Palmer House Hilton

National Labor Relations Board - Board Decisions

Feb 12, 2009

353 N.L.R.B. 851 (N.L.R.B. 2009)

PALMER HOUSE HILTON
353 NLRB No. 90
851
Palmer House Hilton and Mohamad Safavi
UNITE HERE, Local 1 and Mohamad Safavi.
Cases 13–CA–44223 and 13–CB–18772
February 12, 2009
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER
On June 27, 2008, Administrative Law Judge Keltner
W. Locke issued the attached bench decision. The Re-
spondents each filed exceptions, and the Respondent-
Union filed a supporting brief. The General Counsel filed
an answering brief to the Respondents’ exceptions.
The National Labor Relations Board1 has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions that the Respondent-Union violated
Section 8(b)(1)(A) and (2), and the Respondent-Employer
violated Section 8(a)(3), but only for the reasons set forth
below,2 and to adopt the recommended Order as modified
and set forth in full below.3
1. First, we adopt the judge’s credibility determina-
tions and rely on the factual account more fully set forth
in the bench decision, but described briefly below.4

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We affirm the judge’s conclusions, relying only on the legal prin-
ciples and precedent cited in this case. We do not rely on the judge’s
further characterization of the Act or the other cases cited in his deci-
sion. In addition, contrary to the Union’s claim, we find that the judge
did not err by failing to apply Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to
determine if the Union violated Sec. 8(b)(2) or the Employer violated
Sec. 8(a)(3). Absent evidence that the Union acted with a dual motive
in seeking Safavi’s discharge, Wright Line is not applicable. See Elec-
trical Workers Local 429, 347 NLRB 513, 515 fn. 9 (2006), remanded
on other grounds 514 F.3d 646 (6th Cir. 2008). Nor was the judge
required to apply Wright Line to determine if the Employer unlawfully
discharged Safavi. Instead, the legal test is whether the Employer had
“reasonable grounds for believing” that the Union’s discharge request
was unlawful. See Claremont Resort Hotel & Tennis Club, 260 NLRB
1088, 1093 (1988).
3 We have modified the judge’s recommended Order to correct cer-
tain inadvertent errors and to conform to the Board’s standard remedial
language. We have substituted new notices that reflect these changes.
4 To the extent that the Respondents have excepted to some of the
judge’s credibility findings, the Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. We have carefully examined the record and find no basis
On July 13, 2007,5 the Union requested that the Em-
ployer terminate on July 20 a number of unit employees,
including Mohamad Safavi, if they did not pay their dues
or enter into a dues payment plan by that date. Although
Safavi did not take the required action prior to July 20, he
continued working for the Employer. On July 25, after
several unsuccessful attempts, Safavi met with Tara Ad-
vani, the Union’s office manager. At that meeting, Safavi
made an initial dues payment and entered into a payment
plan to pay off the remaining amount in arrears over the
next 3 months. Advani signed off on this agreement. Af-
ter Safavi signed the agreement, Advani told him that “just
because you made these payments [that does not] mean the
hotel is not going to fire you.” Advani indicated that the
Employer could eventually choose to rehire Safavi in light
of his agreement to pay the dues that were owed.
On July 26, Advani sent a letter to Arelis Morales, the
Employer’s human resources manager, stating that Safavi
had entered into a payment plan and was now eligible for
“rehire.” That same day, Morales contacted Advani and,
as relevant here, asked whether it would be appropriate to
go forward with the requested termination in light of Sa-
favi’s payment, thereby indicating to Advani that Safavi
had not yet been discharged. Advani instructed Morales to
“hold off” on processing Safavi’s termination so she could
discuss the matter with Karen Kent, the Union’s vice
president.
On July 28, when Safavi reported for his scheduled
shift, the Employer’s secretary asked Safavi for proof
that he had paid his back dues. Safavi presented a copy
of the payment plan agreement he had signed on July 25.
The secretary made a copy of the agreement, and Safavi
worked and was paid for the July 28 shift. On July 30,
Advani contacted Morales and confirmed that the Em-
ployer could process Safavi’s discharge. The Employer
terminated Safavi on that date.
2. For the following reasons, we affirm the judge’s
conclusion that the Respondent-Union violated Section
8(b)(1)(A) and (2) of the Act by seeking Safavi’s dis-
charge following his partial tender of dues and entry into
a dues payment plan on July 25.
The Board has found that, depending on the circum-
stances, a union may waive its right to pursue the dis-
charge of an employee pursuant to a union-security
agreement if, before the requested discharge is actually
effectuated by the employer, the union accepts and retains
a tender of delinquent dues. See, e.g., Teamsters Local
200 (State Sand & Gravel), 155 NLRB 273, 277–278

for reversing the findings. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951).
5 All dates are 2007, unless otherwise noted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
852
(1965) (union waived right where it agreed to back dues
payment plan with employee and accepted one payment,
prior to actual discharge), citing Colgate-Palmolive Co.,
138 NLRB 1037 (1962). See also Claremont Resort Hotel
& Tennis Club, supra at 1093. Under the circumstances
here, we find such a waiver. Before Safavi was dis-
charged, the Union accepted a partial payment of Safavi’s
back dues and entered into an agreement requiring him to
make monthly payments until the full amount owed was
tendered. Only after Safavi signed the agreement, rea-
sonably believing that it would preserve his job, did the
Union tell him that he might still be discharged (although
he would be eligible for “re-hire”). Upon learning on July
26 that the Employer had not yet discharged Safavi, the
Union then asked the Employer to “hold off” on discharg-
ing Safavi, who accordingly worked another shift before
the Union successfully renewed its request for Safavi’s
discharge on July 30. The record thus establishes that
Safavi resolved his dues delinquency, to the satisfaction of
the Union, before he was actually discharged. Consistent
with our case law, these facts support a finding that the
Union waived its right to enforce the union-security agree-
ment against Safavi and violated Section 8(b)(1)(A) and
(2) by continuing to do so.6
3. We also affirm the judge’s conclusion that the Re-
spondent-Employer violated Section 8(a)(3) and (1) of the
Act by discharging Safavi on July 30 pursuant to the Un-
ion’s request. An employer violates the Act when it “dis-
charges an employee at the request of the union when it
has ‘reasonable grounds for believing’ that the request was
unlawful.” Valley Cabinet & Mfg., 253 NLRB 98, 99
(1980), enfd. 691 F.2d 509 (9th Cir. 1982) (citations omit-
ted). On July 28, Safavi confirmed to the Employer that
he had made a partial dues payment and entered into a
payment plan with the Union. In light of this knowledge,
when the Union told the Employer on July 30 that it

6 We reject the Union’s claim to the extent it asserts that it did not
knowingly waive its right to enforce the union-security clause because
it believed the Employer terminated Safavi as of July 20. Even assum-
ing the Union reasonably believed that Safavi was discharged on July
20, the Employer’s call to the Union on July 26 to confirm whether it
should process Safavi’s termination put the Union on notice that Safavi
had not yet been discharged.
