Unite Here Local 1 (Stefani's Pier Front, Inc. d/b/a Crystal Garden)

National Labor Relations Board - Board Decisions

Feb 12, 2014

360 N.L.R.B. 256 (N.L.R.B. 2014)

256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 42
UNITE HERE Local 1 (Stefani’s Pier Front, Inc.
d/b/a Crystal Garden) and Eileen Chapa. Case
13–CB–096888
February 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
On July 12, 2013, Administrative Law Judge Bruce D.
Rosenstein issued the attached decision. The General
Counsel filed exceptions, a supporting brief, and a reply
brief. The Respondent filed an answering brief to the
General Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions, and
to adopt the recommended Order.1
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Christina B. Hill, Esq., for the Acting General Counsel.
Kristin L.Martin, Esq., of San Francisco, California, for the
Respondent-Union.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on May 23, 2013, in Chicago, Illinois,
pursuant to a complaint and notice of hearing in the subject
case (the complaint) issued on March 15, 2013, by the Regional
Director for Region 13 of the National Labor Relations Board
(the Board). The charge was filed on January 23, 2013, by
Eileen Chapa (the Charging Party or Chapa) alleging that Unite
Here Local 1 (the Respondent or the Union), has engaged in
certain violations of Section 8(b)(2) of the National Labor Rela-
tions Act (the Act) by causing the discharge of Chapa from her
employment with Stefani’s Pier Front, Inc. d/b/a Crystal Gar-
den (the Employer or Crystal Garden). The Respondent filed a
timely answer to the complaint denying that it had committed
any violations of the Act.
Issues
The complaint alleges that the Respondent engaged in a vio-
lation of Section 8(b)(2) of the Act by causing the Employer to

1 We agree with the judge, for the reasons he states, that the Re-
spondent Union satisfied the requirements of Philadelphia Sheraton
Corp., 136 NLRB 888 (1962), enfd. sub nom. NLRB v. Hotel Employ-
ees Local 568, 320 F.2d 254 (3d Cir. 1963). Moreover, as the judge
also found, the Charging Party willfully and deliberately determined
not to satisfy her dues obligations to the Union. This conduct would
have excused any failure by the Union to fully comply with the Phila-
delphia Sheraton requirements. I.B.I. Security, 292 NLRB 648, 649
(1989).
discharge Chapa without previously advising her about the
consequences of nonpayment of the monetary amount in arrear
of her periodic dues, the total amount owed by Chapa, a month-
ly breakdown of the amount owed, and how the amount was
calculated.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation engaged in the business of
hosting and catering events for consumers in Chicago, Illinois,
where in the past 12 months it derived gross revenues in excess
of $500,000 and purchased and received at its facility goods
valued in excess of $5000 directly from points located outside
the State of Illinois. The Respondent admits and I find that the
Employer is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
At all material times, Matthew Johnson held the position of
the Respondent’s membership coordinator and Tara Advani
served as the Union’s office manager. Johnson and Advani are
admitted agents of the Respondent within the meaning of Sec-
tion 2(13) of the Act.
The Respondent and the Employer are signatories to a col-
lective-bargaining agreement, the most recent of which is effec-
tive from November 1, 2010, to December 31, 2013 (GC Exh.
12), and contains a union-security clause.1 On December 27,
2012,2 pursuant to the parties’ collective-bargaining agreement,
Johnson, by facsimile message, requested that the Employer
discharge Chapa.
Prior to commencing employment at Crystal Garden in July
1995, Chapa worked at Lino’s from 1993 to 2003 where she
was a member of the Respondent. Chapa executed a dues-
authorization form in 1993 that authorized union dues to be
deducted from her Lino’s paycheck. When Lino’s went out of
business in 2003, union dues were no longer deducted from her
paycheck.

