Hotel, Motel, Restaurant And Hi-Rise Employees And Bartenders Union, Local 355, Afl-Cio (Dupont Plaza Hotel)

National Labor Relations Board - Board Decisions

Jul 24, 1985

275 N.L.R.B. 1176 (N.L.R.B. 1985)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel , Motel, Restaurant and Hi -Rise Employees
and Bartenders Union , Local 355, AFL-CIO
(Dupont Plaza Hotel ), :and Olga ' Marti. Case
12-CB-2692
24-July 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15' April 1985 Administrative Law Judge Mi-
chael O. Miller, issued =the attached decision: The
General Counsel Tiled' exceptions and a supporting
brief, and Respondent'filed an answering brief. ' -
The Board has considered the-'decision and'the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard on February 19, 1985, in Miami, Florida,
based on an unfair labor practice charge filed by Olga
Marti, an individual, on November 16, 1984, and a com-
plaint issued by the Regional Director for Region 12 of
the National Labor Relations Board (the Board) on De-
cember 19, 1984. The complaint alleges that Hotel,
Motel, Restaurant and Hi-Rise Employees and Bartend-
ers Union, Local 355, AFL-CIO (Respondent or the
Union) violated Section 8(b)(1)(A) and (2) of the Nation-
al Labor Relations Act (the Act) by unlawfully condi-
tioning access to hiring hall services upon union consid-
erations. Respondent's timely filed, answer denies the
commission of any unfair labor practices.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue
orally Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Based on the entire record,' including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
I. THE UNION'S LABOR ORGANIZATION STATUS AND
JURISDICTION-PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, and Respondent admits, that at
all times material herein it has been a labor organization
within the meaning of Section 2(5) of the Act.
The complaint alleges, and Respondent admits, that
about September 1, 1983, it has entered into and main-
tained written exclusive' hiring hall agreements with
Hotel Arama, Inc., d/b/a Fontainebleau Hilton (the Fon-
tainebleau), Doral Beach Hotel Corp. (Dora] Beach), and
Bayview Associates, d/b/a Dupont Plaza Hotel (Dupont
Plaza). The complaint further alleges, and Respondent
further admits, that the Fontainebleau, the Doral Beach,
and the Dupont Plaza are each Florida corporations with
offices and places of business in either Miami or Miami
Beach, Florida, where each of them is engaged in the
operation of a hotel providing food and lodging for
guests.
The record establishes that during calendar year 1984,
the Fontainebleau had gross revenues in excess of
$500,000, and purchased in excess of $5000 worth of
goods and materials directly from outside the State of
Florida. The record further establishes that the Board
has previously asserted jurisdiction over both the
Dupont Plaza (Case 12-RC-4759, January 10, 1975) and
the Doral Beach (245 NLRB 561 (1979)). Respondent
has not shown that the operations at either the Dupont
Plaza or the Doral Beach have changed substantially in
the years since the Board last asserted jurisdiction over
those entities . Moreover, there was nothing in the Doral
Beach case from which one could conclude that its oper-
ations in the year in which jurisdiction was asserted were
not typical of its business, and I am aware of no inter-
vening circumstances which would raise the probability
that the business of either the Doral Beach or the
Dupont Plaza has declined in the years since jurisdiction
was last asserted.
Accordingly, I find that the Fontainebleau is an em-
ployer engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(6) and (7) of
the Act. I further find that this employer meets the
Board 's jurisdictional standards with respect to hotel op-
erations. Penn-Keystone Realty Corp., 191 NLRB 1800
(1971). Moreover, applying the presumption "that state
of affairs once shown to exist continues until the con-
trary is shown," I find that both the Dupont Plaza and
the Doral Beach remain employers-engaged in commerce
or in an industry affecting commerce within the meaning
of Section 2(6) and (7) of the Act. Bordo Products Co.,
117 NLRB 313, 314 (1957). (Jurisdiction asserted on the
basis of employer admissions and stipulations in cases
arising 7 and 8 years before the subject case.) I therefore
find and conclude that it will effectuate the purposes of
the Act to assert jurisdiction in this case.
i The unopposed motions of the General Counsel and Respondent to
correct the transcript are granted.