Further, contrary to the Union’s argument, the General Counsel was
not required to prove that the Union’s discharge request was motivated
by some reason other than Safavi’s dues delinquency. The Union con-
cedes that dues delinquency was the only reason it requested Safavi’s
discharge. As discussed above, under the circumstances, the Union
waived its right to assert dues delinquency as the basis for Safavi’s
discharge when it accepted his partial payment of back dues and entry
into a payment plan. By establishing that the Union continued to seek
Safavi’s discharge after waiving its only asserted basis for the dis-
charge, the General Counsel established that the Union violated Sec.
8(b)(2).
should discharge Safavi, the Employer was required to
investigate the circumstances of the Union’s renewed dis-
charge request. See Planned Building Services, 318
NLRB 1049, 1063 (1995), and cases cited therein. As the
Employer failed to do so, we agree with the judge’s find-
ing of a violation.
ORDER
A. The National Labor Relations Board orders that the
Respondent Employer, Palmer House Hilton, Chicago,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Encouraging or discouraging membership in UNITE
HERE, Local 1, by terminating an employee at the request
of the Union in a manner not permitted by Section 8(a)(3)
of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing 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) Within 14 days from the date of this Order, offer
Mohamad Safavi full reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
(b) Jointly and severally with the Respondent Union,
make Mohamad Safavi whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against him, with interest, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge and,
within 3 days thereafter, notify the employee in writing
that this has been done and that the discharge will not be
used against him in any way.
(d) Preserve and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, necessary
to analyze 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 Chicago, Illinois, copies of the attached no-
tice marked “Appendix A.”7 Copies of the notice, on

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
PALMER HOUSE HILTON 853
forms provided by the Regional Director for Region 13,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees 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. In
the event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since July 2007.
(f) Post at the same places and under the same condi-
tions as set forth above, as soon as forwarded by the Re-
gional Director, copies of the attached notice marked “Ap-
pendix B.”
(g) Sign and return to the Regional Director for Region
13, sufficient signed copies of “Appendix A” for posting
by the Respondent Union at its business offices and meet-
ing halls, where notices to members are customarily
posted.
(h) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
B. The National Labor Relations Board orders that the
Respondent Union, UNITE HERE, Local 1, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause the Employer,
Palmer House Hilton, to discharge or otherwise discrimi-
nate against Charging Party Mohamad Safavi, or any other
employee, in a manner not permitted by Section 8(a)(3) of
the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reinstate Mohamad Safavi to the rolls of the Union
in good standing, contingent upon payment of prospective
union dues on a monthly basis.
(b) Within 14 days from the date of this Order, notify
Palmer House Hilton and Mohamad Safavi, in writing,
that it withdraws and rescinds its request for Safavi’s dis-
charge, and that it has no objection to his reinstatement

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
without any loss of seniority or other rights and privileges
previously enjoyed by him.
(c) Jointly and severally with Respondent Employer,
make Mohamad Safavi whole for any losses suffered as a
result of the discrimination against him, with interest, in
the manner set forth in the remedy section of the judge’s
decision.
(d) Within 14 days after service by the Region, post at
its business offices and meeting halls, copies of the at-
tached notice marked “Appendix B.”8 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 13, after being signed by the Respondent Union’s
authorized representative, shall be posted by the Respon-
dent Union and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees and members are customarily posted. Reason-
able steps shall be taken by the Respondent Union to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(e) Post at the same places and under the same condi-
tions as set forth above, as soon as forwarded by the Re-
gional Director, copies of the attached notice marked “Ap-
pendix A.”
(f) Sign and return to the Regional Director for Region
13 sufficient copies of “Appendix B” for posting by the
Respondent Employer at its facility in Chicago, Illinois,
where notices are customarily posted.
(g) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official, on a form provided by the Region, attesting to
steps that the Respondent Union has taken to comply.
APPENDIX A
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

8 See fn. 7, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
854
WE WILL NOT encourage or discourage membership in
UNITE HERE, Local 1, by terminating an employee at
the request of the Union in a manner not permitted by
Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce 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 Mohamad Safavi full reinstatement to his former
position or, if that position no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL, jointly and severally with the Respondent
Union, make Mohamad Safavi whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful dis-
charge and, within 3 days thereafter, notify the employee
in writing that this has been done and that the discharge
will not be used against him in any way.
PALMER HOUSE HILTON
APPENDIX B
NOTICE TO EMPLOYEES AND 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT cause or attempt to cause the Employer,
Palmer House Hilton, to discharge or otherwise discrimi-
nate against Charging Party Mohamad Safavi, or any
other employee, in a manner not permitted by Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL reinstate Mohamad Safavi to our rolls in
good standing, contingent upon payment of prospective
union dues on a monthly basis.
WE WILL, within 14 days from the date of this Order,
notify Palmer House Hilton and Mohamad Safavi, in
writing, that we withdraw and rescind our request for
Safavi’s discharge, and that we have no objection to his
reinstatement without any loss of seniority or other rights
and privileges previously enjoyed by him.
WE WILL, jointly and severally with Respondent Em-
ployer, make Mohamad Safavi whole for any losses suf-
fered as a result of the discrimination against him, with
interest.
UNITE HERE, LOCAL 1
Jeanette Shrand, Esq., for the General Counsel.
Kyle B. Johansen, Esq. (Franczek Sullivan P.C.), for the
Respondent Employer.
N. Elizabeth Reynolds, Esq. (Allison, Slutsky & Kennedy), for
the Respondent Union.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASES
KELTNER W. LOCKE, Administrative Law Judge. I heard this
case on May 14, 2008, in Chicago, Illinois. After the parties
rested, I heard oral argument, and on May 15, 2008, issued a
bench decision pursuant to Section 102.35(a)(1) of the Board’s
Rules and Regulations, setting forth findings of fact and
conclusions of law. In accordance with Section 102.45 of the
Rules and Regulations, I certify the accuracy of, and attach as
“Appendix A,” the portion of the transcript containing this
decision.1 The Conclusions of Law, Remedy, Order, and notice
provisions are set forth below.
Respondent Union’s Estoppel Argument
On May 15, 2008, shortly before I issued the bench decision,
the Union submitted a “Motion of Respondent UNITE HERE,
Local 1, to Dismiss Complaint Based on Estoppel.” Thereafter,
the General Counsel submitted a response in opposition.
Respondent Union’s motion and the General Counsel’s
response have been considered carefully. For clarity, this
discussion of the Union’s motion will begin with a review of
the relevant facts.
For the reasons discussed in the bench decision, I have
concluded that Respondent Union violated Section 8(b)(2) of
the Act by accepting Charging Party Safavi’s belated tender of
past dues (even though it was after the specified deadline) but
nonetheless continuing to seek his discharge for nonpayment of
those dues. Because Safavi tendered the dues after the
deadline, the Union had the choice either of refusing to accept
the tender and pressing its demand that the Employer discharge
him, or of accepting the late tender and abandoning its demand
that Safavi be terminated. Under established Board precedent,
the Union lawfully could have chosen to do either, but it could
not lawfully do both.