1 Sec. 3 (Union Security and Employee Hiring) states in pertinent
part that as a condition of continued employment, all present employees
covered by the agreement who are members in good standing on the
date of the execution thereof shall remain members in good standing.
The failure of any employee to become a member of the Union at such
required times shall obligate the Employer, upon written notice from
the Union to such effect and with proper documentation, and to further
effect that union membership was available to such employee on the
same terms and conditions generally available to other members to
forthwith discharge such employee. Further, the failure of any employ-
ee to maintain his union membership in good standing as required
herein shall, upon written notice to the Company to such effect, obli-
gate the Employer to forthwith discharge such employee.
2 All dates are in 2012, unless otherwise indicated.
UNITE HERE LOCAL 1 (CRYSTAL GARDEN) 257
Chapa admitted, after commencing employment with Chrys-
tal Garden, that she knew the Union represented the bargaining
unit employees but she did not execute a dues-checkoff author-
ization form nor did she make arrangements to pay regular
monthly dues directly to the Union.3 Rather, Chapa testified
that she assumed dues would be taken out of her Crystal Gar-
den paycheck, but never looked at her paystub to see if dues
were deducted. The Respondent, who became the exclusive
collective-bargaining representative at the Employer sometime
before March 1, 2006, did not learn until April 2010 that Chapa
was employed and was a member of the bargaining unit. At
that time, Chapa was reinstated as a member effective March 1,
2006. Accordingly on September 15, 2010, and continuing on
a monthly basis through 2010, 2011, and to September 7, the
Respondent sent letters to Chapa setting forth a statement of her
dues account and the total amount of back dues owed to the
Union (R. Exh. 1).
By letter dated September 6 to Chapa, the Respondent pro-
vided her with a first notice of termination for dues delinquen-
cy.4 The letter specifically informed Chapa that her Employer
must terminate her if the back dues were not paid. Additional-
ly, the letter provided Chapa with the opportunity to work out a
payment plan to satisfy the delinquency if it was executed on or
before September 27 (GC Exh. 2).
By letter dated September 13 to Chapa, the Respondent pro-
vided a second notice of termination for dues delinquency, and
further made Chapa aware of the opportunity to work out a
payment plan to satisfy the dues arrearage. Attached to the
letter was a summary of the total amount owed, a monthly
breakdown, and how the amount was calculated (R. Exh. 3).
On September 17, Chapa telephoned the Union and spoke
with Johnson regarding the September 13 dues delinquency
letter. Johnson informed Chapa that the Union had sent a num-
ber of letters to her home address about the dues delinquency,
and had made a decision to enforce the union-security clause
provision of the collective-bargaining agreement (R. Exh. 4).
Chapa requested to speak to a specific union officer but John-
son told her that the officer was on vacation. Ultimately, John-
son transferred Chapa to Advani. During their telephone con-
versation, Chapa admitted that she was aware of her obligation
to pay union dues as a condition of her employment with Crys-
tal Garden, and suggested that a payment plan could be worked
out to satisfy the dues delinquency (R. Exh. 5).
By letter dated September 20 to Chapa, the Respondent pro-
vided her a final written notice of termination for dues delin-
quency. The letter informed Chapa of the total amount owed, a
monthly breakdown for the delinquency, and how it was calcu-
lated (GC Exh. 3).
On September 27, Chapa went to the Union’s office and exe-
cuted a payment plan to satisfy her dues delinquency.5 She also

3 Chapa’s obligation to pay union dues when jointly employed at
Lino’s and Crystal Garden between 1995 and 2003 was to pay one set
of dues since she was working in two union shops.
4 Attached to the letter was a summary with the total amount owed
by Chapa, a monthly breakdown, and how the amount was calculated.
5 The payment plan stated in pertinent part that I understand and
agree that if I don’t comply with the terms of the plan I shall have no
further rights under this plan, and that Local 1 can and will instruct my
wrote a check to the Union for the first of three installments
due in the amount of $1,002.37 (GC Exh. 4). While Chapa was
in the office on that day, she requested a copy of the current
collective-bargaining agreement. Johnson printed a copy for
her and also provided Chapa a copy of the executed payment
plan, and a list of frequently asked questions (FAQ) about the
union payment plan (R. Exhs. 7 and 8).6
On October 5, Chapa executed a checkoff authorization form
that provided union dues would commence being deducted
from her Crystal Garden paycheck effective October 12 (GC
Exh. 5).
By letter dated October 31, the Union informed Chapa that
she has defaulted on her payment plan obligation in the amount
of $1,002.37 by not paying the second installment that was due
on that date, but would grant her an extension of time until
November 12 to make the payment. The Union informed
Chapa that if the payment is not received by that date, the Un-
ion will instruct Crystal Garden to terminate her employment
for not complying with the union-security provision in the col-
lective-bargaining agreement (R. Exh. 10). Additionally,
Chapa was informed that a copy of the letter has been sent to
Crystal Garden.
By letter dated November 1 to Chapa, the Union provided
her a statement of her dues account showing a balance due of
$2,493.63 (GC Exh. 11).
By letter dated November 7 to Chapa, the Union informed
her that it decided to revise its payment plan policy for employ-
ees with dues delinquencies over $1000, and it would now offer
a 6-month payment plan. The letter further informed Chapa
that although she defaulted on her 3-month payment plan, the
Union would give her 6 months to satisfy the remaining delin-
quency. Chapa was instructed to be at the union office on No-
vember 12 to enter into the payment plan agreement or be pre-
pared to pay the entire balance due of $2,004.74. Otherwise,
the Union would instruct Crystal Garden to terminate her (GC
Exh. 6).
Chapa went to the union office on November 12 and met
with Johnson. She executed the payment plan agreement and
made an initial payment of $334.12. Chapa acknowledged that
the new payment plan superseded the September 27 payment
plan. The November 12 payment plan confirmed that if Chapa
did not comply with the terms of the plan, the Union can and
will instruct the Employer to terminate her for failure to meet
the union-security provision under the collective-bargaining
agreement (R. Exhs. 11 and 12; GC Exh. 7).7

