Hotel & Restaurant Employees Local 19 (Le Baron Hotel)

National Labor Relations Board - Board Decisions

Sep 18, 1986

281 N.L.R.B. 524 (N.L.R.B. 1986)

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotel, Motel, Restaurant Employees and Bartenders
Union Local 19, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-
CIO and Le Baron Hotel and Sherman
Maddox . Cases 32-CB-1669 and 32-CB-1884
18 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 25 June 1986 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order2
as modified. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Hotel , Motel , Restaurant Employees and
Bartenders Union Local 19, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, San Jose, California, its officers, agents,
and representatives, shall take the action set forth
in the Order as modified.
1. Substitute the following as paragraph 2(a).
"(a) Offer reimbursement with interest to those
employees who tendered back dues and/or rein-
statement fees solely in reliance on the Respond-
ent's notification that employees must pay such
dues and/or fees under penalty of termination."
1 We agree with the judge that the Respondent violated Sec
8(bXIXA) of the Act by attempting to collect back dues from employees,
under threat of discharge , during the hiatus period between I June 1983
and 1 April 1984 when the parties were without a contract The Re-
spondent engaged in similar conduct with respect to Sherman Maddox in
September 1984 by attempting to collect from him a $160 reinstatement
fee that the Respondent conceded included back dues from the contrac-
tual hiatus . See Auto Workers Local 376 (Emhart Industries), 278 NLRB
285 (1986).
8 The General Counsel has requested that the Order include a visita-
torial clause authorizing the Board , for compliance purposes, to obtain
discovery from the Respondent under the Federal Rules of Civil Proce-
dure under the supervision of the United States court of appeals enforc-
ing this Order . Under the circumstances of this case , we find it unneces-
sary to include such a clause Accordingly, we deny the General Coun-
sel's request
3 The judge 's recommended Order does not require the Respondent to
reimburse employees the back dues that were unlawfully collected prior
to I June 1984 Accordingly , we modify the Order to provide such reim-
bursement
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with dis-
charge for refusing to tender periodic dues during
a time when they are not contractually bound to
do so.
WE WILL NOT refuse to make available the same
dues reductions to all similarly situated employees,
in contrast to our arbitrary and capricious refusal
to do so with regard to Sherman Maddox in 1984
following the execution of a new labor contract.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse with interest those employ-
ees who tendered back dues and/or reinstatement
fees solely in reliance on our notification that em-
ployees must pay such dues and/or fees under pen-
alty of termination.
HOTEL, MOTEL, RESTAURANT EM-
PLOYEES AND BARTENDERS UNION
LOCAL 19, HOTEL AND RESTAURANT
EMPLOYEES AND BARTENDERS
INTERNATIONAL UNION , AFL-CIO
David Dominguez, for the General Counsel.
William A. Sokol, of San Francisco, California, for the
Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge. This
consolidated case was heard 5 and 6 March 1986 at Oak-
land, California. The respective charges filed 28 Decem-
ber 1983 and 15 October 1984, and the consolidated
complaint embodying an order withdrawing prior ap-
proval of a settlement in Case 32-CB-1669 only, issued
29 November 1984 . The primary issues are whether
Hotel, Motel, Restaurant Employees, and Bartenders
Union 19 , Hotel and Restaurant Employees and Bartend-
ers International Union , AFL-CIO (Respondent), forced
and attempted to force employees, under threat of loss of
employment, to pay dues for a period when no collec-
tive-bargaining agreement was in effect, accepted dues
that it caused an employer to remit notwithstanding such
281 NLRB No. 86
HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (LE BARON HOTEL)
action to be assertedly exceeding scope of any dues-
checkoff authorization , and discriminated against the in-
dividual filer of an RD petition with respect to dues re-
ductions made available to members generally , and has
thereby violated Section 8(b)(1)(A) of the Act.