1 The bench decision appears in uncorrected form at pp. 231–253 of
the transcript. [Omitted from publication.] The final version, after
correction of oral and transcriptional errors, is attached as Appendix A
to this certification.
PALMER HOUSE HILTON 855
However, one fact does complicate the situation described
above. Instead of paying the full amount of his dues arrearage,
Charging Party Safavi and the Union entered into a “payment
plan” and, on the same day Safavi signed this plan, he gave the
Union a “down payment” towards the total amount he owed.
When other employees had entered into such payment plans,
the Union had treated them as sufficient to satisfy the dues
obligation. Both Safavi and the Union executed the payment
plan agreement, which I concluded was tantamount to tender of
the full amount of the dues arrearage.
In other words, if Safavi had entered into the payment plan
agreement with the Union before the deadline for paying his
back dues, there is no doubt that the Union would have
accepted this agreement, along with the down payment, as
sufficient, and would have withdrawn its demand for Safavi’s
discharge. It had done so with other members. Accordingly, I
treated Safavi’s execution of the payment plan, together with
down payment, as having the same effect as a tender of the full
amount.
After Safavi learned that the Union persisted in demanding
his discharge, he continued to make the payments required by
the payment plan. Based on Safavi’s testimony at hearing, the
Union concluded that a Board agent’s advice prompted Safavi
to be faithful to the payment plan. The Union argues that the
words attributed to the Board agent estop the General Counsel
from proceeding in this case. Specifically, the Union’s motion
states, in part:
At the hearing in this matter on May 14, 2008, the
Charging Party was asked on direct examination by Coun-
sel for the General Counsel why he made the payments
under the payment plan on August 23, September 23 and
October 23, 2007. The Charging Party testified in re-
sponse . . . that he made the payments because the Board
Agent who spoke with him about the instant unfair labor
practice charge . . . advised him to do so.
. . . .
The General Counsel is estopped from proceeding
against the Union based on its failure to refund the July 25
payment—in particular, as the General Counsel argued, its
failure to offer a refund in response to the filing of the
charge—because the Board’s agent caused the Charging
Party to make a second payment under the payment plan
the day after the charge was filed. The charge was filed in
this case on August 22, and the Charging Party made an
installment payment at the Board Agent’s direction on
August 23. There would be no conceivable reason for the
Union to respond to the charge by offering a refund of the
July 25 payment, when the Charging Party had appeared at
the Union office and paid his next installment immediately
after filing the charge. The Charging Party’s conduct of
continuing to make timely payments on the payment plan
immediately after filing the charge was consistent with the
Union’s understanding that Safavi had entered into a pay-
ment plan for a lawful purpose and that the Union was en-
titled to receive payment from him under the plan. The
Board Agent’s advice to Safavi foreclosed any possibility
that the Union might reconsider the propriety of retaining
Safavi’s payments in light of the filing and investigation of
the charge.
. . . .
The equitable principle of estoppel, recognized by
Board law, requires that the complaint be dismissed. See,
e.g., Wise Alloys, LLC, 347 NLRB No. 117 [1301] (2006).
Union–Tribune Publ’g Co., 2001 WL 1598680 (ALJ
Opinion and Order, July 27, 2001) (where alleged trans-
gression was committed at charging party’s request, “Gen-
eral Counsel is estopped from prevailing in a case like this
lest a form of entrapment occur.”).
The language quoted immediately above suggests that
Respondent Union is arguing that the Board agent’s purported
advice to the Charging Party led to a “form of entrapment.”
The logic of this argument escapes me.
Before addressing the Union’s argument in detail, it may be
helpful to examine Safavi’s testimony concerning what the
Board agent supposedly told him. As the General Counsel’s
Opposition notes, Safavi quoted the Board agent as saying that
it was “better to pay.” However, the discussion below does not
turn on whether the Board agent told Safavi it was “better to
pay” or that he “should pay” or used other words to convey a
similar message.
Respondent Union hasn’t shown how the statement
attributed to the Board agent would be improper in any way.
The Union cannot possibly be arguing that the Board agent
urged Safavi to pay the Union money which Safavi did not
owe. To the contrary, the Union consistently has taken the
position that Safavi did owe the money. Moreover, the Union
has argued that because Safavi owed the Union the back dues,
it could have gone into court and sued him to recover.
Indeed, it appears clear that the Union could have sought to
recover the back dues through litigation and could have based
such litigation on two separate contractual obligations. First,
Safavi incurred a legal obligation by joining the Union and the
obligation continued while he was a member of the Union. The
Union could go into court to recover the unpaid dues which
accrued during Safavi’s membership even absent a payment
plan agreement.
Moreover, the payment plan agreement itself presumably
constituted a legally enforceable agreement. My conclusion
that Safavi tendered his back dues by signing the agreement
and making a down payment rests on the assumption that it was
a legally binding contract which Safavi was obliged to satisfy
fully. Thus, the payment plan agreement provided another
contractual basis for a lawsuit against Safavi.
Respondent Union has not explained how it would have been
improper, in any way, for a Board agent to advise Safavi to pay
a debt he legally owed and for which he could be sued.
Likewise, Respondent Union has not identified how such
advice could possibly constitute “entrapment.”
The logic of the Union’s estoppel theory does not become
visible from any angle, except, perhaps, when viewed upside–
down. Thus, suppose for the sake of argument that the Board
agent had said to Safavi the exact opposite of the words
attributed to him. Suppose that the Board agent had told Safavi
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
856
it was better not to make the payments due under his agreement
with the Union.
Further suppose, also contrary to fact, that Safavi had
followed such hypothetical advice and failed to make the
payments. If Safavi had thus defaulted on the payment plan
agreement, then, supposedly, the Union lawfully could have
continued to seek his discharge.
Or so, apparently, the Union reasons. However, it isn’t
necessary for me to speculate about what the Union might
lawfully have done if the facts had been different. The issue
here concerns the validity of the Union’s argument that what a
Board agent supposedly told the Charging Party estops the
General Counsel from proceeding. It may be observed with
considerable confidence that a Board agent’s failure to give bad
advice does not work any kind of estoppel.
Neither does a Board agent’s statement of the obvious, that it
is better for a person to pay his debts. Even assuming the
Board agent said what Safavi attributed to him, it would not
estop the General Counsel from proceeding in this matter. See
generally Christine Kelley v. NLRB, 79 F.3d 1238 (1st Cir.
1996). Accordingly, I deny the Union’s motion.