Employer to terminate me for failure to meet my financial obligations
to Local 1.
6 The FAQ informed Chapa that the best way to keep from getting
behind in your dues obligation is to authorize your Employer to deduct
dues from your paycheck and that the first payment under the plan is
due when you sign the pay plan agreement. The second payment is due
by the end of the following month, and the third payment is due by the
end of the month after that. Lastly, the FAQ informed Chapa that her
current dues are not included in the payment plan, they are a separate
payment.
7 R. Exh. 11 informed Chapa of the total amount of the dues delin-
quency, a monthly breakdown of the amount, and how it was calculat-
ed.
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated November 19 to Chapa, the Union informed
her that the second payment of $344.12 was due on November
30, and the third installment was due on December 31 (GC
Exh. 8).8
On November 30 (Friday), Chapa went to the union office
and wrote a check in the amount of $344.12. She requested
that the check not be deposited until December 3 (Monday),
and Johnson gave assurances that it would not be deposited
until that date. On December 3, the check was deposited in the
union bank account.
By letter dated December 4 to Chapa, the Respondent pro-
vided her with a statement of her dues account (GC Exh. 14). It
showed that the balance due on her delinquency was $1,819.32.
On or about December 10, Chapa received a letter from the
bank notifying her that a number of checks that were written on
the account including the check to the Union for $344.12 were
not paid due to insufficient funds. Chapa did not contact the
Union about this situation nor did she make any attempt to
rectify the matter by writing another check to cover the dues
delinquency.
On or about December 12, the Respondent became aware
that Chapa’s check dated November 30 in the amount of
$344.12 was not paid by the bank due to insufficient funds in
her account (GC Exh. 9).
On December 13, Johnson placed a telephone call to Chapa’s
residence that was answered by a gentleman. Johnson did not
discern the identity of the individual but left a message with
him to have Chapa return the call. The gentleman informed
Johnson that he would give Chapa the message.
On December 14, Johnson placed a second telephone call to
Chapa’s residence but no one answered the telephone and he
had no recollection whether he left a voice mail message.
Chapa asserts that no one in her household informed her that
Johnson had telephoned the residence at any time in December
2012.
By letter dated December 17 to Chapa, the Respondent noti-
fied her that the payment made on November 30 that was de-
posited on December 3 was not paid by the bank due to insuffi-
cient funds in the account (GC Exh. 9). The letter further stated
that you have defaulted on your payment plan to pay your
overdue financial obligations. As the plan provides, in the
absence of paying the entire remaining amount of $1,670.61 by
December 27, the Union will instruct your employer to termi-
nate you for not complying with the union-security provision in
the collective-bargaining agreement.9
Chapa testified that she did not receive the December 17 let-
ter until December 29. Johnson testified that the December 17
letter was processed in the same manner as all previous corre-
spondence that was sent and received by Chapa regarding her

