Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, L

318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 363 NLRB No. 33 Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Un- ion, Local 165, affiliated with UNITE HERE (Host International, Inc.) and Natalie Ruisi and Michael Peluso. Cases 28–CB–128997 and 28– CB–129003 October 30, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On March 17, 2015, Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Charging Parties filed exceptions and a supporting brief. The Re- spondent filed an answering brief. The National Labor Relations Board has delegated 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,1 and conclusions, and to adopt the recommended Order as modified and set forth in full below.2 1 The Charging Parties have excepted to some of the judge’s credi- bility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear pre- ponderance of all the relevant evidence convinces us that they are in- correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In the absence of exceptions, we adopt the judge’s finding that the Respondent violated Sec. 8(b)(1)(A) of the Act by refusing to honor Charging Party Michael Peluso’s resignation from union membership and timely revocation of his dues-checkoff authorization as well as the judge’s dismissal of the allegation that the Respondent violated Sec. 8(b)(1)(A) by delegating to the Employer the task of providing mem- bers with information, including their dues-checkoff authorization dates. The Charging Parties except to the judge’s dismissal of the allega- tion that the Respondent violated Sec. 8(b)(1)(A) by refusing to provide members with the dates they executed their dues-checkoff authoriza- tions in response to a telephonic request and instead requiring members to request the dates in writing, consistent with the Respondent’s stand- ard procedures. We agree with the judge’s finding that the Respond- ent’s action was not “so far outside ‘a wide range of reasonableness’ as to be irrational.” See Mail Handlers Local 307 (Postal Service), 339 NLRB 93, 93 (2003) (quoting Air Line Pilots Assn. v. O’Neill, 499 U.S. 65, 67 (1991)). Other Board precedent also supports the judge’s con- clusion. See Postal Service, 302 NLRB 701, 702 (1991) (finding union did not violate Sec. 8(b)(1)(A) when it responded to member’s request for anniversary dates of dues-checkoff authorizations by informing employee that standard procedure for obtaining those dates was to submit written revocation form); see also Boston Gas Co., 130 NLRB 1230, 1231 (1961) (contract clause requiring written notice of revoca- tion of dues-checkoff authorizations to both employer and union not so unduly burdensome as to effectively preclude employees from revoking dues assignment). 2 We amend the judge’s remedy to provide that the Respondent shall reimburse Peluso for dues deducted since February 20, 2014, with ORDER The National Labor Relations Board orders that the Respondent, Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Un- ion, Local 165, affiliated with UNITE HERE, its officers, agents, and representatives, shall 1. Cease and desist from (a) Refusing to honor revocations of dues-checkoff au- thorizations that were received in a timely manner pursu- ant to the terms of the checkoff authorization. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Notify Host International, Inc., in writing, that Mi- chael Peluso has effectively revoked his checkoff author- ization and no longer owes a financial obligation to Re- spondent under the checkoff provisions of Respondent’s collective-bargaining agreement with Host International, Inc. (b) Make Michael Peluso whole for the losses he has suffered as the result of the Respondent retaining moneys remitted to it on and after February 20, 2014, by Host International, Inc. pursuant to the checkoff provisions of Respondent’s collective-bargaining agreement with Host International, Inc. in the manner set forth in the remedy section of the judge’s decision as amended in this deci- sion. (c) Within 14 days after service by the Region, post at its Las Vegas, Nevada office copies of the attached no- tice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6, 9 (2010). We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with J. Picini Flooring, 356 NLRB 11 (2010). We shall substitute a new notice to conform to the Order as modified. 3 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” CULINARY WORKERS LOCAL 226 (HOST INTERNATIONAL) 319 communicates with its members by such means. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Within 14 days after service by the Region, deliver to the Regional Director for Region 28 signed copies of the notice in sufficient number for posting by Host Inter- national, Inc. at its Las Vegas, Nevada facility, if it wish- es, in all places where notices to employees are custom- arily posted. (e) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to honor revocations of dues- checkoff authorizations that were received in a timely manner pursuant to the terms of the checkoff authoriza- tion. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. WE WILL notify Host International, Inc. in writing that Michael Peluso has effectively revoked his authorization and no longer owes us a financial obligation under the checkoff provisions of our collective-bargaining agree- ment with Host International, Inc. WE WILL make Michael Peluso whole, with interest, for all moneys tendered to us by Host International, Inc. on behalf of Michael Peluso on and after February 20, 2014, pursuant to the checkoff provisions of our collec- tive-bargaining agreement with Host International, Inc. LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS, CULINARY WORKERS UNION, LOCAL 226, AND BARTENDERS UNION, LOCAL 165, AFFILIATED WITH UNITE HERE The Board’s decision can be found at www.nlrb.gov/case/28–CB–128997 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. Nathan Higley, Esq., for the General Counsel. Paul More, Esq. (McCracken, Stemerman & Holsberry), for the Respondent. Geoffrey MacLeay, Esq., National Right to Work Foundation, for the Charging Parties. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on January 27, 2015, in Las Vegas, Nevada. The consolidated complaint herein, which issued on July 31, 2014,1 was based upon unfair labor practice charges that were filed on May 20 by Natalie Ruisi and Michael Peluso, who were employed by Host International (the Employer), which has a collective-bargaining agreement with Local Joint Execu- tive Board of Las Vegas, Culinary Workers Union, Local 226 (Culinary Workers Union), and Bartenders Union, Local 165, affiliated with UNITED HERE, and collectively referred to as the Union or the Respondent. Ruisi and Peluso were each em- ployed by the Employer in job classifications covered by the contract with Union and were members of the Culinary Work- ers Union subject to the dues-checkoff provision of the con- tract. It is alleged that on about November 9, 2013, the Re- spondent, by Wanda Henry, its director of operations and an admitted agent of the Respondent, refused to provide its mem- bers with information, including the dates that they executed the union dues-checkoff authorization, so that they might can- cel their dues-checkoff authorizations and resign their member- ship in the Union. The complaint also alleges that “Jackie,” (last name unknown) is the Employer’s payroll representative, and that on about December 9, 2013, she provided members with incorrect information, including the dates that they execut- ed dues-checkoff authorizations; Respondent, in its answer, denies that “Jackie” is an agent of the Respondent. It is further 1 Unless indicated otherwise, all dates referred to herein relate to the year 2014. 320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD alleged that on about February 21, the Respondent refused to honor Peluso’s resignation of union membership and the can- celation of his dues-checkoff authorization, and that on about February 28, Henry informed union members that it would not provide members with information that they needed in order to cancel their dues-checkoff authorizations and to resign from the Union, and that they were not honoring resignations of union membership and the cancelation of union dues-checkoff agree- ments. These actions are alleged to violate Section 8(b)(1)(A) of the Act. I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondent admits, and I find, that the Employer has been an employer within the meaning of Section 2(2), (6), and (7) of the Act and that the Respondent has been a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS The Union represents approximately 60,000 employees, ap- proximately 50,000 of whom are members of the Union. Ruisi joined the Union in 2004; Peluso joined in 2007. Henry, as the Union’s director of operations, is in charge of responding to members questions regarding their union membership and their requests to resign from the Union or to revoke their dues- checkoff authorizations. She testified that she receives, on av- erage, three or four of such requests on a daily basis. The con- tract between the parties provides for dues-checkoff authoriza- tions and the contract and the dues-checkoff authorizations contain identical language about revocation: This authorization shall remain in effect and shall be irrevo- cable unless I revoke it by sending written notice to both the Employer and the Union by registered mail during a period of fifteen (15) days immediately succeeding any yearly period subsequent to the date of this authorization or subsequent to the date of termination of the applicable contract between the Employer and the Union, whichever occurs sooner, and shall be automatically renewed as an irrevocable check-off from year to year unless revoked as herein above provided… Ruisi, who was a shop steward for the Union in about 2008, testified that she called the Union on November 25, 2013, and said that she wanted to speak to somebody about resigning from the Union. She was told that Henry is the person to speak to and she was transferred to Henry. Henry identified herself and Ruisi