Bartenders Union Local 355, AFL-CIO

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hotel, Motel, Restaurant, Hi-Rise Employees & Bar- tenders Union Local 355, AFL-CIO and Doral Beach Hotel. Case 12-CB-1841 September 28, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On May 23, 1979, Administrative Law Judge George Norman issued the attached Decision in this proceeding, and on June 4, 1979, he issued an erra- tum to that Decision. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that Respondent, Hotel, Motel, Restaurant, Hi- Rise Employees & Bartenders Union, Local 355, AFL-CIO, Miami, Florida, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I We concur with the Administrative Law Judge's refusal to hold, in this proceeding, that a most favored nations clause (MFN) such as the one in issue here violates Federal antitrust laws. In urging that we so hold, Respon- dent relies, inter alia, on Connell Construction, Inc. v. United Association of Journeyen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO, 421 U.S. 616 (1975). There, in passing, the Board did comment on the anticompetitive aspects of an MFN clause. How- ever, the Court's comments were delivered in a different context. Absent a determination by a tribunal of competent jurisdiction that the relevant MFN clause is unlawful under the antitrust laws, we will not find that Respondent was privileged under the antitrust laws to ignore its contractual obligation to provide information necessary to administer the MFN clause. However, in agreeing with the Administrative Law Judge's conclusions that Respondent violated Sec. 8(b)(3), we disavow his gratuitous comments indicating his perplexity over the Board's rationale in Dolly Madison Industries, Inc., 182 NLRB 1037 (1970). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with the Southern Florida Hotel and Motel As- sociation by refusing to supply information rel- evant and necessary for the bargaining process. WE WILL NOT engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL furnish the Association with the fol- lowing information: Copies of all contracts or agreements between us and all hotels and motels, which agreements were entered into after Janu- ary 15, 1977. HOTEL, MOTEL, RESTAURANT, HI-RISE EM- PLOYEES & BARTENDERS UNION, LOCAL 355, AFL CIO DECISION STATEMENT OF THE CASE GEORGE NORMAN, Administrative Law Judge: This case was heard in Coral Gables, Florida, on July 28, and August 29, 1978,' pursuant to a charge filed on August 22, 1977, by Doral Beach Hotel, herein the Employer, and a complaint which issued March 10. The complaint alleges that Hotel, Motel, Restaurant, Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO, herein the Respondent, com- mitted certain violations of Section 8(b)(3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein the Act. Respondent's answer denied the commis- sion of the alleged unfair labor practices. Issue Is Respondent obligated to provide the association of em- ployers, of which the Charging Party is a member, with copies of contracts and agreements it has entered into with "other hotels or motels" since the execution of the associ- ation collective-bargaining agreement? All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Briefs filed by the General Counsel, Respondent, and the Employer have been care- fully considered. Upon the entire record of the case and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Charging Party-Employer is a Florida corporation, with an office and place of business located in Miami, Flor- I All dates herein refer to 1978, unless otherwise noted. 245 NLRB No. 100 774 BARTENDERS UNION LOCAL 355, AFL-CIO ida, where it is engaged in the business of operating a hotel. During the past 12 months, which is a representative period of time, the Charging Party has had gross revenues in ex- cess of $500,000 and during the same period has purchased and received goods, supplies, and materials, valued in ex- cess of $50,000 which were shipped directly to it from points located outside the State of Florida. The Charging Party is now and has been at all times material herein an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, and Respondent admits, that Ho- tel, Motel, Restaurant, Hi-Rise Employees & Bartenders Union, Local 355, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Southern Florida Hotel and Motel Association (herein referred to as the association) is an nonprofit Flor- ida corporation comprised of nonresidential hotels and mo- tels in the Miami Beach, Florida, metropolitan area, and inter alia, exists in part for the purpose of representing its employer-members in collective bargaining with labor or- ganizations, including negotiating of collective-bargaining agreements and thereafter administering said negotiated agreements. At all times material herein, the association has been the duly authorized collective-bargaining representa- tive of its employer-members, including the Charging Party-Employer. The following constitutes a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the dining rooms, bar department, housekeeping department, service department, mainte- nance department, telephone department, laundry de- partment and kitchen department, employed by the employer-members of the Association, including the employees employed by the Charging Party-Employer in said classifications and excluding executives, depart- ment heads, managerial employees, guards, and