The Bohemian Club

National Labor Relations Board - Administrative Judge Opinions

Dec 12, 2006

20-CA-032922 (N.L.R.B. Dec. 12, 2006)

JD(SF)–64–06
San Francisco, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

THE BOHEMIAN CLUB

and Case 20-CA-32922

UNITE HERE! LOCAL 2, AFL-CIO-CLC

Shelly Brenner, Esq. San Francisco, California,
for the General Counsel.

William F. Terheyden, Esq.
(Littler Mendelson), San Francisco, California,
for Respondent.

Kim C. Wirshing, Esq.
San Francisco, California, for the Union.

DECISION

Statement of the Case

JAY R. POLLACK, Administrative Law Judge. This case was tried in San Francisco,
California on October 4, 2006. On March 9, 2006, Unite Here, Local 2,1 (the Union) filed the
charge in this case against The Bohemian Club (Respondent or the Employer). On
May 12, 2006, the Regional Director for Region 20 of the National Labor Relations Board (the
Board) issued a complaint against Respondent. The complaint alleges that Respondent
violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by assigning
additional work duties to its cooks without prior notice and bargaining with the Union. The
Respondent filed a timely answer in which it denied that it had violated the Act.

The parties have been afforded full opportunity to appear, to introduce relevant evidence,
to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses, and having considered the briefs submitted by the
parties, I make the following:2

1 The name of the Union appears as corrected at the hearing.
2 The credibility resolutions herein have been derived from a review of the entire testimonial
record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses,
and the teachings of NLRB v. Walton Manufacturing Company, 369 U.S. 404, 408 (1962). As to
those witnesses testifying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or testimonial evidence, or
because it was in and of itself incredible and unworthy of belief.

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Findings of Fact

I. Jurisdiction

At all times material, Respondent has been a California corporation, engaged in the
operation of a private social club in San Francisco, California. Respondent, in conducting its
business operations described above, during the calendar year ending December 31, 2005,
purchased and received goods at various facilities in California valued in excess of $5,000 directly
from sources outside the State of California. Further, during the same time period, Respondent
derived gross revenues in excess of $500,000 from the sale of food, beverages and service to its
members and their guests. Accordingly, the parties stipulated and I find, Respondent is an
employer engaged in commerce within the meaning of Sections 2(2), (6) and (7) of the Act.

The parties stipulated that the Union is a labor organization within the meaning of Section
2(5) of the Act.

II. Facts

Since at least 1966, the Union has been the exclusive collective-bargaining
representative of an appropriate unit of Respondent’s food service employees in San Francisco,
California. The most recent collective-bargaining agreement between the parties was effective
by its terms from August 1, 2000 through July 31, 2005. The bargaining unit covered by the
agreement is:

All employees at Respondent’s San Francisco facility performing work covered
by the terms of the collective-bargaining agreement between Respondent and
the Union effective for the period from August 1, 2000 to July 31, 2005.

As stated above the parties’ collective-bargaining agreement expired July 31, 2005.
Bargaining over a successor bargaining agreement was still ongoing at the time of the instant
hearing. The last bargaining session was conducted on February 13, 2006. As of the trial,
agreement on a successor contract had not yet been reached.

Respondent operates a private club in San Francisco that provides meals to its
members, including a continental breakfast, lunch and evening buffets. In September 2005
Respondent opened a new small kitchen on the first floor to be used primarily for lunches. The
new kitchen is small, much smaller than the old kitchen (the main kitchen) on the second floor
which has been in existence for many years. The Union represents the cooks and stewards
assigned to both kitchens. These employees report to the sous chef and executive chef.

In September 2005, when Respondent opened the first floor kitchen, three regular cooks
were reassigned from the main kitchen to the first floor kitchen. These cooks were Ricardo
Cabrera, Danny Hong, and Nate Thomas, the union steward. A fourth cook, Jose Luna,
continued to work in the main kitchen but at times would help out in the first floor kitchen.

Thomas, Cabrera and Hong all testified that prior to the opening of the new kitchen, the
only cleaning tasks they were required to perform were to clean up an occasional spill during
their shift and, after meal service ended to wipe off the area where they worked with a damp
cloth or hot towel, put away leftover food, and clean and put away their tools. Occasionally they
would use a broom to clean up food that had fallen on the floor. The normal duties of cleaning
the kitchen and sweeping the floors were performed by the stewards.

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When the new kitchen opened in September 2005, sous chef Kevin Miller ordered the
cooks to clean the first floor kitchen. The cooks were told by then general manager Matt
Oggero to scrub down the kitchen, including the stainless steel walls and counters, the
refrigerator doors and grills. Oggero also instructed the cooks to pick up the floor mats and
sweep the floors. On the second day of the operation of the new kitchen, then executive chef
Richard Brandenburg demonstrated to the cooks how he wanted the first floor kitchen cleaned
at the end of the shift. Brandenburg then instructed the leadman for the stewards that the
stewards were not to clean the first floor kitchen except to mop the floors and to take care of the
garbage. Prior to this time, the cleaning duties assigned to the cooks had been performed by
the stewards.3 The cooks testified that these cleaning duties took approximately 30 minutes to
perform. Danny Hong who would otherwise have left work 30 minutes earlier than his
colleagues needed to work approximately 30 minutes of overtime to perform the cleaning duties
with the other cooks.

