Hotel & Restaurant Employees Local 355 (Di Lido Hotel)

HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DI LIDO HOTEL) 265 Hotel, Motel, Restaurant and Hi-Rise Employees and Bartenders Union, Local 355, AFL-CIO and Di Lido, Inc , d/b/a Di Lido Hotel Case 12-CB-2572 24 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 11 April 1984 Administrative Law Judge Mi- chael 0 Miller issued the attached decision The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief to the Charging Party's exceptions 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 brief 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 0 MILLER, Administrative Law Judge This case was heard on February 8, 1984, in Miami, Florida, based on a charge filed by Di Lido, Inc , d/b/a Di Lido Hotel (the Charging Party), on October 11, 1983, and a complaint issued by the Regional Director for Region 12 of the National Labor Relations Board, on November 17, 1983, as amended 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)(3) of the National Labor Relations Act (the Act), by failing and refusing to fur- nish the Charging Party with requested information which was relevant and necessary for collective-bargain- ing purposes Respondent, by its timely filed answer, denies the substantive allegations of the complaint All parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, and to argue orally Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Re- spondent Based on the entire record, 1 including my observation of the witnesses and their demeanor, I make the follow- ing 1 Errors in the transcript have been noted and corrected FINDINGS OF FACT I THE CHARGING PARTY'S BUSINESS AND THE UNION'S LABOR ORGANIZATION AND REPRESENTATIONAL STATUS—PRELIMINARY CONCLUSIONS OF LAW The Charging Party is a Netherlands Antilles corpora- tion which owns and operates the Di Lido Hotel, a resort hotel in Miami Beach, Florida The complaint al- leges, and the record establishes, that the Charging Party has an annual gross revenue in excess of $500,000 per year, and annually receives in excess of $50,000 per year in the form of advance paid reservations from clientele and organizations located outside the State of Florida I therefore find and conclude that the Charging Party is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The complaint alleges, Respondent admits, and I find and conclude that the Respondent is a labor organization within the meaning of Section 2(5) of the Act The complaint alleges, and Respondent admits, that at all times material, Respondent has been the lawfully des- ignated exclusive collective-bargaining representative of the Charging Party's employees in the follwing unit which Respondent admits and I find and conclude is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All employees employed at the Di Lido Hotel in the following departments housekeeping, food and beverage including cashiers and checkers, front service, telephone communications, maintenance and engineering, and laundry, excluding all front office cashiers and other clerical employees, execu- tives, department heads, managerial employees, guards, and supervisors as defined in the Act II MOTIONS On February 23, 1984, the General Counsel moved to withdraw complaint and terminate these proceedings on the ground that recent decisional developments had re- moved the legal underpinnings of its theory The Charg- ing Party opposed the motion and argued that pursuant to Leeds & Northrup Co v NLRB, 357 F 2d 527 (3d Cir 1966), and related cases, it is entitled to a hearing on this issue Treating this latter issue first, I find that in the circum- stances presented here, no additional hearing is warrant- ed There has already been a full evidentiary hearing The Charging Party's counsel was present throughout that hearing, assisting the General Counsel in the presen- tation of its case 3 Moreover, based on that fully devel- oped evidentiary record, the Charging Party presented its arguments in opposition to the General Counsel's motion to withdraw complaint and could have, but did 2 Holiday Southwest, 202 NLRB 781 (1973) 3 The Charging Party s attorney, Joel I Keller, initially made and then withdrew his appearance as its counsel of record when it became evident that testimony he intended to give would be disputed by witnesses to be presented on Respondent s behalf 272 NLRB No 40 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not, further argue its position in a brief to this adminis- trative law judge. Leeds & Northrup, supra, and the other cases cited by the Charging Party, involve situations wherein complaint was withdrawn by the General Counsel pursuant to a settlement agreement and without hearing. Such cases are inapposite to the instant situation where there has been a hearing with its attendant opportunities to fully develop the record and to argue on motion and in briefs from the facts so developed. Moreover, such cases as Ladies Garment Workers Local 415-475 (Arosa Knitting Corp.) v. NLRB, 501 F.2d 823 (D.C. Cir. 1974), make clear that even when a complaint is withdrawn pursuant to a settlement, it is only the opportunity to be heard and not