Le Rendezuous Restaurant

National Labor Relations Board - Board Decisions

Sep 25, 2000

332 N.L.R.B. 336 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
Bultman Enterprises, Inc. d/b/a Le Rendezvous Res-
taurant and Taber Partners I d/b/a Ambassador
Plaza Hotel & Casino, A Radisson Plaza Hotel
and Union Gastronomica De Puerto Rico, Local
610, HEREIU, AFL–CIO. Case 24–CA–7129
September 25, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On April 14, 1997, the National Labor Relations Board
issued a Decision and Order in this proceeding,1 which
found that Respondent Taber Partners I d/b/a Ambassa-
dor Plaza Hotel & Casino, A Radisson Plaza Hotel (the
Hotel) violated Section 8(a)(1) of the National Labor
Relations Act by threatening its employees with dis-
charge because of their union activities and membership
in the Union. The Board ordered the Hotel to cease and
desist and to take certain affirmative action necessary to
effectuate the policies of the Act. The Board also found
that Respondent Bultman Enterprises, Inc. d/b/a Le Ren-
dezvous Restaurant (Bultman), a successor to the Hotel,
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union, by failing to sup-
ply the Union with requested information, by unilaterally
lowering the restaurant employees’ wages, and by other-
wise departing from the terms of the Union’s collective-
bargaining agreement with the Hotel,2 and violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to consider for
employment and by refusing to hire a substantial portion
of the Hotel’s restaurant employees because of their af-
filiation with the Union.
The Board, however, severed for further consideration
the issues of the joint employer status of the Hotel and its
joint liability for the unfair labor practices engaged in by
Bultman. The Board stated that it was severing those
issues in light of the oral argument held in the then-
pending cases of Jeffboat Division, American Commer-
cial & Marine Services Co., and T. T. & O Enterprises,
Inc., 9–UC–405; M.B. Sturgis, Inc., 14–RC–11572; and
Value Recycle, Inc., 33–RC–4042.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On review of the judge’s decision and the record relat-
ing to the joint employer issue in light of the Hotel’s ex-
ceptions and briefs, we have decided to affirm the
judge’s finding that the Hotel is a joint employer with
Bultman of the restaurant employees.3

1 323 NLRB 445.
2 As noted infra, Bultman and the Hotel are joint employers. How-
ever, the General Counsel does not seek a finding that the Hotel vio-
lated its duty to bargain or a remedial bargaining order that runs to the
Hotel as well as Bultman. Thus, the bargaining order runs only to
Bultman and is confined to those terms and conditions of employment
controlled by Bultman.
In its recent decision in M.B. Sturgis, Inc., 331 NLRB
No. 173 (2000), however, the Board declined to reexam-
ine or change extant Board precedent concerning the
joint employer standard.4 Thus, as stated in Sturgis, slip
op. at p. 4:

Under current Board precedent, to establish that
two or more employers are joint employers, the enti-
ties must share or codetermine matters governing es-
sential terms and conditions of employment. NLRB
v. Browning-Ferris Industries, 691 F.2d 1117, 1123
(3d Cir. 1982); Riverdale Nursing Home, 317 NLRB
881, 882 (1995). The employers must meaningfully
affect matters relating to the employment relation-
ship such as hiring, firing, discipline, supervision,
and direction. Riverdale, 317 NLRB at 882, citing
TLI, Inc., 271 NLRB 798 (1984).

Here, we find that the judge correctly applied that
precedent to the facts of the present case in concluding
that the Hotel and Bultman are joint employers. In sum,
the judge based his joint employer finding on the Hotel’s
active involvement in Bultman’s hiring of a nonunion
work force to replace the Hotel’s existing work force,
and the terms of the concession agreement between the
Hotel and Bultman. This agreement gave the Hotel the
right to require Bultman to (1) ensure that its employees
adhere to all rules established by the Hotel for its own
employees; (2) demand attendance of Bultman’s em-
ployees at orientations for the Hotel’s employees; (3)
discipline and/or discharge any Bultman employees
whom the Hotel finds objectionable; and (4) “quit and
surrender” the concession area to the Hotel in the event
Bultman defaulted in fulfilling any of the covenants of
the concession agreement. Indeed, the record shows that
the Hotel exercised the authority granted to it by the con-
cession agreement, at least through its involvement in the
hiring and disciplinary process.5 Accordingly, for all
these reasons, we agree with the judge that the Hotel is a
joint employer with Bultman of the restaurant employ-
ees.
On the basis of the joint employer finding, the General
Counsel seeks an order requiring the Hotel to make
whole the employees affected by Bultman’s violations of
Section 8(a)(3) and (1) of the Act. The leading Board
3 In doing so, we find it unnecessary to rely on Thriftown, Inc., 161
NLRB 603 (1966); and Globe Discount City, 171 NLRB 830 (1968),
discussed by the judge.
4 See M.B. Sturgis, 331 NLRB No. 173, slip op. at 2.
5 See Le Rendezvous Restaurant, 323 NLRB 445, 454 fn. 16 (1997).
332 NLRB No. 31
LE RENDEZVOUS RESTAURANT 337
case on joint employer liability for discriminatory em-
ployment actions is Capitol-EMI Music, 311 NLRB 997
(1993), enfd. 23 F.3d 399 (4th Cir. 1994), which was not
cited by the judge.
Although Capitol-EMI differs from this case in that the
joint employer relationship there involved a situation
where one employer supplied employees to a second
employer, the test for joint liability applies equally as
well to the facts here. Thus, in order to determine
whether the Hotel is jointly liable for the remedial obli-
gations of Bultman, we apply the allocation of burdens
established in Capitol-EMI, 311 NLRB at 1000:

