Bohemian Club

BOHEMIAN CLUB 351 NLRB No. 59 1065 The Bohemian Club and UNITE HERE! Local 2.1 Case 20–CA–32922 November 19, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH The issue presented in this case is whether The Bohe- mian Club (the Respondent) breached its duty to bargain in good faith by assigning cooks to perform duties previ- ously performed by stewards without first giving UNITE HERE! Local 2 (the Union) notice and an opportunity to bargain over those changes. For the reasons discussed below, we find that the Respondent violated Section 8(a)(5) and (1) of the Act as alleged.2 I. FACTS The facts, more fully laid out in the judge’s decision, are as follows. The Respondent is a private social club in San Fran- cisco that serves meals to its members. Those meals are prepared in two onsite kitchens. The smaller of those two kitchens has operated only since September 2005. Cooks and stewards in both kitchens are represented by the Union. The Respondent and the Union have a 40- year bargaining history, and were parties to a collective- bargaining agreement that expired on July 31, 2005. It is undisputed that cooks and stewards belonged to separate crafts; the cooks belong to the food preparation craft and the stewards to their own craft. Before Sep- tember 2005, cooks were generally responsible for food preparation, and stewards for cleaning. Although pri- marily responsible for food preparation, cooks have rou- tinely been required to clean up occasional spills, wipe off their workstations, put away leftover food, and clean their tools. The expired collective-bargaining agreement contained several provisions related to work assignment. The man- agement-rights clause, contained in the preamble, stated that “it is the sole right of the management to manage the Club and to direct the working forces. Management of the Club includes determination of the type and scope of services and the methods, means, and procedures of pro- 1 We have amended the caption to reflect the disaffiliation of UNITE HERE from the AFL–CIO, effective September 14, 2005. 2 On December 12, 2006, Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief and the General Counsel filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Deci- sion and Order. viding services.” Section 30 provided that “[e]mployees shall not be required to perform work which is not cus- tomary to their craft, except in emergency such as fire, flood, earthquake, or death.” Section 22(a) provided that “[a]n employee may be assigned a position which com- bines not more than two (2) classifications of work.” In section 13, the parties agreed “to the continuation of all practices as regards the interpretation and application of their [previous] Agreements. . . . To the extent there is a conflict between such a practice and an Agreement, the practice shall prevail. By agreeing to this provision, it is the intent of the parties to maximize job security for ex- isting regular employees by continuing practices within the Club which are designed to provide for flexibility of work assignments while maintaining, to the extent prac- ticable, historical jurisdictional lines.” In September 2004, the executive chef assigned clean- ing duties normally performed by stewards to the cooks. The record does not indicate exactly which cleaning tasks were assigned. Union Steward and cook Nate Thomas protested, and the assignment of those duties was rescinded the next day. In September 2005, the Respondent transferred three regular cooks (Ricardo Cabrera, Danny Hong, and Union Steward Thomas) from the main kitchen to the newly- operational small kitchen. Jose Luna, primarily assigned to the main kitchen throughout, also began to help out in the small kitchen. During their first shift in the new kitchen, these cooks were told by Supervisor Kevin Miller to wipe down the walls, counters, refrigerator doors, and grills, and to pick up the rubber floor mats and sweep the floor underneath. In total, these tasks took approximately 30 minutes to complete; it took the cooks between 5 and 7 minutes simply to collect the mats and sweep the floor. It is undisputed that all of these tasks were previously performed by stewards. The Respondent did not notify the Union that it was going to assign the cleaning work to cooks in the new kitchen. The Union learned about the assignment 1 week after the new kitchen opened and the cooks began to per- form the cleaning tasks. The Union did not then request bargaining on the work assignment. However, on March 7, 2006, the Union brought a grievance against the Re- spondent alleging the change in cook duties violated the terms of the collective-bargaining agreement. On March 9, 2006, the Union filed a charge with the Board. In September 2006, the Respondent informed the cooks that they no longer had to pick up the mats or sweep the floors. II. THE JUDGE’S DECISION AND EXCEPTIONS The judge concluded that the Respondent did not vio- late its 8(a)(5) and (1) obligation to bargain in good faith DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1066 with the Union concerning terms and conditions of em- ployment by assigning additional cleaning work to cooks. The judge found that although the assignment amounted to a refusal to bargain about the affected con- ditions of employment, the Union had effectively waived its bargaining rights by failing to