UNITE HERE LOCAL 5 (Hyatt Regency Waikiki Resort & Spa)

National Labor Relations Board - Administrative Judge Opinions

Sep 18, 2015

20-CB-127565 (N.L.R.B. Sep. 18, 2015)

JD(SF)–39–15
Honolulu, HI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
UNITE HERE! LOCAL 5
(HYATT CORPORATION D/B/A
HYATT REGENCY WAIKIKI)
and Cases 20-CB-127565
20-CB-127695
MARK TAMOSIUNAS, an Individual
and
AGNES DEMARKE, an Individual
and
WAYNE YOUNG, an Individual
and
STEVEN TAONO, an Individual
Jeff F. Beerman, Esq. and Meredith A. Burns, Esq.,
On Behalf of the General Counsel
Sarah E. Hartsfield, Esq.,
On Behalf of the Charging Parties
Eric B. Meyers, Esq., Davis, Cowell & Bowe, LLP,
On Behalf of Respondent
DECISION
Statement of the Case
JOHN J. MCCARRICK, Administrative Law Judge. This case has been submitted on a
stipulated record, without testimony, by the parties after a telephonic hearing, agreed to by all
parties on April 27, 2015. The case was tried upon the consolidated complaint in Cases 20-CB-
127565 and 20-CB-127695 on January 29, 2015, by the Regional Director for Region 20.
The complaint alleges that Unite Here, Local 5 (Respondent) violated Section
(8)(b)(1)(A) of the Act by notifying the Charging Parties, Agnes Demarke (Demarke),
Mark Tamosiunas (Tamosiunas), Steven Taono (Taono), and Wayne Young (Young) and other
employees who were financial core members that they owed Respondent dues for a time period
when there was no collective-bargaining agreement in effect.
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Respondent filed a timely answer to the complaint and stated it had committed no
wrongdoing.
FINDINGS OF FACT
Upon the entire record herein, including the briefs from the Counsel for the General
Counsel, Charging Parties and Respondent, I make the following findings of fact.
I. Jurisdiction
The parties stipulated that the Employer herein, Hyatt Corporation d/b/a Hyatt Regency
Waikiki, operates a hotel in Honolulu, Hawaii, and, in conducting operations during the 12-
month period ending December 31, 2014, the Employer derived gross revenue in excess of
$500,000 and purchased and received products, goods, and materials valued in excess of
$5000 directly from points outside the State of Hawaii. At all material times, the Employer has
been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. Labor Organization
Respondent admits that it represents workers in the hotel and hospitality industry in
Hawaii and that it is a labor organization within the meaning of Section 2(5) of the Act.
Respondent admitted and I find that, is a labor organization within the meaning of Section 2(5)
of the Act.
III. The Alleged Unfair Labor Practices
A. The Facts
The relevant facts herein are set forth in the parties’ joint factual stipulations and joint
exhibits, received as joint exhibit 1 9 (Jt. Exh. 1).
After the hearing closed, on June 3, 2015, counsel for the General Counsel filed a
motion to strike portions of Respondent’s Brief to the administrative law judge. On June 4,
Charging Parties also filed a motion to strike portions of Respondent’s Brief to the administrative
law judge. On June 9, 2015, Respondent filed its opposition. General Counsel and Charging
Parties contend that Respondent's brief to the Administrative Law Judge made factual and other
assertions that were not a part of the stipulated record. General Counsel and Charging Parties
cite five items that should be stricken from Respondent’s brief:
1. The first four paragraphs of Respondent’s "Introduction" on page 1, where
Respondent created a fictitious tale of Charging Party Steven Taono's initial reading
and response to the Union's demand for payment in "early April 2014."1
2. Respondent’s statement, "Pursuant to the terms of the Charging Parties' April 21
letters, Hyatt commenced withholding fees for representational purposes after the
collective bargaining agreement went into effect. See Exhibit 12."2

1 R. br. at p. 1, LL. 2-15.
2 Id. at p. 5, LL. 17-19.
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3. Respondent’s statement, "It is clear from the letter that they were auto-generated by
a computerized billing system."3
4. The entirety of footnote 3 on page 6 of Respondent's brief. This footnote states:
“There are many reasons why a union member might accrue an arrearage. For
example, an employee may be out on leave of absence and not have wages from
which to deduct his or her monthly membership dues commitment in a given period.
