Hotel, Motel, Restaurant And Hi-Rise Employees And Bartenders Union, Local 355, Afl-Cio (Dupont Plaza Hotel)

1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hotel, Motel, Restaurant and Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO (Dupont Plaza Hotel), :and Olga ' Marti. Case 12-CB-2692 24-July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 15' April 1985 Administrative Law Judge Mi- chael O. Miller, issued =the attached decision: The General Counsel Tiled' exceptions and a supporting brief, and Respondent'filed an answering brief. ' - 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 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on February 19, 1985, in Miami, Florida, based on an unfair labor practice charge filed by Olga Marti, an individual, on November 16, 1984, and a com- plaint issued by the Regional Director for Region 12 of the National Labor Relations Board (the Board) on De- cember 19, 1984. The complaint alleges that Hotel, Motel, Restaurant and Hi-Rise Employees and Bartend- ers Union, Local 355, AFL-CIO (Respondent or the Union) violated Section 8(b)(1)(A) and (2) of the Nation- al Labor Relations Act (the Act) by unlawfully condi- tioning access to hiring hall services upon union consid- erations. Respondent's timely filed, answer denies the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to examine and cross-examine witnesses, and to argue orally Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Re- spondent. Based on the entire record,' including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT I. THE UNION'S LABOR ORGANIZATION STATUS AND JURISDICTION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, and Respondent admits, that at all times material herein it has been a labor organization within the meaning of Section 2(5) of the Act. The complaint alleges, and Respondent admits, that about September 1, 1983, it has entered into and main- tained written exclusive' hiring hall agreements with Hotel Arama, Inc., d/b/a Fontainebleau Hilton (the Fon- tainebleau), Doral Beach Hotel Corp. (Dora] Beach), and Bayview Associates, d/b/a Dupont Plaza Hotel (Dupont Plaza). The complaint further alleges, and Respondent further admits, that the Fontainebleau, the Doral Beach, and the Dupont Plaza are each Florida corporations with offices and places of business in either Miami or Miami Beach, Florida, where each of them is engaged in the operation of a hotel providing food and lodging for guests. The record establishes that during calendar year 1984, the Fontainebleau had gross revenues in excess of $500,000, and purchased in excess of $5000 worth of goods and materials directly from outside the State of Florida. The record further establishes that the Board has previously asserted jurisdiction over both the Dupont Plaza (Case 12-RC-4759, January 10, 1975) and the Doral Beach (245 NLRB 561 (1979)). Respondent has not shown that the operations at either the Dupont Plaza or the Doral Beach have changed substantially in the years since the Board last asserted jurisdiction over those entities. Moreover, there was nothing in the Doral Beach case from which one could conclude that its oper- ations in the year in which jurisdiction was asserted were not typical of its business, and I am aware of no inter- vening circumstances which would raise the probability that the business of either the Doral Beach or the Dupont Plaza has declined in the years since jurisdiction was last asserted. Accordingly, I find that the Fontainebleau is an em- ployer engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. I further find that this employer meets the Board's jurisdictional standards with respect to hotel op- erations. Penn-Keystone Realty Corp., 191 NLRB 1800 (1971). Moreover, applying the presumption "that state of affairs once shown to exist continues until the con- trary is shown," I find that both the Dupont Plaza and the Doral Beach remain employers-engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. Bordo Products Co., 117 NLRB 313, 314 (1957). (Jurisdiction asserted on the basis of employer admissions and stipulations in cases arising 7 and 8 years before the subject case.) I therefore find and conclude that it will effectuate the purposes of the Act to assert jurisdiction in this case. i The unopposed motions of the General Counsel and Respondent to correct the transcript are granted. 