request bargaining over the changed work assignment. The General Counsel excepts to the judge’s finding that there was no violation, arguing that the Respondent presented the Union with a fait accompli, which rendered any union request for bargaining futile. The General Counsel also excepts to the judge’s failure to find the assignment of new duties to the cooks to be a material, substantial, and significant change. Finally, the General Counsel argues that the assignment violated the expired contract’s prohibition of cross-craft work assignments except in the event of natural disaster or death, as well as the contractual requirement to honor past practices. The Respondent disputes the General Counsel’s asser- tion that assigning the cleaning duties to the cooks repre- sented a fait accompli. The Respondent also contends that the Union waived its right to bargain over the change in duties; that the change was not material, substantial, and significant; and that, in any event, the assignment was permitted under the terms of the expired agreement. III. ANALYSIS To prove that the Respondent’s assignment of cleaning duties to the cooks violated Section 8(a)(5), the General Counsel was required to show that the assignment consti- tuted a material, substantial, and significant change in the cooks’ work assignments. See, e.g., Peerless Food Products, 236 NLRB 161 (1978). He also was required to show that the assignment was made without giving the Union advance notice and an opportunity to bargain be- fore implementation. See, e.g., Tri-Tech Services, 340 NLRB 894, 895 (2003). We find that the General Coun- sel made both showings and, accordingly, that the unilat- eral change was unlawful. A. Material, Substantial, and Significant Change We agree with the General Counsel that the assign- ment of cleaning duties was a material, substantial, and significant change in the cooks’ terms and conditions of employment. It is undisputed that the cooks had to work an extra 30 minutes per day to accomplish their new cleaning tasks. Indeed, one of the cooks had to stay after the end of his shift and work overtime to perform his added cleaning duties. The Board has found that adding more than a minimal amount of cleaning duties to the tasks of non- janitorial employees constituted a material, substantial, and significant change in their terms and conditions of employment. Fancy Dan’s Jet Inn Restaurant, 213 NLRB 709, 713–714 (1974) (requiring waitress to clean restrooms constituted a material, substantial, and signifi- cant change in her job duties); see also Ironton Publica- tions, 313 NLRB 1208 fn. 3, 1211 (1994), enfd. mem. 73 F.3d 362 (6th Cir. 1995) (requiring pressmen to mop the pressroom floor for 20 minutes per day “not an insignifi- cant or trivial change in the job”). We make the same finding here. There is no merit in the Respondent’s contention that the newly assigned cleaning duties were a “mere con- tinuation” of the cooks’ traditional responsibilities. The latter duties—cleaning up occasional spills, cleaning their tools, wiping off their workstations, and putting food away—are ancillary to the employees’ cooking tasks. By contrast, the newly assigned duties—wiping down the walls, counters, refrigerator doors, and grills, moving the floor mats, and sweeping the floor—involve heavier and more extensive cleaning tasks and accord- ingly were previously assigned to stewards. Thus, the new assignment was not a “continuation” of the cooks’ former duties, but an imposition of significantly different tasks that the cooks had never performed before.3 B. The Change Was a Fait Accompli We also find that the Respondent implemented its as- signment of cleaning duties to cooks in the new kitchen without giving the Union an opportunity to bargain. The Respondent did not discuss the change with the Union before implementation, and therefore the Union could not have requested bargaining over the matter. The Un- ion learned of the change 1 week after it happened. Even if Shop Steward Thomas’ knowledge of the change is imputed to the Union, he acquired that knowledge only when he was assigned new tasks, by definition after the change was implemented. Therefore, the Respondent simply presented the Union with a fait accompli. 3 Member Kirsanow observes that the kitchen the cooks were told to clean is very small—4 feet by 15 feet—and that the cooks already performed some cleaning as part of their regular duties. Moreover, the fact that the Union waited nearly 6 months before grieving this change suggests that it viewed the change as minor. Were the Board writing on a clean slate, Member Kirsanow would be inclined to find the unbar- gained assignment of these cleaning tasks too trivial to amount to an unfair labor practice. Viewing the change in this case alongside other unbargained changes that have been found unlawful, however, Member Kirsanow concurs in finding the change at issue sufficient to impose a duty to bargain. See, e.g., Verizon New York, Inc., 339 NLRB 30 (2003) (finding 8(a)(5) violation for unilateral termination of twice- yearly practice of permitting employees to donate blood during work- time), enfd. 360 F.3d 206 (D.C. Cir. 2004); Rangaire Co., 309 NLRB 1043 (1992) (finding 8(a)(5) violation for unilateral withdrawal of extra 15 minutes for Thanksgiving lunchbreak), enfd. mem. 9 F.3d 104 (5th Cir. 1993). BOHEMIAN