275 NLRB No. 168
HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DUPONT PLAZA HOTEL) 1177
II THE ALLEGED UNFAIR LABOR PRACTICES
A. Operation of the Hiring Hall
By written or oral agreements with the Fontainebleau,
Doral Beach , Dupont Plaza , and other hotels in the
Miami and Miami Beach area , the Union maintains an ex-
clusive hiring hall for banquet waiters, waitresses, and
bartenders . The agreements require the employers to
seek employees in those categories through the Union's
hiring hall and further requires that the Union furnish
qualified applicants to the employers . The hiring hall
agreements specifically require that the hiring hall be op-
erated "in a completely impartial manner , without regard
to union or nonunion membership" and in conformity
with the Act.
Referrals to work from the hiring hall are made, essen-
tially, from two categories of job seekers, those who pos-
sess rollcall numbers and those who do not Priority is
given to holders of rollcall numbers . Pursuant to Re-
spondent's rules, rollcall numbers are issued to those ap-
plicants who are eligible on the basis of their experience
or training . The rules require that roll call numbers be
applied for during an open period which is held only be-
tween March 15 and May 15 of each year .2 The hiring
hall rules, which `are posted in conspicuous places in the
hiring hall, further provide as follows:
9. Registrants seeking work must do so through the
Employment Office. All registrants must show their
Union book or service fee payment card for proper
identification
10. All payments of Union dues or service fees, as
applicable , must be current and uninterrupted to be
eligible for referral to work . If a registrant fails to
pay Union dues or service fees for two months,
then the registrant shall forfeit his or her roll call
number until new roll call numbers are issued to all
applicants The service fee is $12 . 50 per month.
This service fee shall be used for all purposes relat-
ing to the administration and operation of the Em-
ployment Office and these Rules and Regulations.
11. Referral to jobs will proceed according to the
-exact order of number on the roll call list , and shall
rotate automatically
During 1984, there were 630 employees who possessed -
rollcall numbers . They received the majority of the ban-
quet work assigned through the hall; only if there were
an insufficient number of employees with rollcall num-
bers to satisfy the demand for waiters and waitresses
were other job seekers given an opportunity to work.
Jobs not filled by those possessing rollcall numbers are
referred to as overflow work and those waiters and wait-
resses seeking work without a rollcall number are re-
ferred to as overflow workers. Pursuant to the Union's
2 Prior to 1984, the open period for the acquisition of rollcall numbers
was held between September I and October 1 The current rules were
adopted sometime prior to March 15, 1984, as testified to by Peter Ro-
sario, Respondent's employment dispatcher The record clearly indicates
that Alvaro Gonzalez, Respondent's secretary treasurer and business
manager, misspoke when he testified to a later adoption of those rules
rollcall rules, small jobs, those calling for less than' five
waiters or waitresses, are not processed through the roll-
call.
The Respondent has a procedure for notifying
employee/members who are at risk of suspension for,
nonpayment of dues Pursuant to this procedure, when a
member becomes 30 days delinquent in his or her dues
payments, a postcard, in both English and Spanish, is
mailed to that individual informing him or her of the sus-
pension rule and the fact that that member appears to be
30 days in arrears. It requests dues payment' prior to the
end of the month "so that you can continue in good
standing and protect your full benefits and privileges." A
member failing to pay those dues within the following
month is automatically suspended. Suspended members
receive a letter from the Union, again bilingual, inform-
ing that member of the new status but offering the sus-
pended member assistance in securing employment. The
assistance offered is in finding regular employment, not
hiring hall related employment, and the service is offered
without charge.
Notwithstanding the references to service fees in the
hiring hall and rollcall number rules, all of the job seek-
ers possessing rollcall numbers, and apparently all of the
registrants utilizing the hall, are union members. At the
present time, there are no individuals who are paying
service fees in lieu of union dues.3
As previously noted, the rules provide that a rollcall
number will be lost when its holder becomes 2 months in
arrears in either union dues or service fees They further
provide that a new rollcall number may not be assigned
until the next open period, i.e., March 15 through May
15. The record contains no evidence to establish that any
exceptions to these rules have been made. Neither is
there any evidence that anyone who has sought a rollcall
number on the basis of being a service fee payer has been
refused. .
There is no question but that applicants possessing
rollcall numbers have greater job opportunities than
those who do not. Overflow work is quite limited How-
ever, when working overflow, an employee earns the
same wage as those working through a rolicall number.
