Denver Hilton Hotel

488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hilton Hotels Corporation, d/b/a the Denver Hilton Hotel and Local Union No. 1823, of the Inter- national Brotherhood of Electrical Workers, AFL-CIO and Thomas R. Harberson. Cases 27-CA-7956 and 27-CA-8139 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 February 1984 Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the decision.' 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, 2 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) by refusing to reinstate sympathy strikers Harberson and Talley following their un- conditional offer to return to work. In so doing, the judge rejected the Respondent's contention that it had permanently replaced Harberson and Talley with two employees, Bozic and Jude, who had been hired during the strike. The judge concluded that neither Bozic nor Jude had, for any apprecia- ble time, functioned as replacements for Harberson or Talley. In so concluding, the judge relied on evidence of the wage rates and work assignments of Bozic and Jude vis-a-vis Harberson and Talley. He also relied on the absence of any probative credible evidence that Bozic and Jude had been given to expect permanent employment. . The judge rejected the Respondent's contention that the Board should defer to a 'board of atbitra- tion award which had denied grievances pertinent to the instant dispute. The judge noted that the ar- bitrators had found that the Respondent had per- manently replaced Harberson and Talley and had ' Charging Party Thomas Harberson has filed a motion to revoke Re- spondent's motion for an extension of time to file exceptions. The Charg- ing Party's motion is denied. 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) Since we have determined, as discussed infra, to dismiss the complaint herein and defer to the arbitrators' award, we do not reach the merits of the underlying unfair labor practices alleged Accordingly, the Judge's credibility resolutions are Irrelevant to our disposition of this case not discharged them in contravention of the collec- tive-bargaining agreement because of their partici- pation in the sympathy strike. Nevertheless, the judge found deferral inappropriate here because, in determining that Harberson and Talley had been permanently replaced, the arbitrators did not con- sider the factual issue of whether the newly hired individuals actually assumed the work tasks of grievants Harberson and Talley on a regular basis. Thus, even though the board of arbitration had considered and accepted testimony and other evi- dence that both grievants had been permanently re- placed, the judge nevertheless found that, pursuant to Olin Corp., 268 NLRB 573 (1984), the General Counsel had established that the fl arbitral decision was not based on facts relevant to resolving the statutory claim. The Respondent excepts to these findings and contends that the Board should defer to the deci- sion of the arbitrators and dismiss the complaint. We find merit in the Respondent's contention. In Olin Corp., supra, we determined that, unless an award is "palpably wrong," we would defer to it where (1) the contractual issue is factually parallel to the unfair labor practice issue and (2) the arbi- trator was presented generally with the facts rele- vant to resolving the unfair labor practice. Finally, we required that the party seeking to have the Board reject defetral and consider the merits of the case show that the above standards have not been met. Applying the above criteria to the instant case, we find that deferral is appropriate and that the General Counsel has failed to establish any defects in the arbitral process which would warrant our re- jecting deferral and considering the merits of the unfair labor practice alleged. First, we note that the contractual issue considered by the arbitrators is factually parallel to the issue presented in the unfair labor practice allegation. Thus, the resolu- tion of both the contractual issue and the unfair labor practice allegation was contingent on the fac- tual finding of whether Harberson and Talley had been permanently replaced during the strike, as contended, by the Respondent. Accordingly, the contract issue and the unfair labor practice issue are factually parallel. Second, we note that the arbitrators were pre- sented generally with the facts relevant to resolv- ing the unfair labor practice. Thus, in finding that Harberson and Talley had been permanently re- placed, the arbitrators were presented with the tes- timony of Personnel Director Schneider that the Company has continued to carry these two individ- uals on the payroll and to pay for certain of their fringe benefits. The arbitrators also considered evi- 272 NLRB No. 78 DENVER HILTON HOTEL 489 dence that Talley and Harberson had been in- formed that they were being permanently replaced and that they were placed on a preferential hiring list. Further, contrary to the judge, evidence per- taining to the job tasks assumed by the permanent replacements was presented to the arbitrators. For example, Sam Collyer, the arbitrator designated by the Respondent, testified at the hearing in this case that in the arbitration proceeding Personnel Direc- tor Schneider testified that Jude and Bozic were hired to do electrical work. Accordingly, we find that although details of the job duties of the perma- nent replacements were not adduced at the arbitra- tion hearing, the arbitrators were presented with sufficient evidence to resolve even this aspect of the general question. We find, for these reasons, that the evidence of the permanent replacements' particular job tasks which the General Counsel presented to the judge in this case fails to establish that the arbitrators were not presented generally with the relevant facts pertaining to