NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel and UNITE HERE Local 11, UNITE
HERE! International Union and The Los Angeles Hotel-Restaurant
Employer-Union Welfare Fund, the Los Angeles Hotel-Restaurant Employer-Union
Retirement Fund and the Legal Fund of Hotel and Restaurant Employees of
September 30, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On April 7, 2008, Administrative Law Judge Gregory Z. Meyerson issued the attached decision. The Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions with a supporting brief. The General Counsel and the Charging Party each filed an answering brief to the Respondent’s exceptions.
The National Labor Relations Board1 has considered the decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions, as modified herein, and to adopt the recommended Order as modified and set forth in full below.2
The principal issue in this case is whether the parties had reached good-faith impasse in their negotiations for a new contract on February 1, 2007, when the Respondent implemented parts of its final contract offer 2 days after declaring impasse. The judge found that the Respondent committed numerous unfair labor practices prior to the declaration of impasse and that these unremedied violations were “so extensive and pervasive as to make it practically impossible for the parties to have engaged in good-faith negotiations leading to impasse.” He therefore found that the Respondent violated Section 8(a)(5) of the Act by implementing parts of its final contract offer in the absence of a legal impasse.
We affirm the judge’s finding that unremedied unfair labor practices precluded the possibility of good-faith impasse. However, it is well-established that “[n]ot all unremedied unfair labor practices committed before or during negotiations . . . will lead to the conclusion that impasse was declared improperly. . . . Only ‘serious unremedied unfair labor practices that affect the negotiations’ will taint the asserted impasse.” Dynatron/Bondo Corp., 333 NLRB 750, 752 (2001) (citations omitted) (emphasis in original). Accordingly, we rely on only two of the numerous unfair labor practices undisputedly committed by the Respondent prior to its declaration of impasse.3
First, we find that the Respondent’s unlawful failure to make contractually-required payments to the Union’s Health and Welfare Fund for several months not only caused employees to lose their healthcare benefits, but also contributed to the parties’ inability to reach an agreement, by shifting the bargaining leverage on a key economic issue in the negotiations, thereby precluding a good-faith impasse. See Lafayette Grinding Corp., 337 NLRB 832, 833 (2002) (finding employer’s Health and Welfare Fund payments were major issue in negotiations and employer’s unlawful failure to make contributions to maintain employees’ health coverage made it harder for parties to reach agreement and precluded valid impasse).
Second, the Respondent failed to provide to the Union admittedly relevant detailed calculations for the cost savings that the Respondent expected from its proposed wage and benefit concessions that were “core” issues in the negotiations. “[A] finding of valid impasse is precluded where the employer has failed to supply requested information relevant to the core issues separating the parties.” Caldwell Mfg. Co., 346 NLRB 1159, 1170 (2006) (emphasis added).
Based on the foregoing, we affirm the judge’s finding that the parties were not at impasse on January 30, 2007, and that the Respondent’s unilateral implementation of portions of its final contract offer on February 1, 2007, violated Section 8(a)(5) of the Act.4
ORDER
The National Labor Relations Board orders that the
Respondent, Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel,
1. Cease and desist from
(a) Unilaterally implementing changes in the terms and
conditions of employment of the bargaining unit employees as provided for in
the expired collective-bargaining agreement (the agreement) without prior notice
to, and bargaining in good faith with, the
(b) Failing to timely remit monthly union dues, along with
related union dues information, to the
(c) Failing to make the required contributions to the Health and Welfare and Retirement Funds, along with related contribution reports, as provided for in the agreement.
(d) Failing to process a grievance filed under the terms
of the agreement by refusing to
furnish the
(e) Denying the
(f) Failing to furnish the Union with requested information necessary for the Union’s performance of its collective-bargaining duties, including: detailed calculations of the cost of the Employer’s economic proposals made during negotiations, information concerning the lawsuit instituted by Radisson Hotels International against the Employer, information concerning the differences in the wage rates between the housekeeping and cook classifications, and a list of all unit employees, their names, job titles, and wage rates.
(g) Failing to pay the unit employees their vacation pay as provided for in the agreement.
(h) Prematurely declaring impasse and unilaterally implementing new terms and conditions of employment prior to reaching a lawful impasse in collective-bargaining negotiations.
(i) Repudiating
the agreement by failing to comply with the terms and conditions of the agreement,
including delaying remittance of union dues and related information, failing to
make required contributions and submit related reports to the Funds, and
denying union representatives access to the Hotel, pursuant to the agreement.
(j) Unilaterally eliminating the daytime shift in the lobby bar.
(k) Unilaterally implementing an employee locker inspection policy.
(l) Unilaterally implementing a kitchen employees’ lunchbreak policy.
(m) Dealing directly with bargaining unit employees and
bypassing the
(n) Informing employees, orally or in writing, that they were selected for random locker inspections, or performing said inspections.
(o) Informing kitchen employees, orally or in writing, of a change in their lunchbreak policy, and by threatening them with discipline for refusing to sign a copy of the new policy.
(p) Engaging in surveillance and/or creating the impression of surveillance of bargaining unit employees by following and observing union representatives as they walked through the Hotel in an effort to contact members of the bargaining unit and as they proceed to meet with bargaining unit members to discuss union business.
(q) Engaging in surveillance and/or creating the impression of surveillance of bargaining unit employees by observing and taking pictures of union representatives and bargaining unit employees as they met to discuss union business, and as they participated in a collective demonstration outside the front of the Hotel.
(r) Interrogating employees regarding their union activity.
(s) Threatening employees with termination for going on strike.
(t) Making a statement indicating that union representation would be futile;
(u) Informing employees that their wages and/or benefits
were reduced because of the
(v) Prohibiting employees from speaking with each other regarding their terms and conditions of employment.
(w) Offering to give bargaining unit employees money so
that they would investigate the
(x) Soliciting employee complaints and grievances, and
promising employees increased benefits and improved terms and conditions of
employment if they were to renounce the
(y) Threatening employees with adverse consequences because of their union activity.
(z) Telling employees to prepare a letter to the Union
renouncing their support of the
(aa) 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) Upon request of the Union, rescind any and all changes to unit employees’ terms and conditions of employment implemented during and after February 1, 2007 and maintain the previous terms and conditions unless and until the parties bargain in good faith to an agreement or lawful impasse concerning any proposed changes thereto, and make unit employees whole, with interest, for any losses suffered as a result of those unilateral changes.
(b) Prior to making any changes in wages, hours, and terms of conditions for employees in the following appropriate bargaining unit, meet and bargain in good faith with the Union as the exclusive collective-bargaining representative of those employees and, if an understanding is reached, embody such understanding in a signed agreement:
All full-time and regular part-time cooks, pantry employees, dishwashers, deli attendants, waiters, bussers, room service employees, banquet employees, bartenders, restaurant cashiers, stewarding department employees, housekeeping department employees, laundry attendants, front office attendants, PBX attendants, reservation agents, bell attendants, and others listed in schedule A in the expired agreement. Excluded: Office clerical employees, all other employees, guards and supervisors as defined in the Act.
(c) Furnish the Union with requested information which is relevant and necessary to carrying out its collective-bargaining responsibilities, including fulfilling the outstanding union requests for information concerning: (i) the Employer’s housekeeping and cook wage rate proposal requested on February 12, 2007; (ii) the Employer’s cost-savings calculations for its economic proposals requested on January 16 and 25, 2007; and (iii) the lawsuit filed by the Radisson Hotel against the Employer requested on January 30, 2007.
(d) Timely remit to the Union monthly dues deducted from employees’ paychecks, and the monthly lists of employees who have paid union dues.
(e) Make all delinquent Health and Welfare Fund and Retirement Fund contributions on behalf of employees that have not been made since August 2006, and make whole employees for out of pocket medical expenses or any other expenses ensuing from the failure to make the required fund contributions, and provide all required monthly contribution reports to the Funds, as provided for in the agreement.
(f) Permit union representatives access to the Hotel to meet with employees as provided for in the agreement.
(g) Upon request of the
(h) Upon request of the Union, process the grievance filed
by the Union on September 25, 2006, regarding the Employer’s failure to make
the contractually required contributions to the Funds, and provide the
(i) Make whole any unit employees who were deprived of vacation pay when they took their accrued vacations under the terms of the agreement.
(j) Upon request of the
(k) Upon request of the
(l) Within 14 days from the date of this Order, offer any employee laid off as a result of the elimination of the lobby bar day shift full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make whole any such employee for any losses suffered as a result of the elimination of that shift.
(m) Within 14 days of this Order, remove from its files any photographs or videotapes of employees speaking with union representatives or engaging in peaceful union or other protected concerted activity, and any photographs or videotapes of employees picketing in front of the Hotel.
(n) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(o) Within 14 days after service by the Region, post at
its Hotel in
(p) Within 21 days after service by the Region, file with the Regional Director for Region 31, a sworn certification of a responsible official on a form provided by Region 31 attesting to the steps the Respondent has taken to comply.
Dated,
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, 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 repudiate
the collective-bargaining agreement with UNITE HERE! Local 11, UNITE
HERE International Union by
failing to comply with the terms and conditions of that agreement.
We
will not refuse to bargain collectively by unilaterally implementing our
final contract offer made on February 1, 2007 to UNITE HERE! Local 11, UNITE
HERE International
We
will not unilaterally
implement changes in the terms and conditions of your employment provided in
the expired collective-bargaining agreement with the
We will not fail to make contributions to the Health and Welfare and Retirement Funds, along with related contribution reports, as provided for in the agreement.
We
will not fail
to process grievances filed under the terms of the agreement, by refusing to
furnish the
We will not deny union representatives access to the Hotel as provided for in the agreement by summoning the police, by threatening to do so, or by revoking access.
We
will not fail
to furnish the Union with requested information necessary for the
We will not unilaterally eliminate the daytime shift in the lobby bar.
We will not unilaterally implement an employee locker inspection policy.
We will not unilaterally implement a kitchen employees’ lunchbreak policy or threaten them with discipline for refusing to sign a copy of the new policy.
We
will not bargain
directly with you, thereby, bypassing the
We will not engage in surveillance by observing, photographing, or videotaping you as you meet with other employees and with union representatives to discuss union business.
We will not engage in surveillance by observing, photographing, or videotaping you as you participate in a collective demonstration in front of the Hotel.
We will not interrogate you regarding your union activity.
We will not threaten you with termination for going on strike.
We
will not make
statements to you designed to convince you of the futility of representation by
the
We
will not inform
you that the reason your wages and benefits were reduced was that the
We will not prohibit you from speaking with fellow employees about your wages, hours, working conditions, or other terms and conditions of employment.
We
will not offer
to pay you to investigate the
We
will not solicit
complaints and grievances from you and promise to improve your terms and conditions
of employment if you will renounce the
We will not threaten you with discipline for refusing to sign a memo regarding an unlawfully instituted lunchbreak policy.
We will not threaten you with an adverse consequence because of your union activity.
We
will not tell
you to submit a letter to the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We
will, upon request by the
We
will, prior to making any changes in wages, hours, and terms of
conditions for employees in the following appropriate bargaining unit, meet and
bargain with the
Included: All full-time and regular part-time cooks, pantry employees, dishwashers, deli attendants, waiters, bussers, room service employees, banquet employees, bartenders, restaurant cashiers, stewarding department employees, housekeeping department employees, laundry attendants, front office attendants, PBX attendants, reservation agents, bell attendants, and others listed in schedule A in the expired agreement. Excluded: Office clerical employees, all other employees, guards and supervisors as defined in the Act.
We will make whole, with interest, any of you who were adversely affected by the unilateral changes that we implemented.
We
will provide the
We
will submit to the
We will resume timely payments and restore retroactive payments to the Health and Welfare and Retirement Funds, with interest, and provide all required monthly contribution reports to the Funds, as set forth in the agreement.
We will reimburse, with interest, any of you who incurred out-of-pocket medical or other expenses because of our discontinuation of contributions to the Funds.
We
will, upon request of the Union, process the grievance filed by the
Union on September 25, 2006, regarding our failure to make the contractually
required contributions to the Funds, and we will provide the
We will permit union representatives access to the Hotel as provided for in the agreement.
We will pay you for your accrued vacation time as provided for in the agreement.
We
will, upon request by the
We will, within 14 days from the date of the Board’s Order, offer any employee laid off as a result of the elimination of the lobby bar day shift full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make whole, with interest, any such employee for any losses suffered as a result of the elimination of that shift.
We will within 14 days from the date of the Board’s Order, remove from our files any photographs or videotapes of you speaking with union representatives or engaging in peaceful union or other protected concerted activity, and any photographs or videotapes of you picketing in front of the Hotel.
Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel
Anne J. White, Esq. and Joanna F. Silverman, Esq., for the General Counsel.
Joseph E.
Herman, Esq., of
Kristin
L. Martin, Esq., of
Henry M.
Willis, Esq., of
DECISION
Statement of the Case
Gregory Z. Meyerson, Administrative Law Judge. Pursuant to notice, I heard this case in Los
Angles,
All parties appeared
at the hearing, and I provided them with the full opportunity to participate,
to introduce relevant evidence, to examine and cross-examine witnesses, and to
argue orally and file briefs.[4] Based upon the record, my consideration of
the briefs filed by counsels for the General Counsel, the Respondent, and the
Funds,[5]
and my observation of the demeanor of the witnesses, I now make the following[6]
Findings of Fact
i. jurisdiction
All parties
stipulated and I find that at all times material, the Respondent, a California
corporation, with an office and place of business at 3515 Wilshire Boulevard,
Los Angeles, California, has managed and operated a hotel facility at that
location, which provides food and lodging to the public. Further, that during the calendar year ending
December 31, 2006, the Respondent, in conducting its business operations,
derived gross revenues in excess of $500,000; and that during the same period
of time the Respondent purchased and received at its facility, products, goods,
and materials valued in excess of $5000, directly from points located outside
the State of California. (Jt. Exh. 1,
Stipulation of Facts.)
Accordingly, I
conclude that the Respondent is now, and at all times material has been, an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
ii. labor organization
The complaints
allege, the answers admit, and I find that at all times material, the
iii. stipulated background
facts
All parties
stipulated to the following set of facts, which stipulation was received into
evidence as Joint Exhibit 1:
Prior to
September 21, 2005, L A Koreana, Inc. (Koreana), owned and operated a hotel
located at
Since an unknown
date, the Respondent now does business as the Wilshire Plaza Hotel (the
Respondent’s facility) on the same land and in the same building in which
Respondent previously did business as the Radisson Wilshire Plaza Hotel. On or about September 21, 2005, the Lee 2003
Family Trust entered into a lease agreement with the Respondent, whereby the Respondent
leased the building and the land described above. Since then, the Respondent has continued to
operate the business in basically unchanged form. The Respondent employed as a majority of its
employees individuals who were previously employed by Koreana.
At all times
material, the Respondent has managed and operated the Respondent’s facility,
which provides food and lodging to the public.
Based on the operations described above, the Respondent has continued as
the employing entity and is a successor to Koreana.
Certain
employees of the Respondent constitute a unit (the unit) appropriate for the purposes
of collective-bargaining within the meaning of Section 9(b) of the Act.[7]
At all material
times from April 16, 2004, until about September 20, 2005, the Union claims
that it was the designated exclusive collective-bargaining representative of
the unit employed by Koreana and the
Union was recognized as the representative by Koreana. This recognition was embodied in the collective-bargaining
agreement (the agreement) effective for the period from April 16, 2004, through
April 16, 2006 (Jt. Exh. 2). At all
times from April 16, 2004, until about September 20, 2005, based upon the Union’s
representation, and based on Section 9(a) of the Act, the
About September
21, 2005, the Respondent assumed the agreement.
At all times since about September 21, 2005, the Union has been the
designated exclusive collective-bargaining representative of the unit employed
by the Respondent and the
The stipulation
contains other facts, agreed to by the parties and, thus, not in dispute, which
facts will be set forth later in this decision, as the evidence and the
respective positions of the parties are discussed.
iv. alleged unfair labor
practices
A. An Overview/Position of the Parties
In its two
complaints, the General Counsel has alleged that the Respondent has committed a
very significant number of unfair labor practices. Without explicitly saying so, counsel for the
General Counsel is contending that the Respondent has engaged in an organized
effort to have the
However, as an
alternate and second basis for concluding that the Respondent’s institution of
its last contract offer was an unlawful implementation of unilateral changes,
the General Counsel contends that the Respondent and the
Finally, counsel
for the General Counsel contends that following the implementation of its last
contract offer, the Respondent continued with its effort to eliminate the
Counsel for the
Funds indicated in his posthearing brief his agreement with the General Counsel’s
theory of the case. Further, while
counsel for the Union did not file a posthearing brief, the indication from her
comments at trial were that she also agreed with the positions taken by the
General Counsel.
Counsel for the
Respondent does not deny that certain pre-impasse unfair labor practices
occurred. However, counsel argues that
any such unfair labor practices were isolated incidents, occurred away from the
bargaining table, and were committed primarily by persons who acted without the
direction or supervision of senior management.
Most significantly, counsel contends that any such unfair labor
practices were not related to the conduct at the negotiations, and did not
influence or affect the result that a legitimate impasse was reached between
the negotiating parties. It is alleged
that such a lawful impasse allowed the Respondent to implement its “last, best,
and final offer.” Finally, the
Respondent’s attorneys deny that any postimpasse unfair labor practices were
committed by the Respondent’s agents.
It is the
position of counsel for the Respondent that all the Respondent’s actions taken
and proposals made at the negotiation table were in good faith, and were driven
solely by its dire financial situation.