B. Olga Marti
Olga Marti has been a member of the Union for ap-
proximately 8 years She worked as a banquet waitress
and held a rollcall number prior to her suspension. She
was aware of the hiring hall rules and knew that she
would lose that rollcall number if she was suspended for
failure to maintain current membership status.
Marti paid her dues through March 30, 1984 Thereaf-
ter, as a result of having secured other employment,
Marti ceased paying dues. On May 1, she was sent the
card advising that she was 1 month in arrears and urging
her to pay her dues prior to the end of May in order to
avoid suspension and loss of benefits. Additionally, Ro-
sario attempted, albeit unsuccessfully, to call Marti in
order to warn her of her impending suspension.
The General Counsel makes no contention in this case that the serv-
ice fee is not reasonably related to the costs of operating the hiring hall
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Marti was automatically suspended when she failed to
pay the second month's dues by May 31, 1984. Sometime
thereafter she received the letter notifying her of that
suspension 4
-On August 9, 1984, Marti contacted Respondent for
the first time since March 30.5 She spoke first with
Maria Araguez, the Union's receptionist. Marti told Ara-
guez that she wanted to come back into the Union, to be
a union member again, and to work banquets. Araguez
told Marti.that she had been suspended and had lost her
rollcall number, and that she would have to see the em-
ployment dispatcher, Rosario. 'Marti told Araguez that
she had ceased paying her dues because she had secured
other employment.
After speaking to Araguez, Marti spoke with both Ro-
sario and Gonzalez. She repeated her desire to rejoin the
Union to each of them and requested that she be given
her rollcall number back. Each told her that she was
welcome to rejoin the Union-upon the payment of a rein-
statement fee; each also told her that she could not get
her rollcall number back until the next' open period,
March 15, 1985, pursuant-to the rollcall and hiring hall
rules. Rosario questioned why she had not contacted the
Union earlier, particularly with respect to the mugging,
and suggested that if she had called him he might have
been able to help her out,'even to the extent of advanc-
ing her dues payments for' her: Gonzalez and Rosario
suggested that Marti would be able to get overflow
work and promised her work on the small parties not re-
quiring a rollcall number.
Marti knew, when she came to the office on August 9,
that she would have to pay a reinstatement fee in order
to rejoin the Union. Rejoining the Union was her inten-
tion, she never sought or requested service fee'payer
status. At all times, Marti was informed that she could
not regain her rollcall number until the next open period.
There is no evidence that any representative -of the
Union conditioned the return of Marti's rollcall number
or the assignment of overflow work to Marti upon the
payment of a reinstatement fee. There is no overflow
hiring hall list. Individuals seeking overflow work secure
it by coming to the hall or calling the hall Marti did not
ask for referral from the hall, as either a rollcall number
holder or for overflow work, on the basis of service fee
payment.
The rollcall - rules provide a grievance procedure
through an employment office committee. Marti never
brought'any complaint concerning the Union's refusal to
restore her rollcall number to that committee.
C. Analysis and Conclusions
The General Counsel concedes that a union . may
charge reasonable service fees which are related to the
cost of 'operating its hiring hall as a condition of access
4 Marti testified that on June 6, before she received that letter, she
made an effort to come to the union office to pay her arrearages She had
the misfortune of being mugged and injured on her way to the union
office She did not inform anyone in the Union of this unfortune event
until her August 9 conversations with Rosario and Gonzalez
b It is immaterial whether Marti called the Union on that date before
coming in or merely came directly to the Union
to that hall 's services . 6 In the instant case, however, the
General Counsel contends that Respondent Union's
maintenance of its hiring hall rules violated Section
8(b)(1)(A) and (2) by conditioning rollcall number refer-
rals upon maintenance of union membership in good
standing and threatening employees with loss of employ-
ment for failure to maintain membership . Thus, the Gen-
eral Counsel argues that rule 10, supra , stating that "All
payments of Union dues or service fees, as applicable,
must be current and uninterrupted to be eligible for re-
ferral to work ," requires union members to pay dues and
does not give individuals a choice of paying dues or
service fees. Alternatively , the General Counsel argues
that even if the language of rule 10 does not expressly
require union membership, it is ambiguous and that the
ambiguity must be construed against the rule's promulga-
tor. , Respondent , on the other hand , contends that the
hiring hall rules are clear on their face and lawfully con-
dition referral on current payment of either dues or serv-
ice fees, with the choice being left to the registrant-em-
ployee . Pacific Maritime Assn., 155 NLRB 1231 ( 1965).