On the entire record , including my observation of the
demeanor of witnesses , and after consideration of briefs
filed by the parties, I make the following
FINDINGS OF FACT
1. JURISDICTION
Le Baron Hotel , a California corporation with an
office and place of business in San Jose, California, and
the employer to which facts of this case relate, is en-
gaged in the operation of a hotel providing food and
lodging for guests, annually deriving gross revenues from
such business operations in excess of $500,000 while pur-
chasing and receiving goods or services valued in excess
of $5000 that originated outside California. On these ad-
mitted facts, I find that Le Baron Hotel is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
Based on an established collective -bargaining relation-
ship, Respondent and this Employer had been parties to
a labor agreement effective from 1 June 1980 through 31
May 1983. It contained a union -security provision calling
for membership in the Union following 30 days of em-
ployment and a related dues -checkoff clause . Section 30
describing the period of the agreement read , in part, as
follows:
It is further understood that either party may
reopen this contract at least sixty (60) days prior to
its expiration on May 31 , 1983 , and give notice of
its desire to change , modify, or alter this Agree-
ment . In the event no such notice is given prior to
May 31 , 1983 , this contract shall be automatically
extended from year to year beyond the expiration
date set forth ... .
On 15 March 1983 Respondent gave reopener notice
to the Employer. This letter was cast in terms of the rep-
resented employees ' wishes with respect to the obtaining
of a new contract . In pertinent part the letter referred to
a "desire to change , modify and alter our collective-bar-
gaining agreement presently in force," and continued
with reference to the section 30 notice provisions by ex-
pressing the particular desire "to change , modify and
alter wage scales, working conditions and fringe bene-
fits." Following this the parties bargained but failed to
reach a new agreement by the 31 May 1983 expiration
date . Negotiations extended until the following spring
when, on 1 April 1984, a new agreement was entered
into with its effective date specified to be 1 June 1983.
Throughout the yearlong course of bargaining the parties
had disputed , in written and oral communications,
whether the old contract had continued in force and
525
effect beyond its expiration date of 31 May 1983. The
Employer had asserted as early as a letter dated 20 May
1983 from its then general manager , Ralph Molter, that
there would "be no contract in force" from 1 June 1983
onward, while Respondent , in a written reply dated 31
May 1983 from its financial secretary-treasurer, Vincent
Curci Jr., claimed that the contract would continue "in
full force and effect" until renewed or the reaching of
impasse.
Employee Sherman Maddox, the Charging Party in
Case 32-CB-1884, had filed an RD petition on 21 March
1983 . Processing of this case was withheld during the
several months following until withdrawn by Maddox in
October 1983 . Maddox's employment spanned September
1981 to November 1984 during which time he had been
a cook and chef, these occupations being among the
highest paid of all contract classifications . He testified
that in March 1983 episodes had occurred at the work-
place involving several officials of Respondent , who gen-
erally expressed displeasure at his action in filing the RD
petition . This testimony included an uncontroverted
recollection that Daniel Fragnito, Respondent's execu-
tive vice president, had menacingly cursed him in this
same connection.
The Employer had ceased making dues deductions as
of 1 June 1983 , however its position , as summarized in its
attorney's letter to Respondent dated 9 June 1983, was
that no change was contemplated concerning employee
terms and conditions of employment , and specifically
that contributions to the benefits trusts would continue.
Respondent was, however , faced with cessation of the
automatic flow of dues income from this group of mem-
bers, and it took various actions to restore such income
insofar as possible.
After recording the status of suspension on its mem-
bership records for most employees of the bargaining
unit in September 1983 , Respondent sent each of them
dues delinquency notices the following month . These no-
tices cautioned that, based on the delinquency, the
person "may be removed from the job." A few individ-
uals responded with voluntary dues payment during this
"hiatus" period when no collective-bargaining agreement
was in effect, however, most simply declined to pay by
inaction . In two particular cases, those of employees
Kevin Coonrod and Larry Dunder , dues were paid spe-
cifically to guard against a loss of employment from not
doing so. The uncontradicted testimony of Coonrod es-
tablished that a known cashier functionary at Respond-
ent's San Jose, California office accepted his dues in late
1983, both knowing he was employed at the hotel and
saying to him at the time that without payment he would
have lost his job.
After execution of the new contract in the spring of
1984, one of the subjects coordinated between the Em-
ployer and Union was that of dues withholding and
transmission . The new contract had a typical union-secu-
rity clause; however, then Personnel Director Robin
Gruender testified how her general manager at the time
had advised that the hotel would participate in collection
of back dues on behalf of the Union. Such advice fol-
lowed only shortly in point of time from an exploratory
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting held at the hotel between Gruender for the Em-
ployer and Fragnito along with Curci for the Union, in
which the two representatives of Respondent stated their
purpose was to promptly obtain payment of "back dues"
from employees now that a new contract had been
signed . This fundamental decision was implemented in
meetings or other contacts between Gruender and Frag-
nito soon after the contract was executed and, by use of
membership records, notices to employees were prepared
on the subject of dues payment to the Union.