The 8(a)(3) and (1) Allegations
In general, Section 8(a)(3) of the Act prohibits an employer
from encouraging or discouraging membership in any labor
organization by discrimination in regard to hire or tenure of
employment or any term or condition of employment. See 29
U.S.C. § 158(a)(3). When an employer complies with a
union’s request to fire an employee because of that person’s
failure to support the union in some way, that action powerfully
encourages membership in a labor organization. Other
employees reasonably would hasten to support the union after
seeing what happened to their fellow worker who did not.
A proviso to Section 8(a)(3) carves out a narrow exception
allowing an employer and a union which is the exclusive
bargaining representative to enter into a collective-bargaining
agreement requiring union membership as a condition of
employment. Other provisions limit this exception. For
example, union membership cannot be required for the first 30
days of employment (a shorter period applies in the
construction industry, see 29 U.S.C. § 158(f)) and union
membership cannot be required where prohibited by State or
territorial law. See 29 U.S.C. § 64(b).
Significantly, when a union demands that an employer
discharge an employee, the Board doesn’t routinely assume that
the union’s conduct somehow falls within the exception to the
rule. Such an assumption would vitiate the protections of
Section 7, and the Board takes precisely the opposite approach.
Under established Board precedent, “whenever a labor
organization ‘causes the discharge of an employee, there is a
rebuttable presumption that [the labor organization] acted
unlawfully because by such conduct [it] demonstrates its power
to affect the employees’ livelihood in so dramatic a way as to
encourage union membership among the employees.” Acklin
Stamping Co., 351 NLRB 1263 (2007); citing Graphic
Communications Local 1–M (Bang Printing), 337 NLRB 662,
673 (2002).
A union’s successful effort to cause a discharge necessarily
begins with a request or demand, and that initial request or
demand constitutes part of the union’s conduct which enjoys no
presumption of legality. Accordingly, such a request does not
arrive at the employer’s office stamped indelibly with the
words “presumed lawful.”
When an employer receives such a discharge request from a
union representing its employees, three factors militate in favor
of caution. First, by seeking an employee’s discharge, the
union is urging the employer to act in a manner which would be
unlawful unless it happened to fall within the statute’s
narrowly-crafted exception.
Second, should the union be seeking the employee’s
discharge for any reason except the one allowed by the narrow
statutory exception, the employer’s compliance with this
request will result in significant exposure to liability under the
Act.
Third, the employer’s knowledge of the union’s true motive
may be limited or nonexistent. In most 8(a)(3) discharge cases,
an employer’s own motivation plays the crucial role in
determining liability. An employer can avoid committing an
unfair labor practice by making sure that improper
considerations did not enter into the decisionmaking process.
Managers obviously know their own true reasons for deciding
to discharge someone and, if those motives are tainted, they can
stop before acting. However, the managers do not have
similarly intimate access to the minds of the union officials
who send a discharge request.
In drafting the Act, Congress stopped short of requiring
managers to be mind readers. If a union requested the
discharge of a bargaining unit employee ostensibly for the
lawful reason—the employee’s failure to pay the regular and
uniform dues—and the employer had no reasonable way of
knowing that the union’s real reason was otherwise, then the
employer would not violate Section 8(a)(3) if it complied with
the discharge request.
Congress actually worded this “escape clause” in a slightly
different way, making it unlawful for the employer to discharge
an employee if the employer does have a reasonable basis for
doubting the union’s ostensibly legal reason. The exact
language appears in Section 8(a)(3), in two provisos which
immediately follow the exception allowing the discharge of an
employee for failing to maintain union membership:
Provided further, That no employer shall justify any
discrimination against an employee for nonmembership in a
labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the
employee on the same terms and conditions generally
applicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or
terminated for reasons other than the failure of the employee
to tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining membership.
That standard—“reasonable grounds for believing”—will be
applied here in determining whether Respondent Employer
violated the Act by carrying out the Union’s discharge request.
An “or” separates the two provisos and the General Counsel
PALMER HOUSE HILTON 857
does not have to prove both. Here, I will focus particularly on
proviso (B), examining the evidence to determine whether
Respondent Employer had reasonable grounds for believing the
Union had denied or terminated Safavi’s membership “for
reasons other than the failure . . . to tender the periodic dues . . .
uniformly required as a condition of . . . retaining
membership.”
For the reasons stated in the bench decision, I have
concluded that Safavi remained an employee of Respondent
Employer until the Union notified the Employer on July 30,
2007, that it could go ahead and “process” the discharges. The
record establishes that by this date, when the Employer
terminated Safavi’s employment, it already knew that Safavi
had entered into a payment plan with the Union to satisfy his
dues obligation.
Safavi credibly testified that when he went to work on July
28, 2007, he spoke with a secretary who asked whether he had
proof that he had paid his union dues. He showed her the
payment plan agreement and the secretary made a copy of it.
Based on this credited testimony, I find that 2 days before the
Employer discharged Safavi it had notice that he had satisfied
the dues obligation.
The testimony of Respondent Employer’s human resources
manager, Arelis Morales, also establishes that the Employer
knew of Safavi’s payment plan agreement with the Union
before it discharged him on July 30, 2007. Four days earlier,
Morales had telephoned the Union’s office manager, Tara
Advani, concerning the Union’s letter requesting the discharge
of certain employees, including Safavi. On cross-examination,
Morales admitted that during this July 26, 2007 conversation
Advani had informed her that Safavi had executed a payment
plan:
Q. BY MS. REYNOLDS: Good afternoon, Ms. Morales.
In your conversation, your first conversation with Tara
Advani on July 26th, Ms. Advani said to you that Mr. Sa-
favi has signed a payment plan, but that she did not, she
had not received it back from him, correct?
A. Right.
Q. And, so why was Mr. Safavi terminated by the ho-
tel?
A. Because the Union dues were not paid or brought
up to date with the Union.
Q. By any particular time?
A. By the 20th of July.
Based on this testimony by Respondent Employer’s human
resources manager, I conclude that before the Employer
discharged Safavi on July 30 it knew that Safavi had entered
into a payment plan with Respondent Union. (Indeed, as noted
above, Safavi’s credited testimony establishes that the
Employer received a copy of this plan on July 28, 2007.)
Notwithstanding this knowledge that Safavi had executed the
payment plan, the Employer discharged Safavi because his
union dues had not been paid by July 20.
Although the record clearly establishes that the Employer
discharged Safavi after it had learned that he had entered into
the payment plan, it remains unclear whether the Employer also
knew that the Union had accepted and retained Safavi’s initial
payment under the plan. The payment plan itself bears the
handwritten notation “$100.00 today,” and the Employer
received a copy of the plan 2 days before it discharged Safavi.
That “$100.00 today” notation certainly suggests Safavi made a
payment, but it falls short of stating that the Union received
$100 from Safavi. No evidence establishes conclusively that
the Employer knew Safavi had tendered $100 as the first
installment under the payment plan and that the Union had
accepted the money.
To prove that the Union violated Section 8(b)(2) as alleged,
the General Counsel had to establish that the Union received
and kept Safavi’s tender. However, because of the “reasonable
grounds for believing” standard, the General Counsel can
establish the alleged 8(a)(3) violation without having to prove
that Respondent Employer knew for a fact that the Union had
held onto Safavi’s payment.