the question of whether Harberson and Talley had been perma- nently replaced. We conclude that the General Counsel has failed, under Olin Corp., to show either that the arbitrators' award is repugnant to the Act, or that the arbitral process herein was de- fective. Accordingly, we shall defer to the award of the board of arbitration and shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These cases were tried at Denver, Colorado, October 20 and 21, 1983. The charges were filed July 14 and No- vember 5, 1982, by Local Union No. 1823 of the Interna- tional Brotherhood of Electrical Workers, AFL-CIO (Union) and Thomas Harberson, respectively, and the consolidated complaint was issued August 24, 1983. The primary issue is whether Hilton Hotels Corporation, d/b/a The Denver Hilton Hotel (Respondent) unlawful- ly refused to reinstate sympathy strikers Harberson and Bill Talley on grounds that their jobs had been taken by permanent replacements, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. On the entire record, including my observation of the demeanor of witnesses, and after consideration of briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation operating a hotel and convention facility in Denver, Colorado, at which it annually derives gross revenues in excess of $500,000. In the course and conduct of these operations Respondent annually purchases and receives goods and materials in excess of $50,000 which originated directly from points outside Colorado. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Basis of Analysis Respondent comprises a large convention hotel with approximately 500 employees, over 400 of whom are represented by the Hotel Employee & Restaurant Em- ployees International Union in basic housekeeping, culi- nary, and related functions. Of the remaining employees, 22 appear in classifications that include watch engineer, maintenance, carpenter, painter, and plumber as members of Local Union No. 1 of the International Union of Op- erating Engineers (IUOE) A smaller unit of electricians is represented by the Union, an affiliate of IBEW. Each of these three labor organizations has an established col- lective-bargaining relationship with Respondent. As con- tractualy described, the scope of work for IBEW-repre- sented employees was installation, maintenance, and repair or removal of all electrical or electronic equip- ment, apparatus, devices, or machinery on the premises, plus operating spotlights, electrical, and electronic equip- ment as the employer would from time to time require. Chief Engineer Robert Langdon is in overall charge of maintenance operations. On July 1, 1982, IUOE commenced an economic strike against Respondent.' Electricians initially honoring the IUOE picket line were Robert Kearney, IBEW stew- ard, plus journeymen Harberson and Talley and helper Walt Clinton. Gene Dickens, the fifth member of the IBEW bargaining unit, was on vacation at material times. On July 7 Clinton returned to work, while the remaining three continued their sympathy action. On July 123 IUOE and Respondent reached a strike settlement agree- ment, which provided that all striking members of that labor organization would be immediately reinstated. IBEW members promptly learned of the strike settle- ment, and the following morning Harberson and Talley reported in together at 7 a.m. They conversed with Langdon about what their assignment might be for the day. He replied that a work schedule was not yet pre- pared and they should return the next morning. After saying this, he referred them to Howard Small, a person- nel functionary, who advised that they had each been permanently replaced. This advice was confirmed in a letter to each of them dated July 14 from General Man- ager Larry Kirk, explaining that because of a "permanent 1 An dates and named months hereafter are in 1982, unless otherwise indicated. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike replacement," work was not available to either of them at the time and that they would be placed on a preferential reinstatement list according to seniority. Harberson had been employed by Respondent for 3 years and was paid a journeyman wage of $10.85 per hour, including an amount in lieu of pension and second- shift differential of 15 cents. His primary duty had in- cluded electrical repair work, relamping, and running the control room. Talley had been employed just under 3 years at $10.70 per hour on days, and primarily engaged in television repair, electrical maintenance work, and other duties including the antennas, control room ampli- fier, and spotlights. Aside from the entire electrical department, the IUOE strike had also enlisted sympathy action at the beginning by about 75 employees of the hotel's main bargaining unit. Respondent adjusted to this accumulative disruption by pressing nonunion employees into needed service, and bringing in key personnel from other Hilton facilities for temporary assistance. A particular burden fell on Lang- don who with his assistant, Joe Havey, split the constant boilerroom watch while handling all repair and mainte- nance on an emergency basis. On July 6, licensed watch engineer Dale Warner had returned to work off the IUOE strike, and this, coupled with Clinton's return to the electrical department on the next day, alleviated some of the pressure. Langdon testified that by July 6 he was interviewing strike replacements, and had soon hired approximately 20 individuals. Among these were Mike Bozic who started on July 7, and Tim Jude who started that midnight at 12:01 a.m. on July 8. Both had answered a help wanted ad being run by Respondent and came in to apply. Langdon testified to telling Bozic and Jude that they would be permanent strike replacements. Langdon recalled Bozic doing general electrical maintenance work during the