CLUB 1067 The judge erred in finding that the Union waived its right to bargain by failing to demand bargaining after the unilateral change was made. Although a union may waive its right to bargain if it receives advance notice of a proposed change and fails to request bargaining, there is no waiver when an employer implements a change without giving the union advance notice and an opportu- nity to bargain. Such an implementation—as here, a fait accompli—makes any demand for bargaining futile. Tri- Tech Services, supra at 895. “[A] union does not waive its right to bargain over unilateral changes by failing to engage in the futile act of trying to turn back the clock and bargain over an action the employer has already taken.” Id. at 903 (citing Gulf States Mfg. v. NLRB, 704 F.2d 1390 (5th Cir. 1983).4 C. The Respondent’s Defenses Are Without Merit 1. The 2004 assignment The Respondent contends that the Union waived its right to bargain over the 2005 assignment of cleaning duties because it acquiesced in the 1-day assignment in 2004. That contention fails because there was no acqui- escence. The 2004 assignment was specifically opposed by Union Steward Nate Thomas and was immediately rescinded. At no point thereafter did the Union indicate its approval of that assignment.5 2. Contract-based defenses The Respondent also attempts to justify its unilateral assignment of new duties by arguing that the action was sanctioned by certain provisions contained in the expired contract and (with one exception) surviving as terms and conditions of employment at the time of the unlawful change. These contract-based defenses are not properly 4 The cases cited by the judge in dismissing the complaint are inap- posite, as in every one the union was notified of the impending change prior to implementation. Salem College, 261 NRLB 327 (1982) (10–15 days notice); Citizens National Bank of Willmar, 245 NLRB 389 (1979), enfd. mem. 644 F.2d 39 (D.C. Cir. 1981) (5–6 days notice); City Hospital of East Liverpool, 234 NLRB 58 (1971) (23 days notice); American Buslines, Inc., 164 NLRB 1055 (1967) (8 days notice). 5 Contrary to the Respondent, the Union’s failure to file a grievance over the 2004 assignment does not indicate that the Union acquiesced in the action. There was no need to file a grievance because the Re- spondent rescinded the action immediately upon the Union’s protest. The Board’s decision in American Diamond Tool, 306 NLRB 570, 571 (1992), cited by the Respondent, is not to the contrary. There, the Board found that a union waived its right to bargain over a change in terms and conditions where the union had an opportunity to request bargaining about an earlier identical change in terms and conditions but “failed without excuse to do so, and expressly signaled its willingness to permit such conduct in the future.” Id. at 571. Here, by contrast, the Union vigorously—and successfully—opposed the 2004 change and never indicated that it would permit similar changes in the future. before us.6 But in any event, we find no merit in any of the Respondent’s contentions. The Respondent argues that the expired contract’s management-rights clause allowed for the assignment of new duties. We reject this argument for two reasons. First, any purported waiver of a union’s right to bargain in a management-rights clause does not survive the expi- ration of the agreement, absent evidence of the parties’ intention to the contrary. See, e.g., Beverly Health & Rehabilitation Services, 335 NLRB 635, 636 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003); Paul Mueller Co., 332 NLRB 312, 313 (2000). As there is no evidence that the parties intended the management- rights clause to continue in effect after the contract ex- pired, any such purported waiver expired with the con- tract. Second, even if the clause survived, its general language would not operate as a waiver of the Union’s right to bargain over new cross-craft assignments, which are not mentioned in the clause.7 Bozeman Deaconess Hospital, 322 NLRB 1107, 1108 (1997); Johnson- Bateman Co., 295 NLRB 180, 184 (1989). The Respondent next contends that the contractual provision permitting it to assign workers to positions formed from two job classifications allowed it to assign steward work to the cooks. This contention is not sup- ported by the record. There is no evidence that the cooks were placed in a position that combined two classifica- tions. Instead, they apparently remained classified as cooks, while being assigned stewards’ work. The Respondent suggests that the very act of assigning stewards’ duties to the cooks created a position formed from the two job classifications. This argument is re- futed by the contract’s express prohibition of cross-craft work assignments except in cases of fire, flood, earth- quake, or death. The Respondent also cites the contract’s “Past Prac- tices” clause, in which the parties agreed “to the con- tinuation of all practices as regards the interpretation and 6 The judge rejected the Respondent’s defense that the terms of the expired labor contract permitted the unilateral assignment and dis- missed the complaint on the sole ground that the Union failed to request bargaining. Although the Respondent reiterates its contract-based defenses in its answering brief, it did not except to the judge’s failure to dismiss the complaint on the additional ground that the contract permit- ted the assignment. The Board’s Rules and Regulations do not permit a party to assert cross-exceptions in an answering brief. Accordingly, the Respondent waived its contract-based defenses. See White Electrical Construction Co., 345 NLRB 1095 (2005). In rejecting the Respondent’s contract-based defenses, Member Kir- sanow relies solely on their not being properly before the Board. 