super- visors as defined in the Act. Respondent has been and is the recognized representative for the purpose of collective bargaining of the employees in the unit described above and, by virtue of Section 9(a) of the Act, is the exclusive bargaining representative of all employees in that unit for the purpose of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. On January 15, 1977, the association and Respondent entered into a collective-bargaining agreement establishing the wages, hours, and working conditions of employees of the association members, with an expiration date in July 1980. Article 12, section 3 of that collective-bargaining agree- ment provides as follows: Section 3. The UNION agrees that if during the terms of this Agreement it enters into any contract with ho- tels or motels or if any Arbitrator's award or decision is made providing for lower wages, longer hours, or for any terms and conditions more favorable to an EM- PLOYER than those described in this Agreement, then any EMPLOYER member of this ASSOCIATION shall immediately have the benefit of such provision or award or decision and they shall automatically become part of this Agreement; and upon notice to the UNION shall immediately become in full force and effect, superseding any less favorably provisions of this Agreement. During the term hereof the UNION shall promptly provide the ASSOCIATION with copies of the other new contracts or agreements or Arbritrator's awards or decisions, so that the ASSOCIATION may compare such contracts and agreements or award or decision with this Agreement to determine whether they are, in fact, more favorable. Since May 9 and August 11, 1977, the Charging Party- Employer, through its duly authorized collective-bargaining representative, has requested and is requesting that Respon- dent make available copies of all contracts or agreements between Respondent and all hotels and motels, which agreements were entered into after January 15. 1977. Since May 9, 1977, Respondent has refused to furnish the Charg- ing Party-Employer the information requested. In the spring of 1977 Respondent negotiated a contract with the Diplomat Hotel, also a member-employer of the association. On May 9, 1977, the attorney for the associ- ation wrote to the attorney for the Union requesting a copy of the contract. No response was received. Whereupon, Joel Gray, an officer of the Charging Party and president of the association, wrote to the president of the Union requesting all the applicable union contracts. Gray received no re- sponse. The Charging Party-Employer believes that the Diplomat contract referred to above contained a discharge clause more favorable to management. The General Coun- sel and the Charging Party-Employer contend that the Union's refusal to supply the Diplomat contract or any other contract in existence is an unfair labor practice. Discussion and Conclusions Article 12, section 3 of the collective-bargaining agree- ment, referred to above as the most-favored-nations clause, violates, according to Respondent, sections I and 2 of the Sherman Anti-Trust Act, USC 15. Sections I and 2 are inconsistent and in derogation of section 7, which permits employees to join together for the purpose of collective bar- gaining. Therefore it should not be enforced. Respondent cites Connell Construction Co., Inc., 421 U.S. 616 (1975). In that case there existed a "most favored nations" clause in a multiemployer collective-bargaining agreement. That clause prohibited the Union from entering into a collective- bargaining agreement with any other employer, giving to that employer a competitive advantage over members of the association. The United States Supreme Court stated in effect that the "most favored nations" clause in the mul- tiemployer agreement promised to eliminate the competi- 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion between the members of the association and any other subcontractors that the Union might organize by giving members of the association a contractual right to insist on terms as favorable to those given any competitor. It guaran- teed that the Union would make no agreement that would give an unaffiliated contractor a competitive advantage over members of the association. The Court found that the restriction on subcontracting would eliminate competition of all subjects covered by the multiemployer agreement, "even on subjects unrelated to wages, hours and working conditions." 421 U.S. 616, 624. Inasmuch as the "most favored nations" clause contained in the agreement herein is specifically limited to "wages, hours and working conditions," The Connel Construction Company case, supra, cited by Respondent, is not appli- cable. Therefore, the "most favored nations" clause in issue here is not unenforcable because of the ruling in that case. Dolly Madison Industries, Inc., Richmond Dairy Division, 182 NLRB 1037 (1970). In the Dolly Madison case, supra, the Board reasoned that the "most favored nations" clause was a mandatory subject of bargaining and not in violation of antitrust laws and that the clause in that case "was manifestly not an effort to im- pose wages and working conditions on other employers or employees in other bargaining units but was designed only to assure that this employer could be relieved of any disad- vantage that it might otherwise suffer if the Union subse- quently negotiated more favorable wage and benefits levels with other employers." That