Allegedly, the Respondent was losing a significant amount of money, and
in order to survive financially required a collective-bargaining agreement that
resulted in large cost savings for the Respondent. This was the Respondent’s theme throughout
the negotiation process, which included 10 face-to-face negotiation
sessions. The Respondent used every
opportunity to remind the Union’s negotiators that it would need concessions
from the
It should be
noted that the chief negotiator for the Union was Tom Walsh, the
What follows is
a discussion and analysis of the unfair labor practices alleged in the two
complaints. For the most part, I will attempt
to address these issues in chronological order, with three natural divisions:
preimpasse conduct, negotiation/im-passe, and postimpasse conduct.
B. Preimpasse Conduct
1. Delay in remitting dues and related information
As noted above,
the collective-bargaining agreement (the agreement) between the
The parties
stipulated that “prior to December 24, 2006, the Respondent was required under section
2(J) of the agreement to deduct monthly union dues and to remit these dues,
along with related union dues information, to the Union.” (Jt. Exh. 1, p. 8, par. 10(a).) In that stipulation, the Respondent admitted
that it did not remit the August dues until October 13, 2006; that it did not
remit the September dues until November 29, 2006; and that it did not remit
dues for the months of October and November 2006 until May 9, 2007. (Jt. Exh. 1, p. 8–9, pars. 10(b–d); Jt. Exh.
5–7.)
Further, the
parties stipulated that prior to December 24, 2006, section 2(J) of the agreement
required the Respondent to provide the
Paragraph 7 of
the first complaint alleges that the Respondent violated Section 8(a)(5) of the
Act by delaying in remitting employee union dues deductions and related
reporting information. The undisputed
facts, as set forth in the stipulation, establish this violation. “It is well established that an employer violates
Section 8(a)(5) by ceasing to deduct and remit dues in derogation of an
existing contract.” Hearst Corp. Capitol Newspaper Div., 343 NLRB 689, 693 (2004);
citing Shen-Mar Food Products, 221
NLRB 1329 (1976). Further, “it is well
settled that each monthly failure to deduct and remit dues to the
As the
stipulation shows, the Respondent deducted dues from the unit employees’
paychecks, as provided for in the agreement, and then admittedly failed to
remit those dues to the
2. Failure to contribute to various runds and
submit related reports
Section 8(E) of
the agreement requires the Respondent to make payments and submit reports to
the Health and Welfare and Retirement Funds (the Funds). (Jt. Exh. 1, p.10–11, pars. 11(a–d).) In the stipulation, the parties state that, “until
at least January 31, 2007, Section 8(E) of the Agreement . . . required the
Respondent to provide a monthly Funds’ contribution report to the Charging
Party Funds simultaneously with the Respondent’s monthly contribution to the
Charging Party Funds.” The Respondent
admitted that it failed to make the required contributions to the Funds as
described in section 8(E) of the agreement from August through December 2006,
and, that as of the date of the stipulation, those contributions had still not
been made to the Funds.[11] Further, in the stipulation the Respondent
admitted that from September through December 2006 it failed to furnish the
Funds with monthly contribution reports for that period. (Jt. Exh. 1, p. 10–11, pars. 11(a–d).)
The Respondent
admitted in the stipulation that, prior to February 1, 2007, the contributions
and reporting information that the Respondent was required to provide to the
Charging Party Funds was “necessary for, and relevant to, the Charging Party
Union’s performance of its duties as the exclusive collective-bargaining
representative of the Unit.” (Jt. Exh.
1, p. 11, par. 11(d).)
According to the
testimony of Rolly Throckmorton, the administrative manager of the Funds, the
Respondent’s “failure to submit contributions to the Welfare Fund means that employees
that had worked the hours required for eligibility would not be entitled to receive
eligibility because the Welfare Fund rules require that, in order for their
work hours to go toward eligibility, the required contributions must be paid.” As an example, Throckmorton testified that a
failure by the Respondent to make contributions on behalf of the employees into
the Funds would result in effected employees “los[ing] their entitlement to
hospital, medical, dental, and life insurance benefits . . . [and] the Legal
Fund benefits to which they would, otherwise, be entitled.”
Paragraph 8 of
the first complaint alleges that the Respondent violated Section 8(a)(5) of the
Act by failing to make contractually required contributions on behalf of unit
employees into the Funds and by failing to submit related reports. The undisputed facts set forth in the
stipulation establish this violation. “It
is well established Board law that an employer’s refusal to make payments to an
insurance or trust fund established by a collective-bargaining agreement . . . constitutes
a unilateral change in terms and conditions of employment in violation of
Section 8(a)(5) and (1) of the Act.” Merryweather Optical Co., supra at 1215.
It has been held
by the Board that “the unilateral decision to discontinue making benefit fund
contributions, like the failure to make periodic wage increases, constitutes a
violation of Section 8(a)(5) of the Act.”
Farmingdale Iron Works, supra. There is no question that the contractual
payment by an employer of monies into a fund to provide medical insurance for a
covered employee and his/her family is an extremely important term and
condition of employment. To some employees
such a benefit may be more significant even than the wage compensation.
The Respondent’s
admitted failure to make contributions to the Funds for the period of August
through December and to submit related reports from September through December
2006 goes to the heart of the collective-bargaining relationship between the
Employer and the Union and constitutes a violation of Section 8(a)(5) of the
Act, as alleged in paragraph 8 of the first complaint.[12]
3. Refusal to process grievance and
furnish requested information
The agreement
between the
Paragraph 9 of
the first complaint alleges that since September 25, 2006, the Respondent has
failed and refused to provide the Union with the information it requested in
connection with the nonpayment to the Funds, and failed and refused to process
the grievance filed by the Union over this nonpayment, which refusal is alleged
in paragraph 31 to constitute a violation of Section 8(a)(5) of the Act. Andy Kaplan did not deny that no documents
were forthcoming in response to the request.
However, he contends that he had an agreement with Union Representative
Fred Pascual to take no further action on the grievance until the parties had
an opportunity to discuss the nonpayment issue at the bargaining table.
Kaplan
acknowledges receiving a copy of the Salazar letter dated September 25 from
Alex Delgado. He testified that he
called Pascual and discussed the grievance with him over the telephone. Kaplan claims that Pascual agreed with him
that the issue of nonpayment to the Funds “would most certainly be dealt with
at the bargaining table and we agreed, therefore, that the Hotel not take any
further action with respect to the grievance, unless and until Mr. Pascual
would call me and tell me to the contrary.”
According to Kaplan, subsequently he has never been contacted by anyone
with the
Fred Pascual was
at the time of the events in question the director of hotels for the
While Kaplan’s
testimony, on the surface, certainly seems more reliable than that of Pascual,
it does not negate one final written communication. On October 2, a week after the alleged
conversation between Pascual and Kaplan, Pascual faxed a letter to
It is simply
illogical that a week earlier Pascual agreed to take no further action on the
grievance until the parties had discussed the matter over the bargaining table,
and then sent the Employer a letter seeking to select an arbitrator to hear the
dispute. Even assuming Pascual had made
such a promise to Kaplan, by October 2 he had clearly changed his mind and was
indicating the
In a recent
case,
As noted
earlier, the parties stipulated that the information requested by the Union in
its letter of September 25, namely a spreadsheet with all the names of the
union employees, showing the hours worked and the dollar amount applied for
each employee to Health and Welfare for the last 6 months and proof of payments
to Health and Welfare for the last 6 months, was necessary for, and relevant
to, the Union’s performance of its collective-bargaining duties. Since there is no dispute that these
documents were necessary and relevant, I find that the Respondent’s failure to
produce them constitutes a violation of Section 8(a)(5) of the Act, as alleged
in paragraphs 9 and 31 of the first complaint.
Further, under
Board law, “it is well settled that an employer is obligated . . . to meet with
the employees’ bargaining representative to discuss its grievances and to do so
in a sincere effort to resolve them.” Contract Carriers Corp., 339 NLRB 851,
852 (2003), citing Hoffman Air &
Filtration Systems, 316 NLRB 353, 356 (1995). Since being advised by the
4. Locker searches
It is alleged in
paragraphs 16, 31, and 32 of the first complaint that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act by its unilateral implementation of a
new locker search policy and its subsequent discriminatory search of the
lockers of four employees. The four
employees involved, Griselda Campos, Susana Serrano, Maria Carrillo, and Ofelia
Calderon, were employed by the Respondent as housekeepers and all testified at
the hearing.
In the joint
stipulation, the Respondent admitted that prior to September 27, 2006, it did
not have a policy governing random employee locker inspections. In the stipulation, the Respondent
acknowledged that on September 27, Chamroeun Trinidad (at the time the human
resources/payroll coordinator and an admitted supervisor and agent) issued a
memorandum to employees regarding the Respondent’s policy on “Random Selection
for Locker Inspection.” (Jt. Exh.
15.) Further, the Respondent admitted
that on September 28, Trinidad implemented the new policy concerning random
employee locker inspections by notifying employees
On September 27
at about 2 p.m. a group of employees formed at
The following
day, September 28,
As noted, the
Respondent stipulated that prior to the September 27 memo, the Respondent had
no policy regarding random locker searches.
As
To begin with,
counsel is wrong about the number of searched employees who attended the
protest the day before. From their
testimony, it seems that only Calderon was uninvolved in the protest. Further, I am at a loss to understand what
difference it makes whether upper management was aware of Trinidad’s actions or
not. The Respondent has admitted that
Union Representative
Salazar testified that he was never given the opportunity by the Respondent to
bargain over a new locker search policy, nor did the Respondent ever advise him
that it was implementing such a new policy.[15] The Respondent offered no evidence to rebut
Salazar, or to establish that some other union representative was afforded such
an opportunity or was advised of the search policy prior to its implementation. Thus, the evidence clearly establishes that
the Respondent failed to bargain with the Union before unilaterally implementing
its new locker search policy, and, thereafter, searching the lockers of
Further, I
believe that the Respondent took the action of issuing the “Random Selection
For Locker Inspection” memo and subsequent search of the four employees’
lockers in retaliation for the employees’ union and protected concerted
activity in protesting the elimination of their medical insurance. In assessing whether Respondent’s action
violated Section 8(a)(3) of the Act, it is necessary to analyze the situation
under the shifting analysis burden of Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
In Wright Line, the Board announced the following
causation test in all cases alleging violations of Section 8(a)(3) or violations
of 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating factor” in the
employer’s decision. This showing must
be by a preponderance of the evidence.
Then, upon such a showing, the burden shifts to the employer to
demonstrate that the same action would have taken place even in the absence of
the protected conduct. The Board’s Wright Line test was approved by the
United States Supreme Court in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
The Board in Tracker Marine, L.L.C., 337 NLRB 644
(2002), affirmed the administrative law judge who evaluated the question of the
employer’s motivation under the framework established in Wright Line. Under that
framework, the General Counsel must establish four elements by a preponderance
of the evidence. First, the General
Counsel must show the existence of activity protected by the Act. Second, the General Counsel must prove the
respondent was aware that the employee had engaged in such activity. Third, the General Counsel must show that the
alleged discriminatee suffered an adverse employment action. Fourth, the
General Counsel must establish a link, or nexus, between the employee’s
protected activity and the adverse employment action. In effect, proving these
four elements creates a presumption that the adverse employment action violated
the Act. To rebut such a presumption,
the respondent bears the burden of showing that the same action would have
taken place even in the absence of the protected conduct. See Mano
Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996); Farmer Bros. Co., 303 NLRB 638, 649 (1991).
The Respondent
does not dispute the obvious fact that the protest engaged in by 25–30
employees outside of
Similarly, there
can be no doubt that the four employees suffered an adverse employment
action. They received the September 27 “Random
Selection For Locker Inspection” memo from
The only attempt
made by the Respondent to rebut this charge comes from counsel’s posthearing
brief where it is argued that there is no connection or nexus between the protected
conduct engaged in by these employees and the subsequent search of their
lockers, except the “proximity in time.”
Of course, the proximity in time of these two events is very
telling. It defies credulity to imagine
that this was mere coincidence. On
September 27 three of the four employees in question gathered with others to
confront
While there is
no direct evidence of union animus on the part of
Accordingly,
based on the above, counsel for the General Counsel has met her burden of
establishing that the Respondent’s actions in issuing the “Random Selection For
Locker Inspection” memo and in searching the lockers of the four employees were
motivated, at least in part, because of the union and protected concerted
activity engaged in by the employees.[16] The burden now shifts to the Respondent to
show that it would have taken the same action absent the protected
conduct. However, the Respondent offered
no evidence in its defense, with
Based on the
above, I conclude that the Respondent has violated Section 8(a)(1) and (3) of
the Act by promulgating its unlawful locker search memo of September 27 and in
searching the lockers of employees Campos, Serrano, Carrillo, and Calderon on
September 28, as alleged in paragraphs 16 and 32 of the first complaint. See Mays
Electric Co., 343 NLRB 128 (2004).
5. Interrogation of William Carranza
Paragraphs 21
and 33 of the first complaint allege that in late November or early December
2006, Leo Lee interrogated and threatened to terminate employees because of
their union activity. As was apparent at
the hearing, William Carranza, a deli server at the hotel, was the employee
allegedly interrogated and threatened.
The stipulation between the parties names Leo Lee as the Respondent’s
president, and further states that he is an agent and supervisor. In his testimony, Lee referred to himself as
the Respondent’s “CEO.” In any event, he
is clearly the Respondent’s highest ranking manager.
The complaints
allege that the Respondent, through Lee, committed various violations of the
Act. Those allegations are denied in the
Respondent’s answers. It is, therefore,
necessary for me to evaluate Lee’s credibility, as he generally denied the
conduct attributed to him by various employees who testified, including
Carranza. In this regard, I found much
of Lee’s testimony unbelievable. He
testified in a very cryptic manner. His
answers to questions were frequently short and abrupt, without detail or
explanation. He was nervous, excessively
so for a person of his status as the CEO of a significant business
enterprise. He indicated a lack of
knowledge as to what was happening at the hotel of which he was the highest
ranking manager. His testimony,
especially during cross-examination, was filled with general responses,
denials, or uncertainty regarding matters, the specifics of which he certainly
should have known in his position. If
his testimony was to be believed, there existed a group of supervisors who were
acting unlawfully on their own authority, without Lee’s knowledge. This I find highly unlikely. Frankly, he testified as if he had something
to hide.
As I did not
find Lee to be a credible witness, I accepted the contrary testimony of employee
witnesses when their testimony was inherently plausible and consistent with the
other credible evidence. Further, I
would note, as counsel for the General Counsel points out in her posthearing
brief, that the testimony of current employees against the interests of their
current employer should be given added credibility and weight. As the Board noted in Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Federal Stainless Sink Div. of Unarco, 197
NLRB 489, 491 (1972); and Georgia Rug
Mill, 131 NLRB 1304 fn. 2 (1961), the testimony of current employees, which
contradicts statements of their supervisors, is likely to be particularly reliable
because these witnesses are testifying adversely to their pecuniary
interests. See also Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83 F.3d 419 (5th
Cir. 1996).
When he
testified, William Carranza was still employed as a deli server at the
Respondent’s coffee shop. According to
Carranza, in late November or early December 2006, in the early evening, he was
performing his job in the coffee shop when Lee and his assistant, Robbie Perez,
came into the area.[17] As they began to sit down at a table, Lee
waived at Carranza that he should come over.
Carranza had spoken to Lee before, but only about work-related
matters. Carranza testified that when he
came over, Lee immediately asked him, “What [are] the
Lee testified
generally that he never had any such conversation with any employee. However, for the reasons noted above, I do
not believe Lee and credit Carranza. He
testified in a straight forward and direct manner, and, as noted, adversely to
his pecuniary interests. Further, as
will be apparent later in this decision, Lee’s conversation with Carranza fit a
pattern of such conversations with employees instigated by Lee and other supervisors. The conversation as testified to by Carranza
is inherently plausible as during the time period in question, the Union and
the Employer were locked in difficult negotiations for a new collective-bargaining
agreement where only very limited progress was being made. Under such circumstances, it would not be
surprising that Lee would at least be concerned that he might have to face a
strike by his unit employees. Therefore,
I conclude that Lee spoke the words as testified to by Carranza.
Counsel for the
General Counsel contends that in this conversation Lee both interrogated and
threatened Carranza. I agree. Regarding interrogation, Carranza’s testimony
establishes that Lee specifically asked him what plans the Union had, whether
the
In determining
whether a supervisor’s questions to an employee about his union activities were
coercive under that Act, the Board looks to the “totality of the circumstances.” Rossmore
House, 269 NLRB 1176 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In Westwood
Health Care Center, 330 NLRB 935 (2000), the Board listed a number of
factors considered in determining whether alleged interrogations under Rossmore House were coercive. These are referred to as “Bourne factors,” so named because they were
first set forth in Bourne v. NLRB,
332 F.2d 47, 48 (2d Cir. 1964). These factors include the background of the
parties’ relationship, the nature of the information sought, the identity of
the questioner, the place and method of interrogation, and the truthfulness of
the reply.
As testified to
by Carranza, this was the only conversation that he had ever had on a nonwork
related subject with Lee. Further, Lee
was the Respondent’s president, the “big boss,” and it would certainly be
reasonable for Carranza to be somewhat intimidated by Lee’s presence and
questions. Carranza was questioned at
his workstation where Lee and Perez had come, a highly unusual situation for
Carranza. The questions certainly caught
Carranza off guard, were intrusive, and highly personal, as in whether he was
going to participate in a work stoppage against his employer, in the person of
the very man asking the questions.
Carranza’s responses were denials of any knowledge, indicative of an
employee fearful of getting into trouble for giving his boss the “wrong answer.” From his view point, Carranza’s trepidations
were very genuine, and were not lessened by any assurance from Lee that no
adverse consequences would result from the conversation, since no such assurance
was given. See also Millard Refrigerated Services, 345 NLRB 1143, 1146 (2005); Emery Worldwide, 309 NLRB 185, 186
(1992).