7 The clause stated: “It is the sole right of the management to man- age the Club and to direct the working forces. Management of the Club includes determination of the type and scope of services and the meth- ods, means, and procedures of providing services.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1068 application of their agreements,” with the intent of maximizing job security and “continuing practices within the Club which are designed to provide for flexibility of work assignments.” The Respondent argues that its prac- tice is sometimes to make cooks do additional cleaning and sometimes not, and cites the 2004 incident as evi- dence of this practice. But there was no such past prac- tice. As found above, the 2004 work assignment lasted only 1 day, was promptly opposed by the Union, and was immediately rescinded and not reinstated until September 2005. CONCLUSION OF LAW By assigning steward duties to cooks Cabrera, Hong, Thomas, and Luna in September 2005 without giving the Union prior notice and an opportunity to bargain con- cerning that assignment, the Respondent violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to immediately rescind unlawfully imple- mented changes to the employees’ terms and conditions of employment. Generally, the Board orders employers that have implemented unlawful unilateral changes to make employees whole for any loss of wages or other benefits they may have suffered as a result of the unlaw- ful conduct. See, e.g., Southside Hospital, 344 NLRB 634, 635 (2005). We find it unnecessary to order such a remedy here because the employees’ wages and benefits were not affected by the Respondent’s unlawful action. ORDER The National Labor Relations Board orders that the Respondent, The Bohemian Club, San Francisco, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Implementing changes in the terms and conditions of employment of bargaining unit employees, including the assignment of stewards’ duties to cooks, without first notifying the Union and affording it an opportunity to bargain over the proposed changes. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the unlawfully implemented assignment of stewards’ duties to cooks. (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the following bargaining unit: All employees at Respondent’s San Francisco facility performing work covered by the terms of the collec- tive-bargaining agreement between Respondent and the Union effective for the period from August 1, 2000, to July 31, 2005. (c) Within 14 days after service by the Region, post at its San Francisco, California facility copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since September 1, 2005. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States government 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 bene- fit and protection 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” BOHEMIAN CLUB 1069 Choose not to engage in any of these protected activities. WE WILL NOT implement changes in the terms and conditions of employment of bargaining unit employees, including the assignment of stewards’ duties to cooks, without first notifying UNITE HERE!, Local 2 and af- fording it an opportunity to bargain over the proposed changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL rescind the unlawfully implemented assign- ment of stewards’ duties to cooks. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of employees in the following bargaining unit: All employees at our San Francisco facility performing work covered by the terms of the collective-bargaining agreement between ourselves and the Union effective for the period from August 1, 2000, to July 31, 2005. THE BOHEMIAN CLUB Shelly Brenner, Esq., for the General Counsel. William F. Terheyden, Esq. (Littler Mendelson), of San Fran- cisco, California, for the Respondent. Kim C. Wirshing, Esq., of San Francisco, California, for the Union. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. This case was tried in San Francisco, California, on October 4, 2006. On March 9, 2006, UNITE HERE!, Local 21 (the Union) filed the charge in this case against The Bohemian Club (the Respondent or the Employer). On May 12, 2006, the Regional Director for Region 20 of the National Labor Relations Board (the Board) issued a complaint against Respondent. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by assigning additional work duties to its cooks without prior notice and bargaining with the Union. The Respondent filed a timely answer in which it de- nied that it had violated the Act. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine wit- nesses, and to file briefs. Upon the entire record, from my obser- vation of the demeanor of the witnesses, and having considered the briefs submitted by the parties, I make the following2 1 The name of the Union appears as corrected at the hearing. 