necessarily an evidentiary hearing which is required. Finally, I note that the instant case is more akin to George Banta Co. v. NLRB, 626 F.2d 354 (4th Cir. 1980), than it is to Leeds & Northrup, supra. In George Banta, complaint was withdrawn prior to hearing by the Re- gional Director upon his independent conclusion that the available evidence would not sustain the charge. An action so based was deemed distinguishable from the ap- proval of an agreement settling a meritorious charge and was held to be a matter of unreviewable prosecutorial discretion; there is no right to a hearing under such cir- cumstances. Accordingly, the Charging Party's request for a hear- ing on the General Counsel's motion is denied. I also find that, inasmuch as this matter was fully liti- gated before me, a decision on the merits under existing Board law, rather than withdrawal of the complaint as requested by the General Counsel, is the most appropri- ate resolution of this matter. Such a procedure, which will result in a similar disposition of the merits, as dis- cussed more fully infra, is necessary to give all parties the fullest appellate rights. Accordingly, the General Counsel's motion to withdraw the complaint is denied. III. THE ALLEGED UNFAIR LABOR PRACTICE Pursuant to the 1980-1983 collective-bargaining agree- ment between the Di Lido Hotel and the Union, the unit employees received health and dental insurance under employer funded plans administered by the South Flori- da Hotel and Culinary Employees Welfare Fund. 4 This fund maintains at least one, but not all, of its offices in the building which houses the Union's offices and at least two of the Union's officers, its secretary/treasurer and business manager Alvaro Gonzalez and its business agent Robert Menditto, who are trustees of the fund. The record does not reflect who served as the fund's counsel from August through October 1983. 5 Respondent's coun- sel at this hearing, Joseph Kaplan, became the fund's counsel sometime subsequent to October and remained in that position at least until the date of hearing. The first meeting between the parties to negotiate a contract to succeed the 1980-1983 agreement was held on August 1. At that time, the Union, represented in bar- gaining by Kaplan and Martinez, gave the Charging ' In the contract, the fund is identified as the Hotel Employees. Union- Hotel Association Insurance Fund. 3 All dates are 1983 unless otherwise specified. Party, represented by its attorney and negotiator Joel I. Keiler, its contract proposals Included were requests for increase in the employer contributions to the dental, health and welfare, and pension funds. At the second meeting, held on August 4, Keiler pre- sented the Charging Party's counterproposals, including proposals for other dental and health and welfare fund coverages. The Union, represented at this meeting by at- torney Howard Susskind, Martinez, and Martinez' assist- ant Robert Shwab, asked for summary descriptions of the insurance plans proposed by the Charging Party. Keller agreed to furnish those summaries and requested more extensive documentation from the Union. Specifi- cally, he requested copies of the actual contracts be- tween the benefit funds proposed by the Union and the insurance carriers as well as the contracts between those funds, the carriers, and the dentists who would be pro- viding the dental services. The Union countered by asking for the same documents that Keiler had requested. While Keller's testimony contains no reference to any agreement by the Union to provide the requested docu- ments, Shwab recalled a discussion wherein the Union told Keiler, "We were going to exchange whatever doc- uments he had and we were going to give him the same plan documents." About August 25, in a conversation with Matt Mierzwa, a paralegal in Kaplan's office, Keiler repeated his request for the contracts underlying the Union's health and welfare and dental funds. Mierzwa told him that the documents would be mailed to him. Not having received those documents, Keiler repeated his request at the third bargaining meeting directly to Kaplan. The record does not reflect Kaplan's response, if any. In mid-September Keiler spoke again with Mierzwa concerning the date for the next meeting. Once again, Keiler requested the fund documents and, once again, Mierzwa promised to furnished them prior to the next meeting. The final meeting took place on October 6. Keller re- peated his request for the documents, describing once again what it was that he wanted. According to Keiler, Kaplan replied, "I don't know if the trust fund will give them to me. I will ,talk to somebody at the trust fund about it." Keiler asked when that would be and, when Kaplan said that he did not know, told Kaplan, "Fine. When you get around to it and when you talk to that person and when he gives you the documents, let me know." Keiler put his papers together, told the Union, "That's it," got up and left. He denied that anyone from the Union told him that he should contact the trust fund or its counsel.