The cooks performed these new cleaning duties from September 2005 until
September 2006. In September 2006 Respondent’s new executive chef informed the cooks
that they no longer had to pick up the kitchen mats and sweep the floors. The cooks still
performed the other cleaning duties to which they were assigned in September 2005.

Union representative Alphonse Pines testified that Respondent did not notify the Union
of this change in the cooks’ duties. Pines first learned of the change from union steward Nate
Thomas, approximately a week after the cooks had begun performing the additional duties. The
Union did not request bargaining over the changes. On March 7, 2006, Pines field a written
grievance against Respondent alleging a violation of the contract articles entitled “combination
jobs and job descriptions”. Pines met with Respondent’s Human Resources Director Al Bowen
but nothing was resolved. The Union did not follow up on the grievance. The instant charge
was filed on March 9, 2006.

The parties’ expired collective-bargaining agreement classifies stewards and cooks as
belonging to separate crafts. Section 30. Job Descriptions of the agreement states:

Employees shall not be required to perform work which is not customary to their
craft, except in emergency such as fire, flood, earthquake or death.

Section 22. Combination Jobs of the agreement states in pertinent part:

An employee may be assigned a position which combines not more than two (2)
classifications of work. Said employee shall be paid at the rate of the higher
classification, provided he or she works in that classification for one hour. . . .

Respondent’s defense

Respondent argues that the Union had notice of these changes in September 2005 but
never requested bargaining. Secondly, Respondent argues that the new cleaning duties “had
no material, substantial or significant impact on the cooks’ working conditions.” Third,
Respondent argues that these changes were de minimis. Finally, Respondent argues that the
collective-bargaining agreement allowed Respondent to assign the additional cleaning duties.

3 General Counsel and the Union offered evidence that in all the other unionized private
clubs in San Francisco, these cleaning duties are performed by stewards or porters and not
cooks.

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The preamble to the agreement provides:

It is mutually agreed that it is the sole right of the management to manage the
Club and to direct the working forces. Management of the Club includes
determination of the type and scope of services and the methods, means, and
procedures of providing services. The Employer has a right to establish and
enforce reasonable rules and regulations governing the employment relationship.
Finally, the parties recognize the success of the Cub’s operations depends, in
large part, on the personal responsibility of each employee to provide service to
the best of his/her ability and to cooperate with management in insuring the
overall success of the organization.

Section 13. Past Practices

Except as specifically modified by the negotiations resulting in this Agreement,
the parties agree to the continuation of all practices as regards the interpretation
and application of their Agreements, including, but not limited to, the hours and
working conditions for all workers employed by the Club at either of its facilities.
To the extent there is a conflict between such a practice and an Agreement, the
practice shall prevail. By agreeing to this provision, it is the intent of the parties
to maximize job security for existing regular employees by continuing practices
within the Club which are designed to provide for flexibility of work assignments
while maintaining, to the extent practicable, historical jurisdictional lines.

III. Conclusions

The Unilateral Implementation

Section 8(a)(5) and (d) require an employer to bargain in good faith with its employees'
representative concerning wages, hours, and other terms and conditions of employment of
bargaining unit employees. It is well settled that unilateral action by an employer without prior
discussion with the union amounts to a refusal to negotiate about the effected conditions of
employment. NLRB v. Katz, 369 U.S. 736 (1962). Moreover, a showing of subjective bad faith
on the employer's part is unnecessary to establish a violation. Id.

However, the Board has noted that not every unilateral change constitutes a breach of
the bargaining obligation. The change unilaterally imposed must be a “material, substantial, and
significant” one. Peerless Food Products, 236 NLRB 161 (1978); Millard Processing Services,
320 NLRB 421, 425 (1993); Crittenton Hospital, 342 NLRB 686 (2004). In Berkshire Nursing
Home, 345 NLRB No. 14, slip op. at 2 (2005), the Board found that the mere fact that an
employee is “disadvantaged” by a change, although perhaps relevant to the test (of whether a
change is material, substantial and significant), is not alone sufficient to satisfy the test. The
Board held that the change is measured by the extent to which it departs from the existing terms
and conditions affecting employment. See also Southern California Edison Co., 284 NLRB
1205 at n. 1 (1987), enfd. mem. 852 F.2d 572 (9th Cir. 1988); Crittenton Hospital, 342 NLRB 686
(2004).

In this case, there has been unilateral action by Respondent without prior discussion
with the Union, in assigning the cooks cleaning duties which histrionically had been performed
by the stewards’ craft. The collective-bargaining agreement states that employees shall not be
required to perform work which is not customary to their craft, except in emergency. I find that

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Respondent’s conduct amounts to a refusal to bargain about the effected conditions of
employment. See Ironton Publications, 313 NLRB 1208, n.3 (1994) violation to unilaterally
assign pressman duties which were the job of custodial staff for many years); and
Woods School, 270 NLRB 171, 176 (1984) (violation to unilaterally assign cooking and cleaning
duties to house parents, work which had previously been performed by pantry workers and
cleaning personnel.).

