NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
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The Bohemian Club and Unite HERE! Local 2.[1] Case
20–CA–32922
November 19, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
The issue presented in this case is whether the Bohemian
Club (the Respondent) breached its duty to bargain in good faith by assigning cooks
to perform duties previously performed by stewards without first giving UNITE
HERE! Local 2 (the
i. facts
The facts, more fully laid out in the judge’s decision, are as follows.
The Respondent is a private social club in
Cooks and stewards in both kitchens are represented by the
It is undisputed that cooks and stewards belonged to separate crafts; the cooks belong to the food preparation craft and the stewards to their own craft. Before September 2005, cooks were generally responsible for food preparation, and stewards for cleaning. Although primarily responsible for food preparation, cooks have routinely been required to clean up occasional spills, wipe off their work stations, put away leftover food, and clean their tools.
The expired collective-bargaining agreement contained several provisions related to work assignment. The management-rights clause, contained in the preamble, stated 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.” Section 30 provided that “[e]mployees 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(a) provided that “[a]n employee may be assigned a position which combines not more than two (2) classifications of work.” In section 13, the parties agreed “to the continuation of all practices as regards the interpretation and application of their [previous] Agreements. . . . 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.”
In September 2004, the executive chef assigned cleaning duties normally performed by stewards to the cooks. The record does not indicate exactly which cleaning tasks were assigned. Union steward and cook Nate Thomas protested, and the assignment of those duties was rescinded the next day.
In September 2005, the Respondent transferred three regular cooks (Ricardo Cabrera, Danny Hong, and Union Steward Thomas) from the main kitchen to the newly-operational small kitchen. Jose Luna, primarily assigned to the main kitchen throughout, also began to help out in the small kitchen. During their first shift in the new kitchen, these cooks were told by Supervisor Kevin Miller to wipe down the walls, counters, refrigerator doors, and grills, and to pick up the rubber floor mats and sweep the floor underneath. In total, these tasks took approximately 30 minutes to complete; it took the cooks between 5 and 7 minutes simply to collect the mats and sweep the floor. It is undisputed that all of these tasks were previously performed by stewards.
The Respondent did not notify the
In September 2006, the Respondent informed the cooks that they no longer had to pick up the mats or sweep the floors.
ii. the judge’s decision and exceptions
The judge concluded that the Respondent did not violate
its 8(a)(5) and (1) obligation to bargain in good faith with the Union
concerning terms and conditions of employment by assigning additional cleaning
work to cooks. The judge found that although
the assignment amounted to a refusal to bargain about the affected conditions
of employment, the
The General Counsel excepts to the judge’s finding that
there was no violation, arguing that the Respondent presented the
The Respondent disputes the General Counsel’s assertion
that assigning the cleaning duties to the cooks represented a fait accompli. The Respondent also contends that the
iii.
analysis
To
prove that the Respondent’s assignment of cleaning duties to the cooks violated
Section 8(a)(5), the General Counsel was required to show that the assignment
constituted a material, substantial, and significant change in
the cooks’ work assignments. See, e.g., Peerless Food Products, 236 NLRB 161
(1978). He also was required to show
that the assignment was made without giving the Union advance notice and an
opportunity to bargain before implementation.
See, e.g., Tri-Tech Services,
340 NLRB 894, 895 (2003). We find that the General Counsel
made both showings and, accordingly, that the unilateral change was unlawful.
A. Material, Substantial, and Significant Change
We agree with the General Counsel that the assignment of cleaning duties was a material, substantial, and significant change in the cooks’ terms and conditions of employment.
It is undisputed that the cooks had to work an extra 30 minutes per day to accomplish their new cleaning tasks. Indeed, one of the cooks had to stay after the end of his shift and work overtime to perform his added cleaning duties. The Board has found that adding more than a minimal amount of cleaning duties to the tasks of nonjanitorial employees constituted a material, substantial, and significant change in their terms and conditions of employment. Fancy Dan’s Jet Inn Restaurant, 213 NLRB 709, 713–714 (1974) (requiring waitress to clean restrooms constituted a material, substantial, and significant change in her job duties); see also Ironton Publications, 313 NLRB 1208 fn. 3, 1211 (1994), enfd. mem. 73 F.3d 362 (6th Cir. 1995) (requiring pressmen to mop the pressroom floor for 20 minutes per day “not an insignificant or trivial change in the job”). We make the same finding here.
There is no merit in the Respondent’s contention that the newly assigned cleaning duties were a “mere continuation” of the cooks’ traditional responsibilities. The latter duties—cleaning up occasional spills, cleaning their tools, wiping off their work stations, and putting food away—are ancillary to the employees’ cooking tasks. By contrast, the newly assigned duties—wiping down the walls, counters, refrigerator doors, and grills, moving the floor mats, and sweeping the floor—involve heavier and more extensive cleaning tasks and accordingly were previously assigned to stewards. Thus, the new assignment was not a “continuation” of the cooks’ former duties, but an imposition of significantly different tasks that the cooks had never performed before.[3]
B. The Change Was a Fait Accompli
We also find that the Respondent implemented its assignment
of cleaning duties to cooks in the new kitchen without giving the
The judge erred in finding that the
C. The Respondent’s Defenses Are Without Merit
1. The 2004 assignment
The Respondent contends that the
2.
Contract-based defenses
The Respondent also attempts to justify its unilateral assignment of new duties by arguing that the action was sanctioned by certain provisions contained in the expired contract and (with one exception) surviving as terms and conditions of employment at the time of the unlawful change. These contract-based defenses are not properly before us.[6] But in any event, we find no merit in any of the Respondent’s contentions.
The Respondent argues that the expired contract’s
management-rights clause allowed for the assignment of new duties. We reject this argument for two reasons. First, any purported waiver of a union’s right
to bargain in a management-rights clause does not survive the expiration of the
agreement, absent evidence of the parties’ intention to the contrary. See, e.g., Beverly Health & Rehabilitation Services, 335 NLRB 635, 636
(2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003); Paul Mueller Co., 332 NLRB 312, 313
(2000). As there is no evidence that the
parties intended the management-rights clause to continue in effect after the contract
expired, any such purported waiver expired with the contract. Second, even if the clause survived, its
general language would not operate as a waiver of the
The Respondent next contends that the contractual provision permitting it to assign workers to positions formed from two job classifications allowed it to assign steward work to the cooks. This contention is not supported by the record. There is no evidence that the cooks were placed in a position that combined two classifications. Instead, they apparently remained classified as cooks, while being assigned stewards’ work.
The Respondent suggests that the very act of assigning stewards’ duties to the cooks created a position formed from the two job classifications. This argument is refuted by the contract’s express prohibition of cross-craft work assignments except in cases of fire, flood, earthquake, or death.
The Respondent also cites the contract’s “Past Practices”
clause, in which the parties agreed “to the continuation of all practices as regards
the interpretation and application of their agreements,” with the intent of
maximizing job security and “continuing practices within the Club which are
designed to provide for flexibility of work assignments.” The Respondent argues that its practice is
sometimes to make cooks do additional cleaning and sometimes not, and cites the
2004 incident as evidence of this practice.
But there was no such past practice.
As found above, the 2004 work assignment lasted only 1 day, was promptly
opposed by the
Conclusion of Law
By assigning steward duties to cooks Cabrera, Hong, Thomas, and Luna in September 2005 without giving the Union prior notice and an opportunity to bargain concerning that assignment, the Respondent violated Section 8(a)(5) and (1) of the Act.
Remedy
Having found that the Respondent violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to immediately rescind unlawfully implemented changes to the employees’ terms and conditions of employment. Generally, the Board orders employers that have implemented unlawful unilateral changes to make employees whole for any loss of wages or other benefits they may have suffered as a result of the unlawful conduct. See, e.g., Southside Hospital, 344 NLRB 634, 635 (2005). We find it unnecessary to order such a remedy here because the employees’ wages and benefits were not affected by the Respondent’s unlawful action.
ORDER
The National Labor Relations Board orders that the
Respondent, Bohemian Club,
1. Cease and desist from
(a) Implementing changes in the terms and conditions of employment of bargaining-unit employees, including the assignment of stewards’ duties to cooks, without first notifying the Union and affording it an opportunity to bargain over the proposed changes.
(b) In any like or related manner interfering with, 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 effectuate the policies of the Act.
(a) Rescind the unlawfully implemented assignment of stewards’ duties to cooks.
(b) Before
implementing any changes in wages, hours, or other terms and conditions of
employment of unit employees, notify and, on request, bargain with the
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.
(c) Within 14 days
after service by the Region, post at its
(d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
Wilma
B. Liebman, Member
Peter
N. Kirsanow, Member
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice to Employees
Posted By Order of the
National Labor Relations Board
An Agency of the
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 with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not implement changes in the terms and conditions of employment of bargaining-unit employees, including the assignment of stewards’ duties to cooks, without first notifying UNITE HERE, Local 2 and affording it an opportunity to bargain over the proposed changes.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.
We will rescind the unlawfully implemented assignment of stewards’ duties to cooks.
We will, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following bargaining unit:
All employees at our San Francisco facility performing work covered by the terms of the collective-bargaining agreement between ourselves and the Union effective for the period from August 1, 2000 to July 31, 2005.
The Bohemian Club
Shelly Brenner, Esq., for the General Counsel.
William F. Terheyden, Esq. (Littler Mendelson), of
Kim C. Wirshing, Esq., of
DECISION
Statement of the Case
Jay R. Pollack,
Administrative Law Judge. This case was tried in
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
Findings of Fact
i.
jurisdiction
At
all times material, Respondent has been a
The
parties stipulated that the
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
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
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.
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.
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
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
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.
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, 310 NLRB 421, 425 (1993);
In this case, there
has been unilateral action by Respondent without prior discussion with the
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, 304 NLRB 511 (1991), remanded 979
F.2d 1571 (D.C. Cir. 1992), decision supplemented 315 NLRB 1236 (1994), enfd.
73 F.3d 406 (1996), cert. denied 519
Respondent contends
that the
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 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
In sum, I find that
Respondent unilaterally changed the terms and conditions of employment of the
cooks in the bargaining unit but that the
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
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
ORDER
The complaint is
hereby dismissed.
Dated,