° Respondent has never furnished the Charging Party with the requested documents. There is no evidence that the Union actually possesses these documents; neither is there any evidence that either the Charging Party or the Respondent made any effort to secure these documents 6 The testimony of both Kaplan and Shwab essentially corroborate that of Keiler. Both indicate that Kaplan offered to contact the trust fund or its attorney to determine whether those contracts would be available Determination of the relevant facts thus requires no resolution of the credibility issues raised by Respondent's counsel. HOTEL & RESTAURANT EMPLOYEES LOCAL 355 (DI LIDO HOTEL) 267 directly from the trust funds 7 There is no evidence that the Union interfered in any way with the Charging Party's efforts to secure the requested documents Discussion The General Counsel had premised issuance of this complaint upon the Board's decision in Hospital Employ- ees (Sinai Hospital), 248 NLRB 631 (1980) In that case, "a union's collective bargaining representative, who was also trustee of a health and welfare trust fund from which the employer with whom the union was engaged in collective bargaining requested relevant information, collaborated with the other union trustees to block the employer's information request" The Board held "that the union representative violated Section 8(b)(3) of the Act as a trustee of the fund by intentionally preventing the employer's access to the requested information and that the union representative thereby violated his 'affirm- ative obligation to make a reasonable effort to obtain the information, or to investigate reasonable alternative means for obtaining it, or to truthfully explain or docu- ment the reasons for its unavailability " However, in Food & Commercial Workers Local 1439 (Layman's Market), 268 NLRB 780 (1984), from which the above- quoted language was taken, the Board limited its Sinai Hospital decision to situations "where a collective bar- gaining representative demonstrates that it is in de facto control of a nominally Independent trust fund" Applying that principle in Layman's, the Board found no violation where the union trustee took no action to prevent the employer from gaining access to the requested informa- tion and cooperated with the employer to the extent of providing that employer with the means of obtaining the information it sought The Board pointed out that the Union did not possess the specific information which the employer had sought The Board did not impose the burden of securing the information, a task which the em- ployer could perform equally well, upon the union's col- lective-bargaining representative Even assuming that Respondent's conduct would have violated Section 8(b)(3) under the standards established in Sinai Hospital, I must agree with the Respondent and the General Counsel that no violation may be found under the present state of Board law Thus, here as in Layman's, there was no evidence that the Union was in 7 Keller, an experienced attorney who has served as a management trustee of a similar fund, must be presumed to know how one would re quest such documents directly from the trust fund de facto control of the trust funds and there was no evi- dence that any union trustee acted to prevent the em- ployer from gaining access to the requested information And, while it is true that no representative, an experi- enced attorney and former management trustee of a simi- lar trust fund, was capable of requesting the information directly from the trust fund The Charging Party contended, in its opposition to the General Counsel's motion, that Layman's is inapposite to a situation where the union possesses the requested infor- mation It further contended that the requested informa- tion was in the Union's possession Applying Bartenders Union Local 355 (Dora! Beach Hotel) 245 NLRB 774 (1979), the Charging Party then argued that a union which refuses to turn over relevant documents which are in its possession must be found in violation of Section 8(b)(3) even if the employer had another source for ob- taining the documents The Charging Party's argument must fall as there is not a scintilla of evidence in this record that the contracts which Keller had requested were in the Union's possession No such conclusion can be drawn from the promise of Mierzwa, a paralegal in the Union's attorney's law office, to furnish such infor- mation, neither would it be reasonable to infer that the Union would normally possess such documents separate and apart from the trustee of the trust funds Moreover, Kaplan's statement at the last bargaining meeting, telling Keller, "I don't know if the trust fund will give them to me," is a clear indication that neither he nor his client possessed those documents In the absence of evidence that the Union possessed the requested documents, no finding can be made that it unlawfully refused to furnish them Accordingly, I shall recommend that this com- plaint be dismissed CONCLUSION OF LAW Respondent has not violated the Act in the manner al- leged in the complaint On these findings of fact and conclusion of law and on the entire record, I issue the following recommended8 ORDER The complaint herein 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