Therefore, I
conclude that the conversation at issue constituted an unlawful interrogation
of Carranza in violation of Section 8(a)(1) of the Act, as alleged in paragraphs
21(a) and 33 of the first complaint.
Further, I am of
the view that Lee’s statement to Carranza that, “[a]nybody who goes on strike
will be easily replaced” was an obvious threat to punish any unit employee who
engaged in their Section 7 right to strike.
This was an undisguised threat to terminate strikers. As such, it
interfered with, restrained, and coerced Carranza and other unit employees in
the exercise of their rights under the Act.
Accordingly, I find that the Respondent has again violated Section
8(a)(1) of the Act, as alleged in paragraphs 21(b) and 33 of the first complaint.
6. Interrogation of Merian Salansang and
Enrique Camberos
The parties
stipulated that Alex Moon was the Respondent’s director of banquets and a supervisor
and agent of the Respondent. It is
alleged in paragraphs 22(a) and 33 of the first complaint that in early
December 2006, Moon, in the Respondent’s deli, unlawfully interrogated
employees regarding their union activity by asking if they had news about the
Both Salansang
and Camberos testified on behalf of the General Counsel. Moon did not testify, nor did any other witness
challenge their testimony. Accordingly,
the testimony of Salansang and Camberos remains unrebutted. Further, both employees seemed reasonably
credible, and, therefore, I shall accept their testimony as accurate.
According to
Salansang, she is a member of the Union, and in early December 2006 she had a
discussion with her immediate supervisor, Alex Moon, about the
In his
posthearing brief, counsel for the Respondent argues that even if Moon made the
statements attributed to him by Salansang that it does not constitute unlawful
interrogation as Moon was a low ranking supervisory employee, asking very
general questions, without being directed to do so by senior management. However, I disagree with counsel’s assessment
of the incident.
There was no
evidence that Salansang was an open union supporter, and, yet, she was
questioned by her immediate supervisor regarding the
Certainly Moon’s
questioning of Salansang did not require advance approval of upper management
in order to be coercive and constitute unlawful interrogation. Moon, as a statutory supervisor and agent,
was speaking on behalf of the Respondent when he interrogated an immediate
subordinate who would reasonably have been fearful of retribution if her answers
displeased him. Accordingly, I find
that through Moon’s conduct, the Respondent has violated Section 8(a)(1) of the
Act, as alleged in paragraphs 22(a) and 33 of the first complaint.
Camberos
testified that around December 1, 2006, at lunchtime, he came into the employee
cafeteria to have lunch, and also to see Union Representative Salazar who was
at the Hotel to meet with unit employees.
At the time there were approximately 15–30 people in the cafeteria, most
of whom were employees, but Camberos also recognized Salazar, the Respondent’s
attorney, Andy Kaplan, a security guard, somebody taking pictures, and Alex
Moon. He identified Moon as the food and
beverage manager.[18]
According to
Camberos, Moon came over to him as he was standing next to the buffet table and
asked, “Are you coming to your lunch or are you coming to a meeting.” As Camberos testified he gestured with his
finger in a pointing motion. It appeared
that he was indicating that Moon made such a gesture with his finger as he
spoke to Camberos in the cafeteria.[19] Camberos responded that he was there to have
his lunch, and “was also going to a meeting.”
That was apparently the end of the conversation, which, according to
Camberos only lasted a few seconds.
Camberos then left the cafeteria without staying for the meeting with
Salazar.
When questioned
by counsel for the General Counsel as to why he did not stay for the meeting,
Camberos replied, “Because I didn’t want any trouble with Mr. Alex Moon. I have had trouble before.” Camberos seemed a sincere, credible witness. His testimony about Moon was not rebutted,
and I have no reason to doubt that he left the cafeteria without waiting for
the meeting because he was genuinely concerned about upsetting Moon.
This is
precisely the type of situation where the Board has found that a supervisor’s
questioning of an employee regarding his attendance at a union meeting
constituted a violation of the Act. American Tool & Engineering Co., 257
NLRB 608, 624–625 (1981); Glazer
Wholesale Drug Co. of New Orleans, Inc., 181 NLRB 304, 308 (1970). Further, under the Board’s totality of the
circumstances test, there is no doubt that Moon’s deliberate confrontation with
Camberos where Moon questioned him about his reasons for being in the cafeteria,
during his lunchbreak, at the same time Moon pointed his finger at Camberos,
would have reasonably caused Camberos to fear further upsetting Moon. Rossmore
House, supra;
Moon’s conduct
reasonably tended to interfere with the exercise of Camberos’ Section 7
rights. Therefore, I conclude that the
Respondent has violated Section 8(a)(1) of the Act, as alleged in paragraphs
22(b) and 33 of the first complaint.
7. Repudiation of access and acts of surveillance
Paragraph 10,
and its various subparagraphs, and paragraph 31 of the first complaint allege
that the Respondent repudiated the
As noted
earlier, Oscar Salazar, a former employee of the Respondent, was the union
representative who serviced the Respondent’s facility on behalf of the
On December 1,
2006, Salazar arrived at the Hotel at about 11 a.m. He testified that there was neither a
security guard nor a sign in sheet in the security office, so he signed a
document in that office, which was intended for employees to sign out hotel
keys during their shifts. After “signing
in,” Salazar proceeded past the human resources office, which was closed, to
the employee cafeteria where he greeted the approximately 25 employees
present. The employees were sitting at
tables eating. As soon as he greeted the
employees, two women, who he did not recognize, stood up and started yelling at
him. Subsequently, he learned from
employees that one of the women was Haena Kim, who the parties have stipulated
was the Respondent’s director of human resources and a supervisor and agent of
the Respondent. (Jt. Exh. 1, p. 6.) The woman who he later learned was Haena Kim
was yelling that he “did not have any right” to be there, and that the attorney
and owner had said that he was “not to be on the property.” In response, Salazar said that the agreement
gave him permission to be on site and that was his authority. According to Salazar, Haena Kim tried to grab
his arm but he pulled away and told her not to touch him.
Within a few
minutes a security guard arrived on the scene.
Kim then proceeded to order the guard to remove Salazar from the
property. Salazar informed the guard
that he wanted “to speak with someone who had the power to revoke . . . the
Kaplan
approached Salazar, and, according to Salazar, told him that he (Kaplan) did
not want Salazar in the Hotel, and that Salazar “had 30 seconds before the
police arrived and removed [him].”
Kaplan then started to count for 5 seconds, showing his watch to Salazar
that 5 seconds had passed. Salazar informed
Kaplan that Kaplan knew that he was violating the agreement between the
parties. Kaplan suggested that they
continue this discussion in a private office, to which Salazar responded that
he would gladly do so, as long as he could bring a witness with him. Kaplan refused to have a witness present and
as Salazar would not go with Kaplan without one, Kaplan simply left the
cafeteria.
Kaplan’s version
of his conversation with Salazar in the cafeteria is somewhat different. According to Kaplan, he asked Salazar why he
was at the Hotel. Allegedly, Salazar
responded, “I don’t have to tell you. I’m
allowed to come to the Hotel at any time and go anywhere for any reason.” Kaplan told Salazar that was wrong, that the
access provisions of the agreement limited the reasons why a union
representative could come into the nonpublic areas of the Hotel. Salazar still refused to give Kaplan a reason
why he was there, and Kaplan testified that he told Salazar that unless he gave
a reason, the Employer would have no recourse but to call the police and have
Salazar arrested for trespassing.
Salazar told him to do what he had to do, after which Kaplan directed
Jihan Kim to call the police.
Kaplan denies
that he ever told Salazar that he could not be at the Hotel under any
conditions or circumstances. It is the
Respondent’s position that the conditions under which a union representative
can be in nonpublic areas of the hotel are limited to those reasons allegedly
set forth in the agreement. Kaplan
contends that since Salazar would not inform him of his reason for being at the
hotel, Salazar had no legitimate business being there. However, on cross-examination Kaplan acknowledged
that the agreement did not require that the union representative report to the
Employer’s attorney when entering the Hotel, just that the representative advise
the personnel office when on the property.[20]
After Kaplan
left the cafeteria, Salazar sat down with several employees and began to
conduct his business. However, within a
short period of time two city of
On December 11,
at about 11 a.m., Salazar returned to the Hotel in the company of Aracely
Rubio, a union organizer. Upon arrival
they checked in with the security guard present in the security office, signed
the visitors’ sign-in sheet, and received visitors’ passes to put on their
clothes. They then proceeded towards the
cafeteria, but were intercepted by Jihan Kim who began walking 3 to 4 feet
behind them. They initially spoke to
Kim, but he did not respond. As was his
practice, Salazar entered the cafeteria to tell employees that he was on site
and would return. He then made his
rounds to inform unit employees working throughout the Hotel that he would be
in the cafeteria if they wished to meet with him. Kim continued to follow Salazar and Rubio. At some point Rubio asked Kim why he was
following them, to which Kim responded, “To make sure [you] don’t incur an
accident.” According to Salazar, on his
previous visits to the property he had never been followed by a manager, and
had never had a manager express concern for his safety.
When Salazar and
Rubio approached the second floor kitchen, Salazar entered and began speaking
with employee Enrique Camberos, as Rubio waited outside the room. As Salazar and Camberos spoke, Salazar
noticed Sebastian Choo standing in the kitchen pointing a photographic camera
at them. The parties stipulated that
Sebastian Choo was the Respondent’s service manager and a statutory agent and supervisor. (Jt. Exh. 1, p. 6.) Salazar testified that he told Choo to stop taking
pictures, but Choo ignored him and continued doing so. Later Kim took the camera and began taking
pictures of Salazar and Camberos.
Next, Salazar
and Rubio walk over to the Hotel’s restaurant where Salazar spoke with a number
of unit employees. During this time Kim
stood about 7 to 10 feet away with a camera aimed in their direction. As Salazar and Rubio walked back to the
cafeteria, Kim continued to follow them.
There were approximately 15–20 employees inside the cafeteria.
Salazar entered
the cafeteria while Rubio waited outside the room. Salazar sat down besides employees Roberto
Gamez and Manuel Montez, and then noticed that Haena Kim was aiming a camera at
them. Salazar told Haena Kim to stop taking
pictures, but she failed to respond and continued to taking pictures. During the period of time that Haena Kim took
pictures of Salazar talking with employees, Jihan Kim also continued to do the
same. None of the managers said anything
to Salazar as he sat with employees.
Noelia Elena
Lopez, a cafeteria attendant, also testified that towards the middle of December
at about lunchtime, in the employee cafeteria, she and other employees met with
Oscar Salazar. She recalled Aracely
Rubio also being present for the meeting.
According to Lopez, during that meeting Jihan Kim and Haena Kim both
took pictures of the employees as they were meeting with Salazar. At the time, both managers were standing in
close proximity to those employees.
It is important
to note that neither Choo nor Haena Kim testified at the hearing, and, thus,
did not deny the testimony of Salazar that they took pictures of him talking
with unit employees. However, Jihan Kim
did testify and denied taking any pictures of Salazar talking with employees,
or of seeing any other managers taking such pictures. It is, therefore, necessary to decide the
respective credibility of Jihan Kim and of Salazar and Rubio.
The parties
stipulated that Jihan Kim was the assistant to the Respondent’s president, Leo
Lee. Kim did not specifically indicate
his job title, but Lee testified that Kim was his “assistant,” his “right-hand
man.” From the respective testimony of
Kim and Lee, as well as the testimony of various employee witnesses, there is
little question that the two men worked together closely, and that Kim was
considered the owner’s representative at the Hotel. However, his testimony was filled with
denials regarding whether he was aware of what other supervisors were doing at
the property. As just two examples, he
claimed to have no knowledge about the locker search policy instituted by
Chamroeun Trinidad, or about whether employees were being paid for the vacation
time that they had earned.
Kim testified
that he never took pictures of Salazar, nor did he ever see any other supervisors
taking such pictures. I do not believe
him. Not only did Salazar and Rubio
testify that such pictures were taken, but employees Roberto Gamez and Noelia
Elena Lopez also testified that they saw Kim taking pictures of Salazar and
employees talking in the cafeteria in early or mid-December. This testimony by Salazar, Rubio, Lopez, and
Gamez is very detailed, seems genuine, and has the “ring of authenticity” about
it.
In general, I
did not find Kim credible. His testimony
about Salazar’s presence at the Hotel in early December 2006 was filed with
contradictions, implausible explanations, shifting rationales, and
protestations of ignorance. At various
times in his testimony, he claimed that in early December he did not know that
Salazar was a union representative, and did not know that union representatives
were permitted access to the nonpublic areas of the Hotel to talk with unit
employees. At other points in his
testimony, he claimed that at the time in question he did know who Salazar was
and did know about the access provision, and yet admitted reporting Salazar’s
presence on the property to Attorney Kaplan, and of calling the policy asking
them to remove Salazar. When it suited
his purpose, he was quite willing to have the listener believe that the Hotel was
basically running itself, with upper management, in the form of Lee and
himself, being totally unaware of any unfair labor practices being committed.
There is no
doubt that both Salazar and Rubio were partisans on behalf of the
Returning to the
events of December 11, Salazar remained in the cafeteria talking with employees
for about 20 minutes, after which two police officers from the city of
The officers
spoke with Kim and then returned to Salazar and Rubio and told them that Kim
insisted that they had to leave. Kim
approached the group and repeated what he had apparently told the officers
privately, that Salazar and Rubio needed to leave the property. According to Rubio, she asked Kim if he was
denying them access to the Hotel, to which he responded that “[they] have no
permission to go inside.” Further, Kim
said that “if [they] wanted to come back that [they] have to call the attorney
who represents [the Employer].” At that
point Rubio and Salazar left the property.
Since that date, they have not returned to meet with employees inside
the Hotel.
On December 12,
Salazar and Kaplan spoke by phone. Salazar
indicating to Kaplan that he needed to access employees at the Hotel in order
to process grievances. According to
Salazar, Kaplan told him that he had no right to go into the Hotel, and that
they could speak about grievances over the negotiation table. It was during this period that the parties
were involved in contract negotiations.
Kaplan claims
that he actually called Salazar on December 12, because Jihan Kim had told him
the day before that Salazar had returned to the nonpublic areas of the Hotel. Kaplan admits asking Salazar what he was
doing at the Hotel the day before.
Allegedly Salazar responded that he could be at the Hotel “any time he
wanted for any reason.” Kaplan testified
that he told Salazar that he could only be at the Hotel “for reasons specified
in the collective-bargaining contract.”
He again asked, and Salazar again refused to tell him why he had been on
the property.
Rubio testified
that within a week of being denied access on December 11, she called Kaplan to
request access to the facility, as Jihan Kim had directed. According to Rubio, Kaplan denied her
permission to enter the facility until such time as the
Salazar
testified that the Employer has never given the Union notice that it was
revoking access to the facility to union representatives, and has never given
the
Kaplan’s
testimony is at some variance with that of Rubio and Salazar as to what was
said between them on December 1, 11, 12, and approximately 1 week later,
regarding access to the Hotel. However,
in my view it is not necessary for me to resolve these differences. Even if I assume Kaplan’s version of the
conversations is the more accurate, I believe that the Respondent, through the
actions of Kaplan and Jihan Kim, has violated the Act. For all practical purposes, the conduct of
the Respondent’s agents on those dates serves as a repudiation of the Union’s
contractually agreed upon access to the facility in violation of Section 8(a)(5)
of the Act.
The terms of the
agreement speak for themselves. The access
provision, section 4A, provides that “representatives of the
The comments of
Jihan Kim and Kaplan on the dates in question, as well as the conduct of the
Respondent’s agents in summoning the police on December 1 and 11, were undoubtedly
designed to convey the message to the
Further, I am
unimpressed with counsel for the Respondent’s argument that the
It is clear from
the conduct of the Respondent’s agents on at least December 1, 11, and 12 that
the Respondent was revoking the
Additionally,
the Respondent’s expulsion of union representative Salazar on December 1 and
representatives Salazar and Rubio on December 11, in the presence of numerous
bargaining unit employees, violated both Section 8(a)(1) and (5) of the
Act. In Frontier Hotel Casino, 309 NLRB 761, 766 (1992), enfd. sub nom. NLRB v. Unbelievable, Inc., 71 F.3d 1434
(9th Cir. 1995), the Board adopted the decision of the administrative law judge
and found that the respondent’s expulsion of union representatives “had the
indirect impact of interfering with union-related communication . . . or was a
direct coercion and restraint of employees who were engaged in the union
activity of conversing with their bargaining representative. Either way it violated Section 8(a)(1) of the
Act.”22
The complaint
does not specifically allege the Respondent’s conduct on December 1 and 11 to
constitute an independent violation of Section 8(a)(1) of the Act. However, these incidents were fully litigated
by the parties, with the Respondent offering the testimony of Jihan Kim and
attorney Kaplan as to what occurred. In
my view, there is no prejudice to the Respondent, nor any denial of due
process, in addressing this fully litigated issue.23
The testimony of
Salazar, Rubio, and various employees was unrebutted that on both December 1
and 11 there were significant numbers of employees present in the cafeteria
when the Respondent’s agents expelled Salazar and Rubio from the Hotel. Approximately 25–30 employees were present on
December 1 when Salazar was expelled, and approximately 15–20 employees were present
on December 11 when both Salazar and Rubio were expelled. Certainly, this ejection from the Hotel by
the Respondent’s agents interfered with the employees’ exercise of their
Section 7 right to communicate with their union representatives. These employees were engaged in classic union
activity and the Respondent’s actions coerced and restrained them in the
exercise of this activity. It was an
undisguised attempt by the Respondent to demonstrate to the employees that the
Accordingly, I
conclude that the Respondent’s actions on December 1 and 11, in expelling union
representatives from the Hotel, constituted an independent violation of Section
8(a)(1) of the Act.