See also C.B. Display Service, 260 NLRB 1102 ( 1982).
The General Counsel ' s contentions, I find , require a
strained and selective reading of the rules and are with-
out merit . Rule 9 , stating that "All registrants must show
their. Union book , or service fee payment card for proper
identification [when seeking referral] ," and rule 10, as
stated above , clearly indicate that the Union has given a
lawful choice to each registrant . In this regard , it must
be noted that rule 10 further states, following the lan-
guage quoted above, that registrants forfeit their rolicall
numbers (until the next open period ) by failing to pay
"Union dues or service fees for two months." That rule
clearly sets forth both the amount of the service fee and
the purposes for which it will be used . There is neither
facial invalidity nor ambiguity in such language.
The General Counsel would buttress here arguments
by pointing to the registrant payment receipt form which
does not include a column for receipt of service fees, the
absence of service fee payers among all of those who uti-
lize the hiring hall, and the notice sent out after 1
month 's arrearage , which refers only to the necessity to
pay dues in order to maintain good standing and protect
full benefits and privileges . These do not establish that
the Respondent required union membership of the hiring
hall registrants . Maria Araguez, Respondent 's reception-
ist, explained that she had been instructed to record serv-
ice fee payments under the dues column of the payment
receipt form. In light of the fact that there were no serv-
ice fee payers, the absence of a separate column to
record payments they would make if there were any is
hardly evidence that a registrant could not have selected
that status if he or she chose to do so. Similarly , the fact
that everyone currently using the hiring hall is a union
member is not evidence that union membership is a con-
dition of that use or that a registrant who proffered the
service fee would be denied access .7 Neither can I find
6 Operating Engineers Local 825 (H John Homan Co), 137 NLRB 1043
(1962)
I At best, the absence of service fee payers is suspicious Suspicion is
not evidence The unanimity of union membership may also indicate sat-
isfaction with the Union' s representation
HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DUPONT -PLAZA HOTEL)
any support for the General Counsel 's contentions in the
30-day notice. That notice was sent to union members
who were a month in arrears and it properly notified
them of the risk of suspension . That card does not estab-
lish or even hint at union membership as a condition of
referral.
On brief, the General . Counsel contended for the first
time that Respondent breached its "fiduciary " duty to
inform Marti that failure to pay union dues would result
in the lois of her rollcall number . Assuming , arguendo,
that this issue may properly be considered ,8 I would find
it to be without merit .- Marti was fully aware of her obli-
gations She was also given a timely reminder that she
was in arrears and Rosario made additional efforts, albeit
unsuccessfully , to help her avoid suspension. The Union
did what it was required to do.
Finally, , the General Counsel pleaded and asserted at
hearing that Respondent had conditioned Marti 's place-
ment on the Union's overflow hiring hall list upon her
payment of a reinstatement fee. There was no evidence
to support this contention . The Union did not maintain
an "overflow hiring hall list ." All hiring hall registrants
were eligible for overflow work . Moreover , the Union
8 See Seaward International , 270 NLRB 1034 (1984), where the Board
rejected a late amendment of complaint to encompass evidence earlier in-
troduced as "background" as being unjust , notwithstanding that "the
barest minimum of due process"- had been satisfied Here, the General
Counsel neither amended the complaint nor asserted this theory of viola-
tion at hearing
1179
did not condition anything upon Marti 's payment of a re-
instatement fee. Marti asked to be reinstated ; indeed, at
all times it was the status of a union member which she
sought. The Union welcomed her back and treated her
no worse than anyone else who had been in arrears in
the payment of either dues or service fees. In fact, Marti
was offered the Union 's full cooperation and assistance in
securing both overflow and small party jobs until she
could once again acquire a rollcall number.
Accordingly, for all of the reasons set forth above, I
shall recommend that the complaint be dismissed in its
entirety.
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed9 -
ORDER
The complaint is dismissed in its entirety
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses