The St. Louis Gateway Hotel

ST LOUIS GATEWAY HOTEL 863 The Gateway Hotel Corporation d/b/a The St. Louis Gateway Hotel and Automotive, Petrole- um and Allied Industries Employees Union Local 618, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 14-CA-1877301 9 November 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 27 July 1987 Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-excep- tions, a supporting brief, and an answering brief. The National Labor Relations Board has delegat- ed 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, to modify the remedy,2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, The Gateway Hotel Corporation d/b/a The St. Louis Gateway Hotel, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1. "1. Cease and desist from "(a) Refusing to bargain with the Union with re- spect to the effects on its unit employees of its de- cision to close its hotel operation. "(b) Failing and refusing to pay the employees' vacation pay accrued at the time of their termina- tion as a result of the closure. "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(c). "(c) On request, bargain in good faith with Automotive, Petroleum and Allied Industries Em- ployees Union Local 618, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America with re- spect to the effects on the unit employees of its de- cision to close its hotel operations and reduce to writing any agreement reached as a result of such bargaining." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government i We have amended the caption by changing "14-CA-28730" to read "14-CA-18730" to reflect the correct case number, and "Automobile" to read "Automotive" to reflect the Charging Party's correct name a In the remedy section of his decision, the judge recommended that the Respondent be ordered to make whole the employees for loss of their accrued vacation pay in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950) Because this case involves the repudiation of the terms of a collective-bargaining agreement, backpay should be computed as provided in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971) In accordance with our decision in New Hori- zons for the Retarded, 283 NLRB 1173 (1987 ), interest on and after 1 Jan- uary 1987 shall be computed at the "short-term Federal rate" for the un- derpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effec- tive date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steet Corp, 231 NLRB 651 (1977) a In his recommended Order, the judge inadvertently failed to include language requiring the Respondent to cease and desist in any like or re- lated manner from interfering with, restraining, or coercing employees in the exercise of their Sec 7 rights We shall modify the Order to include such language and to substitute "Automotive" for "Automobile" to re- flect the Charging Party's correct name In his notice to employees, the judge inadvertently failed to include language concerning the Respond- ent's failure and refusal to pay employees the vacation pay accrued at the time of their termination Accordingly , we shall issue a new notice The General Counsel seeks a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this. Order Under the circum- stances of this case , we find it unnecessary to include such a clause The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively and in good faith with the Automotive, Petroleum and Allied Industries Employees Union Local 618, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, concerning the effects of the closure of our hotel operations on behalf of the employees in the following appropriate unit: All full-time and regular part-time drivers and driver dispatchers employed at our 822 Wash- ington, St. Louis, Missouri facility, excluding office clerical and professional employees, guards, and supervisors as defined in the Act, and all other employees. WE WILL NOT refuse to pay the unit employees their vacation pay accrued at the time of their ter- mination as a result of the closure. 286 NLRB No. 91 864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union with regard to the effects on the unit employees of our decision to close our hotel and reduce to writing any agreement reached as a result of such bargaining. WE WILL pay to the unit employees who were employed at our hotel their normal wages for a period set out in this Decision and Order of the National Labor Relations Board. WE WILL reimburse the unit employees for the loss of their accrued vacation pay previously with- held from them at the time of their termination, with interest. THE GATEWAY HOTEL CORPORA- TION D/B/A THE ST. Louis GATE- WAY HOTEL FINDINGS OF FACT AND ANALYSIS 1. JURISDICTION The complaint alleges, Respondent admits, and I find that Respondent is, and has been at all times material, a corporation duly organized under and existing by virtue of the laws of the State of Missouri, and that from 1 Jan- uary 1981 through 30 November 1986, it had an office and place of business in St. Louis, Missouri, and was en- gaged in the operation of a hotel providing food and lodgings for guests, that during the 12-month period ending 30 November 1986, it derived gross revenues in excess of $500,000 and in the course and conduct of its operations purchased and received at its St. Louis, Mis- souri facility products, goods, and materials valued in excess of $5000 from other enterprises located within the State of Missouri, each of which other enterprises had received the products, goods, and materials directly from points located outside the State of Missouri, and that Re- spondent is now, and has been at all times material here, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Dorothy Wilson, Esq., for the General Counsel. James N. Foster, Jr., Esq. (McMahon, Berger, Hanna, Lin- ihan, Cody & McCarthy), of St. Louis, Missouri, for the Respondent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me on 1 April 1987 at St. Louis, Missouri, pursuant to a complaint filed by the Re- gional Director for Region 14 of the National Labor Re- lations Board (the Board) on 14 January 1987. The com- plaint is based on a charge filed by Automobile, Petrole- um and Allied Industries Employees Union Local 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), on 19 December 1986. The complaint alleges that the Gateway Hotel Corporation d/b/a The St. Louis Gateway Hotel (the Respondent or the Employer) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), by failing and refusing to bar- gain with the Union on behalf of its employees in the ap- propriate bargaining unit over the effects of closing its operations, the abolishing all unit jobs, and failing to pay its terminated employees accrued vacation pay as re- quired by the collective-bargaining agreement between the parties. The complaint is joined by the answer of Re- spondent, as amended, at the hearing in which Respond- ent denies the commission of any violations of the Act. On the entire record in this proceeding, including my observations of the witnesses who testified here, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following The complaint alleges, the answer admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE APPROPRIATE UNIT The complaint alleges, the answer admits, and I find that: All full-time and regular part-time drivers and driver dispatchers employed at the Employer's 822 Washington, St. Louis, Missouri facility, excluding office clerical and professional employees, guards, and supervisors as defined in the Act, and all other employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES1 The Respondent operated a hotel in St. Louis, Missou- ri. Among its guests were retirees and railroad and truck- ing company employees as well as servicemen pursuant to various contractual agreements with their employers to provide lodging and transportation for those guests. The guests were transported by vans operated by the hotel drivers in the bargaining unit. In the fall of 1986 the Respondent was incurring substantial losses and had lost several contracts with employers for guests. Addi- tionally, the vans operated by the Respondent to trans- port guests had high mileage and were incurring signifi- cant service problems. On 1 October 1986 the Respond- ent and the Union commenced bargaining for a successor to the 1983-1986 labor agreement due to expire on 1 Oc- 1 All dates are 1986 unless otherwise stated . The following contains a composite of the credited testimony of the witnesses ST. LOUIS GATEWAY HOTEL 865 tober and at that time agreed to extend the current agreement until an impasse or an agreement was reached. Other bargaining sessions were held on 10 and 24 Octo- ber. On 1 November Respondent's drivers were given a notice dated 31 October signed by Bernie Ezar, the hotel's general manager, informing the drivers that the hotel would close on 5 December as a result of the in- creased cost of operations . On approximately 3 Novem- ber, Union Assistant Business Manager John Guerra re- ceived a letter addressed to him from Ezar informing him that the hotel would be closed on 5 December. Within a few days he telephoned Manager Don Gidion- sen and asked to meet to negotiate a closing agreement. Gidionsen told him he could not do this and referred him to contact Respondent's attorney, James N. Foster, who along with Gidionsen had been Respondent's repre- sentative in the October negotiations. Foster informed Guerra he was not authorized to handle these negotia- tions. Guerra then wrote to Gidionsen on 19 November and requested to negotiate a closing agreement. The letter was received by Respondent on 20 November. Subsequently, Guerra telephoned Gidionsen and asked if he had received this letter and Gidionsen replied that he had. Guerra then asked him if he were willing to bargain and Gidionsen replied that his "hands were tied." It should be noted that there was no contention, nor do I find there was any confusion, on the part of Respond- ent's representative that the Union was requesting bar- gaining over the effects of the decision of Respondent to close the hotel. The hotel closed on 30 November and all drivers were terminated . On 2 December Union Stewart Douglas Haggett returned to the hotel and received his final pay- check, which did not include his vacation pay. At the time of the shutdown of Respondent's hotel and the ter- mination of the unit employees, the contract had been extended and was still in force and provided that "In the event of a layoff or discharge, one-twelfth ( 1/12) regular vacation shall be allowed for each month worked." When questioned by Haggett on that date concerning this, Gidionsen replied that it had been turned over to the auditors and that the vacation pay would be paid when the audit was complete. On 3 December Haggett filed a grievance on behalf of the employees in the unit for, their unpaid vacation pay in accordance with the re- quirement for vacation pay in the collective-bargaining agreement. Haggett followed the filing of the grievance with a 15 December telephone call to Gidionsen inquir- ing whether Gidionsen had any information concerning the vacation pay and Gidionsen replied in the negative. On 15 December, Guerra sent a copy of the grievance to Respondent and requested a meeting on the grievance. To date Respondent has not responded to the grievance nor has it paid the accrued vacation pay to its employ- ees. It has also not responded to the Union's request to bargain regarding a closing agreement concerning the ef- fects of its closing . In February 1987 the hotel was par- tially destroyed by fire. Analysis The Respondent defends its actions in failing to re- spond to the Union's request to negotiate a closing agree- ment on the Union's alleged lack of diligence in specify- ing and pressing for a closing agreement and the Union's alleged waiver of its rights to negotiate such an agree- ment and asserts that special circumstances exist by reason of Respondent's poor financial condition, which obviated its obligation to negotiate with the Union con- cerning the effects of the closing on the employees. I find, however, the evidence demonstrates that the Union made several attempts , including both telephonically fol- lowing its receipt of notice of the closing, and by letter within a reasonably brief period of time to negotiate con- cerning the effects of the closing but was ignored or re- buffed in each instance . I also do not find that the Union was under any obligation to specifically outline what it sought on behalf of its members concerning the effects of the closing in the absence of Respondent's affirmative re- sponse and actual engagement in negotiations concerning the effects of the closing. I also find that the Respondent has failed to demonstrate any special circumstances that obviate its obligation to bargain. It is well established that Respondent had an obligation to bargain concerning the effects of the closure on the terms and conditions of employment of its employees. Its failure to do so consti- tuted a violation of Section 8(a)(5) and (1) of the Act. Royal Plating & Polishing Co., 160 NLRB 990, 996 (1966); Interstate Tool Co., 177 NLRB 686 (1969); Cross Co., 274 NLRB 392 (1985). I further find that the fire at Respond- ent's premises in February 1987 has no relevancy to this issue, as the refusal to bargain occurred 2 months prior to the fire and at a time when the hotel was still in oper- ation. I find that the grievance (concerning Respondent's failure to pay its employees' accrued vacation pay in ac- cordance with the labor agreement ) was filed by the Union within a reasonable period of time . The grievance was also followed up by a request to meet concerning it but Respondent failed to do so. Here again the Union acted with reasonable diligence in processing this griev- ance but Respondent refused to answer it. Although Re- spondent closed its operations, I find it had a continuing obligation to honor its contractual commitment to pay accrued vacation under the clear language set out in the labor agreement extended by the parties and its refusal and failure to do so constituted a unilateral change in violation of Section 8(a)(5) and (1) of the Act , Pere Mar- uette Park Lodge, 237 NLRB 855 (1978). See also Weath- ercraft Co. of Topeka, 276 NLRB 452 (1985), and Crest Floors & Plastics, 274 NLRB 1230 (1985) (re: implement- ing changes in an expired labor agreement without giving appropriate notice to Federal and state agencies under Sec. 8(d) thus giving rise to a violation of Sec. 8(a)(5) of the Act). Respondent's contention in its brief that this matter should be deferred to arbitration is misplaced and must be rejected as Respondent by its failure and refusal to even answer the grievance has demonstrated its unwill- ingness to utilize the grievance machinery contained in the labor agreement. Moreover , the contractual language is clear that there is an obligation to pay the accrued va- cation pay and that Respondent did not comply with this obligation. Respondent's counsel raised questions at the 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hearing concerning whether all the unit members were entitled to vacation pay. However, any question con- cerning this can be readily resolved at the compliance stage. In sum, this is a clear-cut case of Respondent's re- fusal and failure to abide by its contractual obligation and the consequent unlawful unilateral change that should be and is readily addressed by the recommended decision in this case. To require the Union to now proc- ess a grievance under the circumstances of this case would be a waste of the resources of all involved and serve only to delay the final disposition of this case. In Rapid Fur Dressing, 278 NLRB 905 (1986), the Board found an employer who was a party to an existing col- lective-bargaining agreement violated Section 