2 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testi- FINDINGS OF FACT I. JURISDICTION At all times material, Respondent has been a California corpo- ration, engaged in the operation of a private social club in San Francisco, California. Respondent, in conducting its business operations described above, during the calendar year ending De- cember 31, 2005, purchased and received goods at various facili- ties in California valued in excess of $5000 directly from sources outside the State of California. Further, during the same time period, Respondent derived gross revenues in excess of $500,000 from the sale of food, beverages, and service to its members and their guests. Accordingly, the parties stipulated and I find, Re- spondent is an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. The parties stipulated that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS Since at least 1966, the Union has been the exclusive collec- tive-bargaining representative of an appropriate unit of Re- spondent’s food service employees in San Francisco, Califor- nia. The most recent collective-bargaining agreement between the parties was effective by its terms from August 1, 2000, through July 31, 2005. The bargaining unit covered by the agreement is: All employees at Respondent’s San Francisco facility per- forming work covered by the terms of the collective- bargaining agreement between Respondent and the Union ef- fective for the period from August 1, 2000, to July 31, 2005. As stated above the parties’ collective-bargaining agreement expired July 31, 2005. Bargaining over a successor bargaining agreement was still ongoing at the time of the instant hearing. The last bargaining session was conducted on February 13, 2006. As of the trial, agreement on a successor contract had not yet been reached. Respondent operates a private club in San Francisco that provides meals to its members, including a continental break- fast, lunch, and evening buffets. In September 2005, Respon- dent opened a new small kitchen on the first floor to be used primarily for lunches. The new kitchen is small, much smaller than the old kitchen (the main kitchen) on the second floor which has been in existence for many years. The Union repre- sents the cooks and stewards assigned to both kitchens. These employees report to the sous chef and executive chef. In September 2005, when Respondent opened the first floor kitchen, three regular cooks were reassigned from the main kitchen to the first floor kitchen. These cooks were Ricardo Cabrera, Danny Hong, and Nate Thomas, the union steward. A fourth cook, Jose Luna, continued to work in the main kitchen but at times would help out in the first floor kitchen. Thomas, Cabrera, and Hong all testified that prior to the opening of the new kitchen, the only cleaning tasks they were fying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with credited documentary or testimonial evidence, or because it was in and of itself incredible and unworthy of belief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1070 required to perform were to clean up an occasional spill during their shift and, after meal service ended to wipe off the area where they worked with a damp cloth or hot towel, put away leftover food, and clean and put away their tools. Occasionally they would use a broom to clean up food that had fallen on the floor. The normal duties of cleaning the kitchen and sweeping the floors were performed by the stewards. When the new kitchen opened in September 2005, Sous Chef Kevin Miller ordered the cooks to clean the first floor kitchen. The cooks were told by then General Manager Matt Oggero to scrub down the kitchen, including the stainless steel walls and counters, the refrigerator doors, and grills. Oggero also in- structed the cooks to pick up the floor mats and sweep the floors. On the second day of the operation of the new kitchen, then Executive Chef Richard Brandenburg demonstrated to the cooks how he wanted the first floor kitchen cleaned at the end of the shift. Brandenburg then instructed the leadman for the stewards that the stewards were not to clean the first floor kitchen except to mop the floors and to take care of the gar- bage. Prior to this time, the cleaning duties assigned to the cooks had been performed by the stewards.3 The cooks testified that these cleaning duties took approximately 30 minutes to perform. Danny Hong who would otherwise have left work 30 minutes earlier than his colleagues needed to work approxi- mately 30 minutes of overtime to perform the cleaning duties with the other cooks. The cooks performed these new cleaning duties from Sep- tember 2005 until September 2006. In September 2006, Re- spondent’s new executive chef informed the cooks that they no longer had to pick up the kitchen mats and sweep the floors. The cooks still performed the other cleaning duties to which they were assigned in September 2005. Union Representative Alphonse Pines testified that Respon- dent did not notify the Union of this change in the cooks’ du- ties. Pines first learned of the change from Union Steward Nate Thomas, approximately a week after the cooks had begun per- forming the additional duties. The Union did not request bar- gaining over the changes. On March 7, 2006, Pines filed a written grievance against Respondent alleging a violation of the contract articles entitled “combination jobs and job descrip- tions.” Pines met with Respondent’s human