appears to be the situation in the instant case. However, in that case it is difficult to un- derstand the Board's rationale. The Union, in negotiating such a clause with the association, abandoned the rights to which its employee-members were entitled under the Act to have a representative bargain for them and to obtain the best possible benefits from their employer. The "most fa- vored nations" clause, when implemented, may result in those benefits being taken away without any bargaining or other recourse. It subjects the employees to the conditions of employees of other employers which are usually not the same as those with their own employer. In other words, if, indeed, the Diplomat contract does not provide a manda- tory arbitration procedure for the benefit of an employee who is terminated and the association contract does provide for such arbitration, then without the benefit of any further negotiations, the employees covered under the association contract would, at the will of their employer, lose that bene- fit because the Union was not able to win mandatory arbi- tration in bargaining with another employer. On the other hand, it may be argued that the employees covered by the association contract probably accepted the "most favored nations" clause with their eyes open and therefore should not be heard to complain of its consequences. Respondent Claims "Waiver" Respondent further contends that because the association never filed a grievance over the Union's refusal to turn over copies of collective-bargaining agreements and in the past dismissed the idea of filing a grievance and going before a permanent arbitrator to obtain the Union's compliance that it has, therefore, waived its right to obtain copies of other collective-bargaining agreements in this case. The contract between Respondent and the association was entered into in January 1977. Not only is there no example of a waiver of the "most favored nations" clause in the record, the fact that neither the association nor its members in almost 20 years ever requested copies of these other collective-bar- gaining agreements does not make a request under the lat- est of these agreements subject to a claim of waiver. The American Smelting and Refining Company, 192 NLRB 1217, 1218 (1971). The clause has been held legal, and the fact that it has not been implemented until the instant case arose does not make it any less legal or less enforceable on the basis of waiver. Respondent argues "Unclean Hands." Finally, Respondent claims that the Charging Party-Em- ployer comes into this case with unclean hands. It claims that the Charging Party "is clearly a recidivist, having en- gaged in numerous flagrant unfair labor practices which are all documented." The Charging Party and the association, according to Respondent, refused and continue to refuse to arbitrate grievances pursuant to the grievances and arbitra- tion procedures. All that may be so, and certainly in some cases, where the relief sought by the Charging Party is di- rectly related to certain alleged misconduct on an employ- ee's part, the Board, after finding such misconduct or abuse of the Board's processes, either has denied or limited the relief. However, the record is devoid of proof that any al- leged past misconduct of the Charging Party-Employer or the association is related to the issue in the instant case. A charge may be filed by any person, and the doctrine of "clean hands" is not applicable against the Charging Party. United Brotherhood of Carpenters and Joiners of America, A FL-CIO, Local 621 (Consolidated Constructors and Build- ers, Inc.), 169 NLRB 1002, 1003 (1968), enfd. 406 F.2d 1081 (Ist Cir. 1969); International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 294, (Island Dock Lumber, Inc.), 145 NLRB 484, fn. 11 (1963). The Board's processes have been, and continue to be, available to Respondent for the remedy of any past misconduct of the Charging Party herein.' The Board has held that "unclean hands" estops neither a company from filing a charge against one who violates the Act nor the Board from vindicating and protecting the pub- lic rights inherent in the Act, which have been infringed. Milk Drivers and Dairy Employees, Local 546, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 133 NLRB 1314, 1322 (1961), enfd. F.2d 761 (8th Cir. 1963). Local 20, Sheet Metal Workers International Association, AFL-CIO (Bergen Drug Com- pany, Inc.), 132 NLRB 73 (1961); Plumbers Union of Nassau County, Local 457, United Association of Journeymen and Apprentices of the Plumbing and Pipefiltting Industry of the United States and Canada, A FL-CIO (Bomat Plumbing and Heating), 131 NLRB 1243 (1961), 299 F.2d 497 (2d Cir. 1962). The General Counsel contends that the plain language of the "most favored nations" clause establishes both the ne- cessity and relevancy of the requested information; that it establishes a procedure whereby the terms of the associ- ation's agreement with Respondent can be changed to con- form with those more favorable terms which may be em- bodied in any contract which Respondent may 2 Subject, of course, to the Sec. 10(b) time penod. 