money for a lawsuit.
On December 11, Heredia submitted a grievance to
Respondent alleging Respondent's failure to comply with
certain terms of the Hotel Council Agreement. By letter
dated December 19, Heredia informed Rubin that, inas-
much as Respondent had failed to respond to the griev-
ance, the Union was now moving to the next step of the
grievance procedure and requested that Rubin contact
Heredia to schedule a meeting.
According to Rubin, when he received the grievance he
transmitted it to Ray Karr, the lessee of the garage. After
receiving a letter dated February 27, 1976, from Heredia
requesting bargaining, he telephoned Heredia. He told
Heredia he had received the bargaining request but that
Respondent had leased out the garage and Karr was the
person to contact if he wanted to negotiate. Heredia said
Respondent should break the lease, but Rubin said he
could not do that. Heredia said he would help him break
the lease and Rubin again said he could not do that.
Heredia asked why he did not lease to Ullman and Rubin
said he could not work out things with Ullman so it had
been leased to Karr. He further said if Karr could not cope
with the garage, he would call Heredia or take up the
recommendation of Ullman. Heredia said, "Okay. I'll be
talking to you. Good luck."
10 In this regard, I note Heredia's testimony that he spoke to Chaim
Rubin and they all agreed to meet at a time when Rubin was in Israel, and
his testimony that Rubin said he would abide by the terms of the contract
and indicated Respondent was considering leasing out the garage at a time
subsequent to the leasing out of the garage.
11 Respondent entered into evidence two checks made out to Hollywood
Heredia testified on cross-examination that he does not
recall having a telephone conversation after the February
demand letter. However, he does recall a conversation
during which Ullman was mentioned and he admits that
his prehearing affidavit dated March 11, 1976, states that
he had a conversation with Rubin on or about March 3,
1976. According to Heredia, Rubin said, "He wished to
abide by the terms of the contract, that the hotel was in
financial difficulty and they would maintain the hotel
union." Rubin did not say he had leased out the garage but
he did mention that Ullman wanted to lease the garage but
that Respondent did not lease to Ullman because he would
not agree to free parking for the Rubin family and staff.
Heredia's prehearing affidavit states, "Mr. Rubin told
me in this telephone conversation that he had received my
February 27th letter, and that he had leased the garage
out. .... Mr. Rubin said that before he had ever leased the
garage out to Ray Karr, he had almost arrived at a deal to
lease the garage out to Grant's parking." Upon being
confronted with this statement, Rubin testified, "[Rubin]
never in fact said, this is the new lessee of the garage. Your
problem is now with him." He then gave the following
account of this conversation: According to Heredia, he
told Rubin they should negotiate a contract. Rubin said he
had leased out the garage. Heredia said the Hotel Council
contract was the better of all their parking concessions
contracts, that it would be unfair to decrease the wages and
that any lessee would be covered by the terms of the Hotel
Council Agreement. Heredia testified, "I told him that if he
did lease the hotel out-and this is very vague, that it
should be a union company." Rubin said he had consid-
ered leasing to George Ullman. Heredia said Ullman had a
contract with the Teamsters but the wages were lower than
in the Teamsters Hotel Council Agreement. Rubin then
explained that the hotel was in financial difficulty and
explained the problems they were having with the garage.
I find Heredia to be a totally unreliable witness. His
testimony is contradictory and is inconsistent both with his
prehearing affidavit and his account of certain conversa-
tions is incredible in view of their relationship in time to
undisputed events.10 Accordingly, I discredit his testimony
to the extent that it differs from that of Rubin. I found
Rubin to be an honest, forthright witness whom I credit.
D. The Discharges and the Leasing of the Garage
Chaim and Helen Rubin testified that during 1975 the
garage operated at a deficit, that the garage employees
performed their job duties satisfactorily, but the cash
receipts were so low that they suspected that all cash
receipts were not being transmitted to Respondent."l This
financial difficulty motivated the decision to lease out the
garage.
Roosevelt Hotel Garage in payment for parking which Mehran Shayani,
garage manager, admitted he deposited in his personal account. He claims
that he had mistakenly rung it up on the cash register before the bills were
actually paid, so had paid it himself and then appropriated the checks in
repayment. Respondent had no knowledge of these checks until November
1.