Local 5’s effort to collect dues arrearages from members is not at issue in this
proceeding. Stip. note 2.”4
5. Respondent’s statement, "It was sent during a time of labor peace in an atmosphere
entirely free from other allegations of coercion."5
Respondent counters the motions to strike by arguing that the Introduction in its brief is
quite obviously rhetorical prose presented in an effort to persuade the decision maker that an
employee would not reasonably find the March 31, 2014 letter to be coercive, that the
statement, that Hyatt commenced withholding fees after the collective-bargaining agreement
went into effect, is supported by inferences that can be drawn from the extant record, that Local
5’s assertion that it is “clear” that the March 31 letter was auto-generated by a computerized
billing system is a permissible observation based on a document in the record, that Local 5’s
statement that there are many reasons a union member might accrue an arrearage is a
statement of general practice in the field in which the Board has expertise, and is not
objectionable and that Local 5’s assertion that the March 31 letter was sent during a time of
labor peace in atmosphere free of other allegations of coercion is supported by the record and
perfectly appropriate.
As to the first item General Counsel and Charging Parties seek to strike from
Respondent’s brief, I find it is in the nature of argument not fact and I will not consider it as a
matter of fact. As to item two, I find it is a reasonable inference to be drawn from extant
documents and I will not strike this item. With respect to the third matter, while the documents
seem similar, there is no way to conclude they were auto generated and I will grant the motion
to strike. I will grant the motion to strike item four since I find the information irrelevant and a
matter of speculation not encompassed by the record herein. As to item five, while there may
have been reference to “labor peace” in record documents, this issue was not fully litigated in
this proceeding and I will grant the motion to strike.
The parties’ factual stipulations set forth in Jt. Exh. 1 1 reflect the following:
11. Since at least July 1, 2006, Local 5 has been the exclusive collective-bargaining
representative of the following bargaining unit of employees employed by the Employer:
All employees of the Employer described in the most current collective-
bargaining agreement between Respondent and the Employer, including
employees in the Banquet Department, Beverage Department, Food Preparation
Department, Food Service Department, General Clerical Department,
Housekeeping Department, Maintenance Department, Steward Department,
Uniform Services Department, Porterage Participants, and Parking Department.

3 Id. at p. 6, L. 6.
4 In its opposition, Respondent erroneously refers to this as fn. 2.
5 R. br. at p. 7, LL. 2-3.
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12. Local 5 and the Employer were parties to a collective bargaining agreement (the
"Collective Bargaining Agreement") between approximately July 1, 2006, and June 30, 2010.
Section 7 of the collective-bargaining agreement stated:
SECTION 7, UNION SECURITY
7.01 Employees who are now members of the Union shall, as a condition of
continued employment, remain members of the Union. All other employees and
all new employees shall, as a condition of continued employment, become
members of the Union no later than the thirty-first (31 s) day following the
execution of this Agreement or their date of employment, whichever is later.
7.02 Five (5) days after receipt of written notice from the Union that an employee
has failed to tender his uniform dues and initiation fees in accordance with the
provisions of the Labor Management Relations Act of 1947, as amended, Hyatt
shall suspend such employees for seven (7) days pending termination. If within
the seven (7) day period of suspension the Union notifies Hyatt that the
employee has complied with Section 7.1, the employee shall be immediately
reinstated to work without back pay. If Hyatt is not so notified by the Union the
employee shall be discharged and shall not have access to the grievance
procedure as provided in Section 18 of this Agreement.
13. From about July 1, 2010, until about August 13, 2013, the Employer and the Union
did not have a collective-bargaining agreement.
14. At all material times, Charging Parties have been employees in the Unit.
15. At all material times, Charging Parties have not been members of Local 5 and have
objected to the payment of dues and fees for nonrepresentational activities.