asked, “How do I go about resigning from the Un- ion?” Henry answered that she had to send a letter on her anni- versary date. Ruisi asked what anniversary date, and Henry responded, “Your Union anniversary date.” When Ruisi asked, “How do I go about finding that out? Do you look that up for me?” Henry answered, “You have to call your payroll depart- ment.” Ruisi then asked if she had to send the letter registered or certified, and Henry said, “Send it however you want” and hung up on her. Ruisi’s testimony on what Henry told her be- came confused on cross-examination: Q: . . . she told you that she doesn’t look it up until he receives a letter? A: Yes, sir. Q: But she said I’m not going to look up anything un- less you send me a letter? A: No, sir. JUDGE BIBLOWITZ: Did she say in that conversation, “I’m not going to look up anything unless you send me a letter? The witness: That’s not how she said it, sir, no. Q: BY MR. MORE: So she said something to the effect of, “If you want me to look up your date, can you send me something in writing…right? A: No. No sir. She said…if I wanted to know my date, I had to contact my payroll department. Q: But you also testified on direct, that she told you, “I will not look it up until you send me a letter,” and you said that on cross as well. A: She did not say, “I will not look it up.” She said, “I don’t look it up until you send a letter.” Ruisi explained this apparent contradiction in her testimony in the following manner: A: Sir, she didn’t say that I needed to put a request to get my date in writing. She never said that to me. She said I needed to find out my dates by calling my payroll department and then I needed to send a letter by my anniversary date. Henry testified that she knows that Ruisi is employed by the Employer, but she cannot recollect anything about the conver- sation, except that it was probably about stopping her dues payments. She did, however, testify about how she responds to these requests from members generally. She receives two types of calls from members. One is from members who are no long- er working under a union contract or are on a leave of absence. The other is from members who are still employed under a union contract but wish to revoke their dues-checkoff authori- zation. The two most commonly used terms are “anniversary date,” the date that the employee/member executed the dues- checkoff authorization, and “window,” the 15-day period when they are permitted to revoke their dues authorizations. When members call stating that they no longer wish to pay dues to the Union, she tells them to send a written request to the Union and their employer within 15 days of the date that they executed their dues-checkoff card. When members call asking for their anniversary date she tells them that she does not give that in- formation over the phone: “They need to put a letter in the mail. And, at that time, I will do the research . . . If I stop someone’s dues—and I don’t know who you are when you call me. And that person loses rights when I stop someone’s dues. So, giving that information out is confidential and I only give it out when it’s done through a letter.” As the original of employees’ dues- checkoff authorization card is sent to their employer, if em- ployees ask her if there is another way that they can learn when they executed the card, she tells them that their employer has the card and that they can ask their payroll department for a copy of their card. If the employee sends his/her revocation letter to the Union in the window period, she notifies the em- ployer to stop deducting dues for the employee. If the letter is not within the window period, she notifies the employee that the request was not timely as it was not sent within the window period, and encloses a copy of the employee’s dues-checkoff CULINARY WORKERS LOCAL 226 (HOST INTERNATIONAL) 321 authorization card. Ruisi testified that on December 9, 2013, she called the Em- ployer’s payroll department and spoke to an employee named Jackie, last name unknown. She asked Jackie for the “Union anniversary date” for herself and Peluso, who was present while she was speaking to Jackie. Jackie said that she would need Peluso’s permission to give Ruisi his anniversary date, and Peluso got on the phone and gave his permission. Jackie responded that the only dates that she had were the dates that the Employer began deducting union dues, and those dates were August 16, 2004, for Ruisi, and March 8, 2007, for Peluso. By letter dated February 19, but sent by certified mail on February 20, Peluso (actually, Ruisi wrote the letter at his re- quest) wrote to Henry: I am writing this letter to inform you that after of [sic] March of 2014 I am resigning from this union. I personally have had my fill of the lying and corruption and feel since this union failed to properly represent me in the past I feel my union dues are better served in my pocket. I am contacting my pay- roll office to inform them as well. It is my right to resign as this is a right to work state and I do not have to be union to work in a union house. So