strike, with illustrative duties of motor rewir- ing, switch repair, and light bulb changing. Jude's appli- cation had presented a background in electronics, which as Langdon testified caused his assignment to be princi- pally television repair for the first couple of weeks of his employment with some electrical work interspersed. Bozic and Jude were each recorded as maintenance em- ployees and paid $9 per hour. In early August they were each promoted to electrician-helper, with an increased hourly rate associated to the IBEW contract. Bozic was eventually laid off in October while Jude has continued in Respondent's employ. Warner testified that beginning July 7 the hotel had three electricians comprised of Clinton, Bozic, and Jude. The latter two of these had been identified to him by Langdon as being available for, electrical maintenance work and television repair, respectively. Following this he recalled personally introducing Jude to the television shop where sets awaited repair, and to understanding that this became Jude's primary duty except for an occa- sional electrical job. Warner also testified that while the strike was still in progress he was instrumental in distrib- uting work assignments of the maintenance department, and that he distinguished these by giving electrical work orders only to the three employees so specified. Jude tes- tified that on his first shift he was toured through the maintenance facilities by Warner and a person from Dallas, Texas, after which he returned to the television shop to commence backed-up repairs. He initially con- centrated on simpler repairs to older sets, and was also occasionally called on for electrical repairs or changing lights. Kearney had returned to work on the afternoon of July 13. At that point Clinton had been back to work nearly a week, and Kearney resumed his own duties by performing general electrical repair work and operating microphones. He testified that on the evening of July 13 he had seen Anthony Pinnegar carrying a box of light bulbs. Pinnegar had been hired as a strike replacement on July 7 and classified as maintenance at a $9 hourly rate until his employment terminated on July 14. Lang- don denied ever issuing instructions for Pinnegar to change light bulbs and testified that he was without knowlege of this occurring. Langdon's version of the morning visit on July 13 by Harberson and Talley is that they spoke with him out- side his office asking what they were then supposed to do. Langdon said he had no work scheduled for either of them that day, and left them standing there while he went into his office to telephone the personnel depart- ment for clarification of whatever legalities were in- volved. He recalled personnel telling him to have them report to that department, but when his call was over they had apparently walked away. Langdon denied having told Harberson and Talley to report back the next morning. The maintenance department utilizes sign-in sheets which are ordinarily headed for the three discrete func- tions of electrical, watch engineer, and maintenance. In normal times these are typed in advance for given work- weeks, employees sign in and out with their starting and quitting time. The week ending July 10 was the first on which the strike dynamics were reflected, as Warner reappeared starting July 6 as a watch engineer, Clinton resumed his duties as an electrician-helper on July 7, Dickens was recorded on vacation, and numerous re- placements for IUOE striking maintenance employees were shown on the payroll by July 7. Bozic and Jude both signed in throughout week ending July 10 under the maintenance heading, while for week ending July 15 Bozic and Pinnegar signed as electricians (the latter having shown on maintenance the week before) and Jude still showed on the maintenance list. By the separate week ending recorded as July 17 both Bozic and Jude were appearing as electricians. Talley testified that when he entered his 'signature on the sign-in sheet around 7 a.m. on July 13, there were no handwritten names ap- pearing on it below a typed listing of the customary five employees. B. Analysis - The issue of this case arises in a hectic factual setting in which a withdrawal of services affected all phases of hotel operations. The maintenance department was most clearly impacted with all bargaining unit personnel at first unavailable, and then only token reporting to cover the key watch engineer and electrical maintenance func- tions. Further relief did not materialize until the various DENVER HILTON HOTEL 491 replacement employees began reporting by July 7 This is the general contegt of applying established principles under which sympathy strikers such as Harberson and Talley possess an entitlement to be reinstated upon an unconditional offer to return to work, unless the employ- er meets a burden of showing that replacements are in fact permanently positioned in their jobs or that some substantial business justification for refusing reinstate- ment is present Laidlaw Corp, 171 NLRB 1366 (1968), Hood River Hospital, 235 NLRB 455 (1978), Trinity Valley Iron Co, 158 NLRB 890 (1966) I first credit Harberson and Talley with regard to the July 13 episode involving Langdon Each of these wit- nesses for the General Counsel was of persuasive de- meanor, and I find from their testimony that they com- municated their willingness to immediately resume work and were told by Langdon to reappear the next morning From this the issue devolves to whether either had been permanently replaced in their position of journeyman maintenance electrician On that key point I discredit much of Langdon's offerings, finding his demeanor un- convincing, his testimony unreliably at odds with perti- nent documentations and the operational probabilities of this strike squation Contrary to what