776 BARTENDERS UNION LOCAL 355, AFL-CIO subsequently enter into with other hotels and motels. The General Counsel further contends that inasmuch as these contracts with other employers may potentially alter the terms of the association's agreement with Respondent "that these other contracts should to be considered presumptively relevant to the administration of the Association's agree- ment." I agree. Thus, wage and related information pertain- ing to employees in the bargaining unit is presumptively relevant. Curtiss-Wright Corporation, Wright Aeronautical Division v. N.L.R.B., 347 F.2d 61 at 69 (3d Cir. 1965); The A. S. Abell Company, 230 NLRB 1112 (1977). In a case involving a union's refusal to provide information concern- ing the union's implementation of contractual provisions dealing with employee referral to the bargaining unit, the Board found that the information sought "was relevant and necessary" for the employer "to evaluate the present refer- ral practices under the existing contract, to test the validity of its proposals, and to formulate future contract proposals on referrals." Local 13, Detroit Newspaper Printing and Graphic Communications Union, International Printing and Graphic Communications Union, AFL CIO (The Oakland Press Co.) 233 NLRB 994 (1977). For the foregoing reasons, I find that Respondent has refused to bargain and continues to refuse to bargain collec- tively with the Charging Party-Employer as the duly autho- rized collective-bargaining representative of the employees in the unit described above. By refusing to furnish to the Charging Party-Employer the information requested, said information being relevant and necessary to administer the collective-bargaining agreement, Respondent has com- mitted and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(3) and Sec- tion 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the Company's opera- tion described in section I, above, have a close and intimate relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend that it be required to refrain therefrom and take certain affirma- tive action designed to effectuate the purposes and policies of the Act. I shall recommend that Respondent supply the association with the requested information; to cease and desist from refusing to bargain collectively by refusing to furnish the association with information relevant and neces- sary to the bargaining process; to cease and desist from engaging in any like or related conduct in derogation of its statutory duty to bargain; and post appropriate notices. CONCLUSIONS OF LAW I. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Doral Beach Hotel is an employer engaging in com- merce within the meaning of Section 2(6) and (7) of the Act. 3. The Southern Florida Hotel and Motel Association is a nonprofit Florida corporation comprised of nonresiden- tial hotels and motels in the Miami-Miami Beach, Florida, metropolitan area, and, inter alia, exists in part for the pur- pose of representing its employer-members in collective bargaining with labor organizations, including negotiating collective-bargaining agreements and thereafter administer- ing said negotiated agreements. At all times material herein, the association has been the duly authorized collective-bar- gaining representative of its employer-members including the Doral Beach Hotel. 4. The unit set forth below is appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All employees of the dining room, bar department, housekeeping department, service department, mainte- nance department. telephone department, laundry de- partment, and kitchen department employed by the employer-members of the association, including the employees employed by the Doral Beach Hotel in said classifications and excluding executives, department heads, managerial employees, guards and supervisors as defined in the Act. 5. At all times material to this proceeding, Respondent was, and continues to be, the exclusive representative of the employees in the appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 6. Respondent has violated Section 8(b)(3) of the Act by failing and refusing to supply, pursuant to the Doral Beach Hotel and the association's request, information relevant and necessary to the bargaining process. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, s amended, I hereby issue the following recommend- ed: ORDER 3 The Respondent, Hotel, Motel, Restaurant, Hi-Rise Em- ployees & Bartenders Union, Local 355, AFL-CIO, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Southern Florida Hotel and Motel Association by refusing to furnish the association and the Doral Beach Hotel, a member thereof, with information relevant and necessary to the bar- gaining process. (b) Engaging in like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Supply the association with the following informa- tion requested since on or about May 9 and August I1, 1977: Copies of all contracts or agreements between Re- spondent and all hotels and motels, which agreements were entered into after January 15, 1977. (b) Post at Respondent's business offices and meeting places copies of the attached notice marked "Appendix."4 Copies of said notices, on forms provided by the Regional Director for Region 12, after being duly signed by Respon- 4 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." dent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customar- ily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Forward to the association and its member, the Doral Beach Hotel, for posting at their premises, if they are will- ing, copies of such notices duly signed by Respondent's rep- resentative. (d) Notify the Regional Director for Region 12, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 778