Paragraphs 18
and 19, and their respective subparagraphs, and 33 of the first complaint
allege that on December 11, 2006, the Respondent, through its agents, Jihan
Kim, Sebastian Choo, and Haena Kim, engaged in surveillance and/or created the
impression of surveillance of employees’ union activity in violation of Section
8(a)(1) of the Act. These incidents were
fully discussed above in connection with the visit to the Hotel by Salazar and
Rubio on December 11. As noted earlier,
neither Choo nor Haena Kim testified at the hearing and I have drawn adverse
inferences from their failure to testify.
Further, for the reasons that I gave above, I found Jihan Kim to be an
incredible witness. Accordingly, I
credit those witnesses who testified about the conduct of Choo, Haena Kim, and
Jihan Kim on December 11. The testimony
of those witnesses, including employees Roberto Gamez and Noelia Elena Lopez,
and Union Representatives Salazar and Rubio, were inherently plausible, and in
conformity with the other evidence presented, and, thus, worthy of belief.
Whether an employer
engaged in unlawful surveillance of employees’ union activities depends on the
specific circumstances in the case, including the nature and duration of the
employer’s observations. In Aladdin Gaming, LLC, 345 NLRB 585 fn. 2
(2005), the Board held that while an employer’s “routine observation” of open,
public union activity on or near its property does not constitute unlawful
surveillance, an employer violates the Act when “it surveils employees engaged
in Section 7 activity by observing them in a way that is ‘out of the ordinary’
and thereby coercive.” See also Partylite Worldwide, 344 NLRB 1342 fn. 2
(2005) (where managers stood in close proximity to handbillers, surveillance
unlawful); Loudon Steel Inc., 340
NLRB 307, 313 (2003). As indicia of coerciveness,
the Board looks to such factors as “include the duration of the observation,
the manager’s distance from employees while observing them, and whether this
was an isolated incident or the employer engaged in other coercive conduct
during its observation.” Aladdin Gaming, supra at fn. 2, citing Sands Hotel & Casino, San Juan, 306 NLRB 172 (1992), enf. sub
nom. mem. S.J.P.R., Inc. v. NLRB, 993
F.2d 913 (D.C. Cir. 1993).
In the matter at
hand, there is no doubt that on December 11, the Respondent’s managers engaged
in conduct that was far from ordinary.
Jihan Kim followed Salazar and Rubio through the hallways of the Hotel
as they walked to the employee cafeteria, and observed Salazar and Rubio as
they met with employees in the cafeteria.
Kim also followed the union representatives as they proceeded upstairs
to the Hotel kitchen and observed Salazar and Rubio meeting with kitchen employees. While they were in the kitchen, Kim took
pictures of the union representatives in discussions with some of the kitchen employees.
During the same
incident, Sebastian Choo also followed Salazar and Rubio into the kitchen,
observed them in the kitchen talking with bargaining unit employees, and even
photographing them doing so. Then they
walked to the Hotel restaurant, where they were still followed by Kim, who photographed
them there, as well as observing them talking with employees. Next Salazar and Rubio went back to the
cafeteria, where their conversations with employees were once again observed by
Jihan Kim who took pictures, and then by Haena Kim who also observed them and
took pictures.
These
observations and photographing of the union representatives and bargaining unit
employees were conducted by the three supervisors openly, in plain sight, and
in very close proximity to the ongoing union activity. In fact, both Salazar and Rubio asked the
supervisors on several occasions to stop taking pictures, but all to no avail.
The Board has
held that photographing and videotaping open, public union activity on or near
an employer’s property is unlawful because such pictorial recordkeeping tends
to create fear among employees of reprisals.
National Steel & Shipbuilding
Co., 324 NLRB 499 (1997), enfd. 156 F.3d 1268 (D.C. Cir. 1998). In the National
Steel case the Board reaffirmed its fundamental principles governing
employer surveillance of union and other protected activities as set forth in F. W. Woolworth Co., 310 NLRB 1197
(1993).
In this instance,
I find the Respondent’s conduct egregious.
There is no question that its supervisors engaged in conduct, which was
out of the ordinary and highly unusual.
As the Board has said, photographing employees engaged in union activity
has the “tendency to intimidate.” Woolworth, supra. There was no evidence that any such action
had ever been taken by the Employer in the past, and no evidence or argument
was offered as to why the Respondent sought to conduct itself in this manner on
December 11.24 By
its actions, the Respondent was engaged in surveillance and creating the impression
of surveillance of its bargaining unit employees. Its only logical reason to have conducted
itself in this fashion was to undermine support for the
Accordingly, I
find that the Respondent has violated Section 8(a)(1) of the Act, as alleged in
paragraphs 18 and 19, and their respective subparagraphs, and 33 of the first
complaint.
8. Bulletin board access
Section 4(B) of
the collective-bargaining agreement between the parties (the agreement) states
in relevant part: “The Employer shall provide the Union with a bulletin board,
of reasonable size in a reasonably prominent area of the employees’ cafeteria,
or at another location(s) if mutually agreed, for posting of notices and other
material by the
Union Representative
Salazar was a 10-year, former employee of the predecessor owners of the Respondent’s
hotel property. He testified that
throughout that period of time, until at least December 2006, which was the
approximate timeframe after which he was expelled from the nonpublic areas of
the Hotel, the
However,
according to Salazar, sometime, approximately the end of November 2006, he
noticed a large, stainless steel refrigerator blocking the union bulletin
board. He testified that he saw this
refrigerator blocking access to the bulletin board for approximately 1
month. This, of course, is somewhat
inconsistent with Salazar’s testimony that he was expelled from the nonpublic
areas of the Hotel on December 11. In
any event, Salazar indicated that the Respondent did not notify him in advance
about the placement of the refrigerator in front of the bulletin board, nor did
the Respondent offer to negotiate over the placement.
On
cross-examination, Salazar acknowledged that after seeing the refrigerator
blocking the bulletin board, he never asked anybody how it got there. When questioned about postings on the
bulletin board, Salazar reminded counsel for the Respondent that since he had
been expelled from the nonpublic areas of the Hotel, he could not know whether
there had been any. He had obviously not
been able to post any notices, and, as the union representative, he had
previously been the person most likely to post union notices. Salazar admitted that there is an employee of
the Respondent who is the designated shop steward. He could not say whether she or anyone else
had posted any notices on the bulletin board, and no employee had spoken to him
about doing so.
Bargaining unit
employee Juan Guardado is a cook at the Hotel.
He testified that the union bulletin board is located “in the hallway,
close to sort of the cafeteria.” Further,
he testified that beginning about February 2007, for approximately 1-1/2 to 2
months, there was a large “aluminum” refrigerator blocking the
Unit employee
Jose Luis Campos is a waiter at the Hotel.
He testified that there is a union bulletin board at the Hotel “located
on the first floor in the hallway close to the public telephone, almost in
front of . . . the door [to the employee cafeteria].” For a time, a large “broken down refrigerator
. . . aluminum [in color]” was placed in front of the bulletin board. The refrigerator was blocking access to the
bulletin board from about January 2007 until about September 2007. Since that time, the refrigerator has been
moved to the side of the bulletin board, and apparently the bulletin board can
now be accessed.
Roberto Gamez, a
banquet waiter, was familiar with the union bulletin board, “in the hallway
[near the cafeteria].” According to
Gamez, there has been a “big refrigerator” from the kitchen placed in front of
the bulletin board. He testified that
the refrigerator was still in front of the bulletin board, and had been in that
position for the previous 4 of 5 months.
The Respondent’s
president, Leo Lee, testified that he is familiar with the union bulletin
board, “by the cafeteria.” However, he
indicated that he had never seen a refrigerator or any other obstruction in
front of the bulletin board blocking access to it. He had never directed that any such
obstruction be created, nor had he ever been informed that such was the
case. Similarly, Jihan Kim testified
that he had never seen a refrigerator placed in front of the union bulletin
board in the hallway near the cafeteria.
He had never seen that bulletin board obstructed, and nobody had ever reported
that to him.
As I noted
earlier in this decision, I did not find the testimony of Kim and Lee to be
particularly credible. Accordingly, I
will credit the testimony of Salazar and the four employee witnesses who
testified about the refrigerator.
However, I find that testimony confusing and contradictory. Each of them remembers something different
about the time during which a refrigerator was blocking the union bulletin
board. Salazar recalls the bulletin
board being blocked starting in late November.
Since he could only have seen the refrigerator until December 11, that
means that he had knowledge of the obstruction for at most 11 days. Juan Guardado testified that he first saw the
obstruction in February 2007, and that within 1-1/2 to 2 months, the refrigerator
was moved to the side of the bulletin board, where access was no longer
blocked. Jose Luis Campos testified that
the refrigerator blocked the bulletin board from January to September 2007,
after which it was moved and no longer obstructed access. Finally, Roberto Gamez testified that at the
time of his testimony (October 19, 2007), the refrigerator was still in
front of the bulletin board, and had been obstructing access for the previous 4
or 5 months.
There is simply
no way to reconcile these four versions of when the refrigerator blocked access
to the union bulletin board, for what period of time, whether it occurred on
multiple instances, and even whether the obstruction was ongoing. However, I do not believe that these
individuals were intentionally being untruthful. Over the passage of time memories fade, time
periods become confusing, and the physical location of a refrigerator in a
hallway outside of a cafeteria was not of such magnitude as to impart its
particulars on the viewer.
I am convinced
that for some period of time there was a refrigerator blocking access to the
union bulletin board. However, counsel
for the General Counsel has failed to establish with sufficient particularity
when this occurred and for how long it occurred. Further, the General Counsel has failed to
establish by a preponderance of the evidence whether the obstruction was intentionally
created by the Respondent in an effort to frustrate the union’s representation
duties, to interfere with employees’ Section 7 rights, in contravention with
the Union’s collective-bargaining responsibilities, or in violation of the
Respondent’s duty to bargain with the Union.
Under these
circumstances, there is insufficient evidence to establish that the Respondent
blocked access to the union bulletin board in violation of the Act. Accordingly, I shall recommend that paragraph
11 of the first complaint be dismissed.
9. Interrogation of Zainal Abidin
It is alleged in
paragraphs 23 and 33 of the first complaint that on January 17 or 24, 2007, the
Respondent, by Leo Lee, in the company of Robbie Perez, interrogated employees
regarding their union activities in violation of Section 8(a)(1) of the
Act. As was apparent at the hearing, the
employee who was allegedly interrogated by Lee was Zainal Abidin. He works for the Respondent as a bartender in
the lobby bar.
According to
Abidin, on either January 17 or 25 at about 8 p.m., he was working in the lobby
bar when Lee, in the company of a man named Robinson,25
entered the bar. Abidin testified that
Lee ordered drinks, and when Abidin returned with the drinks, Lee asked him “if
the Union people [were] approaching [him].”
Abidin responded “no,” and there was nothing else said about the
matter. Lee remained in the bar
drinking, but there was no further mention of the
During his
examination, Lee denied that he had ever asked any employees of the Hotel what
their views were about the Union, if the Union had come to them, or what the
In my view, this
incident, assuming it occurred, does not rise to the level of an unfair labor
practice. Counsel for the General
Counsel contends that Lee’s question directed to Abidin constitutes unlawful
interrogation concerning union activity.
Rather, I believe it was too ambiguous and benign to constitute an unfair
labor practice. Under the “Bourne factors,” this innocuous question
asked of Abidin in a fleeting way, with no followup, and without any threat of
any kind, was not of the sort as would reasonably interfere with, restrain, or
coerce employees in the exercise of their Section 7 activity.
10. Reduction of lobby bar hours
The General
Counsel alleges in paragraphs 15, and its subparagraphs, 27(a) and 31 of the
first complaint that since about January 28, 2007, the Respondent, unilaterally
and without negotiating with the Union, has changed the hours of its lobby bar,
eliminating the daytime shift, and causing the layoff of one unit employee in
violation of Section 8(a)(1) and (5) of the Act.
The parties
stipulated that prior to about January 28, 2007, the Respondent’s lobby bar was
open from 11 am until 12 midnight, and that the Respondent employed one
employee in the lobby bar during the day shift.
The parties further stipulated that about January 29, 2007, the
Respondent changed the hours of the lobby bar and eliminated the daytime
shift. (Jt. Exh. 1, p. 14, par. 18.)
According to Union
Representative Oscar Salazar, he first learned that the Respondent had
eliminated the day shift in the lobby bar when the employee who had been
employed as the bartender on that shift called him to say that the shift had
been “canceled” and that person was out of work. Salazar testified that the Respondent had
failed to give him any advance warning that the shift was being eliminated, and
had offered the
The Respondent’s
elimination of the day shift in the lobby bar in the manner described above
constituted a unilateral change in the terms and conditions of employment of
unit employees and violated Section 8(a)(1) and (5) of the Act. The Respondent provided the
Accordingly, I
conclude that the Respondent has violated Section 8(a)(1) and (5) of the Act,
as alleged in paragraphs 15, and its subparagraphs, 27(a) and 31 of the first
complaint.
C. Negotiations and Impasse
1. Cost calculations information request
As has been mentioned
above, and set forth in the joint stipulation (Jt. Exh. 1.), the Respondent
assumed the agreement entered into by the
Representatives
of the
Paragraph 12(b)
of the first complaint alleges that on January 16, 25, and 30, 2007, the
Without going
into the specifics at this point in the decision, it is sufficient to note that
throughout negotiations the parties were far apart on economic issues. The Respondent’s “mantra,” as stated
repeatedly by Attorney Kaplan throughout negotiations, was that the Respondent
was losing a large amount of money and needed significant monetary concessions
from the
Tom Walsh
testified that on at least three occasions, the Union requested that the
Respondent furnish it with detailed calculations of some of the Respondent’s
economic proposals made during negotiations, so that the
On
cross-examination, Walsh admitted that on two occasions the negotiators took
out their calculators and attempted to run numbers furnished by Kaplan in an
effort to determine the amount allegedly to be saved by implementing the Respondent’s
proposals. Walsh described the
information furnished to the
As mentioned,
the parties have stipulated that the Union requested “detailed calculations of
the cost of some of the Respondent’s economic proposals,” and that the
information requested was necessary and relevant for the
While neither
the General Counsel, the Union, nor the Respondent sought to introduce the
actual figures furnished to the Union by Kaplan during negotiations, this may
not have been possible as it appears these figures were not memorialized, but
were merely given orally and then run through some hand calculators by the
negotiators. The testimony of Walsh and
Kaplan was not really at variance regarding what was furnished to the
As the
Respondent has failed to furnish the
2. Radisson international lawsuit information request
Paragraph 12(c)
of the first complaint alleges and the parties stipulate that since about
January 30, 2007, both orally and in writing, the Union has requested that the
Respondent furnish it with information concerning the lawsuit and the penalties
that may be owed by the Respondent to Radisson Hotels International Inc.
(Radisson), as a result of a lawsuit seeking a $1 million judgment. Further, the complaint alleges in paragraph
12(f) and the parties stipulate that this information is necessary for, and
relevant to, the
Walsh testified
that at the negotiation session of January 30, 2007, he asked Kaplan for a copy
of a lawsuit, which the Radisson had filed against the Respondent, and which lawsuit
Kaplan had mentioned to Walsh. Further,
in a letter to Kaplan dated January 30, 2007, Walsh reiterated his request for
a copy of said lawsuit. (Jt. Exh. 13, p. 2.)
According to
Kaplan, on January 25, 2007, shortly before the negotiation session of that day
began, he was informed by an attorney representing the Employer, not associated
with Kaplan’s firm, that in a lawsuit brought by Radisson International, the
former franchisor of the Hotel, the Judge had just issued a summary judgment in
favor of the Radisson. Further, Kaplan
was told that the summary judgment could be for an amount in excess of $1
million. Kaplan testified that during
the negotiations on January 25, he gave this information to Walsh, as it could
have a significant negative impact on the financial position of the Hotel.
Kaplan
acknowledged that on January 30, 2007, Walsh requested information regarding
the Radisson suit. However, he testified
that as of that date, to his knowledge, “nothing in writing existed.” His firm was not counsel of record in the
case, and he was advised that “the decision on the Summary Judgment had been
enunciated by the Court on the 25th orally, and that a Summary Judgment, actual
Summary Judgment itself had not been issued.”
Apparently, a settlement agreement was eventually reached between the
parties in the Radisson lawsuit, as introduced into evidence was a copy of such
a settlement agreement executed on March 15, 2007. (R. Exh. 5.)
As stated in his
post-hearing brief, counsel for the Respondent argues that as of the date of
the Union’s request for copies of the Radisson lawsuit, Kaplan had no such
documents in his possession, and, thus, nothing to furnish the Union in
response to the
The parties
stipulated that the requested information about the Radisson suit was necessary
for, and relevant to, the
3. Impact of unremedied unfair labor practices
on negotiations
As noted, the
Counsel for the
General Counsel alleges in paragraphs 14 and 31 of the first complaint that as
the parties had not reached a lawful, good-faith impasse in their
collective-bargaining negotiations, that the Respondent’s actions in changing
the terms and conditions of employment of the unit employees constituted a
violation of Section 8(a)(1) and (5) of the Act. On the other hand, the Respondent argues that
the parties had remained very far apart, especially on economic issues,
throughout the course of negotiations, and that following a lawful impasse in
negotiations, the Respondent was legally entitled to implement its “last, best,
and final offer.” Correspondingly, the
Respondent contends that the bargaining history establishes that it bargaining
in good faith, and that only the
In any event, I
am of the view that it is not necessary to examine the individual bargaining
sessions or the totality of the negotiations, as the Respondent’s unremedied
unfair labor practices were so extensive and pervasive as to make it practically
impossible for the parties to have engaged in good-faith negotiations. The record establishes a causal connection between
the Respondent’s numerous and significant unfair labor practices and the
parties failure to reach agreement on the terms of a new contract. I believe that the Respondent’s actions were
deliberate, initiated by its highest ranking managers, and carried out in an
effort to destroy the
As found by the
undersigned, the list of unfair labor practices committed by the Respondent
prior to declaring impasse is a long one.