8 The second payment, in accordance with the November 6-month
payment plan should have been $334.12. Record testimony confirmed
that the $344.12 amount was a typographical error. Attached to the
November 19 letter was the total amount of back dues owed, a monthly
breakdown of the amount, and how it was calculated.
9 Attached to December 17 letter was a chart depicting the total
amount of dues owed, a monthly breakdown of the amount owed, and
how it was calculated.
dues delinquency, and was deposited in the US mail by an em-
ployee of the Union.
On December 27, Chapa received a telephone call from a
Crystal Garden supervisor who informed her that the Employer
had been requested by the Union to terminate her for not com-
plying with the union-security provision in the collective-
bargaining agreement. Accordingly, the Employer terminated
Chapa on December 27.
B. Discussion
The law applicable to labor organizations’ obligations to rep-
resented employees in the context of seeking or obtaining an
employee’s discharge for failure to meet union-security re-
quirements has been in effect for many years.
The Board’s seminal case on the issue is Hotel & Restaurant
Employees Local 568 (Philadelphia Sheraton Corp.), 136
NLRB 888 (1962), enfd. 320 F.2d 254 (3d Cir. 1963), holding
that a union seeking to enforce a union-security provision
against a represented employee has a fiduciary duty to deal
with the individual.
The Board, in Teamsters Local 150 (Delta Lines), 242
NLRB 454, 454–455 (1979), stated,
The General Counsel alleged that Respondent’s con-
duct in securing the employee’s discharge violated Section
8(b)(1)(A) and Section 8(b)(2) of the Act because Re-
spondent did not afford the employee a reasonable oppor-
tunity to comply with the contractual security provisions,
and did not inform the employee of the amount he owed,
the method used to compute the amount, and the manner
in which he could satisfy his obligation before it sought
the discharge.10
Likewise, in Coopers NIU (Blue Grass), 299 NLRB 720,
721 (1990), the Board specifically held:
[w]hen a union seeks to enforce the union-security provision
of a contract against unit employees, it has a fiduciary duty to
fully inform the employee of his dues obligation before taking
any action to effect his discharge. Specifically, the union has
to give the employee, at minimum, reasonable notice of the
delinquency, including a statement of the precise amount and
months for which dues are owed and of the method used to
compute the amount, tell the employee when to make the re-
quired payment, and explain to the employee that failure to
pay will result in discharge.
The Respondent argues that the protections provided in Phil-
adelphia Sheraton, supra, were never intended to be so rigidly
applied as to permit a recalcitrant employee to profit from his
or her own dereliction in complying with the obligations of
ignorance or inadvertence but will do so only as a matter of
conscious choice. The Respondent further asserts, in accord-
ance with Western Publishing Co., 263 NLRB 1110, 1113
(1982), that when it is shown that an employee willfully and