1404
HOLLYWOOD ROOSEVELT HOTEL CO.
Mehran Shayani was rehired in March as the garage
manager.12 According to him, the employees who were
there prior to Respondent's acquisition of the hotel
continued under Respondent's ownership to receive the
same wages they had received under the previous owner.
However he was instructed to hire new employees at $2.25
and $2.50 an hour.
According to Shayani, about 3 months after he became
manager, when they were discussing the wages of new
employees, Mrs. Rubin told him that Respondent did not
have a Teamsters contract, that the Union had given
Respondent 6 months to sign a contract, and they did not
have to hire at union wages. Mrs. Rubin denies this
conversation.
Shayani further testified that around the middle of
August he and Mrs. Rubin had a conversation regarding
the financial problem in operating the garage. First they
discussed the schedule and the hours that the employees
were working. Shayani explained that he had everyone
working at just about the minimum hours possible. Mrs.
Rubin inquired as to the wage rate of the various
employees and Shayani told her. Mrs. Rubin said he would
have to cut expenses, whereupon Shayani replied that he
could do that only by hiring cheaper help, that he could not
cut the hours. Mrs. Rubin told him to hire cheaper help.
Shayani asked if she wanted him to discharge the employ-
ees making the higher wages. Mrs. Rubin replied to get rid
of the ones with higher wages and hire cheaper help.
Shayani also testified, "I believe [Mrs. Rubin] told me that
the union okayed-that we could hire a help with-with
minimum wage, two twenty-five or two fifty." He does not
recall anything else being said. On cross-examination,
Shayani admits that he does not actually recall who said
what regarding getting rid of the higher paid employees but
that the conversation related to the only alternative being
to replace the more expensive help with new hires at lower
wage rates.
Mrs. Rubin denies that she ever told Shayani to replace
the higher paid employees. She testified that she discussed
cutting expenses with him at the end of every payroll
period up through July. All the conversations were similar,
that he would have to cut the payroll because the receipts
were insufficient to cover expenses. According to her, the
only specifics that she discussed with him was his sched-
uling or permitting employees to work overtime. Each time
Shayani promised he would remedy the situation but he
never did. This led to the decision to explore the possibility
of leasing out the garage.
In mid-August, employee Ali Sadeghi was separated
from Respondent's employ. He had been employed there
since January 1973. Shayani states that this occurred a few
days following his conversation with Mrs. Rubin. Accord-
ing to Shayani, he selected Sadeghi based on his low
seniority as the employee to be discharged. Sadeghi
testified on direct examination that, on September 16 while
he was working in the garage, Mrs. Rubin called him over
to her and said, "You are fired." He asked why and she
12 The record establishes, Respondent admits in its brief, and I find that
Shayani is a supervisor within the meaning of the Act. He responsibly
screens applicants for hire, assigns work schedules, and discharges employ-
ees. He is a member of the Teamsters and testified on behalf of General
Counsel.
said, "You're just fired, that's all." However, he also
testified that he does not recall whether Shayani told him
he was fired, but that about a week before his discharge
Shayani told him that Respondent was going to discharge
persons who made $3.48 an hour and replace them with
persons making $2.25 and $2.50 an hour.2 3 Subsequently,
according to Shayani, he asked Mrs. Rubin for his vacation
pay. She replied, "We don't pay anybody vacation. You
better go to hell, or something like that."
Mrs. Rubin denies that she discharged Sadeghi. Ac-
cording to her all hiring and firing is done by department
heads. She also denies Sadeghi's version of the vacation
pay conversation. According to her, as she was walking
through the garage, Sadeghi stopped her and said he would
like to have his vacation pay. She asked, "Do you work for
me?" 14 He said, "Yes," and she replied, "Well, you have to
work a year when you get your vacation pay." He said, "I
am not working here anymore." She said "Really? I will
talk to [Shayani] about it." Later that day, according to
Mrs. Rubin's undenied testimony, she asked Shayani what
had happened to Sadeghi, if he had terminated him.
Shayani said no, he quit. Mrs. Rubin said Sadeghi had
requested vacation pay and Shayani said, "Well, he quit."
She denies ever specifically talking to Shayani about
Sadeghi prior to this.