It includes: a delay in remitting union dues and related information; a
failure to contribute to various trust funds and submit related reports; a
refusal to process grievances and furnish requested related information; the discriminatory
search of employee lockers; the unlawful interrogation of employees; the
repudiation of hotel access for the Union; acts of surveillance; unilateral
elimination of the lobby bar day shift; and the failure to furnish requested
information bearing on negotiations.
Some of these unfair labor practices can without exaggeration be
described as having a devastating effect on the bargaining unit, and the employees’
support for the
The Respondent’s
failure to make contractually required payments to the Welfare Funds caused the
medical insurance carrier, which coverage was established through the Funds, to
discontinue the medical insurance of unit employees. The employees were justifiably extremely
upset and frightened by suddenly finding themselves and their families without
medical insurance coverage. They were so
upset as to engage in a mass protest outside the offices of Chamroeun Trinidad,
the human resources/payroll coordinator.
The Respondent exacerbated the problem, coercing the leaders of that
protest by almost immediately discriminatorily searching their lockers, on the
pretext of looking for drugs and guns.
Additionally, the Respondent’s president, Leo Lee, and director of
banquets, Alex Moon, engaged in the unlawful interrogation of employees to
determine the extent of the employees’ union activity.
In another
serious of actions designed to undermine employee support for the Union,
various managers including Haena Kim, director of human resources, Jihan Kim,
assistant to the president, and Sebastian Choo, service manager, took
photographs of employees involved in union activity, and otherwise engaged in
acts of surveillance as the employees met with Union Representatives Salazar
and Rubio. Further, Jihan Kim and the
Respondent’s attorney and agent, Kaplan, took action to remove the union
representatives from the Hotel, including the summoning of police and the revocation
of the
These actions by
the Respondent were all the more devastating to the employees’ Section 7 right
to support the
The Board has
held that in general, “a lawful impasse cannot be reached in the presence of
unremedied unfair labor practices.” Dynatron/Bondo Corp., 333 NLRB 750, 752
(2001). In that case, the Board agreed
with its administrative law judge that “respondent’s unremedied unfair labor
practice had a direct, serious, and pervasive adverse effect on the bargaining
process and that there was a causal connection between these unremedied unfair
labor practices and the parties’ failure to reach agreement.” [Internal quotation marks omitted.] Under those circumstances, the respondent
could not declare impasse and implement its final contract proposal. Id; see Royal
Motor Sales, 329 NLRB 760, 762–764 (1999); White Oak Coal Co., 295 NLRB 567, 568 (1989). In Wayne’s
Dairy, 223 NLRB 260, 265 (1976), the Board said that “[a] party cannot parlay
an impasse resulting from its own misconduct into a license to make unilateral
changes.”
Still, the Board
has recognized that not every unfair labor practice has a causal connection
with the parties’ failure to reach agreement.
The Board has noted that while no unfair labor practice is
insignificant, in the context of determining whether impasse is present, some
have more significance than others. Unilateral
changes in employees’ terms and conditions of employment may constitute
significant violations of the Act, in the context of which no impasse can be
reached. Alwin Mfg. Co., 326 NLRB 646, 688 (1998), end. 192 F.3d 133, 138
(D.C. Cir. 1999). Certainly, in the
matter before me, the Respondent’s unilateral failure to make Welfare Fund
contributions, which resulted in the employees losing medical insurance coverage,
would have caused such consternation among the bargaining unit employees as to
have dramatically affected the negotiations.
In fact, it permeated the negotiations, with Walsh testifying that
barely a session went by where the Respondent’s failure to make Welfare Fund
contributions was not brought up by the
In Lafayette Grinding Corp., 337 NLRB 832,
833 (2002), the Board reviewed the two ways in which an unremedied unfair labor
practice can contribute to the parties’ inability to reach an agreement on a
contract. According to the Board, an
unfair labor practice can first “increase friction” at the bargaining
table. Next, by changing the status quo,
a unilateral change may “move the baseline for negotiations and alter the
parties’ expectation about what they can achieve, making it harder for the parties
to come to an agreement.” (Board citing Alwin Mfg. Co., supra at 192 F.3d 133, 138.)
In my view, this is precisely what occurred in the case at hand. The Respondent’s unfair labor practices were
so pervasive and destructive of the bargaining unit as to cause the employees
and their union representatives to be “reeling.”
As counsel for
the General Counsel points out in her posthearing brief, the loss of their
medical insurance coverage due to the Respondent’s unlawful unilateral action
was so severe and detrimental to the employees’ welfare that the
It is apparent
to me that the Respondent’s pervasive pre-impasse unfair labor practices were
deliberately undertaken by the Respondent’s senior managers in an effort to undermine
support for the Union and force the union negotiators to accept a more onerous
contract than they might have otherwise.
The Respondent’s conduct certainly “moved the baseline” such that the
The Respondent
must not be permitted to benefit by its unremedied unfair labor practices. Under these circumstances, a lawful impasse
was not reached by the parties. Accordingly,
the Respondent could not lawfully declare an impasse on January 30, 2007. Concomitantly, the Respondent could not lawfully
implement portions of its so-called “last, best and final offer” on February 1,
2007.
Therefore, by
implementing portions of that offer, the Respondent instituted unilateral
changes in the terms and conditions of employment of unit employees without
prior notice to the Union and without affording the
Before passing
from the area of the Respondent’s pre-impasse conduct, I will note that in her
posthearing brief, counsel for the General Counsel argues that the Respondent’s
noncompliance with multiple major portions of the agreement also constitutes a
total repudiation of the agreement. I
concur. As counsel enumerates, prior to
declaring impasse, the Respondent had engaged in the following acts of
noncompliance: a delay in remitting union dues and related information; its failure
and refusal to continue making required contributions to the Funds and to
submit related reports to the Funds; and a unilateral change in and repudiation
of the union access provisions.
The Board has
found employers that engaged in similar non-compliance with
collective-bargaining agreements to have repudiated their contracts. See Victory
Specialty Packaging Inc., 331 NLRB No. 139 fn. 2 (2000) (not reported in
Board volumes) (failure to make health insurance premium payments and to remit
union dues constituted contract repudiation); see also William Pipeline Co., 315 NLRB 630, 631–632 (1994). In Republic
Die & Tool Co., 343 NLRB 683, 686 (2004), the Board, in adopting the
decision of its administrative law judge, noted the “fundamental importance to
employees of wage and fringe benefit provisions,” and that an employer’s
failure and refusal to comply therewith effectively “guts” the agreement of its
meaningfulness to employees.
Accordingly, I
believe that the Respondent’s conduct in not complying with multiple major
portions of the agreement as alleged in paragraphs 7, 8, and 10, of the first
complaint constituted a general repudiation of the agreement in violation of
Section 8(a)(1) and (5) of the Act.29
D. Postimpasse Conduct
1. Employee wage rate information request
Following the
Respondent’s declaration on January 30, 2007, that impasse had been reached in
negotiations, and its implementation of certain provisions of its so-called
last, best, and final offer on February 1, 2007, the parties had one additional
negotiation session on February 12, 2007.
This session was held at the request of the
Kaplan
acknowledged that at the February 12, 2007 session, Walsh made a request for a
list of employee names, classifications, and postimplementation rates of pay
for all bargaining unit employees.
Further, he admitted that Walsh asked for information as to how the
Respondent had placed employees within a particular classification, as “there
were two or three different levels of cook and two or three different levels of
housekeepers.” Kaplan testified that he
explained to Walsh that it was based upon “experience in the industry.” In any event, when Kaplan testified he could
not remember the specific details. On
cross-examination, Kaplan admitted that he never responded to these union
requests in writing. However, it does appear
that ultimately, on April 16, 2007, Kaplan sent Walsh a letter with attachments
containing “a list of current bargaining unit members, together with their
post-implementation classification and wage rates.”30
(R. Exh. 1.) Still, nothing in
this document explains specifically why employees are placed in any particular
wage classification. Kaplan provided
this list to the Union following not only the oral request of February 12, but
also a subsequent written request from Walsh dated February 23, 2007. (GC Exh. 27.)
In his
posthearing brief, counsel for the Respondent argues that in fact some of this
information was furnished to the
Paragraphs
12(d), (f)and (g), and 31 of the first complaint allege that the Union’s
request of February 12, 2007, for information as to how the Respondent
differentiated between the housekeeping and cook classifications, was necessary
and relevant to its performance as the collective-bargaining representative of
the unit, and that the Respondent violated Section 8(a)(1) and (5) of the Act
by failing to furnish that information.
Similarly, paragraphs 12(e), (f) and (g), and 31 allege that the Union’s
request of February 12, 2007, for a list of all unit employees including their
names, job titles, and postimpasse implementation wage rates, was necessary and
relevant to its performance as the collective-bargaining representative of the unit,
and that the Respondent violated Section 8(a)(1) and (5) of the Act by failing
to furnish that information. In my view,
these two separate allegations regarding information requests are intimately connected
and need to be viewed collectively, as the information was requested by Walsh
at the same negotiation session, February 12, 2007, in an effort to understand
what wage rates the Respondent had unilaterally implemented on February 1,
2007.
The parties
stipulated that, since about February 12, 2007, orally, the
As the
It appears to me
from the cryptic union bargaining notes that Kaplan’s response of February 12,
2007, was inadequate. The response was
incomplete, giving classifications for cooks and housekeepers without any apparent
tie to wage rates. Further, the list of
April 16, 2007, while it did provide employee names, classifications, and wage
rates for unit employees, was received over two months after the February 12 request. This was an untimely response, especially in
light of the
The Board has
indicated that what constitutes reasonable promptness must be determined under
the totality of the circumstances in each case.
There is no “per se” rule, rather, what is required is a reasonable good-faith
effort to respond to the request as promptly as circumstances allow. Allegheny
Power, 339 NLRB 585, 587 (2003).
Under the circumstances of this case, I believe that a 2-month delay was
not reasonable. None of the information
sought by the
Based on the
totality of the circumstances in this case, I believe that the Respondent was
under a legal obligation to make the requested information immediately
available to the
2. Group interrogation and statement of futility
by Jihan Kim
Paragraphs 24(a)
and 33 of the first complaint allege that on February 1, 2007, the Respondent,
by Jihan Kim, interrogated employees regarding their union activities in
violation of Section 8(a)(1) of the Act.
Paragraph 24(b) and 33 of the first complaint allege that on that same
date Kim made a statement of futility regarding union representation by
informing employees that they no longer had a union. According to the complaint, these incidents
occurred near the doorway of Haena Kim’s office.
As noted above,
on February 1, 2007, the Respondent unilaterally implemented its so-called
last, best, and final offer. There is no
dispute that this included significant wage reductions for unit employees. Housekeeper and Union Steward Griselda Campos
testified that her hourly wage rate was reduced from $11.42 per hour to $7.55
per hour. Other employees had their
wages similarly reduced and they began to gather and talk about the
reductions. A group of 15–20 employees
decided to go to the office of Human Resources Director Haena Kim and confront
her about the wage reductions. They did
so at about 3:50 p.m. on February 1.
According to
Jihan Kim
testified that he recalls that on February 1 “there was a lot of commotion that
day” outside of Haena Kim’s office, with 8 to 10 housekeepers standing
around. He claims that they said they
were “not happy about the wage cuts” and were “not happy about being part of
the
In his
posthearing brief, counsel for the Respondent seemed to suggest that Jihan Kim
should be credited over
For the reasons
that I stated earlier, I did not find Jihan Kim to be a credible witness.
I conclude that Jihan
Kim did say to
In the matter
before me, there is no evidence that the employees were considering a strike,
or that the Respondent’s managers were of such a belief. There has not even been a suggestion that
there was such a rumor. Under such circumstances,
the Respondent was not at liberty to question employees about whether they were
going to strike. To do so certainly
interfered with, restrained, and coerced the employees in the exercise of their
Section 7 rights. Thus, Kim’s question
about a strike directed to Campos and other bargaining unit employees
constituted unlawful interrogation in violation of Section 8(a)(1) of the Act,
as alleged in paragraphs 24(a) and 33 of the first complaint.
Further, Kim’s
statement that the employees no longer had a union was a statement of
futility. Of course, the opposite was
true. The
3. Statement of futility by Dana Taus
The parties
stipulated that Dana Taus,31 the Respondent’s executive chef and
director of food and beverage, was a supervisor and agent of the
Respondent. It is alleged in paragraphs
25 and 33 of the first complaint that on about February 3, 2007, Dana Taus made
a statement of futility regarding union representation by informing employees
that they have no union, in violation of Section 8(a)(1) of the Act.
Gabriel Botello
is employed by the Respondent as a dish washer.
He testified on behalf of the General Counsel that in February 2007 he
was called into Dana Taus’ office. As
Taus does not speak Spanish and Botello does not speak English, a fellow
employee, a cook, who speaks both English and Spanish, was present to act as
translator.
Counsel for the
General Counsel attempted to ask Botello questions about what Taus said to him
regarding the
However, I
informed counsel for the General Counsel that I would permit the cook to testify
regarding his translation of Taus’ comments about the
The General
Counsel has failed to meet her burden of proof regarding this allegation. Insufficient evidence was offered to
establish that Taus made the statement attributed to him in the complaint. Therefore, I shall recommend that paragraph
25 of the first complaint be dismissed.
4. Surveillance and/or impression of surveillance
of demonstrators
During February
2007, following the Respondent’s unilateral implementation of portions of its
so-called last, best, and final offer, members of the bargaining unit, along
with their supporters, held a series of demonstrations (also referred to as
protests or job actions) outside the front of the Hotel. From the undisputed record evidence, it
appears that demonstrations were held on at least February 8, 10, 14, 15, 17,
and 21, 2007.32 It
is alleged in paragraphs 20 and 33 of the first complaint that on various dates
in February 2007, the Respondent engaged in surveillance or creating the
impression of surveillance of its employees’ union activity in violation of
Section 8(a)(1) of the Act. The General
Counsel contends that these acts of surveillance were committed in conjunction
with the employees’ participation in the February 2007 demonstrations mentioned
above.
These
demonstrations were held on the sidewalk in front of the Hotel, running along
Salazar
testified that on February 8, 2007, during the demonstration, he observed
Robbie Perez, Respondent’s administrative assistant and an admitted supervisor
and agent, standing across
The Respondent
does not really make much of an effort to challenge the witness testimony that
its managers were actively photographing protesters during the
demonstrations. In his post-hearing
brief, counsel for the Respondent merely argues that there was no evidence
offered to suggest that “senior management” was aware of the photography. However, I am at a loss to understand what
difference that would make. Surveillance
by its agents and supervisors binds the Respondent. Further, the individuals named by witnesses
as having engaged in acts of surveillance seem to me to be highly placed
managers. Counsel’s argument is simply
without merit.
On February 10,
2007, there were apparently two demonstrations, one at 7:30 a.m., and a second
at about noon. Employee Jose Luis
Campos, a waiter, participated in the noon job action. He testified that on that occasion there were
approximately 40 demonstrators, of which about half were employees of the Hotel. For approximately 15–20 minutes, he observed
Dana Taus standing in the entry way of the Hotel, 25 to 30 feet from the
protesters, aiming his camera at them.
Once again, Taus did not bother to rebut this testimony, and I have no
reason to doubt
Kitchen worker
Enrique Camberos testified that on February 14, 2007, he participated in a job
action during his lunchbreak at noon.
There were approximately 20–30 of the Respondent’s employees
participating in the demonstration. For
about 20 minutes, Camberos observed Dana Taus standing in the hotel driveway,
facing the demonstrators, and taking pictures of them from a distance of about 5
feet. As Taus did not testify to rebut
this accusation, I shall accept the testimony of Camberos, who seemed credible,
as accurate.
The following
day, February 15, 2007, employees again participated in a job action on the
sidewalk in front of the Hotel at about noon.
According to Union Representative Salazar, there were a total of about
60–80 individuals participating, with approximately 30–40 being employees of
the Respondent. Salazar noticed Dana
Taus taking pictures of the demonstrators from the driveway of the Hotel. Robbie Perez was also present and pointing
his camera in the direction of the demonstrators. Perez was standing near the “
According to
Salazar, there was another demonstration in front of the Hotel on February 17,
2007, both in the morning at about 7:30 a.m. and then again in the afternoon at
about 5 p.m. About 20–25 hotel employees
participated in the morning session.
During that session, Salazar observed Dana Taus, who was standing just inside
the Hotel near the windows and glass door, pointing his camera toward the protesters. Also during the morning session, Salazar
observed Robbie Perez, who was located along the hotel driveway and also at
both ends of the line of protestors at Normandie and Ardmore Streets,34
aiming his camera at the protestors as they were walking in front of the
Hotel. As neither Taus nor Perez
rebutted this testimony, I will credit Salazar.
Another
demonstration was held in front of the Hotel on February 21, 2007. Again, Taus and Perez were present and taking
pictures. Salazar testified that he saw
Perez on the driveway about 6 feet from the protestors, taking pictures of
them. Taus was also standing near the
driveway, about the same distance from the protestors, taking their
pictures. As with all the other
instances, no testimony was offered by Taus or Perez. As Salazar’s testimony was not rebutted, I
credit it.
A number of
additional employee witnesses testified about their participation in
demonstrations outside of the Hotel in February 2007, and of certain
supervisors taking pictures of employees during those demonstrations. While these witnesses could not recall the
specific dates in February 2007 when these events occurred, their collective
testimony only supports the evidence that the Respondent’s managers were
actively engaged in photographing the demonstrators. Employee Noelia Elena Lopez, cafeteria
attendant, testified that at a demonstration in February 2007, outside the
Hotel, she observed Jihan Kim aiming a camera in the direction of the protestors,
and Dana Taus doing the same thing.