again as of March I am no longer allowing any further un- ion deductions from my pay check if any deductions continue in to April I will be reporting this to the labor board and pos- sibly seeking legal action. Ruisi testified that she prepared this letter for Peluso and they sent it certified mail from the post office on February 20. After mailing the letter, Peluso called Henry a few times and when she didn’t answer, he left voice mails for her, the last of which said that she could call Ruisi who could speak for him. On February 25, Ruisi received a call from Henry. Ruisi asked if the Union received Peluso’s letter, and Henry said that they did receive it, but that they were sending it back because he had missed the cutoff date. Ruisi asked how he could have missed the cutoff date as the Employer’s payroll department said that it was March 8. Henry responded that she looked it up and his date was February 4 (actually, it was February 5), and he missed it. Ruisi then asked what her date was because she didn’t want the same thing to happen to her, and Henry said that she wasn’t going to look it up, that she should call her pay- roll department. Ruisi said that her payroll department got Peluso’s date wrong, “so, why would I call them again?” Henry repeated that she had to call the Employer’s payroll department. Ruisi told her, “This is ridiculous. I don’t understand how you can send me somewhere knowing that they don’t have the right dates, when you have the information right in front of you . . . but you won’t look it up. So Michael is stuck in the union for another year because you gave the wrong information.” She testified that Henry responded, “You got that right.” She asked, “Are you doing this on purpose?” Henry repeated, “You got that right” and hung up the phone. Henry testified that after receiving the letter dated February 19, she checked the Union’s records to determine whether the request was sent within the required window. In calculating the 15-day period as provided for in the contract and the checkoff authorization, the Union’s regular procedure is that it is 15 calendar days rather than business days, and, “. . . the actual date that you signed the dues card, that’s the date I start the count.” Because his dues-checkoff authorization is dated Feb- ruary 5, and the revocation letter was mailed on February 20, she determined that it was 1-day late. On June 23, she wrote to Peluso: We have tried to communicate with you twice before about revocation of your dues checkoff authorization. The first time we had an incorrect address so the letter was returned unde- liverable. The second time you did not pick up the certified mail that we sent. We are therefore sending this letter by both regular and certified mail to increase the chances it will reach you. Your revocation was untimely because the 15-day window for revocation expired on February 19, the 15th day from the anniversary date of your authorization, and your revocation was not sent by then. A copy of your checkoff authorization was sent with our previous letters to you. We are enclosing it again with this letter. III. ANALYSIS In addition to alleging that Henry’s statements and refusal to allow Peluso to withdraw his dues-checkoff authorization vio- late the Act, the complaint also alleges that the Union violated the Act by “Jackie” allegedly giving Ruisi and Peluso incorrect information regarding the dates that they executed their dues check-off authorizations. This allegation clearly has no merit. Jackie, apparently, is employed by the Employer in its payroll department and there is no evidence whatsoever that she is an agent of the Respondent. In addition, the evidence fails to es- tablish that she gave Ruisi and Peluso incorrect information. Rather, the evidence establishes that she told Ruisi that the only dates that she had were the dates that the Employer began de- ducting their union dues, and those were the dates that she gave them. She never mislead them by telling them that the dates that she gave them were the dates that they executed the check- off authorizations. I therefore recommend that this allegation be dismissed. It is next that the Respondent violated the Act when Henry, on about November 9, 2013, and February 28, refused to tell Ruisi the dates that she and Peluso executed their dues-checkoff authorizations. Ruisi testified that when she asked Henry on about November 25 how she could find out what her union anniversary date was, and whether Henry would tell her the date, Henry responded that she would have to contact her pay- roll department to obtain that information. Henry testified that although she has no independent recollection of this conversa- tion, when she receives calls from members who wish to revoke their dues-authorization checkoffs, she tells them to send notifi- cation to the Union and their employer within 15 days of the date that they executed the card. If the employee/member asks what that date is, she responds that because she does not know who she is speaking to, she cannot give that information over the phone; the