16. Certain other employees in the Unit are similarly-situated to the Charging Parties
inasmuch as they either were employees in the Unit, were not members of Local 5 at material
times hereto, objected to the payment of dues and fees for nonrepresentational activities, and
were subject to certain conduct described below that the General Counsel alleges is unlawful.
Said employees will be referred to herein as "similarly-situated employees"
17. The Parties do not presently agree on the number of similarly-situated employees.
Local 5 believes that the number of similarly-situated employees (exclusive of the Charging
Parties) is 22; the General Counsel believes that the number may exceed that. The Parties
agree that in the event that the NLRB orders a remedy that requires identification of similarly-
situated employees by name, the counsel for the General Counsel may seek to ascertain the
names of all similarly-situated employees as a matter of compliance; provided, however, that
Local 5 does not waive arguments concerning the appropriateness of this remedy before the
Administrative Law Judge and the NLRB.
18. Prior to the events described below, the Charging Parties and other similarly situated
employees authorized the Employer to deduct fees for representational activities from their
paychecks and to remit such fees to the Union.
19. On or about April 21, 2012, Charging Parties and other similarly situated employees
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sent individualized letters to Erie Gill, Local S's Financial Secretary-Treasurer. The letter stated:
RE: CANCELLATION OF UNION DUBS NO CONTRACT
HYATT REGENCY WAIKIKI BEACH RESORT & SPA
Dear Mr., Gill,
This letter is to notify you that I have authorized the Hyatt Regency Waikiki
Beach Resort & Spa to stop payment of my Union dues effectively immediately
due to no contract between Local 5 and the Hyatt,
In the future, when Local 5 and the Hyatt secure a compulsory dues contract, I
will allow my employer to commence deducting the required amount of dues, my
reduced fair share amount for financial core members, that is demanded by the
Union.
Sincerely,
[NAME AND SIGNATURE].
The letters were identical except that for the name and signature. A copy of the letters
submitted by the Charging Parties is attached to Jt. Exh. 1 as exhibit 10(a)-(d). Local 5 received
34 such letters on or around April 21, 2013. Following receipt of these letters, the Employer
stopped withholding dues and/or fees from the paychecks of the aforesaid employees.
20. The Employer and the Union reached a successor agreement (the "Successor
Collective Bargaining Agreement") that became effective on or around August 11, 2013. The
Successor Collective Bargaining Agreement contains the identical union security provision set
forth in paragraph 12 above.
21 On or about October 2, 2013, Local 5 delivered effectively identical correspondence
to the charging Parties and other similarly-situated employees. A copy of correspondence that
Local 5 delivered to the Charging Parties is attached to Jt. Exh. 1 as exhibit 11(a)-(d). The
letters were identical except for the name of the recipients and the monetary amount identified
in the letters. The letter signed by Respondent's Organizer Raina Whiting states:
We understand that you have previously requested to pay, in lieu of the full dues
and initiation fees of UNITE HERE Local 5, the fair share fee — that portion of
dues and initiation fees relevant to Local 5's duties as your collective bargaining
representative.
Now that we have secured an excellent agreement with the Hyatt and will
embark on this time of labor peace, we hope that you will want to enjoy the
benefits of full union membership and will make arrangements to pay the
arrearages you have accrued. The Local 5 bylaws and the IU constitution require
paying dues as a condition of membership. Once you make arrangements to pay
the arrears you have accrued ([TOTAL AMOUNT OWED]), your full membership
will be reinstated.
Please contact Jessie in Local 5's dues department at 941-2141 and she will
work with you to arrange a payment plan.
22. On March 31, 2014, Local 5 sent correspondence to certain Unit employees,
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including the Charging Parties and other similarly-situated employees. A copy of the letters that
Local 5 sent to Charging Parties is attached to Jt. Exh. 1 as exhibit 12(a)-(d). Local 5 sent such
correspondence to Local 5 members who had dues arrearages, as well as to Charging Parties
and similarly-situated employees. Local 5 avers and the General Counsel has no basis to
dispute, that Local 5 sent approximately 137 letters in total to Local 5 members, to Charging
Parties, and to the similarly-situated employees. The letters were identical except for the names
of the recipients and the monetary amounts identified in the letters. The letter states:
THIS IS A STATEMENT OF YOUR ACCOUNT AS OF THE ABOVE DATE. Your
dues must be made current. To facilitate this we have billed your employer for
the balance listed below. A deduction will be reflected on an upcoming pay stub.