The General Counsel must first show (1) that two em-
ployers are joint employers of a group of employees
and (2) that one of them has, with unlawful motivation,
discharged or taken other discriminatory actions against
an employee or employees in the jointly managed work
force. The burden then shifts to the employer who
seeks to escape liability for its joint employer’s unlaw-
fully motivated action to show that it neither knew, nor
should have known, of the reason for the other em-
ployer’s action or that, if it knew, it took all measures
within its power to resist the unlawful action.

Here, the first prong of the test is met because, as
stated above, we agree with the judge that the Hotel and
Bultman are joint employers of the group of employees
that work in Le Rendezvous Restaurant. The second
prong of the test is also satisfied because, as found in our
previous decision, Bultman discriminatorily refused to
consider for employment and refused to hire the Hotel’s
restaurant employees because of their union affiliation.
Thus, in order to escape liability, the Hotel must show
that it did not know, nor should it have known, of the
reasons for Bultman’s discriminatory actions against the
employees, or that it knew but did all it could to prevent
the unlawful actions. We find that the Hotel has failed to
meet this burden. First, the fact that the Hotel knew that
Bultman was seeking to discriminate against union-
represented employees is evidenced by the comments of
the Hotel’s general manager, Ralph Morales, written as a
response on a memo from Bultman to him. The memo
stated that in order to run the restaurant successfully, all
union-represented personnel, except for some 10 to 12
employees, would have to be discharged. In his respon-
sive comments on the memo, Morales urged Bultman not
to retain any union-represented personnel for fear they
might be “contaminated,” i.e., hold prounion sympathies.
Further evidence of the Hotel’s knowledge of Bultman’s
discriminatory activity is the fact that after the union-
represented employees were discharged, interviews for
new employees took place at the Hotel, and the chief of
the Hotel’s food and beverage department, Noel Garcia,
participated in interviewing the job applicants. Despite
the fact that many former employees of the Hotel’s res-
taurant had submitted applications, none were inter-
viewed. When employee Juan Colon asked why, Garcia
replied that those were the orders from Bultman. Thus, it
is clear that the Hotel knew not only that Bultman was
seeking to discriminatorily avoid hiring any union-
represented employees, but that the Hotel also assisted in
the discrimination. Having been a willing participant in
the discrimination, the Hotel clearly cannot escape liabil-
ity by showing that it “took all measures within its power
to resist the unlawful action,” as required by Capitol-
EMI.
For the reasons stated above, we find that the Hotel is
jointly liable for Bultman’s violations of Section 8(a)(3)
and (1), and we shall so provide in our remedial Order.
ORDER6
The National Labor Relations Board orders that the
Respondent, Taber Partners I d/b/a Ambassador Plaza
Hotel & Casino, a Radisson Plaza Hotel, San Juan,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to consider for employment, failing to hire,
or otherwise discriminating against its employees be-
cause of their union affiliation.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to
all the following employees, whose names are set forth
below, and all other persons formerly employed in the
food and beverage department who were not hired as of
December 1, 1994, full reinstatement to the positions
denied them or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority rights or privileges previously enjoyed, dis-
charging, if necessary to make room for them, employees
hired from sources other than the employees who were
formerly employed by the Respondent Ambassador Plaza
Hotel & Casino, in the food and beverage department:

Juan Colon Marin Carmen Silva Rivera
Juanita Vega Laguer Carmen Gisela del Prado
Lesley Ann Vazquez Julio Alvarez
Elke Feliciano Torres Jesus Rivera Molla