The record suggests that it was a common practice for the
Union to enter into payment plans with employees who owed
past dues. No evidence suggests that the Union had a practice
of agreeing to a payment plan and then refusing the employee’s
tender of payment or of accepting it and then giving it back
later.
It would not be logical for the Union to enter into a payment
plan with a member if it had no intention of accepting and
keeping the payment. Indeed, it would make no sense at all for
the Union to sign a binding legal document to which it did not
intend to be bound. Likewise, it would defy common sense for
the Union to agree that a member could make payments while
harboring a private intention of not accepting such payments.
Respondent Employer had no reason to believe that the
Union would not accept the payment it had sought. Therefore,
I conclude that the Employer reasonably would believe that
both Safavi and the Union would conform to the terms of their
agreement.
In sum, Respondent Employer had reasonable grounds to
believe that the Union was continuing to demand the discharge
of Safavi even after he had satisfied his dues’ obligation in a
manner similar to that which other employees had used, and to
which the Union had agreed. Because the Union persisted in
seeking Safavi’s discharge even after the back dues’ problem
had been solved, the Employer had reasonable grounds to
believe that the Union must have some other impermissible
motivation.
The Union declared that Safavi was not a member in good
standing. However, if he was not a member in good standing
even after he had tendered, and the Union had accepted, his
back dues, then logically, the termination of his membership
must have been for some reason “other than the failure of the
employee to tender the periodic dues.” Respondent Employer
did not have to know this actual reason. Respondent Employer
only had to have reasonable grounds for believing it existed.
Because I conclude that Respondent Employer had
reasonable grounds for believing that Safavi’s membership had
been terminated for some reason other than the failure to tender
his periodic dues, I further conclude that the Employer acted
unlawfully in discharging him. Therefore, I recommend that
the Board find that Respondent Employer violated Section
8(a)(3) and (1) of the Act, as alleged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
858
THE REMEDY
Having found that the Respondents have engaged in certain
unfair labor practices, I find that they must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice
to employees and members attached as appendix B.
Additionally, Respondent Employer must offer Mohamad
Safavi immediate and full reinstatement to his former position,
or, if that position no longer exists, to a substantially equivalent
position.
The Respondent Union must notify both the Respondent
Employer and Charging Party, in writing, that it does not object
to the Charging Party’s reinstatement, without loss of seniority
or other rights and privileges, and has fully withdrawn its
previous objection to the Charging Party’s employment.
Both Respondent Employer and Respondent Union bear
responsibility for making Safavi whole, with interest, for all
losses he suffered because of the unfair labor practices the
Respondent’s committed.9 However, Respondent Union’s
backpay liability will be tolled 5 days after it notifies
Respondent Employer and Charging Party Safavi, in writing,
that it has no objection to Safavi’s reinstatement. Grassetto
USA Construction, 313 NLRB 674 (1994).
CONCLUSIONS OF LAW
1. The Respondent Employer, Palmer House Hilton, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent Union, UNITE HERE, Local 1, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent Employer encouraged membership in a labor
organization by discriminating in regard to the tenure of
employment and terms and conditions of employment of
employee Mohamad Safavi, by discharging him on July 30,
2007, thereby encouraging membership in a labor organization
in violation of Section 8(a)(3) and (1) of the Act. Thereafter,
Respondent continued to discriminate against Safavi in
violation of Section 8(a)(3) and (1) of the Act by failing and
refusing to reinstate him.
4. On or about July 30, 2007, Respondent Union attempted
to cause, and did cause, Respondent Employer to discharge
employee Mohamad Safavi notwithstanding that membership
in Respondent Union had been denied or terminated on some
ground other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership.
5. Respondent Union, by the conduct alleged in paragraph 4
above, violated Section 8(b)(2) and (1)(A) of the Act.
6. The unfair labor practices described above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondents did not engage in any unfair labor practices
alleged in the consolidated complaint not specifically found
herein.

9 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]
APPENDIX A
BENCH DECISION
After accepting an employee’s belated tender of back dues
required by a lawful union-security clause, a union continued to
seek the employees discharge. The Union thereby violated
Section 8(b)(1)(A) and 8(b)(2) of the Act, and the Employer
which granted the union’s request thereby violated Section
8(a)(1) and 8(a)(3) of the Act.
Procedural History
This case began on August 22, 2007, when the Charging
Party, Mohamad Safavi, an individual, filed his initial charge
against the Respondent Employer, Palmer House Hilton, in
Case 13–CA–44223, and his initial charge against Respondent
Union, UNITE HERE Local 1, in Case 13–CB–18772. The
Charging charges.
On November 30, 2007, after investigation of the charges,
the Regional Director for Region 13 of the National Labor
Relations Board issued a Complaint and Notice of Hearing,
which I will call the “Complaint.” In issuing this complaint,
the Regional Director acted on behalf of the General Counsel of
the Board, whom I will refer to as the “General Counsel” or as
the “government.”
On May 14, 2008, a hearing opened before me in Chicago,
Illinois. Also on May 14, after the parties had presented
evidence, counsel argued the case orally. The General Counsel
and Respondent Union also submitted prehearing briefs.
Today, May 15, 2008, I am issuing this bench decision
pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations.
Admitted Allegations
Based upon the admissions in the Respondents’ Answers and
stipulations received at the hearing, I conclude that the General
Counsel has proven the allegations raised in Complaint
paragraphs I(a), I(b), I(c), I(d), II(a), II(b), II(c), III, IV(a),
IV(b), V(a), V(b) and V(c).
Overview of the Facts
At all material times before his discharge, Charging Party
Safavi worked for Respondent Employer as a server, in a
bargaining unit represented by Respondent Union. Because of
a lawful union–security clause in collective bargaining
agreements between the two Respondents, Safavi was required,
as a condition of employment, to pay certain specified periodic
dues. He fell behind in this obligation, and, as of July 25, 2007,
owed the Union more than $800.
The Union sent Safavi notices informing him that if he did
not pay the arrearage or enter into a payment plan by July 20,
2007, it would seek his discharge pursuant to the union–
security clause. Safavi did not make such a payment or agree
to such a payment plan before the July 20 deadline.
For reasons to be discussed later, I credit Safavi’s testimony.
Based on it, I find that on at least two occasions before the
deadline, he went to the Union offices and tried to see the
Union’s office manager, Tara Advani, who was responsible for
PALMER HOUSE HILTON 859
collecting the back dues. However, he did not see her on either
occasion.
After the July 20 deadline, and before Safavi met with the
Union’s business manager on July 25, the Union told the
Employer to discharge him. Safavi met with the business
manager on July 25, entered into a payment agreement
acceptable to the Union, and paid the Union $100 towards his
back dues.
The testimony of Safavi and Advani conflicts regarding what
Advani told him before he signed the payment plan agreement.