If your employer doesn't deduct arrearages, you are responsible for paying this
balance directly to Local 5.
Please be advised that the International Constitution Rules affirmed by Local
Union 5 Bylaws must suspend any Member whose Dues are more than TWO
Months in arrears.
ATTENTION FOOD SERVERS: Please note that if there are insufficient funds
available in your weekly paycheck to cover dues deduction, then you are
responsible for sending your union dues directly to Local 5. PLEASE REMIT THE
BALANCE STATED. Your prompt payment is appreciated.
If you are retired or currently not employed, please contact the dues office. If you
are on extended medical or personal LOA, the dues staff will help determine if
you are eligible for a withdrawal card.
Please contact the dues office at (808) 941-2141 or (800) 585-4373. (Id.)
The Total Balance Due listed on the March 31 letters for the Charging Parties is as
follows:
Agnes Demarke $674.83 (from June 1, 2012, to September 1, 2013); Mark Tamosiunas
$644.76 (from July 1, 2012,, to September 1, 2013); Steven Taono $867.21 (from
July 1, 2012 to September 1, 2013); Wayne Young $1,294.49 (from February 1, 2012, to
September 1, 2013).
23. Beginning on or about March 31, 2014, Local 5 communicated to the Employer,
requesting it to deduct arrearages up to the maximum amount of $62.50 per paycheck from the
paychecks of the approximately 137 persons to whom Local 5 had sent the March 31, 2014
letter. A copy of this communication e-mail message chain is attached to Jt. Exh. 1 as exhibit
13. Included with the March 31, 2014 e-message was a billing report. A copy of this billing
report is attached to Jt. Exh. 1 as exhibit 14. The Employer subsequently made deductions
from employee paychecks in an amount of up to $62.50, including from the paychecks of the
Charging Parties and similarly situated employees. The Employer then refunded the arrearages
deducted from the Charging Parties and similarly-situated employees in their following
paycheck. A copy of the Employer's payroll records for employees that had Local 5 arrearages
deducted and refunded is attached to Jt. Exh. 1 as exhibit 15(a)-(nn). The emails reflect that:
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On March 31, Jessie DeCoite (DeCoite) from Respondent's dues department sent an
email to Karen Taira (Taira) from the Employer's human resources department
requesting that the Employer deduct dues arrearages from Unit employee paychecks.6
Attached to the March 31 email from DeCoite to Taira was a billing report including the
employee's name, the dues arrearage balance, and the maximum deduction allowable
per paycheck.7 The maximum amount of dues arrearages that may be deducted from
employee paychecks is $62.50. The billing report lists dues arrearage information for
137 employees, including the Charging Parties and the similarly-situated Employees.8
Id. The dues arrearages listed on the billing report for the Charging Parties is identical to
the dues arrearages Respondent listed on the letters it sent to unit employees on
March 31.
On April 1, Taira responded to DeCoite's March 31 email by asking DeCoite whether
Respondent had informed employees of the dues arrearages amounts and how they were
calculated.9 DeCoite sent the following response to Taira's email approximately 2 hours later:
The letter informs the employees of their dues balance and a billing report was
submitted to their employer for the balance stated and a deduction will be reflected on
an upcoming pay stub. It also state[s] that if there are no deductions, they are
responsible for paying the balance directly to Local 5.10
On April 11, the Employer deducted the maximum allowable of $62.50 from the
Charging Parties and the similarly-situated employees' paychecks.11
24. On or around April 15, 2014, the Employer delivered a letter to the Charging Parties
and the similarly-situated employees regarding the payroll deductions described in paragraph
22. A copy of the letter delivered to Young is attached to Jt. Exh. 1, as exhibit 16. The other
letters were identical except for the name of the recipient. The counsel for the General Counsel
does not allege that further arrearages were deducted from employees' paychecks, or that the
Charging Parties or any similarly-situated employee is owed any money arising out of the
allegations set forth in the amended complaint. The letter apologizes for deducting retroactive
union dues in the amount of $62.50, informing the employees that the deduction was made in
error, and the full $62.50 would be credited in the employees' April 25 paycheck.12
25. On or around May 13, 2014, Local 5 sent a letter to the Charging Parties attached to
Jt. Exh. 1 as exhibit 17(a)-(d). Local 5 did not send a similar letter to any other employees.