6 Because the record shows that the majority of the Hotel’s employ-
ees are Spanish-speaking, we order the notices to be posted in both
English and Spanish.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
Luisa M. Pagan Gladys Zambrana
Guillermo Guirona Figueroa Mariano Anderson Hilton
Rafaela Pastrana Ramirez Carlos Martinez Negron
Maria Lepin Castro Cesar S. Miranda
Julian Reyes Margarita Colon Roman
Jorge De Jesus Suarez Jose N. Tubens Velez
Carmen D. Robles Francisco Martinez Negron
Damaris Pimentel Sixto Alicea
Antonio Valentin Mercado Allan Roberto Gonzalez
Margarita Ortiz Reyes Herenio De Jesus
Gilda Crescioni Ortiz Olga Gonzalez

Luis Omar Rosario Perez Edwin Gonzalez
Evelyn Gonzalez Vazquez Carmelo Mercado
Rafael Negron Calderon Juan Montanez Gonzalez
Hilda Martinez Pablo Negron Diaz
David Negron Raquel Ortiz Montero
Jeanette Vargas Angelita Pardo
Miguel A. Martinez Carmen Lidia Perez
Lazara Fleites Benito Pena Rodriguez
Isidro Lebron Jose Luis Ramos
Wilfredo Diaz Torres Blanca Roman Colon
Jesus Ramon Milagros Sierra
Lourdes M. Rivera Wilbert Vazquez

(b) Make the above employees whole, with interest,
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of the Board’s Order,
remove from its files any reference to the unlawful refus-
als to consider for employment or to hire the employees
named above, and within 3 days thereafter, notify them
in writing that this has been done and that the refusals to
consider and hire them will not be used against them in
any way.
(d) Preserve, and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze and determine the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in San Juan, Puerto Rico, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
written in both English and Spanish, on forms provided
by the Regional Director for Region 24, after being
signed by the Hotel’s authorized representative, shall be
posted by the Hotel and maintained for 60 consecutive

7 If this Order is enforced by a judgment of a United States Court of
Appeals, the wording in the notice reading “Posted by an Order of the
National 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.”
days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Hotel to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Hotel has gone out of business or closed
the facility involved in these proceedings, the Hotel shall
duplicate and mail, at its own expense, a copy of the no-
tice in English and Spanish to all current employees and
former employees employed by the Hotel at any time
since February 13, 1995.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps the Hotel has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail to consider for employment, fail-
ing to hire, or otherwise discriminating against our em-
ployees because of their union affiliation.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer to all the following employees, whose names are set
forth below, and all other persons formerly employed in
the food and beverage department by us who were not
hired as of December 1, 1994, full reinstatement to the
positions denied them or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority rights or privileges previously
enjoyed, discharging, if necessary to make room for
them, employees hired from sources other than the em-
ployees who were formerly employed by us in our food
and beverage department:

LE RENDEZVOUS RESTAURANT 339
Juan Colon Marin Carmen Silva Rivera
Juanita Vega Laguer Carmen Gisela del Prado
Lesley Ann Vazquez Julio Alvarez
Elke Feliciano Torres Jesus Rivera Molla
Luisa M. Pagan Gladys Zambrana
Guillermo Guirona Figueroa Mariano Anderson Hilton
Rafaela Pastrana Ramirez Carlos Martinez Negron
Maria Lepin Castro Cesar S. Miranda
Julian Reyes Margarita Colon Roman
Jorge De Jesus Suarez Jose N. Tubens Velez
Carmen D. Robles Francisco Martinez Negron
Damaris Pimentel Sixto Alicea
Antonio Valentin Mercado Allan Roberto Gonzalez
Margarita Ortiz Reyes Herenio De Jesus
Gilda Crescioni Ortiz Olga Gonzalez
Luis Omar Rosario Perez Edwin Gonzalez
Evelyn Gonzalez Vazquez Carmelo Mercado
Rafael Negron Calderon Juan Montanez Gonzalez
Hilda Martinez Pablo Negron Diaz
David Negron Raquel Ortiz Montero
Jeanette Vargas Angelita Pardo
Miguel A. Martinez Carmen Lidia Perez
Lazara Fleites Benito Pena Rodriguez
Isidro Lebron Jose Luis Ramos
Wilfredo Diaz Torres Blanca Roman Colon
Jesus Ramon Milagros Sierra
Lourdes M. Rivera Wilbert Vazquez

WE WILL make the above employees whole, with in-
terest, for any loss of earnings and other benefits suffered
as a result of the discrimination against them.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusals to consider for employment or to hire the employ-
ees named above, and WE WILL, within 3 days thereaf-
ter, notify them in writing that this has been done and
that the refusals to consider and hire them will not be
used against them in any way.

TABER PARTNERS I D/B/A AMBASSADOR PLAZA
HOTEL & CASINO, A RADISSON PLAZA HOTEL