Similarly, employee Jeffrey Agerkop, a PBX operator, testified that at a
demonstration in February 2007, outside the Hotel, he observed Robbie Perez
taking pictures of the protestors. As
with all the other instances, neither Perez nor Taus testified to rebut these
charges.35 Jihan Kim did testify and denied taking any
photographs of employees outside of the Hotel,36 or of directing other supervisors to do so,
or of seeing any of them doing so. However,
for the reasons given earlier, I find Kim not to be credible. Accordingly, I accept the testimony of employees
Lopez and Agerkop and conclude that Taus, Perez, and Kim were observed
photographing employees during demonstrations in February 2007.37
As testified to
by Salazar and a number of employee witnesses, there were at least six separate
dates in February 2007 when a number of admitted supervisors and agents of the
Respondent photographed employees as they demonstrated on the sidewalk in front
of the Hotel. These demonstrations were
organized by the
The evidence of
the Respondent’s managers repeatedly taking photographs of employee
demonstrators is detailed, specific, and credible. The actions of Perez, Taus, and Jihan Kim in
taking pictures of these employees occurred over significant periods of time on
the various dates during which these employees protested. This conduct by the Respondent’s managers was
open and notorious.
It is beyond
doubt that the protesting employees were engaged in both union and protected
concerted activity when they were photographed by the Respondent’s supervisors
and agents. Board law is well established
that while an employer’s mere observation of public union activity on or near
its property does not constitute unlawful surveillance, photographing such
activity is unlawful because such pictorial recordkeeping tends to create fear
among employees of future reprisals. National Steel & Shipbuilding Co.,
324 NLRB 499 (1997) enfd. 157 F.3d 1268 (D.C. Cir. 1998); F. W. Woolworth Co., 310 NLRB 1197 (1993). It has the tendency to interfere with, restrain,
and coerce employees in the exercise of their right to engage in union and
protected concerted activity.
As the
Respondent does not even offer a justification for the actions of its managers,
there can be no doubt that the Respondent’s pervasive photographing of its
employees engaged in legitimate Section 7 activity constituted unlawful surveillance
and creating the impression of surveillance. Accordingly, I conclude that on
multiple dates during the month of February 2007, the Respondent, by various
agents, violated Section 8(a)(1) of the Act, as alleged in paragraphs 20 and 33
of the first complaint.
5. Change in the lunchbreak policy for kitchen rmployees
It is alleged in
paragraphs 17 and its subparagraphs 31 and 32 of the first complaint that the
Respondent unilaterally changed the lunchbreak policy for its kitchen employees
in violation of Section 8(a)(1) and (5) of the Act; and took that action as
discriminatory retaliation against certain employees because of their union and
protected concerted activity in violation of Section 8(a)(1) and (3) of the
Act.
It is undisputed,
and the parties stipulated, that prior to February 14, 2007, the Respondent’s
kitchen employees were permitted to take their 30-minute lunchbreak whenever
time permitted between the hours of 11 a.m. and 2 p.m. (Jt. Exh. 1, par. 20(a).) Employee Juan Guardado, a cook, testified
that he participated in the demonstrations on the sidewalk in front of the
Hotel on February 10 and 14, 2007. In
order to be available to participate in the demonstration on February 14, Guardado
took his lunchbreak at 12 noon. His
break lasted for 30 minutes, after which he returned to work. Similarly, employee Enrique Camberos, a
kitchen worker, participated in the February 14 demonstration at 12 noon while
on his 30-minute lunchbreak. The
following day, February 15, Camberos again participated in the demonstration in
front of the Hotel at 12-noon, during his lunchbreak.
The parties
stipulated that on February 15, 2007, the Respondent, by Alex Moon, the
director of banquets, orally and by memorandum, changed the kitchen employees’
lunchbreak policy by requiring that employees finish their lunchbreak by 12
noon unless otherwise authorized by a manager.
(Jt. Exh. 15, par. 20(b); Jt Exh. 16.)
That memorandum, which is addressed to all food and beverage employees,
from Moon states that failure to abide by it “will result in disciplinary
action.” Further, it shows on its face
that copies had been sent to Leo Lee, Jihan Kim, and Dana Taus.
Camberos and
Jose Luis Campos, a waiter, testified that on either February 15 or 16, 2007,
between noon and 1:30 p.m., Moon called 10–12 kitchen employees into the
kitchen. Dana Taus was also present.38 Moon informed the employees that they had to
sign the lunch memo, which had apparently already been posted. However, a number of employees, including
Camberos,
Camberos spoke
up and said that what the managers were doing constituted “labor related
harassment.” Taus responded, telling
Camberos that “[i]t was no harassment, [and] that Mr. Leo Lee didn’t want any
more union at that hotel.” Taus and Moon
then left the kitchen again for 2–3 minutes.
When they returned, Moon told the employees to go back to work. However, before they did so, Moon instructed
Taus to take down everyone’s’ name who had attended the meeting.
It is undisputed
that before the issuance of the lunch memo on February 15, the kitchen
employees were free to take their lunchbreak whenever they were available to do
so between 11 a.m. and 2 p.m. However,
since that date a number of these employees, including Camberos and Guardado,
have taken their lunchbreak before 12 noon, so as to be in compliance with that
memo.
According to the
testimony of Union Representative Salazar, the
The Respondent
has proffered no defense against this allegation, other than to deny in its
answer that it violated the Act. In his
posthearing brief, counsel for the Respondent is silent concerning this
issue. Also, as noted, Taus and Moon
failed to testify. Accordingly, I am
left to conclude that the incident occurred exactly as testified to by the
employees, whose testimony was consistent with each other and seemed credible.
The evidence is
uncontested that on February 15, 2007, Moon, orally and by memorandum, changed
the kitchen employees’ lunchbreak policy by requiring that they finish their
lunchbreak by 12 noon. The Respondent
made this change unilaterally and without notifying the Union or affording the
The General
Counsel also alleges that the Respondent’s establishment and issuance of this
new lunchbreak policy violated Section 8(a)(3) of the Act. I agree.
In assessing whether the Respondent’s action violated Section 8(a)(3) of
the Act, it is necessary to analyze the situation under the shifting analysis
burden of Wright Line, supra. Under that standard, approved by the Supreme
Court in NLRB v. Transportation Management
Corp., supra, the General Counsel must preliminarily establish a prima
facie case sufficient to support the inference that protected conduct was a “motivating
factor” in the employer’s decision. This
showing must be by a preponderance of the evidence.
In the matter
before me, the General Counsel has established that a number of the kitchen
workers were engaged in union activity, namely their gathering together with
other bargaining unit members to hold demonstrations on the sidewalk in front
of the Hotel in an effort to pressure the Respondent into reaching an agreement
with the Union over the terms of a new collective-bargaining agreement. Union Representative Salazar testified that a
number of these demonstrations were held over the noon hour lunch period in
order to give bargaining unit employees who were at work on those days an
opportunity to participate in the protest.
A number of kitchen employees actively participated in these demonstrations
during their lunch period, including Juan Guardado and Enrique Camberos. Clearly, the General Counsel has established
that the Respondent’s supervisors and agents had knowledge that unit employees,
specifically certain kitchen workers, were participating in the demonstration
during their lunch period. In fact,
certain supervisors engaged in surveillance, including by photography, of these
and other employees while the employees were involved in their Section 7
activity.
The kitchen
employees suffered an adverse employment action by having their lunch period
changed from the previous period of between the hours of 11 a.m. to 2 p.m., as
time permitted, to instead the more restrictive period of finishing lunch by no
later than 12 noon. Most significantly,
the General Counsel has established a link, or nexus, between the employees’ protected
activity and the adverse employment action, that being to restrict the kitchen
employees’ ability to participate in the lunchtime demonstrations by
effectively preventing them from taking their lunchbreaks during the period of
time the protests were scheduled at the noon hour.
Counsel for the
General Counsel having established these elements, a presumption is created
that the adverse employment action violated the Act. Tracker
Marine, LLC, supra. The General
Counsel having done so, the burden then shifts to the Respondent to show that
the same action would have taken place even in the absence of the protected
conduct. See Mano Electric, supra; Farmer
Bros. Co., supra. Of course, the Respondent
has offered no evidence as to why it changed the kitchen employees’ lunch period. It has offered no legitimate reason for
having done so. Accordingly, it has
failed to rebut the General Counsel’s prima facie case.
Further, by
threatening the employees with being sent home,39 a form of discipline, for refusing to sign
this unlawfully issued memo, the Respondent, through Taus and Moon, was
restraining and coercing the kitchen workers in their Section 7 right to engage
in union and protected concerted activity, which constituted an independent
violation of Section 8(a)(1) of the Act.40 See Air Contact Transport, Inc., 340 NLRB
688, 697 (2003); Joe’s Plastics, 287
NLRB 210, 211 (1987); Vought Corp., 273
NLRB 1290, 1295 fn. 31 (1987).
Therefore, based
on the above, I conclude that the Respondent has violated Section 8(a)(1) and
(3) of the Act, as alleged in paragraphs 17 and 32 of the first complaint, and
as described by me.
6. Failure to provide vacation pay
Paragraphs 13
and 31 of the first complaint allege that the Respondent has failed and refused
to provide four unit employees with their vacation pay in violation of Section
8(a)(1) and (5) of the Act. In the joint
stipulation between the parties, all agreed that until at least January 31,
2007,41
the collective-bargaining agreement (the agreement) between the
The agreement
provides, under section 6(A), that employees are entitled to 1 to 4 weeks of
paid vacation depending on their length of service. The agreement expired on December 24,
2006. However, the right to receive
vacation pay is one of the provisions that generally survive contract
expiration. Sage Development Co., 301 NLRB 1173, 1178 (1991); Finger Lakes Plumbing Co., 253 NLRB 406 (1980); High-Grade Materials Co., 239 NLRB 947,
956 (1978).
Union Representative
Salazar testified that the
The Respondent
offers no defense to this allegation.
Counsel for the Respondent’s posthearing brief is silent as to this
matter. However, during his testimony,
the Employer’s president, Leo Lee, testified that he learned in September 2007
that the employees had not been paid for their vacation time. According to Lee, when he learned at a
meeting attended by housekeeping employees that certain employees had not received
their vacation pay under the terms of the expired contract, he ordered his
staff to issue the appropriate payroll checks to those employees. Lee indicated that those employees have now
been paid. In any event, he denied ever
instructing that employees should not be paid for the vacations they had taken
under the terms of the expired agreement.
Whether the four
employees in question were finally paid for their vacations by some date in
September 2007, there is no dispute that for a significant period of time they
had not been paid. For a period of
between 6 and 9 months, the four employees listed above were without
compensation for their vacations. As the
Respondent has offered no defense to this allegation, I must conclude, based on
Salazar’s testimony, that the Respondent unilaterally changed the terms and
conditions of the agreement by discontinuing the disbursement of vacation pay,
without informing the Union of its intention or offering to bargain with the
Union regarding this issue. I find that
this conduct by the Respondent constitutes a violation of Section 8(a)(1) and
(5) of the Act, as alleged in paragraphs 13 and 32 of the first complaint.
7. Falsely blaming the union
The second
complaint42 alleges in paragraphs 8(a) and 11 that on
about July 27, 2007, the Respondent, through Haena Kim, violated Section
8(a)(1) of the Act by informing employees that their wages had been reduced
because of the
Lester Salazar
is a room service waiter employed by the Respondent. He testified that on July 27, 2007, he
noticed, apparently for the first time, that his hourly wages had been
reduced. Salazar then went to the human
resource office where he spoke with Haena Kim, the Respondent’s director of
human resources. He complained to her
that his hourly wage had been reduced.
Kim informed him that since February 1, 2007, his paycheck had been a “mistake.”43 Salazar testified that he asked Kim why the
mistake had taken this long to discover, to which he alleges Kim responded, “It
was a union law.” He claims that she
repeated that statement three or four times.
While the
statement, “It was a union law,” is somewhat ambiguous, and any person
knowledgeable about labor law and collective-bargaining issues would likely
conclude that the statement really made no sense, Salazar was apparently uneducated
and uninformed about such matters. To
him, Kim’s statement seemed to place the blame for his wages suddenly being
reduced on the
According to
Salazar, while he and Kim were having their conversation, a cafeteria worker
named Noelia44 walked by and stopped at the
timeclock. When Kim left, Noelia walked
up to Salazar and asked him what was wrong.
Salazar testified that he responded that his wages had been reduced to
$7.55 per hour. Further, Salazar told
Noelia that the reason he had been given by Kim for the reduction was because
there was a “union law.”
Salazar
testified that at about that time Kim walked out of her office and told Salazar
“not to talk with Noelia” because “Noelia was still on the clock.” According to Salazar, Noelia responded that
she was no longer on the clock. However,
Salazar claims that Kim was unpersuaded and replied that he should “still” not
talk with her, and that he should “get out.”
That allegedly ended the conversation.
The Board has
held that an employer “violates Section 8(a)(1) when it takes adverse action
against employees and falsely blames its actions on the union.” Webco
Industries, 327 NLRB 172, 173 (1998).
According to the Board, such conduct violates the Act because it “coercively
suggests to employees that seeking union representation results in damage to
their terms and conditions of employment.”
In the case at
hand, the Respondent unilaterally implemented a wage reduction for its
employees on February 1, 2007, pursuant to its so-called last, best, and final
offer. Subsequently, Haena Kim had her
conversation with
8. Prohibiting employees from speaking with each other
It is alleged in
paragraphs 8(b) and 11 of the second complaint that the Respondent, through
Haena Kim, prohibited employees from speaking to each other concerning their
terms and conditions of employment. The
substance of this conversation is described in detail in the section
immediately above. As noted, Haena Kim
informed
It is well
settled Board law that “[u]nder Section 7 of the Act, employees have the right
to engaged in activity for their ‘mutual aid or protection,’ including
communicating regarding their terms and conditions of employment.” Easter
Seals Connecticut, Inc., 345 NLRB 836, 838 (2005), citing
In the matter
before me, two employees were discussing a wage reduction and the reason given
by a supervisor and agent of the Respondent for that reduction. This subject matter goes to the heart of what
is meant by a term and condition of employment.
In ordering these two employees to cease having such a conversation,
Haena Kim was clearly interfering with, restraining, and coercing employees in
the exercise of their Section 7 rights.
Accordingly, I find that by this conduct the Respondent has violated
Section 8(a)(1) of the Act, as alleged in paragraphs 8(b) and 11 of the second
complaint.
9. Leo Lee’s meeting with employees on
September 7 and 18, 2007
The General
Counsel alleges in the second complaint, paragraphs 7 and 10, that Leo Lee met
with unit employees in the employee cafeteria on September 7 and 18, 2007, and
that in the course of doing so bypassed the Union and dealt directly with its
unit employees in violation of Section 8(a)(1) and (5) of the Act. Further, in paragraphs 9 and its
subparagraphs, and 11 of the second complaint, the General Counsel alleges that
during these two meetings Lee, by various actions and statements, interfered
with, restrained, and coerced employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
In supporting
these allegations, counsel for the General Counsel relies primarily on the
testimony of three employee witnesses,
Earlier in this
decision I indicated in detail my reasons for discrediting both Lee and
Kim. For the reasons expressed therein,
I continue to find Lee and Kim incredible.
On the other hand, I found the testimony of the above-three named
employees to be genuine, candid, and straight forward. They seemed to testify without guile,
exaggeration, or embellishment. Further,
for the most part, their testimony supported each other and was inherently consistent
with the other credible evidence of record.
Regarding the two meetings in question and the alleged statements of Lee
attributed to him by Salazar, Lopez, and
Also, I am not
persuaded otherwise by counsel for the Respondent’s argument that as Lee spoke
to these employees in English, their lack of proficiency in English should be
resolved against them since an interpreter was used who could have made
mistakes in translating Lee’s comments into Spanish, the native language of the
three employees. From my observation of
the employees in question during the hearing, it was apparent that while
Spanish was certainly their best language, each of them understood and could
communicate in basic English. Further,
as the party suggesting that the interpreters used at the meetings were inadequate,
the Respondent has the burden of proffering evidence to support that
claim. No such evidence was forthcoming. Considering that these two meetings were
called by the Respondent during company time and presumably the employee interpreters
were selected by the Respondent’s managers, the Respondent would be hard
pressed to now offer evidence to establish that it had made a bad selection.
Accordingly,
where ever Kim’s or Lee’s testimony is at variance with that of
E. The Meeting of September 7, 2007
The Respondent’s
president, Leo Lee, called a meeting of housekeeping employees for September 7,
2007, to begin about 4 p.m. in the employee cafeteria.46 There were about 15–20 employees in
attendance, plus a number of managers, including Lee, Haena Kim, Jihan Kim, and
others. Only Lee and Jihan Kim testified
at the hearing on behalf of the Respondent.
Lee conducted the meeting, which lasted approximately 1 hour and 15
minutes.
Lee spoke in
English. Initially, David, an employee
from housekeeping, translated Lee’s remarks into Spanish, but within 10 minutes
During the
meeting,
Salazar
testified that another employee complained about not being paid for her vacation
time. Lee said that she would be paid
for her vacation at her old salary, even if he had to pay her out of his own
account. Then, according to
One of the
employees, Eriberto, spoke up and asked Lee how much he was willing to pay the
employees, and whether he would give them medical insurance, vacation and
holiday pay. Lee responded that he would
be speaking with his attorney. But,
without the
According to
Lopez, Lee reiterated that he did not want a union at the Hotel. He said that it was costing him too much
money and that 5 or 10 years could pass, and he would still not want a
union.