Local 5 does not, however, stipulate that the number of similarly-situated employees is 34 or
that every employee who mailed the April 21, 2012 letter to the Union is a similarly-situated
employee. The letter states:

6 Jt. Exh. 1, p. 8, par. 23; Exh. 13.
7 Jt. Exh. 1, page 8, paragraph 22; Exhibit 14.
8 Jt. Exh. 1, p. 8, par. 23.
9 Jt. Exh.1, Exh. 14.
10 Id. Exh.13.
11Jt. Exh.1, p. 8, par. 23; Exh. 15(a)-(nn).
12 Jt. Exh.1, p. 9, par. 25; Exh. 17(a)-(d).
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This letter is to clarify the March 31, 2014 letter you received from UNITE HERE
Local 5's dues department. The amount listed in the statement of your account
indicates the amount of dues you need to pay in order to become a member in
good standing with the Union. The letter does not refer to the union security
clause in your collective bargaining agreement or threaten your continued
employment. The International Constitution and the Local 5 bylaws indicate that
any member in good standing who accrues more than two months in arrears will
have their Union membership suspended. (Emphasis in original).
The Analysis
General Counsel and Charging Parties contend that Respondent violated section
8(b)(1)(A) of the Act by unlawfully threatening to collect dues arrearages in its March 31, 2014,
letter and by failing to effectively repudiate this conduct. Respondent counters that both the text
and the context of the March 31 letter make clear that it did not restrain or coerce Beck
objectors in their right not to pay dues and fees as a condition of employment while there was
no union-security clause in effect and that it effectively repudiated the March 31 letter.
All parties cite Service Employees Local 121 RN (Pomona Valley Hospital Medical
Center), 355 NLRB No. 40 slip op. at 2 (2010) in support of their arguments.
The facts in Pomona Valley reflect that the employer hospital and respondent union
were parties to a collective-bargaining agreement that expired May 27, 2007, but was extended
from month to month by agreement of the parties until the union gave notice that it was
terminating the contract. The expired agreement contained a union-security clause. Upon
termination of the contract the employer advised bargaining unit employees they were no longer
required to pay union membership dues and fees under the contract’s union security clause. In
addition, the employer informed the employees that, if they chose, they could resign from union
membership and/or revoke their dues-checkoff authorizations. In reply, the respondent union
distributed flyers at the hospital. The flyer stated:
Work with an expired contract . . . What does it mean?
The hospital and their representatives i.e. Managers, directors, and anti union
nurses have put out misleading and incorrect information regarding having “NO
CONTRACT.”
In, truth the NLRA* requires management (Pomona Valley Hospital) to maintain
contract terms and conditions of employment while it bargains on a new
agreement. Abandoning or changing a pre-existing condition is an unfair labor
practice (ULP), giving the union a basis for filing an NLRB charge, calling a ULP
strike, or filing a challenge to a lockout.
YOU CONTINUE TO BE COVERED BY THE TERMS AND CONDITIONS OF
YOUR CONTRACT!
An employer (Pomona Valley Hospital) must maintain the status quo after the
expiration of a collective bargaining agreement until a new collective bargaining
agreement has been negotiated or the parties have bargained to impasse. When
a contract expires, a union can file a unilateral-change charge to enforce a term
on the agreement that had been followed by the parties, a past practice
independent of the contract, or a past practice that conflicts with the contract.