In such cases, the Board looks to whether a change has been implemented in
conditions of employment. It simply determines whether a change in any term and condition of
employment has been effectuated, without first bargaining to impasse or agreement and
condemns the conduct if it has. The Daily News of Los Angeles, 315 NLRB 1236 (1994),
remanded 979 F.2d 1571 (D.C. Cir. 1992), decision supplemented 315 NLRB 1236 (1994),
enfd. 73 F.3d 406 (1996), cert. denied 519 U.S. 1090 (1997).

Respondent contends that the Union failed to request bargaining over the changed work
assignment of the cooks. A Union that has had notice of an employer’s proposed change in a
term or condition of employment must timely request and diligently pursue bargaining if it wishes
to preserve its right to bargain over that subject. Salem College, 261 NLRB 327, 326 (1982);
City Hospital of East Liverpool, Ohio, 234 NLRB 58 (1971); American Buslines Inc., 164 NLRB
1055 (1967). The union cannot be content with merely protesting the action or filing an unfair
labor practice charge over the matter. Citizens Nat. Bank of Willmar, 245 NLRB 389, 390
(1979); American Buslines, Inc., at 1055-56.

In Citizens National Bank of Willmar the change announced by the respondent-bank was
that tellers would no longer be excused from working Monday evenings when scheduled to work
Friday evenings. This new policy was to become effective and in fact became effective the
following Monday, November 28. It is undisputed that, prior to its announcement or
implementation, respondent did not bargain with the union concerning the decision or the effects
of this change.

On either November 23 or 24, the union’s attorney and business agent was informed by
the bank of the announced change. Thereafter, on November 29, at the next contract
negotiating session held between the parties, the business agent told the respondent's attorney
and negotiator, that he objected to the recent change made by respondent. Respondent’s
attorney responded that he was unaware of the change and that he would investigate the
matter. Later during the session, respondent’s attorney informed the business agent that he had
investigated the matter and that the respondent's position was that the change made was
consistent with its past practice of scheduling employees to work up to 40 hours per week, when
necessary.

Subsequent to this meeting, on December 15, the union filed an unfair labor practice
charge alleging, inter alia, that the change in employees' work schedules made by the
respondent-bank violated Section 8(a)(5) and (1) of the Act. However, the Board found that
other than the November 29 conversation referred to above, the union did not have any
discussion with the respondent-bank concerning such change, did not request that the bank
rescind the change, and did not request that the bank bargain with the charging party-union
concerning this change in scheduling hours.

The Board held that although the charging party-union objected at the November 29
negotiations session to the bank’s previously announced change in the employees' work
schedules and thereafter filed an unfair labor practice charge, it admittedly did not seek

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bargaining over the matter. In fact, when the bank explained its actions, the union accepted the
explanation without additional comment. The Board therefore concluded that, having failed to
exercise its right to demand bargaining over the issue, the charging party could not in the unfair
labor practice case effectively claim that the bank unlawfully refused to bargain.

In the instant case, the Union’s steward Nate Thomas was aware of the unilateral
change upon its implementation in September 2005. Union Representative Alphonse Pines first
learned of the change from Thomas approximately a week after the cooks had begun
performing the additional duties. On March 7, 2006, Pines field a written grievance against
Respondent alleging a violation of the contract articles entitled combination jobs and job
descriptions. Pines met with Respondent’s Human Resources Director Al Bowen but nothing
was resolved. The Union did not follow up on the grievance. The instant charge was filed on
March 9, 2006. There is no evidence that the Union ever demanded bargaining over this
unilateral change. Bargaining had been going on since August 2005 and there had been a
bargaining session in February 2006. However, the Union never requested bargaining about
the change in the duties of the cooks. Thus, I find that the Union cannot effectively claim that
Respondent refused to bargain. Negotiations were taking place, but the Union did not request
bargaining on this issue. More than five months after learning of the change the Union filed a
grievance, which it did not pursue, and an unfair labor practice. As stated above, the Union
cannot be content with merely protesting the action or filing an unfair labor practice charge over
the matter. Citizens Nat. Bank of Willmar, 245 NLRB 389, (1979); American Buslines, Inc., 164
NLRB 1055 (1967).

In sum, I find that Respondent unilaterally changed the terms and conditions of
employment of the cooks in the bargaining unit but that the Union did not request collective
bargaining over that subject matter. Accordingly, I cannot find that Respondent violated Section
8(a)(5) and (1) of the Act.

Conclusions of Law

1. Respondent is an employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within the meaning of Section 2(5) of the Act.

3. The Respondent has not engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act

Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the following recommended:4

4 All motions inconsistent with this recommended order are hereby denied. If no exceptions
are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.

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ORDER

The complaint is hereby dismissed.

Dated, Washington, D.C., December 12, 2006.

____________________
Jay R. Pollack
Administrative Law Judge