Mrs. Rubin testified that by the first of August she was
convinced that Shayani was not going to do anything to
control overtime in the garage, so she placed an advertise-
ment in the newspaper seeking a lessee which ran almost
the entire month of August. There were 10 to 12 responses
but nothing definite materialized until the end of August
when Ray Karr answered the ad. Karr said he wanted to
lease the garage but had obligations which would prevent
him from taking over until November 1. Mrs. Rubin
indicated that was agreeable but no lease agreement was
signed at that time. They also agreed that Karr would start
observing the garage operation in mid-October. The Team-
sters were given no prior notification that Respondent
definitely planned to lease out the garage.
In mid-October, Karr began his observation of the
garage operation. According to him, about a week thereaf-
ter the arrangements to lease the garage were finalized.
Nothing was mentioned regarding the Teamsters. Accord-
ing to Mrs. Rubin, the arrangement was finalized around
October 15 and, at Karr's request, she instructed Shayani
not to discharge anyone.
On October 23, Shayani terminated Rice, effective
October 28. According to Shayani, around the middle of
October, Mrs. Rubin told him he had to cut expenses
further. Shayani said there were only two employees left
who earned $3.48 an hour. Mrs. Rubin told him to get rid
of them. She also asked who they were, and Shayani said
Rice and Wilson and asked, "Do you want me to let Rice
go, or Wilson?" She said to keep Wilson. Shayani then
terminated Rice.
Rice testified that in mid-October Shayani told him they
were figuring on laying off the union men and hiring
1s Sadeghi was making $3.48 an hour.
14 Mrs. Rubin testified that she had never met Sadeghi and did not
recognize him as a garage employee. She had seen him with Avis cars and
had assumed he worked for Avis.
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cheaper help, whereupon he told Shayani he hoped they
would not try to get him to work for lower wages because
he would not agree. Shayani replied, "I might have to lay
you off." In either this conversation or one around the
same time, according to Rice, he told Shayani, "I hope
you're still here when I leave so I don't have any problems
with the employment agencies." 15 Thereafter, on a Friday,
October 24,'16 Shayani gave him a termination slip dated
October 23, which states the effective date of termination
as October 28. However, Rice testified that his last
workday at the garage was October 29. On October 31, he
went to the garage and spoke to Ray Karr. According to
Rice, "Well, I came to work. I thought I was still working.
He said no. And I came into work with my lunch and my
coffee thermos. And he asked me what I was doing there. I
told him I thought I was still working. He said, 'Well no.'
He said, 'We're making up a new schedule,' and he said 'I'll
have to let you go.' "
Karr testified that about the last week in October,
Shayani told him he had given Rice a termination slip.
Karr inquired by whose authority but, as he recalls,
Shayani did not answer. Karr immediately went to Mrs.
Rubin and asked who gave authority to terminate Rice.
Mrs. Rubin said she did not terminate him. Karr said he
did not want Rice terminated. Mrs. Rubin asked him to
have Shayani report to her and to bring Rice's termination
slip.
Shortly thereafter, Shayani went to Mrs. Rubin's office.
According to him, Mrs. Rubin said, "Don't let Ray Rice
go, because I want him to stay and help Ray Karr."
However he did not see Rice after that.
According to Mrs. Rubin she asked Shayani why he
terminated Rice. Shayani replied, "Because he wants to go
on unemployment. Mrs. Rubin said he should not termi-
nate anyone because she had leased out the garage, that
Karr needed the help, and it was not fair to him that
anyone leave. She asked Shayani to get back the termina-
tion slip. He said he would. When he did not return the slip
she asked why and Shayani said Rice did not want to
return the slip.
Rice testified to the following: On October 26, in the
presence of Rubin, Karr and three unidentified persons,
Mrs. Rubin asked to see his termination slip; he said it was
at home; she said she did not know anything about a
termination slip; Rice replied that Shayani told him he
gave her the original; she asked why he was quitting, and
he said he was not quitting; she asked if Shayani dis-
charged him; Rice said no, Shayani laid him off; Mrs.
Rubin asked why and Rice said it was his understanding
that she wanted to let all the union people go and bring in
cheaper help; he said he wanted the same money and
benefits he had been getting; Mrs. Rubin said, "Why can't
you work with Ray Karr," to which Rice replied, "I can
work with anyone if I am getting the same salary";
according to Rice, there was "dead silence" for a while
then something was said about working every day with
Karr, and Rice said, "Well, I've had a schedule for years.