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Under the NLRA*, dues and fees may be collected back to the expiration of the
collective bargaining agreement (contract).
Many of you have inquired about the stop dues form being distributed by the
hospital and their representatives. You may have been mislead [sic] into
believing that you are not obligated to pay dues and fees during the period of
negotiations. This is untrue and retroactivity may occur prior or upon ratification
of the contract. Please ask yourselves why all the anti leaders are still paying
dues. Could it be they don’t want the possibility of owing more in a lump sum?
DUE [sic] AND FEE [sic] OBLIGATIONS REMAIN INTACT AND MAYBE [sic]
COLLECTED PRIOR OR UPON RATIFICATION OF THE CONTRACT. WHEN
YOU ARE NOT A MEMBER IN GOOD STANDING, YOU FORFEIT YOUR
VOICE, RIGHTS TO PARTICIPATE IN UNION EVENTS AND FORFEIT YOUR
VOTING PRIVILEGES.
In Pomona Valley the Board held that a union-security clause in a collective-bargaining
normally does not survive expiration of the contract.13 Additionally, the Board has held that a
union-security clause may not be applied retroactively, and therefore that a union cannot
demand dues as a condition of employment for periods before the execution of the agreement,
citing Teamsters Local 492 (United Parcel Service),346 NLRB 360, 364 (2006). The Board
further concluded that the test for determining whether the union’s action violated Section
8(b)(1)(A) was whether the action reasonably tended to restrain or coerce employees in the
exercise of their Section 7 rights, including the right to refrain from paying union dues or fees
when there is no contractual obligation to do so. The Board stated that in determining if a threat
has been made the Board must evaluate the entirety of the union’s message in its overall
context.
In reaching its conclusion that the Union’s flyer was coercive the Board said the flyer’s:
. . . rhetorical question did not highlight the benefits of voluntarily maintaining
membership, but instead emphasized that if employees chose not to do so during
the period when no contract was in effect, their continuing obligation to pay dues
and fees would likely be enforced in a more onerous manner later, i.e., through
collection of “a lump sum” which could, the flyer suggested, be “more” than the
sum of periodic payments to be made during the hiatus.14
Respondent also relies on International Brotherhood of Teamsters, Local Union No 89
(United Parcel Service, Inc.), 361 NLRB No. 5 (2014), for the proposition that it is not unlawful
for the union to take action to collect fees other than by threatening or seeking the employee’s
discharge. I find this case inapposite as there was a valid union-security clause.
In United Parcel the Board, citing Johnson Controls II, held that Section 8(b)(1)(A) and

13 In Lincoln Lutheran of Racine (Service Employees International Union Healthcare Wisconsin SEIU-HCWI), 362
NLRB No. 188 slip op. at 1(2015), the Board reversed its long standing holding in Bethlehem Steel, 136 NLRB 1500
(1962), and held that “an employer’s obligation to check off union dues continues after expiration of a
collective-bargaining agreement that establishes such an arrangement.” Since the Board held that its
decision in Lincoln Lutheran would only be applied prospectively, it is not binding in this decision.
14 Service Employees Local 121 RN (Pomona Valley Hospital Medical Center), supra at pp.
3-4.
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Section 8(a)(3) of the Act bars the threatened or actual enforcement of a union-security clause
by threat of discharge. It does not prohibit a union from seeking to collect fees from an ex-
member who has been lawfully expelled but continues to receive representation. Nor is a union
is barred from seeking ongoing payment in some form from a lawfully expelled employee by
lawful means other than by threatening or seeking the employee’s discharge.
Here, the record reflects that Respondent and the Employer were parties to a collective-
bargaining agreement that contained a valid union-security clause between approximately
July 1, 2006, and June 30, 2010. The contract expired and from about July 1, 2010, until about
August 13, 2013, the Employer and the Respondent had no collective-bargaining agreement.
On or about April 21, 2012, Charging Parties and other similarly situated employees sent
individualized letters to Ernie Gill, Respondent’s financial secretary-treasurer stating they had
authorized the Hyatt Regency Waikiki Beach Resort & Spa to stop payment of union dues
effectively immediately since there was no contract between Local 5 and the Employer.