275 NLRB No. 168 HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DUPONT PLAZA HOTEL) 1177 II THE ALLEGED UNFAIR LABOR PRACTICES A. Operation of the Hiring Hall By written or oral agreements with the Fontainebleau, Doral Beach, Dupont Plaza, and other hotels in the Miami and Miami Beach area, the Union maintains an ex- clusive hiring hall for banquet waiters, waitresses, and bartenders . The agreements require the employers to seek employees in those categories through the Union's hiring hall and further requires that the Union furnish qualified applicants to the employers . The hiring hall agreements specifically require that the hiring hall be op- erated "in a completely impartial manner , without regard to union or nonunion membership" and in conformity with the Act. Referrals to work from the hiring hall are made, essen- tially, from two categories of job seekers, those who pos- sess rollcall numbers and those who do not Priority is given to holders of rollcall numbers . Pursuant to Re- spondent's rules, rollcall numbers are issued to those ap- plicants who are eligible on the basis of their experience or training. The rules require that roll call numbers be applied for during an open period which is held only be- tween March 15 and May 15 of each year .2 The hiring hall rules, which `are posted in conspicuous places in the hiring hall, further provide as follows: 9. Registrants seeking work must do so through the Employment Office. All registrants must show their Union book or service fee payment card for proper identification 10. All payments of Union dues or service fees, as applicable, must be current and uninterrupted to be eligible for referral to work . If a registrant fails to pay Union dues or service fees for two months, then the registrant shall forfeit his or her roll call number until new roll call numbers are issued to all applicants The service fee is $12 . 50 per month. This service fee shall be used for all purposes relat- ing to the administration and operation of the Em- ployment Office and these Rules and Regulations. 11. Referral to jobs will proceed according to the -exact order of number on the roll call list , and shall rotate automatically During 1984, there were 630 employees who possessed - rollcall numbers . They received the majority of the ban- quet work assigned through the hall; only if there were an insufficient number of employees with rollcall num- bers to satisfy the demand for waiters and waitresses were other job seekers given an opportunity to work. Jobs not filled by those possessing rollcall numbers are referred to as overflow work and those waiters and wait- resses seeking work without a rollcall number are re- ferred to as overflow workers. Pursuant to the Union's 2 Prior to 1984, the open period for the acquisition of rollcall numbers was held between September I and October 1 The current rules were adopted sometime prior to March 15, 1984, as testified to by Peter Ro- sario, Respondent's employment dispatcher The record clearly indicates that Alvaro Gonzalez, Respondent's secretary treasurer and business manager, misspoke when he testified to a later adoption of those rules rollcall rules, small jobs, those calling for less than' five waiters or waitresses, are not processed through the roll- call. The Respondent has a procedure for notifying employee/members who are at risk of suspension for, nonpayment of dues Pursuant to this procedure, when a member becomes 30 days delinquent in his or her dues payments, a postcard, in both English and Spanish, is mailed to that individual informing him or her of the sus- pension rule and the fact that that member appears to be 30 days in arrears. It requests dues payment' prior to the end of the month "so that you can continue in good standing and protect your full benefits and privileges." A member failing to pay those dues within the following month is automatically suspended. Suspended members receive a letter from the Union, again bilingual, inform- ing that member of the new status but offering the sus- pended member assistance in securing employment. The assistance offered is in finding regular employment, not hiring hall related employment, and the service is offered without charge. Notwithstanding the references to service fees in the hiring hall and rollcall number rules, all of the job seek- ers possessing rollcall numbers, and apparently all of the registrants utilizing the hall, are union members. At the present time, there are no individuals who are paying service fees in lieu of union dues.3 As previously noted, the rules provide that a rollcall number will be lost when its holder becomes 2 months in arrears in either union dues or service fees They further provide that a new rollcall number may not be assigned until the next open period, i.e., March 15 through May 15. The record contains no evidence to establish that any exceptions to these rules have been made. Neither is there any evidence that anyone who has sought a rollcall number on the basis of being a service fee payer has been refused. . There is no question but that applicants possessing rollcall numbers have greater job opportunities than those who do not. Overflow work is quite limited How- ever, when working overflow, an employee earns the same wage as those working through a rolicall number. B. Olga Marti Olga Marti has been a member of the Union for ap- proximately 8 years She worked as a banquet waitress and held a rollcall number prior to