15 From the context of his testim'ny, Rice was apparently referring to
the unemployment office.
16 They work together I day a week, Fridays.
z" Rice had earlier told Karr that he and his wife managed an apartment
building and that he did the painting and cleaning. Rice's old schedule
included graveyard shifts.
I'd like to keep it the way it was"; then, according to Rice,
something was said regarding an apartment building
managed by his wife and he said Saturdays and Sundays
off did not mean anything to him. After some further
conversation, Rice said his wife was out of town and he
had to leave to show an apartment. Karr and Mrs. Rubin
deny that this conversation occurred.
Rice was called back to work that evening to replace
another employee. According to him, at Karr's request, he
showed Karr the termination slip and told him he had
known about it for a week. Karr said he would give it to
Mrs. Rubin. Rice said, "Well, I don't think so. She's
supposed to have a copy already," and refused to give Karr
the slip.
Karr's version of this conversation is different as follows:
According to him he and Shayani prepared a new schedule
which changed Rice's hours; Shayani said he did not know
whether Rice would agree to that schedule; Karr said he
would have to work those hours. Thereafter, in the last
week of October, according to Karr, he asked Rice for his
termination slip. Rice showed it to him but said he would
not give the slip to Karr; Karr asked why Shayani had
given Rice the termination slip; Karr said he had not
authorized it, that he was going to retain Rice; Rice said he
was laid off; Karr said he had not laid him off; Karr said
there was a new schedule posted and told Rice to look at it;
Rice looked at the schedule and said, "I'll be damned if I
work the schedule"; Karr replied, "This is the way that
we're going to work the garage"; Rice mumbled something
that Karr did not understand; then Rice said the schedule
would interfere with his managing an apartment house; 17
Karr said he was sorry but that was the way it had to be,
that he did not know very much about running a garage
and he asked Rice to go along with him; Rice said he could
not work those hours, that he would rather not work at the
garage. The next day that Rice came to work, Karr
reminded him that the new schedule started November I.
Shortly thereafter Karr looked for Rice but he was not
there and did not return that day. About 3 days later, Rice
returned and turned in his uniforms.
On November 1, Karr began operation of the garage
retaining all the employees except Rice and Shayani.18
Apparently he no longer operates the garage since he states
he is unemployed but the record does not establish when he
ceased such operation.
E. Conclusions as to the Alleged Discharges and
the Alleged Refusal To Bargain With the Teamsters
The complaint alleges that Respondent violated the Act
by refusing to recognize or meet with the Teamsters since
April 15; failing to meet with Heredia as agreed on October
16; and withdrawal of recognition and repudiation of an
August 4 settlement agreement since October 16. The
record does not establish that Respondent ever, in fact,
withdrew recognition from the Teamsters. However, Re-
spondent did fail to answer two written requests to bargain,
18 Shayani states he was "forced" to quit apparently because Karr did
not specifically request him to stay. He admits Karr did not discharge him
and that Mrs. Rubin asked him to stay and help Karr.
1406
HOLLYWOOD ROOSEVELT HOTEL CO.
one on March 7 and one on August 8. Although both
letters were inaptly phrased in terms of reopening the
predecessor's agreement, it was clear that the Teamsters
were requesting contract negotiations. In the case of the
August 8 letter, Respondent must have understood that the
Teamsters were seeking what Respondent had undertaken
to do in the August 4 settlement agreement-bargain with
the Teamsters as to the terms and conditions of employ-
ment of its garage employees. I find it an inadequate
defense that Chaim Rubin was out of the country. At least
two responsible officers and co-owners of Respondent were
available, and the letter was received and placed in
Respondent's Teamsters file. Whatever may have been the
situation if Respondent had merely sought to delay
meeting with Heredia for the 2 to 3 weeks until Chaim
Rubin's return, under the circumstances, there is no valid
excuse for ignoring the August 8 request to bargain.
Accordingly, I find that by failing to answer the March 7
and August 8 requests to bargain, Respondent refused to
bargain in violation of Section 8(a)(1) and (5) of the Act,
and that such conduct as to the August 8 request violated
the August 4 settlement agreement.