Charging Parties and similarly situated employees authorized deduction of dues as financial
core members when a new contract was agreed upon. Following receipt of these letters, the
Employer stopped withholding dues and/or fees from the paychecks of the aforesaid
employees.
The Employer and Respondent reached a successor collective-bargaining agreement
effective on or around August 11, 2013. This agreement contained an identical union-security
provision to the most recently expired contract set forth above.
On or about October 2, 2013, Respondent delivered identical letters to the Charging
Parties and other similarly-situated employees stating inter alia,
Now that we have secured an excellent agreement with the Hyatt and will
embark on this time of labor peace, we hope that you will want to enjoy the
benefits of full union membership and will make arrangements to pay the
arrearages you have accrued. The Local 5 bylaws and the IU
constitution require paying dues as a condition of membership. Once you make
arrangements to pay the arrears you have accrued ([TOTAL AMOUNT OWED]),
your full membership will be reinstated.
On March 31, 2014, Respondent sent letters to Charging Parties and other similarly-
situated employees stating in part:
THIS IS A STATEMENT OF YOUR ACCOUNT AS OF THE ABOVE DATE. Your
dues must be made current. To facilitate this we have billed your employer for
the balance listed below. A deduction will be reflected on an upcoming pay stub.
If your employer doesn't deduct arrearages, you are responsible for paying this
balance directly to Local 5.
Please be advised that the International Constitution Rules affirmed by Local
Union 5 Bylaws must suspend any Member whose Dues are more than TWO
Months in arrears.
ATTENTION FOOD SERVERS: Please note that if there are insufficient funds
available in your weekly paycheck to cover dues deduction, then you are
responsible for sending your union dues directly to Local 5. PLEASE REMIT THE
BALANCE STATED. Your prompt payment is appreciated.
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Beginning on or about March 31, 2014, Respondent requested that the Employer deduct
arrearages up to the maximum amount of $62.50 per paycheck from the paychecks of
approximately 137 persons to whom Respondent had sent the above March 31, 2014 letter.
The Employer subsequently made deductions from employee paychecks in an amount of up to
$62.50, including from the paychecks of the Charging Parties and similarly situated employees.
The Employer then refunded the arrearages deducted from the Charging Parties and similarly-
situated employees in their following paycheck.
On April 11, the Employer deducted the maximum allowable of $62.50 from the
Charging Parties and the similarly-situated employees' paychecks.
On or around April 15, 2014, the Employer delivered a letter to the Charging Parties and
the similarly-situated employees regarding the payroll deductions described above. The letter
apologizes for deducting retroactive union dues in the amount of $62.50, informing the
employees that the deduction was made in error, and the full $62.50 would be credited in the
employees' April 25 paycheck.
On or around May 13, 2014, Local 5 sent a letter to the Charging Parties that letter
states:
This letter is to clarify the March 31, 2014 letter you received from UNITE HERE
Local 5's dues department. The amount listed in the statement of your account
indicates the amount of dues you need to pay in order to become a member in
good standing with the Union. The letter does not refer to the union security
clause in your collective bargaining agreement or threaten your continued
employment. The International Constitution and the Local 5 bylaws indicate that
any member in good standing who accrues more than two months in arrears will
have their Union membership suspended.
Here I must determine if Respondent’s March 31, 2014, letter violated Section 8(b)(1(A)
of the Act by threatening and coercing Charging Parties and similarly situated employees by
demanding repayment of dues arrearages under Pomona Valley, supra.
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In Pomona Valley as well as numerous cases15 cited in that decision and in the briefs of
the parties, there was either some threat or implied threat to discharge employees for failure to
make dues payments or in the Pomona Valley case there was a threat to collect dues or more in
a lump sum in the absence of a valid union security clause.