Advani testified that she informed Safavi that his signing of the
agreement would not result in the Union dropping its demand
that the Employer discharge him. However, Safavi
emphatically testified that neither Advani nor any other Union
representative told him, before he signed the agreement, that
the Union would persist in seeking his termination.
Crediting Safavi for reasons discussed later in this decision, I
find that neither Advani nor other Union representative
informed him, before he signed the agreement, that it would not
result in the Union withdrawing its discharge demand.
On July 26, 2007, Office Manager Advani sent the
Employer’s human resources manager a letter stating “Please
be advised that Mohamad Safavi is eligible for rehire—he has
made a payment plan to bring his dues account current. . .”
In other words, the Union was stating that if the Employer
wished to employ Safavi, it would have to hire him again,
resulting in the loss of his seniority. Presumably, Safavi would
also have to pay another Union initiation fee.
The Union’s letter, however, ignored one fact. Safavi
continued to work for the Employer. The evidence establishes
the Union’s knowledge of this fact because, on July 26, it told
the Employer to put processing of the terminations on “hold.”
Then, on July 30, the Union notified the Employer it could go
ahead with processing the terminations. For reasons discussed
later in this decision, I conclude that the Respondent Employer
discharged Safavi on July 30, and not earlier.
Further Discussion of Disputed Facts
Because the case turns on credibility, it is appropriate to
examine the facts in greater detail, even if it entails some
repetition.
1. What Was Safavi Told Before Signing the Payment Plan?
The Union contends that before Safavi signed the payment
plan, the Union told him that he could not be reinstated, that the
Union would only notify the Employer that he was eligible for
rehire as a new employee, and that it was up to the Employer
whether to rehire him or not. The Union’s argument rests on
the testimony of Tara Advani, the Union’s office manager.
However, I do not credit that testimony, which conflicts with
Safavi’s in a number of important areas. To the extent that
Advani’s testimony conflicts with Safavi’s, I credit the latter.
On July 25, 2007, Safavi signed an agreement, also signed
by Advani, requiring him to pay the Union a total of $882.00 in
the following way: That day, Safavi paid the Union $100. He
also obligated himself to pay the Union $260.80 on August 25,
2007, again on September 25, 2007, and again on October 25,
2007. Additionally, the payment agreement obligated him to
pay monthly dues of $37.60. In other words, each month for 3
months, Safavi had to pay a total of $298.40.
It is difficult, indeed next to impossible, to believe that
Safavi would have signed an agreement obligating himself to
pay these substantial amounts if he had first been told that he
would not be allowed to keep his job if he signed. The
testimony makes clear that Safavi already felt the Union was
not providing service equal to the dues charged for it.
Likewise, the record indicates that Safavi was not shy about
standing up for his interests. My observations of his demeanor
persuade me that he wasn’t likely to mince words if he believed
someone was taking advantage of him.
It would seem quite out of character for Safavi to be told that
signing a document obligating him to pay upwards of $1,000
would not result in the Union withdrawing its demand that he
be discharged and for him not to react to that. In fact, I find it
nearly impossible to believe. Therefore, crediting Safavi, I find
that neither Advani nor any other Union official told him,
before he signed the plan, that he could not keep his job
because of it.
2. What Did Safavi Reasonably Believe?
It isn’t necessary for me to decide whether—to borrow a
phrase used by counsel during oral argument—the Union was
playing a game of “gotcha” and set out to trick Safavi. The
Complaint doesn’t raise such an allegation. However, I do
conclude that Safavi signed the payment plan while reasonably
believing that doing so would result in the Union’s allowing
him to retain his job.
The Union argues that the payment plan resulted in other
benefits. However, the credited evidence does not indicate that
Advani or any other Union official tried to “sell” the payment
plan to Safavi, that is, tried to convince him to sign it, by
extolling such other benefits.
In sum, I conclude it was reasonable for Safavi to believe
that signing the plan would result in the Union abandoning its
request to discharge him.
3. When Did Safavi’s Employment Terminate?
The record leaves little doubt about some of the material
facts. Uncontradicted evidence establishes that the Union sent
Safavi written notices informing him that he owed back dues in
specified amounts, and stating that the Union would request his
discharge if he didn’t these amounts, or arrange a payment
plan, by July 20, 2007.
The Union’s prehearing brief correctly predicted that the
evidence would establish that “Safavi entered into a three–
month payment plan with the Union for his delinquent dues on
July 25, five days after the deadline.”
The credited evidence also supports certain other findings
anticipated by Union’s prehearing brief. Thus, the Union’s
brief stated, “The Hotel contacted the Union’s Office Manager
on Thursday, July 26 and inquired whether it was all right to
process the terminations of Safavi and the other employees. . .”
Further, the Union’s brief stated that “The Union’s Office
Manager told the Hotel to hold off on processing the
terminations.” Moreover, the brief stated that “On Monday,
July 30 the Union notified the Hotel that it could process the
terminations of Safavi and the others.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
860
Based on the record, I find that Safavi was still an employee
of Respondent Employer when he entered into a payment plan
with the Union on July 25, 2007. I find that on the following
day, July 26, the Union’s Office Manager did tell the Employer
to “hold off on processing the terminations” and that on July
30, the Union notified that hotel that it could “process” the
terminations.
These findings, however, contradict the Union’s suggestion
that Safavi already had been discharged at the time he signed
the payment plan on July 25. Likewise, these findings cast
doubt on the Union’s claim that on July 25, “At the time when
the payment plan was made, the Union believed in good faith
that Safavi had already been terminated by the hotel on July
20.”
Sometimes, when labor lawyers are in a mood to speak
figuratively, they will refer to discharge as being the industrial
equivalent of the death penalty. Such an analogy may be
instructive here.
Suppose, for example, that after a convict is moved to death
row, a court orders the warden to “hold off on processing” the
death warrant while the court considers the convict’s appeal.
Suppose further that the court ordered this stay of execution on
July 26. Then, four days later, the court decides the appeal
lacks merit and tells the warden that he can “process” the death
warrant. In other words, the court lifts the stay and allows the
execution to proceed.
Could anyone seriously argue that the convict is already dead
on July 26 because the death warrant already had been signed?
That would certainly be a surprise to the convict. Likewise, it
is impossible to conclude that the Employer discharged Safavi
on July 20 when, as the Union’s brief itself states, on July 26
the Employer asked the Union if it was all right to “process the
terminations of Safavi” and the other employees. Obviously,
the Employer would not have asked that question if Safavi
already had been fired.
Moreover, the Union’s response, instructing the Employer to
“hold off,” undermines its assertion that it believed, in good
faith, that Safavi already had been discharged. By analogy,
would a judge issue a stay of execution if he believed, in good
faith, that the prisoner already had been executed?