her suspension. She was aware of the hiring hall rules and knew that she would lose that rollcall number if she was suspended for failure to maintain current membership status. Marti paid her dues through March 30, 1984 Thereaf- ter, as a result of having secured other employment, Marti ceased paying dues. On May 1, she was sent the card advising that she was 1 month in arrears and urging her to pay her dues prior to the end of May in order to avoid suspension and loss of benefits. Additionally, Ro- sario attempted, albeit unsuccessfully, to call Marti in order to warn her of her impending suspension. The General Counsel makes no contention in this case that the serv- ice fee is not reasonably related to the costs of operating the hiring hall 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Marti was automatically suspended when she failed to pay the second month's dues by May 31, 1984. Sometime thereafter she received the letter notifying her of that suspension 4 -On August 9, 1984, Marti contacted Respondent for the first time since March 30.5 She spoke first with Maria Araguez, the Union's receptionist. Marti told Ara- guez that she wanted to come back into the Union, to be a union member again, and to work banquets. Araguez told Marti.that she had been suspended and had lost her rollcall number, and that she would have to see the em- ployment dispatcher, Rosario. 'Marti told Araguez that she had ceased paying her dues because she had secured other employment. After speaking to Araguez, Marti spoke with both Ro- sario and Gonzalez. She repeated her desire to rejoin the Union to each of them and requested that she be given her rollcall number back. Each told her that she was welcome to rejoin the Union-upon the payment of a rein- statement fee; each also told her that she could not get her rollcall number back until the next' open period, March 15, 1985, pursuant-to the rollcall and hiring hall rules. Rosario questioned why she had not contacted the Union earlier, particularly with respect to the mugging, and suggested that if she had called him he might have been able to help her out,'even to the extent of advanc- ing her dues payments for' her: Gonzalez and Rosario suggested that Marti would be able to get overflow work and promised her work on the small parties not re- quiring a rollcall number. Marti knew, when she came to the office on August 9, that she would have to pay a reinstatement fee in order to rejoin the Union. Rejoining the Union was her inten- tion, she never sought or requested service fee'payer status. At all times, Marti was informed that she could not regain her rollcall number until the next open period. There is no evidence that any representative -of the Union conditioned the return of Marti's rollcall number or the assignment of overflow work to Marti upon the payment of a reinstatement fee. There is no overflow hiring hall list. Individuals seeking overflow work secure it by coming to the hall or calling the hall Marti did not ask for referral from the hall, as either a rollcall number holder or for overflow work, on the basis of service fee payment. The rollcall - rules provide a grievance procedure through an employment office committee. Marti never brought'any complaint concerning the Union's refusal to restore her rollcall number to that committee. C. Analysis and Conclusions The General Counsel concedes that a union . may charge reasonable service fees which are related to the cost of 'operating its hiring hall as a condition of access 4 Marti testified that on June 6, before she received that letter, she made an effort to come to the union office to pay her arrearages She had the misfortune of being mugged and injured on her way to the union office She did not inform anyone in the Union of this unfortune event until her August 9 conversations with Rosario and Gonzalez b It is immaterial whether Marti called the Union on that date before coming in or merely came directly to the Union to that hall 's services . 6 In the instant case, however, the General Counsel contends that Respondent Union's maintenance of its hiring hall rules violated Section 8(b)(1)(A) and (2) by conditioning rollcall number refer- rals upon maintenance of union membership in good standing and threatening employees with loss of employ- ment for failure to maintain membership. Thus, the Gen- eral Counsel argues that rule 10, supra , stating that "All payments of Union dues or service fees, as applicable, must be current and uninterrupted to be eligible for re- ferral to work," requires union members to pay dues and does not give individuals a choice of paying dues or service fees. Alternatively, the General Counsel argues that even if the language of rule 10 does not expressly require union membership, it is ambiguous and that the ambiguity must be construed against the rule's promulga- tor. , Respondent, on the other hand, contends that the hiring hall rules are