Salazar
testified that toward the end of the meeting, an employee named Rita asked Lee
if without the
F. The Meeting of September 18, 2007
Leo Lee’s
followup meeting with the housekeeping employees was held on September 18,
2007, again in the cafeteria at about 4 p.m.
There were approximately 15 employees present, along with Lee, Jihan
Kim, and others managers. Initially,
Lee began the
meeting by telling employees that he had spoken to his attorney and now had the
answers to the employees’ questions. Lee
said that all the housekeeping employees would now be paid $8.05 per hour. Additionally, they would be receiving five
paid holidays, and those owed vacation pay under the old wage rate would be
receiving that amount. Further, he would
be writing a letter to the trust fund for the employee who had companied about
not being able to provide medical care for her sick children, so that the Fund
was aware of the number of hours she had worked. He indicated that he would be doing the same
for other employees as well.48
Lee said that he
had spoken with his lawyer and he would be able to pay $11 an hour, provide
insurance coverage, paid holidays, and a raise every 3 months, but employees
would first have to individually go to the union office and “renounce” the
According to the
testimony of Lopez, Lee specifically answered Eriberto’s question from the
first meeting and indicated that if Eriberto “renounced the
G. Direct Dealing with Employees
It is the
General Counsel’s position that Lee, by conducting the meetings of September 7
and 18, unlawfully bypassed the Union and engaged in direct dealing with employees
in violation of Section 8(a)(1) and (5) of the Act. Lee denied most of the statements attributed
to him by Salazar,
Progressing to the
second meeting on September 18, Lee admitted that he came back with answers to
the questions asked by employees at the first meeting. He admitted telling the employees that all
housekeepers would now be making $8.05 per hour; four employees who had not
received any vacation pay would now be paid; employees would be reimbursed up
to $125 if they produced a receipt for medical insurance; and he would be
providing the complaining employees with proof of the number of hours worked so
that they might have the trust fund credit them with those hours for medical
insurance purposes.
Further, Lee
contends that when at the second meeting employees told him that they no longer
liked the Union, that he merely informed them that in that event they could
tell the Union how they felt, and that they no longer wanted the
In determining
whether an employer has engaged in direct dealing with employees in violation
of Section 8(a)(5) of the Act, the Board has set forth a number of criteria to
be applied. These criteria enumerated in
Southern California Gas Co., 316 NLRB
979 (1995), are as follows: (1) that the employer was communicating directly
with union-represented employees; (2) the discussion was for the purpose of
establishing or changing wages, hours and terms and conditions of employment or
undercutting the union’s role in bargaining; and (3) such communication was
made to the exclusion of the union. See
also Permanente Medical Group, 332
NLRB 1143 (2000); James Heavy Equipment
Specialists, Inc., 327 NLRB 910 (1999).
Based on the
above criteria, there is no doubt that the Respondent’s president engaged in
direct dealing with employees at the meetings he held on September 7 and
18. Lee communicated directly with
bargaining unit employees regarding their complaints over wages, insurance,
vacations, holidays, and other terms and conditions of employment, and his
efforts to ameliorate those complaints.
These meetings were held specifically to the exclusion of the Union,
where Lee engaged in a very deliberate and unsubtle attempt to provide the employees
with a better deal than the Respondent had offered to the
Lee admitted
telling the employees at the first meeting that he would be taking their
problems to his attorney for discussion, and that he would be getting back to
them with a decision as to whether the Respondent could satisfy their
needs. He did just that when at the second
meeting he informed them that the Respondent would, among other improvements in
their wages and working conditions, be giving all housekeepers the higher pay
of $8.05 and providing paid vacations and medical insurance.
Based on the
credible testimony of employee witnesses Salazar,
H. Lee’s Other Unlawful Conduct at the
September Meetings
It is the
position of the General Counsel that not only did Lee engage in direct dealing
with employees on September 7 and 18, 2007, but, through his statements on
those dates, the Respondent also engaged in numerous independent violations of
Section 8(a)(1) of the Act, as alleged in paragraphs 9(a–j) and 11 of the
second complaint.
Paragraph 9(a)
of the second complaint:
Paragraph 9(b)
of the second complaint: Griselda
Campos, who I have credited, testified that at the September 7 meeting Lee
stated that he did not want a union, and he asked her why she wanted a
union. That elicited a response from
Paragraph 9(c)
of the second complaint: Both employees
Campos and Noelia Elana Lopez, who I have also found to be credible, testified
that at the meeting of September 7, Lee made a number of disparaging remarks
about the Union, after which he stated that he would “give [anyone] $2000 out
of [his] own pocket [to] investigate the Union.” He made this statement while “patting the
right side of [his] hip.” Offering to
pay employees a monetary reward for investigating Lee’s allegations disparaging
the union restrains and coerces employees in the exercise of their Section 7
rights. Cf. Naomi Knitting Plant, 328 NLRB 1279 (1999); Williamhouse of
Paragraph 9(d)
of the second complaint: As I have previously
found, Lee informed the employees assembled at the two meetings that they could
secure their previous wages and benefits if they would simply “renounce” the
While Section
8(c) of the Act gives the Respondent’s managers the right to express their
opinion that they do want the Union in the facility, Lee crosses the line into
restraint and coercion when he links not wanting the Union with a promise to
return the wages and benefits formerly enjoyed by the employees if they will “renounce”
the Union. Such combined statements in
the context of these meetings were designed to demonstrate to the assembled
employees the futility of their continuing support for the
Paragraph 9(e)
of the second complaint: After reviewing
the conduct and actions of the Respondent’s managers before, during, and after
the negotiations on a new collective-bargaining agreement, I agree with the
General Counsel’s contention that Lee called the meetings of September 7 and 18
with the intention of soliciting employee grievances and making promises to
remedy those grievances in an effort to undermine support for the Union. The Employer’s entire course of conduct
seemed designed to achieve such a purpose.
However, even for this Respondent, the actions of Lee at the two employee
meetings seem rather transparent and brazen.
Lee began the
meeting of September 7 by specifically saying that he was there to answer the
employees’ questions, and then asking for questions. While the two meetings were filled with
statements by Lee promising to resolve various problems, I will only mention
the most obvious. After hearing
complaints about the elimination of the employees’ medical insurance, Lee promised
to send letters to the Funds to accurately reflect the hours worked by
employees, and to pay $125 per month to any employee privately purchasing
insurance and providing proof of such.
Upon receiving a complaint about housekeepers earning two different
hourly wages, Lee promised to discuss the issue with his lawyer, and then at
the second meeting informed the employees that they would now all be receiving
the higher wage rate of $8.05 per hour.
When questioned at the first meeting by an employee who had not received
her vacation pay under the terms of the expired contract, Lee agreed to pay
her, even if the money came out of his personal account. As noted above in detail, Lee made it clear before
the end of the meeting of September 7 that without the
Continuing with
his design to demonstrate to the employees how reasonable he could be if only
the employees would abandon the
Board law is
clear and of long standing that an employer that solicits employee complaints,
and promises to remedy them in return for the employees’ abandonment of their
union is in violation of the Act. Jewish Home for the Elderly of
Paragraph 9(f)
of the second complaint: Concomitant
with the last finding, I am of the view that Lee’s comments that he would pay
back money lost by the employees if they would “renounce” the
Thus, by
specifically promising employees to pay them a sum of money in the form of back
pay in return for their abandonment of the Union, the Respondent was
restraining and coercing employees in the exercise of their Section 7
rights. I find such conduct to constitute
a violation of Section 8(a)(1) of the Act.
Jewish Home for the Elderly of
Paragraph 9(g)
of the second complaint: Similar to that
allegation immediately above is the contention that Lee promised to reimburse
employees $125 per month for health insurance costs, so long as they could
produce a receipt. These were desperate
employees, without the health insurance that they had enjoyed under the terms
of the expired contract. Lee understood
their desperation, having been apprised of it by the employees themselves. In his testimony he admitted what the
employees’ had been testifying to, namely his offer to reimburse them for
purchasing insurance. Of course, the quid
pro quo for Lee’s generosity was the employees having to “renounce” the
This statement
by Lee is simply another in a long line of unlawful promises of benefit
designed to restrain and coerce the employees in order to get them to abandon
the
Paragraph 9(h)
of the second complaint: In this paragraph,
the General Counsel alleges that Lee’s offer to provide various benefits to the
unit employees in return for their “renouncing” the
Paragraph 9(i)
of the second complaint: The General Counsel
contends that Lee threatened the assembled employees at the September 7, 2007
meeting with adverse consequences because of their support for the
The threat made
by Lee to convert the Hotel into apartments or condos would certainly interfere
with, restrain, and coerce the employees in the exercise of their Section 7
rights. Volt Technical, 176 NLRB 832, 835 (1969). Accordingly, I conclude that the Respondent,
through Lee, has violated Section 8(a)(1) of the Act.
Paragraph 9(j)
of the second complaint: It is alleged
that Lee’s act of instructing the employees to submit a letter to the
Conclusions of Law
1. The Respondent, Majestic Towers, Inc. d/b/a Wilshire
Plaza Hotel, is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The
3. By the following acts and conduct the Respondent
has violated Section 8(a)(5) and (1) of the Act:
(a) Failing to
deduct monthly union dues and to remit those dues, along with related union
dues information, to the Union, as provided for in the agreement between the
Employer and the
(b) Failing to
make the required contributions to the Health and Welfare and Retirement Funds,
along with related contribution reports, as provided for in the agreement
between the Employer and the
(c) Failing to
process a grievance filed under the terms of the agreement between the Employer
and the Union by refusing to furnish the
(d) Denying the
Union’s agents access to the Hotel as provided for in the agreement between the
Employer and the
(e) Failing to
furnish the Union with requested information necessary for the Union’s performance
of its collective-bargaining duties including: detailed calculations of the
cost of the Employer’s economic proposals made during negotiations, information
concerning the lawsuit instituted by Radisson Hotels International against the
Employer, information concerning the differences in the wage rates between the
housekeeping and cook classifications; and a list of all unit employees, their
names, job titles, and wage rates.
(f) Failing to
pay the unit employees their vacation pay as provided for in the agreement
between the Employer and the
(g) Declaring
that the parties were at an impasse in their collective-bargaining negotiations.
(h) Unilaterally
abrogating the terms and conditions of employment under which its bargaining
unit employees had been employed pursuant to the terms of the agreement between
the Employer and the
(i) Unilaterally
implementing, without the parties having reached impasse, the proposals
contained in the Employer’s so called last, best, and final offer.
(j) Unilaterally
eliminating the daytime shift in the lobby bar.
(k) Unilaterally
implementing an employee locker inspection policy.
(l) Unilaterally
implementing a kitchen employees’ lunchbreak policy.
(m) Dealing
directly with bargaining unit employees and, thereby, bypassing the
4. By the following acts and conduct the
Respondent has violated Section 8(a)(3) and (1) of the Act:
(a) Informing,
orally and in writing, employees Griselda Campos, Susana Serrano, Ofelia
Calderon, and Maria Carrillo that they were selected for random locker
inspections and by subsequently performing the inspections.
(b) Informing,
orally and in writing, kitchen employees of a change in their lunchbreak
policy, and by changing the policy.
5. By the following acts and conduct the
Respondent has violated Section 8(a)(1) of the Act:
(a) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by following and observing union representatives as they walked
through the Hotel in an effort to contact members of the bargaining unit.
(b) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by following and observing union representatives as they proceeded to
meet with bargaining unit members to discuss union business.
(c) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by taking pictures of union representatives as they meet with
bargaining unit members to discuss union business.
(d) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by observing and or taking pictures of them as they proceeded to meet
with union representatives to discuss union business.
(e) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by observing and or taking pictures of them as they participated in a
collective demonstration outside the front of the Hotel.
(f)
Interrogating employees regarding their union activity.
(g) Threatening
employees with termination for going on strike.
(h) Making a
statement of futility regarding union representation.
(i) Informing
employees that their wages and/or benefits were reduced because of the
(j) Prohibiting
employees from speaking with each other regarding their terms and conditions of
employment.
(k) Offering to
give bargaining unit employees money so that they would investigate the
(l) Soliciting
employee complaints and grievances, and promising employees increased benefits
and improved terms and conditions of employment if they were to renounce the
(m) Threatening
employees with adverse consequences because of their union activity.
(n) Telling
employees to prepare a letter to the Union renouncing their support of the
(o) Threatening
kitchen employees with discipline for refusing to sign a memo regarding an
unlawfully instituted lunchbreak policy.
6. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent has not violated the Act except
as set forth above.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act. I shall order the Respondent to bargain with
the Union as the exclusive collective-bargaining representative of the
bargaining unit and, if requested by the
Further, because
of the Respondent’s failure to make required payments into the Funds, unit
employees and former unit employees may have incurred out of pocket medical
bills, which they would not have otherwise incurred. Therefore, I shall order the Respondent to
reimburse and make whole unit employees and former unit employees for any such
expenses.
Finally, the
Respondent shall be required to post a notice in English and Spanish that
assures its employees that it will respect their rights under the Act. Because of the pervasive nature of the
Respondent’s unfair labor practices, I also grant the General Counsel’s request
to have a management representative read the notice in the presence of
employees on work time, or be present while a Board agent reads the notice in
English, and simultaneously be translated into Spanish.
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended50
ORDER
The Respondent,
Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel,
1. Cease and desist from
(a) Unilaterally
implementing changes in the terms and conditions of employment of the
bargaining unit employees as provided for in the expired collective-bargaining
agreement (the agreement) without prior notice to, and bargaining in good faith
with, the
(b) Failing to
deduct monthly union dues and to remit those dues, along with related union
dues information, to the
(c) Failing to
make the required contributions to the Health and Welfare and Retirement Funds,
along with related contribution reports, as provided for in the agreement
between the Employer and the
(d) Failing to
process a grievance filed under the terms of the agreement between the Employer
and the Union by refusing to furnish the
(e) Denying the
Union’s agents access to the Hotel as provided for the agreement between the Employer
and the
(f) Failing to
furnish the Union with requested information necessary for the Union’s performance
of its collective-bargaining duties including: detailed calculations of the
cost of the Employer’s economic proposals made during negotiations, information
concerning the lawsuit instituted by Radisson Hotels International against the
Employer, information concerning the differences in the wage rates between the
housekeeping and cook classifications, and a list of all unit employees, their
names, job titles, and wage rates.
(g) Failing to
pay the unit employees their vacation pay as provided for in the agreement
between the Employer and the
(h) Prematurely
declaring that the parties were at an impasse in their collective-bargaining
negotiations.
(i) Unilaterally
abrogating the terms and conditions of employment under which its bargaining
unit employees had been employed pursuant to the terms of the expired agreement
between the Employer and the
(j) Unilaterally
implementing, and without the parties having reached impasse, the proposals
contained in the Employer’s so called last, best, and final offer.
(k) Unilaterally
eliminating the daytime shift in the lobby bar.
(l) Unilaterally
implementing an employee locker inspection policy.
(m) Unilaterally
implementing a kitchen employees’ lunchbreak policy.
(n) Dealing
directly with bargaining unit employees and, thereby, bypassing the
(o) Informing
employees, orally or in writing, that they were selected for random locker
inspections and by subsequently performing the inspections.
(p) Informing
kitchen employees, orally or in writing, of a change in their lunchbreak
policy, and by threatening them with discipline for refusing to sign a copy of
the new policy.
(q) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by following and observing union representatives as they walked
through the Hotel in an effort to contact members of the bargaining unit.
(r) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by following and observing union representatives as they proceed to
meet with bargaining unit members to discuss union business.
(s) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by taking pictures of union representatives as they as they meet with
bargaining unit members to discuss union business.
(t) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by observing and taking pictures of them as they proceed to meet with
union representatives to discuss union business.
(u) Engaging in
surveillance and/or creating the impression of surveillance of bargaining unit
employees by observing and taking pictures of them as they participated in a
collective demonstration outside the front of the Hotel.
(v)
Interrogating employees regarding their union activity.
(w) Threatening
employees with termination for going on strike.
(x) Making a
statement of futility regarding union representation.
(y) Informing
employees that their wages and/or benefits were reduced because of the
(z) Prohibiting
employees from speaking with each other regarding their terms and conditions of
employment.
(aa) Offering to
give bargaining unit employees money so that they would investigate the
(bb) Soliciting
employee complaints and grievances, and promising employees increased benefits
and improved terms and conditions of employment if they were to renounce the
(cc) Threatening
employees with adverse consequences because of their union activity.
(dd) Telling
employees to prepare a letter to the Union renouncing their support of the
(ee) In any like
or related manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them in Section 7 of the Act.
2. Take the
following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request
of the Union, rescind any and all changes to unit employees’ terms and
conditions of employment implemented during and after February 1, 2007, and maintain
the previous terms and conditions unless and until the parties bargain in good
faith to an agreement or lawful impasse concerning any proposed changes thereto.
(b) Upon
request, meet and bargain in good faith with the
(c) Provide the
(d) Timely submit
to the
(e) Resume
timely payments and restore retroactive payments to the Funds, and provide all
required monthly contribution reports to the Funds, as set forth in the expired
collective-bargaining agreement (the agreement).
(f) Reimburse
any bargaining unit employees who incurred out of pocket medical expenses by
virtue of the Employer’s unlawful discontinuation of contributions to the Funds.
(g) Restore its
past policy and practice of giving union representatives access to its
employees at the Hotel.
(h) Meet and
bargain in good faith with the
(i) Upon the
request of the
(j) Upon the
request of the Union, process the grievance filed by the Union on September 25,
2006, regarding the Employer’s failure to make the contractually required
contributions to the Funds, and provide the
(k) Provide
information concerning the Employer’s housekeeping and cook positions in
response to the
(l) Provide
information concerning the Employer’s cost-savings calculations for its
economic bargaining proposals in response to the
(m) Provide
information about the lawsuit filed by the Radisson Hotel against the Employer,
in response to the
(n) Make whole
any unit employees who were deprived of vacation pay when they took their
accrued vacations under the terms of the expired agreement between the parties.
