Hotel, Motel, Restaurant Employees, Local 483

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hotel, Motel, Restaurant Employees & Bartenders' International Union, Local No. 483 and Highlands Inn, Inc.Case 20-CB-3794 December 30, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On September 20, 1976, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, fmdings, 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Hotel, Motel, Restaurant Employees & Bartenders' International Union, Local No. 483, Carmel, California, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Based upon a charge filed by Highlands Inn, Inc., on February 11, 1976, the complaint herein was issued on March 31, 1976. The complaint alleges that Hotel, Motel, Restaurant Employees & Bartenders' International Union, Local No. 483, hereinafter referred to as the Union or Respondent, violated Section 8(b)(1)(A) of the Act by unlawfully threatening two employees of Highlands Inn. Respondent, by its answer, as amended during the course of the hearing,' denies that it violated the Act as alleged. Pursuant to notice, a hearing was held in Monterey, California, on June 15, 1976, before the duly designated Administrative Law Judge. Appearances were entered on behalf of the General Counsel and Respondent, and briefs 1 The answer was amended to admit par. III of the complaint 2 By letter dated August 4, 1976, Respondent, in effect, moved for the receipt in evidence of its Exh. 2, which had been marked for identification but, as Respondent claims, had inadvertently not been offered into evidence. General Counsel filed his opposition to said motion. It is apparent from the record that Respondent's counsel assumed it had been offered and received. 227 NLRB No. 102 were timely filed by said parties which have been carefully considered. Upon the entire record 2 in this case and from my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED Highlands Inn is, and at all times material herein has been, a California corporation with an office and place of business in Carmel, California, where it is engaged in the operation of a hotel. During the past calendar year, in the course and conduct of its business operations, it received gross revenues in excess of $500,000, and purchased and received supplies valued in excess of $5,000 directly from suppliers located outside the State of California. As is admitted by Respondent, Highlands ,Inn is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICE Respondent is a party to a collective-bargaining agree- ment with Highlands Inn which contains both a union- security clause and a grievance procedure. Apparently, sometime in October 1975, a grievance was filed with Highlands Inn which, inter alit, claimed that Highlands Inn was not paying the appropriate wage to banquet waitresses. It further appears that said grievance was initiated by Tina Baldi, who at the time was serving as a banquet hostess for Highlands Inn. On or about December 5, Baldi told Teresa Conner and Sharon Strange, both of whom worked part time as banquet waitresses as well as in the dining room, that she had filed a grievance over the wages the employees working banquets were receiving (as being lower than the rate required to be paid by the contract) and asked them to supply information such as check stubs from their paychecks, to assist in prosecuting the grievance. Conner told Baldi that she "would rather go down to the union myself and fmd out what was the grievance about, and if they needed the check stubs, I would give them to them." Strange credibly testified that she made no response to Baldi's request. On December 8, Conner and Strange went together to the union office and had a conversation with Robert Gamberg, executive secretary-treasurer and business manager of Respondent. The issue herein is whether or not in the While I fmd that said exhibit is of no probative value, since its contents are no more than hearsay (as contended by General Counsel), and it is of no materiality to the issue in this case, nevertheless I am receiving it, since it is referred to in certain of the testimony and without its inclusion in the record said testimony would be meaningless. HOTEL, MOTEL, RESTAURANT EMPLOYEES, LOCAL 483 667 course of this conversation Gamberg made a threat which is violative of Section 8(b)(1)(A) of the Act. - Conner, Strange, and Gamberg testified to the contents of the conversation which apparently lasted about an, hour. In view of the length of the conversation, it is understand- able that the testimony of none of the witnesses covers all aspects thereof and that their testimony touches upon different portions of the conversation. All -three, however, testified too the material issue of what statement Gamberg made (which General Counsel contends is an unlawful threat), which testimony requires a resolution of credibility. The other material issue is whether said statement can reasonably be construed as a threat directed at the two employees, as contended by the General Counsel, or as a "general" observation by Gamberg which should not be so construed. Following is a summary of the conversation based upon credited portions of the testimony of the three witnesses and a resolution of the above-mentioned issues. The conversation, apparently