clear on their face and lawfully con- dition referral on current payment of either dues or serv- ice fees, with the choice being left to the registrant-em- ployee . Pacific Maritime Assn., 155 NLRB 1231 (1965). See also C.B. Display Service, 260 NLRB 1102 ( 1982). The General Counsel's contentions, I find , require a strained and selective reading of the rules and are with- out merit. Rule 9 , stating that "All registrants must show their. Union book , or service fee payment card for proper identification [when seeking referral] ," and rule 10, as stated above, clearly indicate that the Union has given a lawful choice to each registrant. In this regard , it must be noted that rule 10 further states, following the lan- guage quoted above, that registrants forfeit their rolicall numbers (until the next open period ) by failing to pay "Union dues or service fees for two months." That rule clearly sets forth both the amount of the service fee and the purposes for which it will be used . There is neither facial invalidity nor ambiguity in such language. The General Counsel would buttress here arguments by pointing to the registrant payment receipt form which does not include a column for receipt of service fees, the absence of service fee payers among all of those who uti- lize the hiring hall, and the notice sent out after 1 month's arrearage, which refers only to the necessity to pay dues in order to maintain good standing and protect full benefits and privileges . These do not establish that the Respondent required union membership of the hiring hall registrants . Maria Araguez, Respondent 's reception- ist, explained that she had been instructed to record serv- ice fee payments under the dues column of the payment receipt form. In light of the fact that there were no serv- ice fee payers, the absence of a separate column to record payments they would make if there were any is hardly evidence that a registrant could not have selected that status if he or she chose to do so. Similarly , the fact that everyone currently using the hiring hall is a union member is not evidence that union membership is a con- dition of that use or that a registrant who proffered the service fee would be denied access .7 Neither can I find 6 Operating Engineers Local 825 (H John Homan Co), 137 NLRB 1043 (1962) I At best, the absence of service fee payers is suspicious Suspicion is not evidence The unanimity of union membership may also indicate sat- isfaction with the Union's representation HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DUPONT -PLAZA HOTEL) any support for the General Counsel 's contentions in the 30-day notice. That notice was sent to union members who were a month in arrears and it properly notified them of the risk of suspension . That card does not estab- lish or even hint at union membership as a condition of referral. On brief, the General .Counsel contended for the first time that Respondent breached its "fiduciary " duty to inform Marti that failure to pay union dues would result in the lois of her rollcall number. Assuming, arguendo, that this issue may properly be considered,8 I would find it to be without merit.-Marti was fully aware of her obli- gations She was also given a timely reminder that she was in arrears and Rosario made additional efforts, albeit unsuccessfully, to help her avoid suspension. The Union did what it was required to do. Finally,, the General Counsel pleaded and asserted at hearing that Respondent had conditioned Marti's place- ment on the Union's overflow hiring hall list upon her payment of a reinstatement fee. There was no evidence to support this contention . The Union did not maintain an "overflow hiring hall list." All hiring hall registrants were eligible for overflow work . Moreover, the Union 8 See Seaward International, 270 NLRB 1034 (1984), where the Board rejected a late amendment of complaint to encompass evidence earlier in- troduced as "background" as being unjust, notwithstanding that "the barest minimum of due process"- had been satisfied Here, the General Counsel neither amended the complaint nor asserted this theory of viola- tion at hearing 1179 did not condition anything upon Marti 's payment of a re- instatement fee. Marti asked to be reinstated ; indeed, at all times it was the status of a union member which she sought. The Union welcomed her back and treated her no worse than anyone else who had been in arrears in the payment of either dues or service fees. In fact, Marti was offered the Union's full cooperation and assistance in securing both overflow and small party jobs until she could once again acquire a rollcall number. Accordingly, for all of the reasons set forth above, I shall recommend that the complaint be dismissed in its entirety. CONCLUSION OF LAW Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed9 - ORDER The complaint is dismissed in its entirety 8 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