Thus, the facts asserted by the Union cast considerable doubt
on the Union’s argument. The addition of one other fact
topples it completely. Safavi worked for the Employer on two
different days after the July 20 deadline. One of those days
came before the Union’s July 26 instruction to “hold off on
processing the terminations” and the other came after that
instruction. Far from figuratively being dead, Safavi was alive
and well and working. The Employer didn’t “throw the switch”
on Safavi’s employment until July 30.
The Union attaches significance to language on the discharge
memorandum that it was effective July 20. Returning for a
moment to the death penalty analogy, suppose the warden told
the prisoner, “I’m executing you right now effective last
Monday.” If the coroner heard the warden make that statement,
would it change the date of death recorded on the death
certificate?
In sum, I find that the Union asked the Employer to “hold
off” and that accordingly the Employer did not discharge Safavi
until July 30. Further, I find that the Employer then terminated
Safavi’s employment because the Union stated that it was all
right to “process the terminations.”
This instruction reactivated the Union’s earlier request that
Safavi be discharged and thus itself was tantamount to a
discharge request. Clearly, when the Union gave the Employer
this instruction on July 30, it already knew that Safavi had
entered into a payment plan because the Union itself was a
party to that agreement.
The Union asserts that such payment plans are legal
obligations enforceable by lawsuit in small claims court. The
Union recognizes the signing of such a legally binding
document, accompanied by payment of part of the arrearage, as
sufficient tender, and indeed, the dues delinquency notices
which the Union sent to Safavi specifically mentioned the
option of entering into a payment plan rather than paying the
full arrearage in one lump sum.
Accordingly, I conclude that on July 30, when the Union
effectively renewed its request for Safavi’s discharge, the
Union already knew that Safavi had satisfied his dues
obligation. Such knowledge rules out the possibility that the
Union acted against Safavi on July 30 because he had failed to
tender the periodic dues required as a condition of retaining
union membership. He had already done so and the Union, as a
party to the payment plan, knew it.
The Union argues that the General Counsel must do more
than simply show that the Union acted for some reason other
than a member’s failure to tender the periodic union dues.
Thus, in its prehearing brief, the Union argued, “Unless the
General Counsel can show that the Union harbored some
unlawful reason for pursuing the discharge—a reason other
than Safavi’s failure to pay his delinquent dues by the July 20
deadline—there is no violation. There is no such evidence.”
In effect, the Union’s argument would impose upon the
General Counsel a burden not unlike that implicit in proving a
Section 8(a)(3) violation, namely, the requirement of
establishing, either by direct evidence or by inference, that a
specific unlawful intent was a motivating factor. To determine
whether Section 8(b)(2) requires similar proof on intent, it is
appropriate to begin by examining the statutory language.
Section 8(b)(2) provides that it shall be an unfair labor
practice for a Union “to cause or attempt to cause an employer
to discriminate against an employee in violation of subsection
(a)(3) [of subsection (a)(3) of this section] or to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership. . .” 29 U.S.C. Section 158(b)(2).
This language provides two separate bases for finding a
Section 8(b)(2) violation. First, it makes it unlawful for a
Union to cause or attempt to cause an employer to discriminate
against an employee in violation of Section 8(a)(3). The
Union’s argument—that establishing an 8(b)(2) violation
requires the government to prove an unlawful motive—makes
sense in this context, because proving an 8(a)(3) violation
requires proof of unlawful motive.
PALMER HOUSE HILTON 861
However, Section 8(b)(2) describes a second type of
violation which does not refer to Section 8(a)(3). After the
word “or,” the statutory language goes on to make it an unfair
labor practice for a union to cause an employer “to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on some ground
other than his failure to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or
retaining membership. . .”
In other words, the “or” signifies that Congress was
establishing two separate ways in which a Union could violate
this section of the Act. It follows that each of these alternatives
has its own requirements, and that the elements required to
establish one type of 8(b)(2) violation differ from those
necessary to prove the other.
The statutory language describing the second type of
violation does not require proof that a union caused or tried to
cause an employer to violate Section 8(a)(3). Stated another
way, it does not require proof that a union caused an employer
to encourage or discourage union membership by
discriminating in terms and conditions of employment, which is
the unfair labor practice prohibited by Section 8(a)(3).
Rather, the second type of 8(b)(2) violation only requires
proof that a union caused an employer “to discriminate against
an employee with respect to whom membership in such
organization has been denied or terminated on some ground
other than his failure to tender the periodic dues. . .” This
careful language does not refer to a union’s intent in causing an
employer to discriminate. Rather, it describes a class of
employees which this particular section of the Act protects. A
union places an employee in this class by denying or
terminating his or her union membership for a reason other than
failure to tender periodic dues and initiation fees.
This analysis of the statutory language leads me to conclude
that to establish the second type of Section 8(b)(2) violation,
the General Counsel must prove two things. The government
must prove that a union has caused or tried to cause an
employer to discriminate against an employee. Also, the
government must prove that the Union has denied or terminated
the employee’s membership for a reason other than the failure
to pay the periodic dues and initiation fees.
In a sense, the statutory language appears to place on the
General Counsel the burden of proving what the Union’s
motivation was not, rather than what it was. In the present
case, the record clearly establishes that the Union has denied
Safavi union membership. In fact, the Union admits that Safavi
is not a member in good standing. Based on the credited
evidence, I further conclude that the General Counsel has
proven that, at the time the Union sought Safavi’s discharge on
July 30, it had denied him such membership for reasons other
than the failure to tender his dues. That conclusion flows from
the fact that Safavi already had tendered the dues by entering
into the payment plan.
4. Applicable Case Precedent
The General Counsel and Respondents differ concerning
which Board precedent should be applied. The General
Counsel cites Colgate-Palmolive Co., 138 NLRB 1037 (1962).
Respondent Union, however, argues that General Motors
Corp., 134 NLRB 1107 (1961), states the applicable legal
principles.
The present facts bear a marked similarity to those in
Colgate-Palmolive, and I conclude that it is more apposite. It
presents squarely the central issue in this case, whether the
Union may lawfully accept the tender of back dues while
continuing to seek the employee’s discharge. Moreover,
because Colgate-Palmolive is the more recent case, its
principles will control.
The General Counsel cites Colgate-Palmolive for the
proposition that a union cannot both accept a member’s tender
of past dues and continue to request that the employer
discharge him. Respondent Union counters that the principle
relied upon by the General Counsel comes from a plurality
opinion, signed by only two of the five Board members, and
therefore provides shaky support for the proposition. Thus, the
Union’s prehearing brief stated, in part (with citations omitted)
as follows:
In finding a violation in Colgate-Palmolive, the decid-
ing vote, Member Fanning’s concurrence, relied heavily
on facts unique to that case. As he discussed in his con-
curring opinion, after paying her delinquent dues the em-
ployee was required to appear at a hearing before a union
committee to seek restoration to membership in good
standing. . .The committee apparently had discretion [to]
approve or deny the employee’s request, and it was the
employer’s practice to abide by the union committee’s de-
cision. . .The concurring opinion therefore concluded that
“under the practice of the parties, the union-security clause
in the contract has been administered to require, not only
the payment of dues, but also the maintenance of member-
ship in good standing in the Union as a condition of em-
ployment” . . . Thus. . .the enforcement of the union secu-
rity clause was not based on whether the employee made
the required dues payments, but on whether the union
chose in any given case to restore the employee to mem-
bership after the delinquency was repaid. In the present
case, by contrast, the Union acted based solely on whether
the employees cured their dues delinquencies by the July
20 deadline.