(o) Upon request
of the
(p) Upon the
request of the
(q) Within 14
days of this Order, remove from its files any photographs or videotapes of
employees speaking with union representatives or engaging in peaceful union or
other protected concerted activity, and any photographs or videotapes of employees
picketing in front of the Hotel.
(r) Within 14
days after service by the Region, post at its hotel in
(s) Within 21
days after service by the Region, file with the Regional Director for Region
31, a sworn certification of a responsible official on a form provided by
Region 31 attesting to the steps the Respondent has taken to comply.
Dated at
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 do anything that interferes with these rights. Specifically:
We will not refuse to bargain collectively by unilaterally implementing
on February 1, 2007, our final contract offer made to Unite Here! Local 11, Unite
Here International Union (the
We will not unilaterally implement changes in the terms and conditions
of your employment as provided for in the expired collective-bargaining
agreement (the agreement) with the
WE WILL NOT fail to make contributions to the Health and Welfare and
Retirement Funds, along with related contribution reports, as provided for in
the expired agreement.
We will not fail to process grievances filed under the terms of the agreement
by refusing to furnish the
We will not deny the Union’s agents access to the Hotel as provided for
in the agreement by summoning the police, by threatening to do so, or by
revoking access.
We will not fail to furnish the Union with requested information
necessary for the
We will not unilaterally eliminate the daytime shift in the lobby bar.
We will not unilaterally implement an employee locker inspection
policy.
We will not unilaterally implement a kitchen employees’ lunchbreak
policy.
We will not bargain directly with you, thereby, bypassing the
We will not engage in surveillance by observing, photographing, or
video taping you as you meet with other employees and with union
representatives to discuss union business.
We will not engage in surveillance by observing, photographing, or
video taping you as you participate in a collective demonstration in front of
the Hotel. We will not interrogate you regarding
your union activity.
We will not threaten you with termination for going on strike.
We will not make statements to you designed to convince you of the
futility of representation by the
We will not inform you that the reason your wages and benefits were
reduced was because the
We will not prohibit you from speaking with fellow employees about your
wages, hours, working conditions, or other terms and conditions of employment.
We will not offer to pay you a sum of money to investigate the
We will not solicit complaints and grievances from you and promise to
improve your terms and conditions of employment if you will renounce the
We will not threaten you with discipline for refusing to sign a memo
regarding an unlawfully instituted lunchbreak policy.
We will not threaten you with an adverse consequence because of your
union activity.
We will not tell you to submit a letter to the
We will not in any like or related manner interfere with, restrain, or
coerce you in the exercise of the rights guaranteed you by Federal labor
law.
We will upon request, meet and bargain with the Union as the
exclusive collective-bargaining representative of our employees in the
appropriate bargaining unit described below with respect to rates of pay, hours
of employment, and other terms and conditions of employment, and if an
understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is:
Included: All full-time and regular
part-time cooks, pantry employees, dishwashers, deli attendants, waiters,
bussers, room service employees, banquet employees, bartenders, restaurant
cashiers, stewarding department employees, housekeeping department employees,
laundry attendants, front office attendants, PBX attendants, reservation
agents, bell attendants, and others listed in schedule A in the expired agreement. Excluded: Office clerical employees, all
other employees, guards and supervisors as defined in the Act.
We will, upon request by the
We will make whole any of you who were adversely affected by the
unilateral changes that we implemented, with interest.
We will provide the
We will submit to the
We will resume timely payments and restore retroactive payments to
the Health and Welfare and Retirement Funds, and provide all required monthly
contribution reports to the Funds, as set forth in the expired agreement.
We will reimburse any of you who incurred out of pocket medical
expenses by virtue of our discontinuation of contributions to the Funds.
We will process all grievances previously filed under the terms of
the expired agreement, and furnish the
We will permit the
We will pay you for your accrued vacation time as provided for in
the expired agreement.
We will reinstate the daytime shift in the lobby bar, and make whole
any of you who were adversely affected by the unilateral elimination of that
shift, with interest; and reinstate any employee laid off as a result of that
elimination.
We will, within 14 days from the date of the Board’s Order, remove
from our files any photographs or videotapes of you speaking with union
representatives or engaging in peaceful union or other protected concerted
activity, and any photographs or videotapes of you picketing in front of the
Hotel.
Majestic Towers, Inc. d/b/a Wilshire Plaza Hotel
1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
2 The Respondent shall offer reinstatement to any employee laid off as a result of the unlawful elimination of the lobby bar day shift and make the employee whole for any loss of earnings and other benefits, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Any additional amounts due to benefit funds as a result of the Respondent’s unlawful failure to make required contributions to those funds shall be computed in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 (1979). The Respondent shall reimburse unit employees for any expenses resulting from its failure to make such required payments or contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). Such amounts are to be computed in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, supra. To the extent that an employee has made personal contributions to a fund that were accepted by the fund in lieu of the Respondent’s delinquent contributions during the period of the delinquency, the Respondent will reimburse the employee, but the amount of reimbursement will constitute a setoff to the amount that the Respondent otherwise owes the fund. E.g., Cibao Meat Products, Inc., 349 NLRB 471, 471 fn. 4 (2007).
The General Counsel seeks compound interest computed on a quarterly basis for any backpay awarded. Having duly considered the matter, we are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Glen Rock Ham, 352 NLRB No. 69, slip op. at fn. 1 (2008), citing Rogers Corp., 344 NLRB 504 (2005).
3 The Respondent does not except to any of the judge’s unfair labor practice findings other than his findings that the parties were not at impasse, that it unlawfully implemented portions of its final contract offer, and that its numerous preimpasse violations of multiple terms of the parties’ now-expired collective-bargaining agreement (the agreement) constituted a general repudiation of the Agreement. We affirm the judge’s finding of general contract repudiation but find no need to pass on whether this violation precluded impasse. We also do not rely on the judge’s discussion of Republic Die & Tool Co., 343 NLRB 683 (2004). Member Liebman finds it unnecessary to pass on whether the Respondent’s other unfair labor practices were sufficiently serious to affect the negotiations.
The General Counsel cross-excepts to the judge’s dismissal of
an additional 8(a)(1) interrogation allegation and an additional 8(a)(5) allegation
that the Respondent blocked the
4 The Respondent and General Counsel have excepted to the judge’s failure to analyze the parties’ bargaining conduct under the multifactor test of Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968), to decide whether a bargaining impasse existed even in the absence of unremedied unfair labor practices. We find no need to do so inasmuch as the unfair labor practices discussed above preclude the possibility of finding lawful impasse and obviate the need for examining other aspects of the negotiations.
5 If this Order is
enforced by a judgment of a
[1] The two complaints set forth the various dates on which the respective charges were filed. The Respondent’s answers to the complaints admit the alleged filing dates.
[2] All pleadings reflect the two complaints and the Respondent’s respective answers as those documents were finally amended.
[3] The charges were all alleged in the earlier complaint, with the exception of those charges in Cases 31–CA–28487 and 31–CA–28490, which were alleged in the latter complaint. I consolidated all these cases for trial as they involved the same parties, factually and legally related events, similar alleged violations of the Act, in the interest of judicial economy, and because I concluded to do so would not prejudice the Respondent.
[4] At
the time of the hearing, counsel of record for the
[5] Following the receipt of briefs from the parties, counsel for the General Counsel filed with me a Motion to File Reply Briefs. As the Board’s Rules and Regulations do not provide for the filing of reply briefs with the administrative law judge, and because the filing of such reply briefs are unnecessary in this case, I deny counsel for the General Counsel’s motion.
[6]
The credibility resolutions made in this decision are based on a review of the
testimonial record and exhibits, with consideration given for reasonable
probability and the demeanor of the witnesses. See NLRB v. Walton Mfg. Co., 369
[7] The unit:
Included: All full-time and regular part-time cooks,
pantry employees, dishwashers, deli attendants, waiters, bussers, room service
employees, banquet employees, bartenders, restaurant cashiers, stewarding
department employees, housekeeping department employees, laundry attendants,
front office attendants, PBX attendants, reservation agents, bell attendants,
and others listed in Schedule A in the collective-bargaining agreement between
the Respondent and the Union effective for the period April 16, 2004, through
April 16, 2006, and extended through December 24, 2006, employed at the Respondent’s
Wilshire Plaza facility in Los Angeles, California.
Excluded: Office clerical
employees, all other employees, guards and supervisors as defined in the Act.
[8] Before testifying, I advised Kaplan that his testimony would be subject to credibility determinations just as it would be for any witnesses. In response, he indicated that such was as it should be.
[9] All dates are in 2006, unless otherwise indicated.
[10] This appears to be a typographical error, which should read December 13, 2006.
[11] According to the testimony of Rolly Throckmorton, the administrative manager for the Funds, the Respondent made one contribution to the Funds for the month of January 2007 as part of a settlement agreement reached between the Funds and the Respondent. (Also see GC Exh. 20.)
[12] It should be noted that counsel for the General Counsel’s claim that this violation of the Act continues to the present time as a consequence of the Respondent’s unilateral implementation of its last contract proposal will be addressed by the me later in this decision.
[13]
While the record does not conclusively establish that Trinidad herself actually
received the October 2 communication or was even still employed by the
Respondent on that date, it appears highly likely as Salazar testified that a
day or two after sending Trinidad the letter of September 25, he called
Trinidad and discussed the grievance with her.
According to Salazar,
[14]
There is no dispute that the
[15] Salazar was a former employee of the Hotel, and he was the union representative most familiar to the Respondent’s managers, as he was frequently on the property to administer and police the Agreement.
[16]
While Ofelia Calderon did not participate in the protest at
[17] The parties stipulated that Robbie Perez was Lee’s administrative assistant and an agent and supervisor of the Respondent.
[18] As stipulated by the parties, Moon’s actual title was director of banquets.
[19] At the hearing, I represented for the record the motion that Camberos was making with his finger while testifying about his conversation with Moon.
[20] It is not necessary to resolve the differences in the testimony of Kaplan and Salazar as they are minor, and, in any event, Kaplan admits directing Jihan Kim to call the police.
21 Further, it appears from the testimony of employee witnesses that Salazar discussed a number of matters with them on December 1 and 11 that certainly would have been of direct concern to unit employees under the terms of the existing Agreement, or regarding the progress of negotiations on reaching the terms of a new contract.
22 The
Board, in adopting the administrative law judge’s decision in Frontier, also found that the
respondent’s basis for expelling the union representatives was “flimsy” and
that as “it deprived employees of their contractually granted access to their
bargaining representative, it was a unilateral change of a material term and
condition of employment and therefore a breach of Section 8(a)(5).”
23 An unpleaded but fully litigated matter may support an unfair labor practice finding despite the lack of an allegation in the complaint, where the unpleaded matter is closely connected to the subject matter of the complaint. Garage Management Corp., 334 NLRB 940 (2001); Hi-Tech Cable Corp., 318 NLRB 280 (1995), enfd. in part 128 F.3d 271 (5th Cir. 1997); Meisner Electric, Inc., 316 NLRB 597 (1995), affd. mem. 83 F.3d 436 (11th Cir. 1996); Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).
24 To the extent that counsel for the Respondent argues in his posthearing brief that “senior management was unaware of photography/videotaping alleged in the complaint,” I reject this defense. Jihan Kim, Haena Kim, and Sebastian Choo, respectively the Respondent’s assistant to the president, director of human resources, and service manager, were the senior management. In fact, the only higher ranking manager would have been the Respondent’s president, Leo Lee, himself. Further, the fact that this unlawful conduct was engaged in by senior management makes it all the more flagrant.
25 It is unclear exactly who Robinson is, and, in any event, he is not alleged as a supervisor or agent of the Respondent. The complaint names the person accompanying Lee on this occasion as Robbie Perez, who is a stipulated supervisor and agent. When it became apparent that it was Robinson and not Perez who allegedly accompanied Lee, counsel for the Respondent objected to the receipt of this evidence on the basis that the incident was not alleged in the complaint. I overruled counsel’s objection because the allegation as drafted was sufficiently detailed to advise the Respondent of the substance of the General Counsel’s contention. There was no unfair labor practice attributed in this complaint paragraph to anyone but Lee. In my view, the allegation was not defective merely because the wrong person had been named as having accompanied Lee. As the pleading had contained adequate specificity to put counsel on notice, there was no due process violation in allowing the General Counsel to go forward and present evidence. Further, while counsel for the Respondent had ample opportunity to call Robinson to testify, he never did so.
26 Counsel
for the Respondent takes the position that there were actually eleven
bargaining sessions. Attorney Kaplan contends
that he and his associate, Jeffrey Mayes, appeared on September 20, 2006, for a
scheduled bargaining session, but no representative of the
27 At the
time Pascual testified, he was the director of Southern California laundry and
food services for the
28 Having
found that due to the Respondent’s unremedied unfair labor practices, it could
not lawfully declare an impasse, it is unnecessary for me to determine whether
the Union or the Respondent was at fault in a delay that ensued regarding the
29 This underlying conduct by the Respondent has been fully litigated. As noted earlier, an unpleaded but fully litigated matter may support an unfair labor practice finding despite the lack of an allegation in the complaint. (See cases cited under fn. 23, supra.) Therefore, due process has not been abridged.
Further, as I have concluded that the Respondent’s conduct constituted a general repudiation of the agreement, I need not consider the General Counsel’s alternate contention that the Respondent’s conduct constituted at least an unlawful partial modification of the agreement, as alleged in paragraphs 13(b) and 28 of the first complaint.
30 Walsh
testified that he never actually received Kaplan’s letter dated April 16, 2007,
with the employee list allegedly attached to it. However, as the letter appears to have been
properly addressed and both mailed and faxed to the Union’s office, I will
assume that it was received by the
31 During the hearing, employee witnesses frequently referred to Dana Taus as Chef Dana.
32 While there may well have been other demonstrations held on other dates in February, these appear to be those dates where agents of the Respondent are alleged to have engaged in acts of surveillance.
33 The “
34
35 Throughout this decision, I have drawn adverse inferences from the failure to testify of many of the Respondent’s supervisors and agents alleged to have engaged in unfair labor practices. Seda Specialty Packaging Corp., 324 NLRB 350, 351 (1997); Grimmway Farms, 314 NLRB 73, 76 fn. 2 (1994).
36 Jihan Kim testified that he did photograph a number of individuals, whose identity he allegedly did not know at the time, and who had “trespassed” on the Respondent’s property by entering the hotel lobby in mass on a date in late December or early January 2007. As the first complaint alleges in par. 20 that the unlawful acts of surveillance occurred in the month of February 2007, it appears that this incident is not being alleged as unlawful. Accordingly, I will not further consider it.
37 As with all employee witnesses called by
the General Counsel who testified while still employed by the Respondent, I conclude
their testimony should be entitled to greater weight as they testified against
their current employer’s interest. Such
testimony is particularly reliable. It
is given at considerable risk of reprisals, and, thus, not likely to be
false. See Homer D. Bronson
38 As neither Moon nor Taus testified, the events of that afternoon, as told by a number of employee witnesses, remains unrebutted.
39 Presumably, “being sent home” meant without pay.
40 While the complaint does not specifically allege this independent violation of Sec. 8(a)(1) of the Act, the underlying issue was raised and fully litigated at the hearing, and I believe the resolution of the issue does not abridge the Respondent’s right to due process or prejudice it. (See cases cited above in fn. 23.)
41 This is the day before the Respondent unilaterally implemented its so called last, best, and final offer.
42 All the remaining unfair labor practice allegations discussed in this decision are raised by the General Counsel in the second complaint.
43 While not specifically testified to by Salazar, I will assume, based on other evidence of record, that what Kim was referring to as having happened in February 2007 was the Respondent’s unilateral implementation of portions of its so-called last, best, and final offer. That implementation included significant wage reductions for bargaining unit employees that went into effect on February 1. For what ever reason, Salazar’s wages had not been reduced when his fellow employees’ wages were cut. Apparently, this error or oversight was corrected by the Respondent beginning with Salazar’s paycheck of July 27, 2007.
44
45 As the testimony of employees Salazar,
46 While there may have been employees assigned to other departments present, the attendees for both the September 7 and 18, 2007 meeting were primarily from the housekeeping department.
47 While not specifically stated, I assume that this reimbursement was meant to be for up to $125 per month.
48 Frankly, I am unclear as to what good Lee thought it would be to report to the Fund the number of hours worked by employees. The Respondent had stopped making payments to the Fund on behalf of employees and that was the reason the employees were being denied insurance coverage.
49 In her post-hearing brief, counsel for the General Counsel argues that the interest on any monetary award should be compounded on a quarterly basis. Counsel goes on at considerable length to explain why it is the General Counsel’s view that computing compound interest, rather than simple interest, is the only manner by which to make discriminatees fully whole and carry out the purposes of the Act. Of course, replacing the current practice of awarding only simple interest on backpay and other monetary awards with compound interest will require a decision by the Board. One way of placing this issue before the Board is to have it raised and fully litigated at the administrative law judge level. However, that has not happened in this case.
The General Counsel did not raise this issue in either of the two complaints, nor did the General Counsel advise the Respondent at the hearing that it was going to seek such a remedy. As a result, the Respondent would have been unaware that the General Counsel was seeking a change in the current practice of awarding only simple interest. Being unaware, counsel for the Respondent did not discuss this issue or even take a position in his post-hearing brief. Therefore, this matter has not been fully litigated, and for the undersigned to now award compound interest would constitute a denial of due process to the Respondent.
Accordingly, I decline to award compound interest on any backpay and other monetary awards pursuant to this decision.
50 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 to them shall be deemed waived for all purposes.
51 If this Order is enforced by a judgment of
a