10 The Board has long held that these obligations must be satisfied
before a discharge may be sought for failing to comply with the con-
tractual union-security provisions of a collective-bargaining agreement.
See Teamsters Local 122 (August A. Busch & Co. of Mass, Inc.), 203
NLRB 1041 (1973).
UNITE HERE LOCAL 1 (CRYSTAL GARDEN) 259
deliberately sought to evade his or her union-security obliga-
tions, the Board will excuse a union’s failure to fully comply
with the notice requirements.
The Acting General Counsel recognizes the Board’s deci-
sional underpinnings creating the Respondent’s “free rider”
affirmative defense to allegations of union mishandling of a
union-security discharge, but argues that the facts of the instant
case do not support its application herein. Indeed, the Acting
General Counsel notes cases similar to the Board’s holding in
Grassetto USA Construction, Inc., 313 NLRB 674, 677 (1994),
that negligence or inattention on the part of the employee will
not relieve the union of its fiduciary obligation. The union
must show that an employee willfully and deliberately attempt-
ed to avoid union-security obligations before the Board will
excuse the union’s failure to fully comply with the notice re-
quirements.
The Acting General Counsel specifically argues in paragraph
5(c) of the complaint that the Respondent caused the Employer
to discharge Chapa without previously advising the employee
about the consequences of nonpayment of the monetary amount
in arrear of her periodic dues, the total amount owed by Chapa,
a monthly breakdown of the amount owed, and how the amount
was calculated.
Based on the record testimony, I note that Chapa was not na-
ïve about the obligation to pay periodic dues while working in a
union environment. Indeed, prior to her employment with
Crystal Garden, Chapa worked at Lino’s in which the Respond-
ent represented the bargaining unit employees and executed a
checkoff authorization form to have union dues deducted di-
rectly from her paycheck. I am hard pressed to believe Chapa’s
assertion that for the years after the 2003 closing of Lino’s she
did not know that union dues were not being taken out of her
Crystal Garden paycheck. It is inconceivable to me that an
employee does not review their paystub to ensure that he or she
is paid correctly including the itemized deductions that are
subtracted to reach the net payment.
Chapa admitted that during her employment at Crystal Gar-
den, she knew the Union represented the bargaining unit em-
ployees. Chapa also admitted during her September 17 tele-
phone conversation with Advani that she was aware of her dues
obligation to the Union as a condition of continued employ-
ment. Although Chapa testified that early in her employment
with Crystal Garden she inquired of a supervisor whether there
was a checkoff procedure to pay dues and was informed noth-
ing of that nature existed, the record confirms that Chapa did
not verify this information with the Union nor did she contact
the Union directly to commence the procedure to self-pay her
dues.
The Acting General Counsel principally rests its case on the
fact that Chapa did not receive the December 17 written official
notification from the Union of her dues delinquency and inten-
tion to terminate her on December 27, until December 29, 2
days after she was actually terminated. I reject this position for
the following reasons.
It must be noted that the December 17 letter was mailed to
the same address in which Chapa previously received the Un-
ion’s multiple letters advising her of her dues delinquency and
providing her an opportunity on repeated occasions to enter into
a payment plan to satisfy her dues obligations. As admitted by
Chapa, prior union correspondence regarding the dues delin-
quency issue was received at her residence 2–3 business days
after being mailed. Indeed, the Union followed the identical
procedure on every occasion when sending correspondence to
Chapa by depositing it in the US mails. Thus, I am circumspect
that Chapa did not receive the December 17 letter until Decem-
ber 29, 12 days after it was mailed. While I note that the Union
did not conclusively establish that Chapa neither received the
December 17 letter prior to her discharge nor received the tele-
phone message left by Johnson on December 13 with someone
in her household, I do not find this dispositive. United Metal-
tronics Local 995 (Pharmaseal Laboratories, Inc.), 254 NLRB
601,606 (1981).
Rather, record evidence establishes that the Union bent over
backwards to accommodate Chapa with her dues delinquency
issues. In this regard, the Union notified Chapa on a continuing
and regular basis regarding the delinquency including the total
amount owed, a monthly breakdown, and how it was calculat-
ed. It also repeatedly warned Chapa that in the absence of re-
solving her dues obligations, the Employer would be requested
to terminate her employment for failing to adhere to the union-
security provision of the collective-bargaining agreement.
Moreover, in both the September 27 and November 12 payment
plans that Chapa executed, she acknowledged and agreed that
noncompliance with its terms and conditions enabled the Union
to notify Crystal Garden to terminate her employment for fail-
ure to meet her financial obligations to the Respondent.11
Finally, and critical to my determination that Chapa willfully
and deliberately determined not to satisfy her dues obligations
with the Union is her admission that on December 10 the bank
notified her that the dues check written on November 30 and
deposited by the Union on December 3, was not paid due to
insufficient funds in the account. Such an admission 17 days
prior to her termination combined without any affirmative ac-
tion by Chapa in contacting the Union in an effort to work out
an accommodation forecloses any argument that mere negli-
gence or inattention contributed to her determination not to
satisfy the back dues obligation. Chapa made a conscious
choice, after Lino’s closed in 2003, not to pay union dues de-
spite recognizing and admitting in this proceeding that as a
condition of her continued employment at Crystal Garden the
payment of those dues was mandatory.
I find, based on the particular circumstances of this case, that
the Union made numerous good-faith efforts to assist Chapa in
meeting her dues obligations while regularly providing written
documentation as to the total amount of back dues owed, a
monthly breakdown of that amount, and how it was calculated.
Thus, the requirements of Philadelphia Sheraton have been
satisfied in this case. I.B.I. Security, Inc., 292 NLRB 648, 649
(1989), and Teamsters Local 630 (Ralph’s Grocery Co.), 209
NLRB 117, 125 (1974).

11 I note that a copy of the December 17 letter was scanned and
served on the Employer by email. The Acting General Counsel did not
present any evidence that Crystal Garden did not receive the letter in
the regular course of business prior to Chapa’s termination on Decem-
ber 27.
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For all of the above reasons, I find that the Respondent did
not violate Section 8(b)(2) of the Act.12
CONCLUSIONS OF LAW
1. Crystal Garden is an Employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.

12 While I acknowledge that Chapa had serious financial concerns
ongoing in her life during this period, it does not excuse her obligation
to adhere to the union-security provision in the collective-bargaining
agreement, particularly noting that she made a conscious decision not
to pay union dues to the Union commencing in 2003.
3. Respondent did not violate Section 8(b)(2) of the Act
when it caused Crystal Garden to discharge Eileen Chapa.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The complaint is dismissed.

13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.