The Union’s brief accurately describes an important
distinguishing fact. However, in my view, Member Fanning’s
concurring opinion does not reject the principle that a union
may have its cake, as it were, by continuing to seek the
employee’s discharge, or may eat the cake by accepting the
post-deadline tender of the dues, but it may not do both.
Indeed, Member Fanning’s concurring opinion concludes as
follows:
The Act permits a union, which has obtained a valid union-
security provision in its contract, to demand either an
employee’s dues payment or his job. It does not give it the
right to demand both.
Colgate-Palmolive Company, 138 NLRB at 1043. Thus, in
Colgate-Palmolive, a majority of the Board, and not just a
plurality, supported this principle.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
862
Although the Board’s Colgate-Palmolive decision is almost
50 years old, counsel have not cited any case overruling it and
my own research has found none. Accordingly, I conclude that
it remains good law.
Respondent Union also seeks to distinguish Colgate-
Palmolive by arguing that in the present case, “the Union’s
office manager expressly told Safavi that paying his dues would
not result in his being reinstated to his job,” and did so before
Safavi signed the payment plan agreement. However,
Respondent bases this argument on the testimony of Office
Manager Advani, which I have not credited. To the contrary,
crediting Safavi’s testimony, I find that no Union agent or
representative informed him, before he signed the payment
plan, that the Union would continue to seek his discharge.
Additionally, I have credited Safavi, rather than Advani,
concerning the dates on which he visited the Union’s offices
and what occurred when he did. Thus, I find that at least twice
before the July 20 deadline, Safavi came to the Union’s offices,
spoke with the receptionist, Vera Manning, and unsuccessfully
requested to see Office Manager Advani.
Respondent Union did not call Manning as a witness, and
nothing in the record contradicts Safavi’s testimony concerning
his conversations with Manning. The Union had the
opportunity to call Manning during its case in chief, and it also
could have called her as a surrebuttal witness to respond to the
testimony Safavi gave on rebuttal. However, the Union did not
call her, and did not assert that she was unavailable as a
witness. No credited evidence would support a finding that
Safavi failed to come to the Union office before the July 20,
2007 deadline had passed and, likewise, no credited evidence
supports a finding that Advani or any other Union repre-
sentative informed Safavi, before he signed the payment plan,
that the Union would continue to seek his discharge.
Respondent Union also relies upon Advani’s testimony in
arguing that other cases should be distinguished. Respondent
cites these cases (as distinguishable): Teamsters Local 200
(State Sand & Gravel Co.), 155 NLRB 273 (1965), Cramp
Shipbuilding & Drydock Co., 151 NLRB 504 (1965), UAW
Local 1772 (Kuhlman Electric Co.), 210 NLRB 798 (1974),
and Larkins v. NLRB, 596 F.2d 240, 247 (1979), in connection
with its argument that the Union’s decision to keep the money
Safavi tendered did not waive its right to pursue his discharge.
In its prehearing brief, the Union argues that “the Board and
the Seventh Circuit looked to the union’s subjective under-
standing and intent in order to determine whether its handling
of the belated tender waived its right to enforce the union
security clause.” The Union thus asserts that a finding that a
union has waived its right to seek an employee’s discharge
must be based squarely on the facts of the case.
However, the credited evidence in the present case does not
favor the Union’s argument. To the contrary, the credited
evidence establishes that the Union knew, or reasonably should
have known, that Safavi was still an employee of Palmer House
Hilton on July 25, 2007, when he entered into the payment plan
agreement. Indeed, the Union’s own brief describes a
telephone call the Employer made to the Union the next day,
asking whether the Employer should proceed with the
requested discharges. It also refers to the Union’s answer, that
the Employer should “hold off” for the time being. Four days
later, when the Union told the employer to proceed with the
discharges, it clearly had knowledge that Safavi remained an
employee at the time he signed the payment plan agreement.
The credited evidence hardly provides a basis for distinguishing
the cited cases.
Although counsel, and some of the case precedents, use the
term “waiver,” the term “election” may be more apt. The
principle that a union may not have its cake and eat it, too—that
is, may not accept a member’s belated tender of past dues and
also continue to request his discharge—would appear to reflect
a policy choice arising from basic notions of fairness.
Indeed, it may be reasoned that the General Counsel need not
invoke either the principles of waiver or election to establish a
violation. A literal reading of Section 8(b)(2) would suggest
that it is unlawful for a union to attempt to cause the discharge
of an employee except upon the ground that he had failed to
tender the periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining membership.
Once this lawful reason ceases to exist, it may be argued, a
union’s continued effort to cause the discharge necessarily must
be for some impermissible reason.
In other words, it may be assumed that a labor organization,
which exists to represent employees, would not seek the
discharge of an employee for no reason at all. The absence of a
permissible reason gives rise to an inference of an
impermissible one. Or so it might be argued.
Even assuming that the government must establish that the
Union waived its right to seek Safavi’s discharge, and assuming
further that a finding of waiver turns on facts about a union’s
knowledge and/or intent, as the Union argues, the credited
evidence fully supports a conclusion that the Union’s
acceptance of Safavi’s dues tender waived its right to pursue
his discharge.
5. Respondent Union’s Estoppel Argument
During the hearing yesterday, Respondent Union raised for
the first time the argument that the conduct of the General
Counsel’s agents estop the government from proceeding.
Today, shortly before the hearing began, the Union’s counsel
submitted a memorandum on this issue. So that it may be given
careful consideration, I will address the estoppel argument in
the Certification of Bench Decision.
Summary
In sum, I conclude that Respondent Union violated Section
8(b)(2) and 8(b)(1)(A) by seeking and causing the discharge of
Safavi after accepting and keeping his tender of back dues.
Respondent Employer had sufficient reason to question the
legitimacy of the Union’s discharge request based upon the
conversations between the Union’s business manager and the
Employer’s human resources director. Moreover, the Charging
Party also communicated with the Employer.
I conclude that Respondent Employer violated Section
8(a)(3) and (1) of the Act by discharging Safavi at the Union’s
request.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
PALMER HOUSE HILTON 863
Certification also will include provisions relating to the
Findings of Fact, Conclusions of Law, Remedy, Order and
Notice. When that Certification is served upon the parties, the
time period for filing an appeal will begin to run.
Throughout the hearing, I have been very impressed with the
quality of all counsel’s advocacy and even more so, with the
high degree of professionalism and civility that has consistently
been shown. Now, I appreciate that very much.
The hearing is hereby closed.