Hotel & Restaurant Employees Local 19 (Sunnyvale Hilton)

HOTEL & RESTAURANT EMPLOYEES LOCAL 19- (SUNNYVALE HILTON) Hotel and Restaurant Employees * and Bartenders Union, Local 19, Hotel Employees and Restau- rant Employees and Bartenders International Union, AFL-CIO (Southbay Limited Partner- ship d/b/a Sunnyvale Hilton) and Deborah Davis. Case 32-CB-1769 20 May 1985' DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER.AND DENNIS On 14 January 1985 Administrative Law Judge, Gerald A. Wacknov issued the attached decision, and on 17 January 1985 he issued an errata. The Respondent and the General Counsel each filed ex- ceptions and a supporting brief, and the General Counsel filed an answering brief to the Respond- ent's exceptions. The Board has considered -the decision, the errata, and the record in light of the exceptionsi and briefs and has decided to affirm the judge's rul- ings, findings, and conclusions as modified and to adopt the recommended Order as modified. We agree with the judge that, the Respondent violated Section 8(b)(1)(A). and (2) of the Act by, causing the Employer to discharge Deborah Davis for alleged dues arrearages incurred while she worked for another employer, Camino Bowl. In doing so, however, we find it unnecessary to rely on the judge's rationale set out in his errata to sup- port this conclusion. Rather; we find that, as the' judge stated in his original decision, there is no evi- dence in the record that Davis was obligated to pay dues to the Respondent while she was em= ployed by Camino Bowl. A union's demand for payment of back dues which arose during a period when there was no obligation to pay dues cannot lawfully be imposed as a condition of employment, even under a valid union-security agreement. Oper- ating Engineers Local 139 (Camosy Construction), 172 NLRB 173 (1968). Therefore, we find that the Respondent violated Section 8(b)(1)(A) and (2) by causing the Employer to discharge Davis for al- i We reject the Respondent's contention that it was-not afforded proper notice of the time and place of the hearing because the following documents in the record dispute this claim (1) the "Order Designating Location of Hearing," sent to the Respondent by certified mail on 18 September 1984, with a signed return receipt, and (2) the "Order Consoli- dating Cases, Consolidated Complaint and Notice of Hearing," sent to the Respondent by certified mail on 29 June 1984, with a signed return' receipt, which informed the Respondent of the time and date of the hear- ing 461 leged dues arrearages incurred during a period in which she had no obligation to pay dues. We further find that the Respondent unlawfully caused the Employer to withhold and remit to the Respondent $50 from Davis' March 1984 pay- check, over and above her regular March dues of $14.56, in, partial satisfaction of the Respondent's demand- for alleged back dues. Accordingly, we shall order the Respondent to refund to Davis the $50 withheld from her March 1984 paycheck. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hotel and Restaurant Employees and Bartenders Union, Local 19, Hotel Employees and Restaurant Employees and Bartenders International' Union,-AFL-CIO, San Jose, California, its officers, agents, and representatives, shall take 'the action set forth in the Order as modified. - 1.'Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs. "(b) Refund to Deborah Davis the $50- withheld from her. March 1984 paycheck as payment ,for back dues." - 2. Substitute the attached notice for that of the administrative law judge. . APPENDIX - NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An'Agency of the United States Government WE WILL NOT cause- or attempt to cause South- bay Limited Partnership d/b/a Sunnyvale Hilton to discriminate against Deborah Davis by discharg- ing her for nonpayment of dues- arrearages, as it has not been demonstrated that Davis owed dues arrearages to us.- - WE WILL NOT in any like or related manner--re- strain or" coerce you in the exercise of the- rights guaranteed you by Section 7 of the National Labor Relations Act. " WE WILL make Deborah Davis whole for any loss of pay or other benefits suffered by reason of the discrimination against her, plus interest. - WE WILL refund to Deborah Davis the $50 with- held from her March 1984 paycheck as payment for back dues. • - - - 275 NLRB No. 72 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL notify Southbay Limited Partnership d/b/a Sunnyvale Hilton and Deborah Davis, in writing, that we have no objection to her contin- ued employment. - HOTEL AND RESTAURANT EMPLOY- EES AND BARTENDERS UNION, LOCAL 19, HOTEL EMPLOYEES AND RESTAU- RANT -EMPLOYEES AND BARTENDERS INTERNATIONAL' UNION, AFL-CIO DECISION STATEMENT'OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing with respect to this matter was held before me in Santa Clara, California, on Octo- ber 2, 1984. The initial charge was filed on May 10, 1984, by Deborah Davis, an individual, and an amended charge was filed on June 4, 1984. . Thereafter, on June 29, -1984, the Regional Director for Region 32 of the National Labor Relations Board (the Board) issued a complaint and notice of hearing al- leging a violation by Hotel and Restaurant Employees and Bartenders Union , Local 19, Hotel Employees and Restaurant Employees and Bartenders International •Union, AFL-CIO (Respondent) of Section 8(b)(1)(A) and (2) of the National Labor Relations Act (the `Act.) The parties were afforded a full opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce relevant evidence. i Since the close of the hearing, a brief has been received from the General Counsel. On the entire record, and based on my observation of the witnesses and consideration of the brief submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Southbay Limited Partnership d/b/a Sunnyvale Hilton (the Employer) is engaged in the operation