Langdon now as- serts I am satisfied that no objective showing has been made that either Bozic or Jude constituted a replacement employee, let alone one of permanent character They were each identified in the hiring process merely as maintenance workers, a fact harmonizing with contents of Respondent's help wanted ads Then they were paid an arbitrarily established wage rate at the outset and, more importantly, there is no probative evidence to es- tablish that they were given to expect permanence Bozic did not testify, Jude was evasive on the point, and I dis- credit Langdon's claim that he explained such status to either of them Insofar as their anticipated task assign- ments are concerned, they were officially registered to the IUOE jurisdiction Most critically, I disbelieve Lang- don's assertion that the personnel authorization records for each of these individuals contains a bona fide nota- tion of their permanence, for I am satisfied that such en- tries were an afterthought implemented only to deceive This warrants an inference that Respondent's agent in- tended a rebuke to those engaging in sympathetic strike action, and singled out two particular IBEW members for retaliatory treatment What is further evident in this case is that unstructured utilization of various new hires was undertaken as best as circumstances would allow during the eventful early July period, and the extent to which Bozic performed electrical maintenance work was no more than random happenstance The situation with Jude is even more pro- nounced, for he was at best of marginal experience in tel- evision repair It is simply unlikely that Respondent would confine him to such work, on a midnight shift, something no other electrician had ever done Finally, I credit Talley's convincing testimony to the effect that he found little indication of substantial progress with unre- paired televisions, comparing prestrike status to that when he next saw the shop This is also a reflection of his infinitely superior qualifications in television repair as compared with Jude In so concluding I further discredit Warner, whose testimony impressed as artificially slanted to assist his employer's case Respondent's claim of having replaced both IBEW members is best exposed as sham by Kearney's credible testimony of having compre- hended that Pinnegar was even overlapping with normal tasks of electricians Overall there is simply not the clear assumption of total job obligations that would permit it to be successfully said Bozic and Jude actually func- tioned for any appreciable time, or to any recognizable degree, as craft replacements of Harberson or Talley C Respondent's Affirmative Defense This dispute had been presented to a board of arbitra- tion in August On October 5 a written award was ren- dered in which pertinent grievances were denied The essential reasoning of the award was that employees' contractual entitlement to avoid discipline or discharge for engaging in a sympathy strike was not violated by the employer making permanent replacements of both Harberson and Talley The majority of the board of arbi- tration accepted testimony that neither grievant was dis- charged from employment, but in fact retained certain residual fringe benefits and the inclusion on a preferential hiring list Respondent contends that deferral should be given to this award under the standards of Spielberg Mfg Co, 112 NLRB 1180 (1955) The National Labor Relations Board now requires that in resisting such a deferral argument the General Coun- sel must affirmatively demonstrate defects in the arbitral process or award Olin Corp, 268 NLRB 573 (1984) Ad- ditional standards for deferral under Olin are a showing that the contractual issue was factually parallel to the unfair labor practice issue, and that the abitrator was pre- sented generally with the facts relevant to resolving the unfair labor practice Here the 14-page award covers several doctrines of labor law, alludes to the pending unfair labor practice charge, and expressly refers to Sec- tion 8(a)(3) of the Act However, the board of arbitration did not in any remote way deal with the factual issue of whether certain new individuals actually assumed the es- tablished task patterns of the grievants and did so on a regular basis This is separate and apart from my further express finding that Langdon has attempted to deceive respecting the true utilization of Bozic and Jude during the disordered days of early July, and he has proffered spurious records in the process For this reason the factu- al issue that was present in the arbitral process was dis- similar to that of the unfair labor practice charge, and was not in even a general way presented to the board of arbitration On this basis the General Counsel has met the burden of demonstrating how this arbitral decision was not based on facts relevant to resolving the statutory claim I therefore reject Respondent's contention that de- ferral to the award be given CONCLUSION OF LAW By failing and refusing to reinstate Harberson and Talley following their unconditional offer to return to work, Respondent engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it is necessary to order it to cease and desist and to take certain affirmative action designed to effectuate policies of the Act. Respondent having discriminatorily failed and refused to reinstate Harberson and Talley, it must offer them re- instatement, dismissing, if necessary, any persons hired as claimed replacements on or after July 7, and make them whole for any loss of earnings and other benefits, com- puted on a quarterly basis during the period from 5 days after the date on which they unconditionally offered to return to work to the date of reinstatement, less any net interim earnings, as prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]