resources director, Al Bowen, but nothing was resolved. The Union did not follow up on the grievance. The instant charge was filed on March 9, 2006. The parties’ expired collective-bargaining agreement classi- fies stewards and cooks as belonging to separate crafts. Section 30. Job Descriptions of the agreement states: Employees shall not be required to perform work which is not customary to their craft, except in emergency such as fire, flood, earthquake or death. Section 22. Combination Jobs of the agreement states in perti- nent part: 3 The General Counsel and the Union offered evidence that in all the other unionized private clubs in San Francisco, these cleaning duties are performed by stewards or porters and not cooks. An employee may be assigned a position which combines not more than two (2) classifications of work. Said employee shall be paid at the rate of the higher classification, provided he or she works in that classification for one hour. . . . Respondent’s defense Respondent argues that the Union had notice of these changes in September 2005 but never requested bargaining. Secondly, Respondent argues that the new cleaning duties “had no material, substantial or significant impact on the cooks’ working conditions.” Third, Respondent argues that these changes were de minimis. Finally, Respondent argues that the collective-bargaining agreement allowed Respondent to assign the additional cleaning duties. The preamble to the agreement provides: It is mutually agreed that it is the sole right of the management to manage the Club and to direct the working forces. Management of the Club includes determination of the type and scope of services and the methods, means, and procedures of providing services. The Employer has a right to establish and enforce reasonable rules and regula- tions governing the employment relationship. Finally, the parties recognize the success of the Cub’s operations de- pends, in large part, on the personal responsibility of each employee to provide service to the best of his/her ability and to cooperate with management in insuring the overall success of the organization. Section 13. Past Practices Except as specifically modified by the negotiations re- sulting in this Agreement, the parties agree to the con- tinuation of all practices as regards the interpretation and application of their Agreements, including, but not limited to, the hours and working conditions for all workers em- ployed by the Club at either of its facilities. To the extent there is a conflict between such a practice and an Agree- ment, the practice shall prevail. By agreeing to this provi- sion, it is the intent of the parties to maximize job security for existing regular employees by continuing practices within the Club which are designed to provide for flexibil- ity of work assignments while maintaining, to the extent practicable, historical jurisdictional lines. III. CONCLUSIONS The Unilateral Implementation Section 8(a)(5) and (d) require an employer to bargain in good faith with its employees’ representative concerning wages, hours, and other terms and conditions of employment of bargaining unit employees. It is well settled that unilateral action by an employer without prior discussion with the union amounts to a refusal to negotiate about the effected conditions of employment. NLRB v. Katz, 369 U.S. 736 (1962). More- over, a showing of subjective bad faith on the employer’s part is unnecessary to establish a violation. Id. However, the Board has noted that not every unilateral change constitutes a breach of the bargaining obligation. The change unilaterally imposed must be a “material, substantial, and significant” one. Peerless Food Products, 236 NLRB 161 BOHEMIAN CLUB 1071 (1978); Millard Processing Services, 310 NLRB 421, 425 (1993); Crittenton Hospital, 342 NLRB 686 (2004). In Berk- shire Nursing Home, 345 NLRB 220, 221 (2005), the Board found that the mere fact that an employee is “disadvantaged” by a change, although perhaps relevant to the test (of whether a change is material, substantial and significant), is not alone sufficient to satisfy the test. The Board held that the change is measured by the extent to which it departs from the existing terms and conditions affecting employment. See also Southern California Edison Co., 284 NLRB 1205 fn. 1 (1987), enfd. mem. 852 F.2d 572 (9th Cir. 1988); Crittenton Hospital, 342 NLRB 686 (2004). In this case, there has been unilateral action by Respondent without prior discussion with the Union, in assigning the cooks cleaning duties which historically had been performed by the stewards’ craft. The collective-bargaining agreement states that employees shall not be required to perform work which is not customary to their craft, except in emergency. I find that Re- spondent’s conduct amounts to a refusal to bargain about the effected conditions of employment. See Ironton Publications, 313 NLRB 1208 fn. 3 (1994) (violation to unilaterally assign pressman duties which were the job of custodial staff for many years); and Woods School, 270 NLRB 171, 176 (1984) (viola- tion to unilaterally assign cooking and cleaning duties to house parents, work which had previously been performed by pantry workers and cleaning personnel). In such cases, the Board looks to whether a change has been implemented in conditions of employment. It simply deter- mines