started with the two em- ployees introducing themselves as employees of Highlands Inn who worked as banquet waitresses and stating that they had come to find out about the grievance Baldi had filed. Gamberg told them that the grievance was directed at the inadequate payments under. the contract made to employ- ees who worked at banquets. It appears that they asked him if he needed the information which Baldi had requested of them and that he told -them that he did not, and that there was going to be a meeting the next day of the "adjustment board" 3 which would decide the issue raised by the grievance. It further appears that he understood- from the two employees that they did not agree with the position taken by Baldi and- the Union as to what they were supposed-to receive under the contract and that they were satisfied with what they were being paid. Gamberg told them that their interpretation was wrong -and that he detected that they were hostile to the grievance. Gamberg testified that he then told them their "attitude... would be undermining 'the purpose of the collective bargaining agreement as well as the best interests of their fellow employees, particularly with this Employer." Conner testified as follows: I told him that I understand that there is a fine for people who belong to the union and if they work under any union wage, there could be a fine to us. He said yes, buts that was the least that we had to worry about. He said that what could happen to us is that we could be expelled from the union, and if that would happen, we would- never be able to work again in a union house in California.4 Strange testified that she and Conner were asking Gamberg questions about the contract and he was giving examples of what can happen to employees with respect to the contract and that he stated that an employee could be "ousted, so to speak, out of the Union, and if so, he couldn't work in California in a union house." 3 A step in the grievance procedure. 4 Although Strange testified that it was Gamberg who first brought up the matter of a fine, Gamberg testified that one of the employees raised the question ofa fine, and since Conner appeared to have a better recollection of Gamberg testified at considerable length as to what he stated about a fine and expulsion-and was very evasive as to what more, if anything, he said. He insisted that he was talking in general terms; however, it can be gleaned from a study of his testimony on direct, cross, and redirect examination that "in answer to a question raised by one of the ladies about fines," he stated "that a member of the Union who... willfully works for under scale, could have charges brought against them by another member. . ." that it could result in a fine and expulsion and that "if a member were expelled it could result in problems retaining a job in other union houses." It is clear from their testimony that Conner had a much better recollection of the conversation than did Strange and that Conner was considerably more straightforward than Gamberg. Consequently, her testimony is credited. Based upon her credited testimony and the findings hereinabove, it is inferred that the two employees reason- ably understood from Gamberg's statement that if, they accepted wages less than was determined to be the appropriate scale they would face -the prospect of never being permitted to work in a union house in California. While Gamberg testified that he never told them that the Union would cause them "the problems" they would encounter in holding a job in a union house, it appears from Conner's credited testimony that it was clearly indicated that their inability to work in a union house would be the direct result of their expulsion from the Respondent. The General Counsel argues that the threat of a fine, expulsion, and inability to obtain a job in a union house in California was motivated by their Section 7 protected activity. It appears that the Section 7 activity referred to by the General Counsel is described, in his brief, as their seeking information about the grievance and also as their protected right not to "support" -the prosecution of the grievance. The aforementioned threat which I have found to have been made was not, however, either motivated by their seeking information or predicated on their unwilling- ness to support the prosecution of the grievance. As to the former, there is no showing that Gamberg was disturbed by their search for information, and, as to the latter, the record discloses Gamberg told them he needed no assistance. Rather, the threat, it is found, was motivated by their belief that the wages they were receiving were in conformity with the contract and by their willingness to remain at the scale they were receiving. It is noted, at this point, that the two employees as well as Gamberg apparently believed that the two' employees' wage scale would be affected by the outcome of the grievance. Thus, I do not find, as General Counsel contends, that the threat was motivated by the employees' protected activity as set forth above, but rather by their willingness to accept wages below the scale provided in the contract. The issue, therefore, is whether the threat, so motivated, is violative of the Act. In Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Planet Corporation), 144 NLRB 798, 801 (1963), the Board the conversation than Strange, and Gamberg corroborated Conner's testimo- ny that it was she who raised the matter, I find that it was Conner who first mentioned the matter ofa fine. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded that the union did not violate Section 8(b)(1)(A) or 8(b)(2) of the Act by seeking the. discharge of an employee for his willingness to work for less than he was entitled to under the contract, reasoning that such a motive was not unlawfully motivated, but that the union therein acted "solely in pursuit of a legitimate economic objective," that of policing and enforcing the wage provisions of the contract. See, also, Houston Typographical Union No. 87, ITU, AFL-CIO (Houston Chronicle Publishing Company), 145 NLRB 1657, 1665 (1964); cf. Local 1437, United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO (Associated General Contractors of California, Inc., et al.), 210 NLRB 359, 360 (1974). In the instant case Gamberg's threat went beyond that of forcing, expelling, or seeking the discharge of the employees by Highlands Inn, but encompassed therein was the threat of, in effect, their being blacklisted in every union house in California. The threat of their never -being able to work in any union house in California went far beyond the "legitimate concerti" of the Union in policing and enforcing its contract with Highlands Inn., Consequently,. I am led to conclude that it was punitive in nature, rather than being motivated merely to protect the Union's contract, and, therefore, was violative of Section 8(b)(1)(A) of the Act. While I am unable to find a case which either supports or rejects this conclusion, such a threat would entail employ- ers, other than Highlands Inn, being caused to violate the clear prohibition, of Section 8(a)(3) of the Act and would, in my opinion, not be defensible under the doctrine set forth in the cases cited hereinabove. Conners and Strange have a right protected under Section 7 of the Act to be hired by employers other than Highlands Inn, even if they were expelled from the Respondent. The fact that the Respon- dent might very well not be able to,carry out the threat does not make it any less coercive. Local 511, St. Louis Offset Printing Union, AFL-CIO (Mendle Press, Inc.), 130 NLRB 324, fn. 1 (1961). Even if it were to be agrued that the statement that the employees would never be able to work in a union house in California was a prediction, since it amounts to a threat of reprisal, it cannot be considered to be protected under Section 8(c) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice of Respondent set forth in section III, above, occurring in connection with the operations of the Employer, described in section I, above, has a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It having been found that the Respondent has engaged in an unfair labor practice, it will be recommended that Respondent be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectu- ate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Highlands Inn, Inc., is an employer 'engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(b)(1)(A) of the Act by threatening two employees of Highlands Inn that, if they were to accept wages below the scale provided in its collective-bargaining agreement with said Employer, they would never work in another union house in California. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Hotel, Motel, Restaurant 'Employees & Bartenders' International Union, Local No. 483, its offi- cers, agents, and representatives, shall:' 1. Cease and desist from: (a) Threatening employees of Highlands Inn, Inc., that, if they were to accept wages below the scale provided in its collective-bargaining agreement with said Employer, they would never work in another union house in California. (b) In any like or related manner restraining or coercing employees of Highlands Inn, Inc., in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post in its business offices and meeting hall copies of the attached notice marked ."Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an official representa- tive of Respondent, shall, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 20 signed copies of the aforesaid attached notice for posting by Highlands Inn, Inc., if it so wishes, as its premises in Carmel, California, in places where notices to employees are customarily posted. - (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event noexceptions 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. 6 In the event that the Board's Order is enforced by a Judgment of a 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. " HOTEL, MOTEL, RESTAURANT EMPLOYEES, LOCAL 483 669 APPENDIX NoTIcE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees of Highlands Inn, Inc., that, if they accept wages below the scale provided in our collective-bargaining agreement with their employer, they will never work in any other union house in California. - WE WILL NOT in any like or related manner restrain or coerce employees of Highlands Inn, Inc., in the exercise of rights guaranteed under Section 7 of the Act. HOTEL, MOTEL, RESTAURANT EMPLOYEES & BARTENDERS' INTERNATIONAL UNION, LocAL No. 483