The initial development was a comprehensive listing of
employees by Fragnito on which he had entered dollar
amounts that the Union hoped to collect from each
person. Fragnito's technique was that of offering a "spe-
cial" one-time discount whereby the individual would
only need pay half the claimed amount and could do so
in two installments during June and July 1984 by payroll
deductions. By its terms this discount program, as con-
tained in Respondent's notice to the attention of all em-
ployees, had a stated expiration time of 9 July 1984, after
which dues would need be paid at "the full rates." This
advice as supplied from the Union applied to each
person left after Gruender and Fragnito had made up-to-
date status corrections, and the Employer passed out
corresponding notices through its supervisors. Employ-
ees had also been given forms on which they could
effect dues withholding from their pay or a direct, vol-
untary payment plan, while the special dues assessment
for banquet employees was brought to the attention of
this group.
The upshot was that, with the exception of Maddox,
Respondent's special discount offer was accepted by all
affected employees, and by September 1984 the flow of
dues had returned to normal. Maddox, however, had not
paid, and in mid-September 1984 Fragnito prepared a
notice of his arrearage for the Employer in which the
mandatory discharge provisions of the contract were in-
voked. This notice set forth calculations on his arrearage
including what was termed an initiation fee amount.
Fragnito also met with Maddox later in September and
presented him with a comparable notice in which a 10-
day period was allowed to cure the arrearage. On the
particular form used as a basis of discussion between
Fragnito and Maddox at the hotel premises on this
second occasion, the term "initiation fee" had been re-
named a membership "reinstatement fee." The document
also specified on its face that the months of June-Sep-
tember 1984 were those in arrears. Maddox testified that
he argued the size of the amount claimed by Fragnito,
but ended up submitting the Union a check just ahead of
the specified deadline. This check was never in fact
cashed, and Maddox resigned his position with the Em-
ployer soon thereafter.
B. Analysis
An initial procedural issue is whether the General
Counsel is barred from proceeding in this matter by the
time limitations contained in Section 10(b) of the Act.
Here Respondent notes that originally Case 32-CB-1669
was officially settled and thereafter, following the filing
of Case 32-CB-1884, the Regional Director withdrew
his previous approval of that settlement agreement. Re-
spondent established that in this regard Maddox, the
Charging Party in Case 32-CB-1884, had submitted a
withdrawal request and from this it argues that an under-
cutting of the General Counsel's entitlement to proceed
resulted. I note first that the withdrawal request of
Maddox was never approved by the Regional Director,
and more significantly that established doctrine permits
the General Counsel to litigate matters embraced in a
settlement agreement later validly set aside. For these
reasons I reject Respondent's particular defense that Sec-
tion 10(b) applies to the case. Conair Corp., 261 NLRB
1189 (1982).
The more notable threshold question is whether the
1980-1983 contract continued in effect beyond its stated
expiration date of 31 May 1983. Regarding this I find
that Respondent's written reopener notification of 15
March 1983, a timely action in terms of the contract's
own language on duration, served to terminate the agree-
ment when its timespan was reached. On this point the
Board's rationale in Oakland Press Co., 229 NLRB 476
(1977), is both instructive and controlling. The approved
language in that decision stated, in part, that:
A collective-bargaing agreement is a total docu-
ment. Changes in one or more of its terms necessari-
ly implies termination of the agreement and emer-
gence of a new one. The Union's March 15 letter
necessarily implied termination.
... The question is whether or not the letter of
March 15 was sufficient to terminate the contract
such that the Respondent would be required to ne-
gotiate with the Union for a successor agreement
and bargain in good faith on all mandatory subjects.
... The Union substantially complied with the
termination clause of the contract . . . There can be
no doubt concerning what the Union had in mind-
to reopen the collective-bargaining agreement for
negotiation on all matters involving wages, hours,
and terms and conditions of employment. In short,
to terminate the 1973-1976 contracts and negotiate
new ones at any time.
Here there is complete logic to the conclusion that the
Union's reopener notice caused a noncontract hiatus
from and after 31 May 1983 because its letter referred
specifically to that section of the agreement in which any
timely expression of a desire to in some way revise the
prior contract would simultaneously serve to effect its
termination . Thus the parties were without a contract for
the 10 months that followed, and this key factor is large-
ly influential in resolution of particular remaining issues
of the case.