of a hotel- restaurant facility located in Sunnyvale, California.' The record shows that in the course and conduct of its busi- ness operations the Employer annually derives gross rev- enues in excess of $ 1 million and receives goods and ma- terials valued in excess of $5,000 which originate outside the State of California. I find that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The record evidence shows, and I find, that Respond- ent Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. i No representative of the Respondent appeared at the hearing III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether Respondent unlawfully caused the Employer to dis- charge Deborah Davis for nonpayment of dues which al- legedly accrued during her prior employment with an- other employer. B. The Facts Deborah Davis became a member of Respondent in July 1977 upon obtaining- employment at the Hyatt Hotel. She left this employer in 1981 and did not submit a withdrawal card to Respondent. Thereafter, from April to approximately November 1983, she worked as a cock- tail waitress at Camino Bowl. Although Camino Bowl apparently maintained a collective-bargaining relation- ship with Respondent, Davis was never contacted by Respondent in any way regarding any obligations to pay dues, and had paid no dues to Respondent during her ap- proximately 8-month tenure with this employer. On November 15, 1983, Davis became employed by the Employer. The Employer and Respondent, at all times material, have been parties to a collective-bargain- ing agreement containing a valid union-security clause which required that Davis become and remain a member of Respondent. Davis began paying the required monthly dues, which were deducted from her paycheck. In April 1984, Respondent advised Davis that she owed a reinstatement fee and back dues totaling $283,2 and on May 15, 1984, Respondent advised the Employ- er's general manager, Paul Namkoong, that Davis would have to be terminated, pursuant to the provisions of the collective-bargaining agreement, for nonpayment of the arrearages due. Thereafter, on May 22, 1984, pursuant to the request, the Employer discharged Davis.' C. Analysis and Conclusions In the instant case Respondent apparently believed that Davis was in arrears for her failure to pay dues to the ,Union during the course of her employment with Camino Bowl, from April to November 1983. As Re- spondent caused the Employer to discharge Davis for dues arrearages allegedly incurred while working for an- other employer in a different bargaining unit, I find that, as alleged, Respondent has violated Section 8(b)(1)(A) and (2) of the Act. Carpenters Local 740 (Talman Con- structors), 238 NLRB 159 (1978); Iron Workers Local 118 (Pittsburgh Des Moines Steel Co.), 257 NLRB 564 (1981); Carolina Drywall Co., 204 NLRB 1091 (1973); Teamsters Local 174 (Consolidated Fruit Co.), 149 NLRB 1570 (1964). 2 Apparently the reinstatement fee was $6 50 and the remainder of the amount constituted dues arrearages 3 Davis was subsequently rehired by the Employer on June 14, 1984 Prior to the hearing herein , the charge and complaint against the Em- ployer in Case 32-CA-6521, which had previously been consolidated with the instant complaint , was withdrawn as a result of a settlement of the matter. HOTEL & RESTAURANT EMPLOYEES LOCAL 19 (SUNNYVALE HILTON) THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices , it is recom- mended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having specifically found that Respondent caused the Employer to discharge Deborah Davis in violation of Section 8(a)(3) of the Act, and has therefore violated Section 8(b)(1)(A) and (2) of the Act, Respondent will be directed to notify the Employer in writing and furnish copies to Deborah Davis, stating that it has no objection to the continued employment of Deborah Davis. It is further recommended that Respondent make Deborah Davis whole for any loss of pay or other benefits she may have suffered by reason of the discrimination against her. Backpay shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon as prescribed in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Hotel and Restaurant Employees and Bartenders Union, Local 19, Hotel Employees and Res- taurant Employees and Bartenders International Union, AFL-CIO, its officers, agents, and representatives, shall, 1. Cease and desist from (a) Causing or attempting to cause Southbay Limited .Partnership d/b/a Sunnyvale Hilton to discriminate 4 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 pur- poses 463 against Deborah Davis by discharging her in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of rights guaranteed them in Section 7 of the Act: 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Make Deborah Davis whole for any loss of pay or other benefits 'she may have suffered by reason of the discrimination against her in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify Southbay Limited Partnership d/b/a Sunny- vale Hilton, in writing, that Respondent has no objection to the continued employment of Davis. (c) Post at its business offices and all places where no- tices to members are customarilly posted, copies of the attached notice marked "Appendix."g Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized representative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous - places, including all places where notices to members" are customarily posted. Rea- sonable steps shall be taken by Respondent-to ensure that said notices are not altered, defaced, or covered by any other material. The Respondent shall also sign copies of the notice which the Regional Director shall make avail- able for posting by Southbay Limited Partnership d/b/a Sunnyvale Hilton, if it be willing. - (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. - - 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board "