whether a change in any term and condition of employ- ment has been effectuated, without first bargaining to impasse or agreement and condemns the conduct if it has. Daily News of Los Angeles, 304 NLRB 511 (1991), remanded 979 F.2d 1571 (D.C. Cir. 1992), decision supplemented 315 NLRB 1236 (1994), enfd. 73 F.3d 406 (1996), cert. denied 519 U.S. 1090 (1997). Respondent contends that the Union failed to request bar- gaining over the changed work assignment of the cooks. A union that has had notice of an employer’s proposed change in a term or condition of employment must timely request and diligently pursue bargaining if it wishes to preserve its right to bargain over that subject. Salem College, 261 NLRB 327, 328 (1982); City Hospital of East Liverpool, Ohio, 234 NLRB 58 (1971); American Buslines, Inc., 164 NLRB 1055 (1967). The union cannot be content with merely protesting the action or filing an unfair labor practice charge over the matter. Citizens National Bank of Willmar, 245 NLRB 389, 390 (1979); Ameri- can Buslines, Inc., supra at 1055–1056. In Citizens National Bank of Willmar the change announced by the respondent-bank was that tellers would no longer be excused from working Monday evenings when scheduled to work Friday evenings. This new policy was to become effective and in fact became effective the following Monday, November 28. It is undisputed that, prior to its announcement or imple- mentation, respondent did not bargain with the union concern- ing the decision or the effects of this change. On either November 23 or 24, the union’s attorney and busi- ness agent was informed by the bank of the announced change. Thereafter, on November 29, at the next contract negotiating session held between the parties, the business agent told the respondent’s attorney and negotiator, that he objected to the recent change made by respondent. Respondent’s attorney re- sponded that he was unaware of the change and that he would investigate the matter. Later during the session, respondent’s attorney informed the business agent that he had investigated the matter and that the respondent’s position was that the change made was consistent with its past practice of scheduling employees to work up to 40 hours per week, when necessary. Subsequent to this meeting, on December 15, the union filed an unfair labor practice charge alleging, inter alia, that the change in employees’ work schedules made by the respondent- bank violated Section 8(a)(5) and (1) of the Act. However, the Board found that other than the November 29 conversation referred to above, the union did not have any discussion with the respondent-bank concerning such change, did not request that the bank rescind the change, and did not request that the bank bargain with the charging party-union concerning this change in scheduling hours. The Board held that although the charging party-union ob- jected at the November 29 negotiations session to the bank’s previously announced change in the employees’ work sched- ules and thereafter filed an unfair labor practice charge, it ad- mittedly did not seek bargaining over the matter. In fact, when the bank explained its actions, the union accepted the explana- tion without additional comment. The Board therefore con- cluded that, having failed to exercise its right to demand bar- gaining over the issue, the charging party could not in the un- fair labor practice case effectively claim that the bank unlaw- fully refused to bargain. In the instant case, the Union’s steward, Nate Thomas, was aware of the unilateral change upon its implementation in Sep- tember 2005. Union Representative Alphonse Pines first learned of the change from Thomas approximately a week after the cooks had begun performing the additional duties. On March 7, 2006, Pines filed a written grievance against Respon- dent alleging a violation of the contract articles entitled combi- nation jobs and job descriptions. Pines met with Respondent’s human resources director, Al Bowen, but nothing was resolved. The Union did not follow up on the grievance. The instant charge was filed on March 9, 2006. There is no evidence that the Union ever demanded bargaining over this unilateral change. Bargaining had been going on since August 2005 and there had been a bargaining session in February 2006. How- ever, the Union never requested bargaining about the change in the duties of the cooks. Thus, I find that the Union cannot ef- fectively claim that Respondent refused to bargain. Negotia- tions were taking place, but the Union did not request bargain- ing on this issue. More than 5 months after learning of the change the Union filed a grievance, which it did not pursue, and an unfair labor practice. As stated above, the Union cannot be content with merely protesting the action or filing an unfair labor practice charge over the matter. Citizens National Bank of Willmar, 245 NLRB 389 (1979); American Buslines, Inc., 164 NLRB 1055 (1967). In sum, I find that Respondent unilaterally changed the terms and conditions of employment of the cooks in the bargaining unit but that the Union did not request collective bargaining DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1072 over that subject matter. Accordingly, I cannot find that Re- spondent violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. [Recommended Order for dismissal omitted from publica- tion.]