As indicated above, I found Heredia to be a completely
unreliable witness. I do not credit his testimony that Chaim
Rubin agreed to meet with him on August 15 and on
October 15. Accordingly, I find that Respondent did not
fail to meet with the Teamsters as alleged in subpar. I I(c)
of the complaint.
The complaint also alleges that Respondent violated
Section 8(a)(5) of the Act by leasing out the garage without
notification to or bargaining with the Union, and by
refusing on December 11 to meet concerning a grievance
filed by the Teamsters. General Counsel concedes, and I
find, that the decision to lease out the garage was
economically motivated and took Respondent out of the
business of offering parking services and that, therefore,
there was no obligation to bargain about such decision.
Summit Tooling Company et al., 195 NLRB 479 (1972),
enfd. 474 F.2d 1352 (C.A. 7, 1973). However, General
Counsel argues that Respondent violated the Act by its
failure to notify the Teamsters that it was leasing out the
garage and to bargain regarding the effects of such action.
In support thereof, the General Counsel relies almost solely
on evidence adduced from Heredia, whose testimony I
have discredited. I credit Rubin's testimony that in Octo-
ber, prior to the actual leasing of the garage, Heredia
telephoned him saying he had heard Respondent intended
to lease out the garage. Rubin confirmed that Respondent
was going to lease out the garage and explained why.
Heredia acknowledged that he was aware of the nature of
Respondent's financial problem with the garage and said
he would help find a lessee, but did not request bargaining
over the effects of the leasing of the garage operation.
In these circumstances, I find that Respondent did not
violate Section 8(aX1) and (5) of the Act by leasing out its
garage operation. I further find that Respondent did not
violate Section 8(a)(1) and (5) of the Act by failing to
answer Heredia's December request for a meeting regard-
ing the Teamsters grievance submitted December 11,
alleging violations of the predecessor's collective-bargain-
ing agreement. Respondent no longer operated the garage.
Finally, the complaint alleges that Sadeghi and Rice
were discharged in order to hire replacements who would
work for less than union scale. I do not credit Shayani's
testimony that Mrs. Rubin instructed him to discharge
Rice and replace him with cheaper help. At the time this
allegedly occurred, the garage had been leased to Karr and
according to Mrs. Rubin's undenied testimony she had
instructed Shayani, at Karr's request, not to discharge
anyone. This is corroborated by the attempts by Karr and
Mrs. Rubin to reverse this action immediately upon
learning of it.
I do not credit Rice's testimony that Karr discharged
him. Karr denies doing so, testifying that Rice said he
would not work the new schedule and following Karr's
refusal to return Rice to his old schedule, Rice left the
garage before the end of his shift and only returned several
days later to turn in his uniforms. I credit Karr in this
regard. He impressed me as an honest, reliable witness. He
is no longer involved in the hotel garage operation and
appears to be a disinterested witness. Furthermore, his
undenied testimony is that Shayani expressed doubts that
Rice would work the new schedule and Rice's own
testimony indicates that his negative reaction to the new
schedule was discussed. I note that Rice's testimony in this
regard was less than explicit and did not seem to reveal the
full context. I further note Rice's testimony, that he was
concerned, that he would not receive unemployment
benefits if he was not terminated. This is buttressed by his
curious refusal to give up the termination slip. In the
circumstances, I find that Rice was not discharged in
violation of Section 8(aX 1), (3), and (5) of the Act.
As to Sadeghi's discharge, Shayani first testified that he
selected Sadeghi for discharge after Mrs. Rubin told him to
cut expenses by discharging employees making $3.48 an
hour. Later, he testified that he does not actually recall who
said what regarding getting rid of employees, but he recalls
that the conversation related to the only alternative being
to replace more expensive help with new hires at lower
wage rates. He did not deny Mrs. Rubin's testimony that
when she told him that Sadeghi was requesting vacation
pay he told her that Sadeghi quit, nor does he deny her
testimony that the first time Shayani had ever specifically
discussed Sadeghi with her was after his vacation request.
He also does not deny her testimony that, following a rash
of claims for damaged cars, she instructed Shayani not to
use inexperienced employees, that it was better to have one
good employee at a higher wage than two poor employees
who could not handle the job properly. I credit Mrs. Rubin
in these regards.
Sadeghi testified that Mrs. Rubin came up to him and
abruptly said "you're fired," and refused to give him any
reason. He later testified that he could not remember
whether Shayani told him he was terminated. Mrs. Rubin
denied that she fired him. There is no evidence to refute her
testimony that she did not herself discharge employees, but
that this was done by department heads and termination
slips were used. No termination slip for Sadeghi was
produced herein and there is no evidence to indicate why
she would deviate from her normal practice by personally
discharging Sadeghi. Furthermore, there is no evidence to
establish, and she denies, that she knew Shayani had
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selected Sadeghi for discharge and she creditably testified
that she did not know Sadeghi until he requested vacation
pay. Until then she had thought that this man, whose name
she just learned, worked for Avis because she had seen him
in the garage with Avis cars. Also considering the propensi-
ty to volubility which she displayed on the witness stand, I
consider such a curt, succinct conversation unlikely.
In all of the circumstances including those set forth
above, the fact that no replacements were hired, and that
Wilson was transferred from the parking lot to the garage
even though he made $3.48 an hour,19 I find that the
General Counsel has failed to establish by a preponderance
of the evidence that Respondent violated Section 8(a)(1),
(3), and (5) as alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Miscellaneous Warehousemen, Drivers & Help-
ers, Local 986, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
the International Union of Operating Engineers, Local 501,
are labor organizations within the meaning of Section 2(5)
of the Act.
3. All garage employees employed by Respondent at
7000 Hollywood Boulevard, Los Angeles, California, in-
cluding all attendants but excluding all other employees, all
office clerical employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein, the Miscellaneous
Warehousemen, Drivers & Helpers, Local 986, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America has been, and is now, the exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By failing and refusing to respond to the Teamsters
March 7, 1975, and August 8, 1975, requests to bargain,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as set forth above, Respondent has not
violated Section 8(a)(1) and (5) of the Act.
8. Respondent has not violated Section 8(a)(3) of the
Act as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, I shall recommend that Respondent be ordered
to cease and desist therefrom and from like or related
19 This was the wage rate under the predecessor's collective-bargaining
agreement.
20 In the event that no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
unfair labor practices and take certain affirmative action
designed to effectuate the policies of the Act.
Since Respondent continues as the owner of the garage
facility and there is nothing appearing on the record which
would prevent Respondent from future resumption of its
operation, since the limited evidence on the record indi-
cates that Karr was a successor employer, and since there is
no evidence as to the identity of the current operator of the
garage, if any, or its status as a successor employer, or
Respondent's relationship with it or lack of such, I shall
recommend the issuance of a bargaining order, notwith-
standing that Respondent has lawfully leased out the
garage operation. See U.S. Eagle, Inc., 202 NLRB 530
(1973).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I hereby recommend the
following:
ORDER 2
The Respondent, Hollywood Roosevelt Hotel Co.,
Hollywood, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from failing and refusing to bargain
collectively with Miscellaneous Warehousemen, Drivers &
Helpers, Local 986, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees in the
following appropriate unit:
All garage employees employed by Respondent at 7000
Hollywood Boulevard, Los Angeles, California, includ-
ing all attendants but excluding all other employees, all
office clerical employees, guards and supervisors as
defined in the Act.
2. Take the following affirmative action which will
effectuate the purposes of the Act:
(a) Upon request, bargain with Miscellaneous Ware-
housemen, Drivers & Helpers, Local 986, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive representative of all
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed contract. The bargaining unit is:
All garage employees employed by Respondent or its
successor at 7000 Hollywood Boulevard, Los Angeles,
California, including all attendants, but excluding all
other employees, all office clerical employees, guards
and supervisors as defined in the Act.
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.
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HOLLYWOOD ROOSEVELT HOTEL CO.
(b) Mail a copy of the attached notice marked "Appen-
dix," 21 to each of its employees who were employed at
Respondent's parking garage between March 7 and Octo-
ber 31, 1975. Copies of said notice on forms provided by
the Regional Director for Region 31, shall, after being duly
21 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
signed by Respondent, be mailed immediately upon receipt
thereof.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1409