In the instant case, both General Counsel and Charging Parties urge me to find coercion
by the Respondent Union in seeking to enforce collection of back dues in the absence of a valid
union-security clause absent a threat of discharge or some other implied threat. Here, the
financial core members were invited to be reinstated to full membership but there was no threat
to invoke any discipline for failure to do so. While the Charging Parties and similarly situated
employees had their balances due set forth in the Respondent’s letter, unlike Pomona Valley
there was no threat that the entire amount was due in a lump sum or that something more might
be added. The Board has never held that the sole act of requesting dues arrearages in the
absence of a valid union-security clause violates Section 8(b)(1)(A) of the Act. In all of the
Board cases prior to Pomona Valley where it was found the union violated Section 8(b)(1)(A) of
the Act in seeking collection of retroactive dues in the absence of a valid union security clause,
the union took some action such as the threat of enforcement of the union-security clause
provision requiring termination for nonpayment of dues or threatening that employees might owe
a lump-sum payment or more of past dues. I find no support in case law for a finding that
demanding payment of retroactive dues, standing alone, in the absence of a valid union security
clause, constitutes a threat or coercion under section 8(b)(1)(A) of the Act.
Here I find Respondent Union made no threat. In its March 31, 2014 letter to Charging
Parties and similarly situated employees Respondent gave each employee an account of
alleged dues arrearages, stating, “Your dues must be made current.” A total balance due was
set forth in the letter to each of Charging Parties but no demand was made that the full amount
be paid in a lump sum. In fact Respondent requested the employer to deduct no more than
$62.50 from the employees’ paychecks each pay period. There is nothing in this language that
a reasonable person would find to be a threat. I find no implied threat as in Pomona Valley
where the union implied that nonmembers or those who resigned their memberships would

15 International Brotherhood of Teamsters, Local Union No 89 (United Parcel Service, Inc.),
361 NLRB No. 5 (2014); (no violation where was a valid union-security clause); Teamsters
Local 492 (United Parcel Service), 346 NLRB 360, 364 (2006) (violation in union’s threat of
termination for failure to pay dues in the absence of a valid union security clause.); Bay Cities
Metal Trades Council, 306 NLRB 983, 985 (1992), enfd. mem.15 F.3d 1088 (9th Cir. 1993)
(case does not involve recovery of union dues under an expired or non-existent union security
clause.); Iron Workers Local 455 (Precision Fabricators), 291 NLRB 385, 387 (1988) (Despite
expired union security clause, union sought retroactive dues payments and sought discharge of
employees); Auto Workers Local 785 (Dayton Forging), 281 NLRB 704, 707 (1986) (violation by
union’s implied threat of discharge by invoking union security clause for non-payment of dues
during hiatus in contracts.); UAW Local 376 (Emhart Industries), 278 NLRB 285 (1986) (Union
sought discharge of employees for nonpayment of dues pursuant to expired union-security
clause); Local 32B-32J, SEIU (Star Security Systems), 266 NLRB 137, 138–139 (1983)
(violation where a contract contained a union shop provision requiring membership in good
standing an implied threat of discharge); Teamsters Local 25 (Tech Weld Corp.), 220 NLRB 76,
77 (1975) (violation by union’s threat of discharge for non-payment of dues in the absence of a
valid union-security clause.); and Mine Workers District 50 (Ruberoid Co.), 173 NLRB 87, 92–93
(1968) (violation by threat of discharge in invoking union security clause for retroactive dues
payment when no valid union-security clause existed.)
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have dues collected in a lump sum or “more.” It was this threat of collecting dues in a lump sum
or more that the Board found coercive and violated Section 8(b)(1)(A) of the Act.
Having found that Respondent did not threaten or coerce Charging Parties or similarly
situated employees, I find that Respondent did not violate Section 8(b)(1)(A) of the Act and I will
recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
1 The Employer herein, Hyatt Corporation d/b/a Hyatt Regency Waikiki, has been an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union has been a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent did not violate Section 8(b)(1)(A) of the Act and the complaint is
dismissed.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended: 16
ORDER
IT IS ORDERED that the complaint is dismissed.
Dated, Washington, D.C. September 18, 2015

16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Sec. 102.48 of the Rules, be adopted by the Board and all objections shall be waived for all
purposes.