It is apparent that Respondent was determined to
recoup dues for the hiatus period, and to this end per-
suaded executive level personnel of the Employer to co-
operate in the process. This is shown from the verbalisms
experienced by Gruender, the use of the phrase dues "in
arrears" in Respondent's "delinquent notice" to employ-
ees as issued during late 1983 (in which the possible loss
of the employee's job was conjured up in connection
with the payment campaign), and the reference in Re-
spondent's own summarizing document (G.C. Exh. 29) to
HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (LE BARON HOTEL)
unremitted dues deductions for employee Joaquin Pla
"for the time era of November 1983 ." See Automobile
Workers Local 376 (Emhart Industries), 278 NLRB 285
(1986).
Regarding Maddox , himself, I infer from Fragnito's in-
sufficient explanation of dues calculations , the undenied
expressions of past animus toward him , and Gruender's
creditable testimony that Fragnito cryptically distin-
guished Maddox from others for whom dues discounts
were being offered, that Respondent singled Maddox out
for retaliatory and punitive financial liability under the
guise of reestablishing his good -standing membership in
the organization . In this same context Fragnito 's dealings
with Maddox in September 1984 constituted a threaten-
ing with discharge for failure to abruptly pay dues for
which he was not afforded an adequate notice of obliga-
tions.
On a separate issue raised in the complaint, I do not
find that passing reference to possible loss of insurance
benefits, as rooted in union membership, was an action-
able reference by Respondent as made in its basic de-
scription of the "special rate" dues collection plan. Here
the General Counsel has not shown that any insurance
benefits previously enjoyed by employees were not an
exclusive feature of their union membership , and such a
reminder, without more, does not constitute a violation
of the Act.
CONCLUSIONS OF LAW
1. Le Baron Hotel is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent, Hotel, Motel , Restaurant Employ-
ees and Bartenders Union Local 19, Hotel and Restau-
rant Employees and Bartenders International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent, by causing the Employer to make ret-
roactive dues deductions from the pay of employees who
were employed during the hiatus, or were hired during
the hiatus or within a period prior to 30 days after the
execution of a new collective -bargaining agreement, and
accepting such payments, has violated Section 8(b)(1)(A)
of the Act.
4. Respondent, by refusing to make available to Sher-
man Maddox the same reduction in dues made available
to other employees similarly situated because of his con-
certed, protected activities, including the filing of an RD
petition, has violated Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that the Respondent has engaged in un-
lawful conduct in violation of Section 8(b)(1)(A) of the
Act, I shall order it to cease and desist and to take cer-
tain affirmative action designed to effectuate the policies
of the Act. Specifically, I shall require the Respondent to
reimburse with interest any employee who tendered dues
and/or reinstatement fees on 1 June 1984 and thereafter
solely in reliance on representations in a notification that
employees must pay such dues and/or fees under penalty
of termination. Interest shall be computed in the manner
527
prescribed in Florida Steel Corp., 231 NLRB 651 (1977).
(See generally Isis Plumbing Co., 138 NLRB 716 (1962).)
Which, if any, employees are entitled to such reimburse-
ment shall be established in a compliance proceeding.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent , Hotel, Motel, Restaurant Employees
and Bartenders Union Local 19, Hotel and Restaurant
Employees and Bartenders International Union, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with discharge for refusing
to tender periodic dues to the Respondent during a time
they were not contractually obligated to do so.
(b) Refusing to make available to Sherman Maddox
the same reduction in dues made available to other simi-
larly situated employees because of arbitrary and capri-
cious reasons.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer reimbursement to those employees who ten-
dered back dues and/or reinstatement fees on 1 June
1984 and thereafter solely in reliance on Respondent's
notification that employees must pay such dues and/or
fees under penalty of termination.
(b) Post at each of its offices and meeting halls in San
Jose, California, copies of the attached notice marked
"Appendix ."2 Copies of the notice, on forms provided
by the Regional Director for Region 32, after being
signed by the Respondent 's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to mem-
bers are customarily posted . Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered , defaced , or covered by any other material.
(c) Mail forthwith to the Regional Director for Region
32 copies of the notice for posting by Le Baron Hotel, if
it is willing, in places where notices to its employees are
customarily posted.
(d) Notify to the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
I If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."