employee/member should put the request in letter form, and then she will reply. Ruisi testified that when she called Henry in late February to learn her anniversary date, 322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Henry again told her to contact her payroll department. When she complained that the incorrect information resulted in Peluso being stuck in the Union for another year Henry responded, “You got that right,” and when she asked if Henry was doing it on purpose, Henry again responded, “You got that right.” This is a difficult credibility issue in that whereas Ruisi was generally a credible witness, it is difficult to understand Hen- ry’s claimed delight at the difficulties that Ruisi and Peluso were experiencing. Handling these types of requests was a ma- jor part of her job and she handled these requests on a daily basis. The Union has about 50,000 members and she received three or such requests on a daily basis. Why she would single out Ruisi is puzzling. I find that Henry told her that if she put her request in writing that she would tell her the date that her card was signed, or that she could contact her payroll depart- ment to learn the date that she and Peluso executed their dues checkoffs. However, I fail to see any affirmative obligation on the part of a union to notify its members of their anniversary date, especially on the basis of a telephone call. In Mail Han- dlers Local 308, 339 NLRB 93 (2003), cited by counsel for the Respondent, the Board stated: “A union’s conduct is arbitrary only if, in light of the factual and legal landscape at the time of the union’s action, the union’s behavior is so far outside ‘a wide range of reasonableness’ to be irrational.” I do not believe that Henry’s refusal to give Ruisi the information that she re- quested over the phone, satisfies this standard. I also find the facts herein distinguishable from those in Electrical Workers Local 66 (Houston Lighting & Power), 262 NLRB 483, 486 (1982), cited by counsel for the General Counsel where the respondent repeatedly frustrated the employee in his attempt to learn the procedure for discontinuing his affiliation with the union. In the instant matter, Henry simply told Ruisi to put her request in writing, not an unreasonable request. I therefore rec- ommend that these allegations be dismissed. The final allegation is that the Union unlawfully refused to honor Peluso’s resignation of union membership and the can- celation of his dues checkoff that was mailed to the Union on February 20. Peluso’s dues-checkoff authorization is dated February 5 and the certified letter that he and Ruisi sent to the Union was mailed on February 20. Henry testified that his rev- ocation was untimely because in counting the 15-day window period, the date that the card was signed is counted as day 1 and, with that method, February 20 is the 16th day. The Act, in Section 302(c)(4) only requires that employees be given an opportunity to revoke their checkoff authorizations, at least, annually and at the expiration of the contract: “Beyond that, it is well-established Board law that disputes about checkoff pro- cedures essentially involve contract interpretations rather than interpretation and application of the Act.” Furr’s, Inc., 264 NLRB 554, 556 (1982); Frito-Lay, Inc., 243 NLRB 137 (1979). Both the contract and the checkoff authorization contain identi- cal language referencing when the revocations must be sent: “. . . during a period of fifteen (15) days immediately succeed- ing any yearly period subsequent to the date of this authoriza- tion.” The words “immediately succeeding” and “subsequent” leave no doubt in my mind that in calculating the 15-day win- dow period, day 1 is the date subsequent to the date that Peluso signed his checkoff authorization, February 6, not February 5, as calculated by Henry. His revocation mailed on February 20, was sent on the 15th day subsequent to the date of his authori- zation and was therefore timely. Accordingly, I find that by refusing to honor Peluso’s resignation and revocation, the Re- spondent violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 165, affiliated with UNITE HERE, has been a labor organization within the meaning of Section 2(5) of the Act. 2. Host International, Inc. has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. The Respondent violated Section 8(b)(1)(A) of the Act by refusing to honor Michael Peluso’s resignation from union membership and revocation of his dues-checkoff authorization dated February 20. 4. I recommend that the remaining allegations of the consol- idated complaint be dismissed. THE REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As the Respondent unlaw- fully refused to honor Peluso’s timely resignation from the Union, I recommend that it be ordered to notify the Employer that it should no longer deduct Peluso’s union dues from his earnings, and that the Respondent reimburse Peluso for all dues that were deducted since February 20, 2014, with interest from that date as computed in New Horizons, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]