8(a)(5) and (1) of the Act by unilaterally refusing and failing to pay vacation benefits to the appropriate fund on its filing of a petition in bankruptcy and by unilaterally discontinuing the contractually required payments to the pension fund. In finding a violation, the Board noted on the motion for a summary judgment that no material facts were in dis- pute and rejected contentions that this was merely a dis- pute over contract interpretation. I find that in the in- stant case a finding of a violation of Section 8(a)(5) and (1) of the Act is appropriate rather than deferral to arbi- tration as suggested by Respondent. The General Counsel has requested a remedy as set out in Transmarine Navigation Corp., 170 NLRB 389 (1968). I find such a remedy is appropriate in this case to provide a meaningful remedy in view of the length of time that has expired since the closure of the business and the necessity of ensuring that the employees are made whole for the losses suffered by them as a result of Respondent's refusal and failure to negotiate. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent violated Section 8(a)(5) and (1) of the Act by its failure and refusal to meet with the Union to bargain the effects of the closure of its business as re- quested by the Union. 3. The Respondent violated Section 8(a)(5) and (1) of the Act by its unilateral refusal to pay accrued vacation pay to its terminated employees under the terms of the collective-bargaining agreement. 4. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take the following affirmative actions, including the posting of an appropriate notice, designed to effectuate the policies of the Act. I recommend Respondent be ordered to bargain with the Union on request concerning the effects on the unit employees of the closure of the business and pay these employees amounts at the rates of their normal wages at the time of the closure and their termination of employ- ment by Respondent from 5 days after the date of this Decision until the occurrence of the earliest of the fol- lowing conditions: (1) the date the Respondent bargains to agreement with the Union concerning the effects on the unit employees, (2) a bona fide impasse in bargaining, (3) the failure of the Union to request bargaining within 5 days of this Decision or to commence negotiations within 5 days of the Respondent's notice of its desire to bargain with the Union or, (4) the subsequent failure of the Union to bargain in good faith; but in no event shall the sum paid to any employee exceed the amount he would have earned in wages from the date on which Re- spondent terminated its operations to the date he secured equivalent employment and wages elsewhere. Further each employee shall receive a sum of not less than he would have earned for a 2-week period at the rate of his normal wages at the time of his last day of employment by Respondent. I recommend that Respondent be or- dered to make whole the employees for loss of their ac- crued vacation pay with interest as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as cal- culated in New Horizons for the Retarded, 283 NLRB 1173 (1987). See generally Isis Plumbing Co., 138 NLRB 716 (1962). I do not recommend a visitatorial clause as requested by the General Counsel, in the absence of any special circumstances that would warrant the inclusion of one. On the foregoing findings of fact and conclusions of law, I issue the following recommended2 ORDER The Respondent, The Gateway Hotel Corporation d/b/a The St. Louis Gateway Hotel, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from refusing to bargain with the Union with respect to the effects on its unit employees' of its decision to close its hotel operation and from fail- ing and refusing to pay the employees vacation pay ac- crued at the time of their termination as a result of the closure. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Pay the unit employees their normal wages for the period set forth in this Decision. (b) Pay the unit employees for accrued vacation pay at the time of the closure with interest thereon. (c) On request, bargain in good faith with Automobile, Petroleum and Allied Industries Employees Union Local 618, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America with respect to the effects on the unit employ- ees of its decision to close its hotel operations and reduce to writing any agreement reached as a result of such bar- gaining. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- 2 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 ST. LOUIS GATEWAY HOTEL 867 essary to analyze the amount of backpay due under the notice, on forms provided by the Regional Director for terms of this Order. Region 14, after being signed by their authorized repre- (e) Post at its facilities in St Louis, Missouri, copies of sentatives, shall be mailed to the employees in the unit the attached notice marked "Appendix."3 Copies of the immediately on receipt. (f) Notify the Regional Director in writing within 20 3 If this Order is enforced by a judgment o,F a United States court of days from the date of this Order what steps the Re- appeals, the words in the notice reading "Posted by Ordel of the Nation - spondent has taken to comply. al 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 "