KNOLLWOOD COUNTRY CLUB, (2017)
NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
Knollwood Country Club and Unite Here Local 100.
Cases 02–CA–150410, 02–CA–150571, 02–CA– 151405, and 02–CA–162251
March 8, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
On June 9, 2016, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed limited exceptions and an answering brief.
The National Labor Relations 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,1 as modified below, to modify the remedy, and to adopt the judge's recommended Order as modified and set forth in full below.2
The issues in this case arise from several labor costsaving measures unilaterally undertaken by Respondent Knollwood Country Club in 2015, during the term of a multiemployer contract with Charging Party UNITE HERE Local 100 for a bargaining unit including seasonal food service workers at the Respondent’s country club. For the reasons stated by the judge, we affirm his findings that the Respondent violated Section 8(a)(5) and (1) of the Act by ceasing to make contributions to the Union’s pension fund after December 2014 and to its health fund after June 2015, and that the Respondent violated Section 8(a)(1) of the Act by threatening to call, and then calling, the police on April 16, 2015, when laid-off employees visited the Respondent’s facility to concertedly protest the Respondent’s failure to recall them to work. As discussed below, we also agree with the judge that the Respondent violated Section 8(a)(5) and (1) by unilaterally subcontracting bargaining unit work without giving the Union prior notice and an opportunity to bargain, and
1 In the absence of exceptions, we adopt the judge’s dismissal of the complaint’s allegation that the Respondent unlawfully failed to grant union representatives access to its facility. Also in the absence of exceptions, we affirm the judge’s conclusions that the Respondent unlawfully failed to deduct dues and remit them to the Union on behalf of eligible employees and that it unlawfully failed to fully and timely supply information requested by the Union on April 22 and 29 and July 24, 2015.
2 We have amended the remedy and modified the judge’s recommended Order consistent with our legal conclusions herein and with the Board’s standard remedial language. We have substituted a new notice to conform to the Order as modified.
by modifying the collective-bargaining agreement’s seniority recall provision without the Union’s consent. But as briefly discussed below, we reverse, on due process grounds, the judge’s conclusions that the failure to recall employees by seniority was also unlawful on a separate unilateral change theory and that the Respondent unlawfully laid off employees out of seniority order.
The bargaining unit includes three classifications of food service employees working for the Respondent: “regular employees,” who are entitled to contractual benefits including health and benefit fund contributions; “summer employees,” who are hired to work between April 1 and October 31, are not required to become union members, and do not receive most contractual benefits; and “extra employees,” hired on a temporary basis to substitute for regular employees or hired on an occasional event basis. The different classifications reflect the seasonal nature of the Respondent’s food service operations. It normally offers no regular food service between January 2 and April 1. Prior to 2015, it would lay off all regular employees by January. For special club events held between January and April, the Respondent would offer these laid-off unit employees the opportunity to work on a per job basis. The Respondent would then recall the regular employee work force for the resumption of full food service operations in April. After this recall, it would hire summer employees for the busy season.
In 2015, however, the Respondent departed from past employment practices. It utilized temporary workers provided by Mack Staffing Services to perform unit work at special parties during February and March. It employed summer employees, rather than recalling any regular employees, to perform all unit work between April and August. Then, in August, it laid off these summer employees and arranged for them to be hired by Mack Staffing to continue to do the same work they had performed as unit employees. During and after August, the Respondent also recalled several laid-off regular employees to work side-by-side with former unit employees now employed by Mack Staffing.
The unilateral change subcontracting violation
It is uncontested that the Respondent did not give the Union notice and an opportunity to bargain prior to using Mack Staffing employees to perform unit work. Absent establishing that it was privileged to act unilaterally, the Respondent had a statutory obligation, and the Union a corresponding statutory right, to bargain about the decision to subcontract unit work. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 210–212 (1964); Mi
365 NLRB No. 22
Pueblo Foods, 360 NLRB No. 116, slip op. at 1 (2014).3
A waiver of statutory rights is not to be lightly inferred but instead must be “clear and unmistakable.” See Provena St. Joseph Medical Center, 350 NLRB 808 (2007); Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708–709 (1983). The Respondent argues that the Union waived its right to bargain over the subcontracting by agreeing to a contractual management-rights clause reserving the Respondent’s right to “discontinue, lease or relocate services or operations in whole or in part, or to discontinue performance of services or operations by employees of the Club.” We reject this argument because the language in the management-rights clause referring to discontinuation of services or operations does not even remotely, much less clearly and unmistakably, authorize the unilateral conduct the Respondent engaged in here, which amounted to a combination of replacing some unit employees with staffing agency employees, arranging for laid-off unit employees to be rehired by the staffing agency to continue providing the same services they had previously provided, and belatedly recalling some “regular” unit employees to work side-by-side with staffing agency employees to perform unit work. While some individual unit employees were replaced at times by workers from Mack Staffing, no “services or operations by employees of the Club” were discontinued. Absent waiver by the Union of its right to bargain, the Respondent’s subcontracting in these circumstances violated Section 8(a)(5) and (1) of the Act.4
3 The Respondent does not except to the judge’s finding that its decision was a mandatory subject of bargaining.
4 We reject the Respondent’s argument, and any implication in the judge’s decision, that the question of whether the Respondent unlawfully unilaterally changed terms and conditions of employment turns on whether or not the Respondent had a “sound arguable basis” for its position that the contract authorized it to displace unit employees with workers provided by Mack Staffing Services.
For the reasons set forth in Provena St. Joseph Medical Center, supra at 812–815, we also reject the Respondent’s suggestion that the “contract coverage” standard applied by some United States courts of appeals should govern. See, e.g., NLRB v. U.S. Postal Service, 8 F.3d 832, 836–837 (D.C. Cir. 1993) (where an employer acts “pursuant to a claim of right under the parties’ agreement,” the resolution of the charge requires interpreting the contract to determine whether it “covers” the employer’s conduct, i.e., whether the parties have “negotiat[ed] contract terms that make it unnecessary to bargain over subsequent changes in terms or conditions of employment.”); Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992) (same).
Even under the “contract coverage” standard, however, we would not find that the management rights contract language relied on by the Respondent covers the conduct at issue. In Regal Cinemas, Inc. v. NLRB, the court rejected the respondent movie operator’s argument that language giving it rights “to change or eliminate existing procedures or work” authorized it to “change or eliminate” unit projectionist work, without first bargaining, by transferring that work to nonunit managers and assistant managers. 317 F.3d 300, 312–314 (D.C. Cir. 2003).
The midterm contract modification violation
We also agree with the judge, as explained further below, that the Respondent’s hiring of “summer employees” instead of recalling full-time regular employees from a seasonal layoff violated Section 8(a)(5) and (1) of the Act by modifying, without the Union’s consent, article 8 of the parties’ collective-bargaining agreement.
Article 8 provides, in relevant part: “in the event of layoffs . . . the most senior regular full-time employee
. . . shall be the first reemployed.” As previously stated, “summer employees” are unit employees, but unlike regular full-time employees they are not required to become members of the Union and are excepted from contractual wage rates and most benefits. Until 2015, they were only employed after the recall of the full complement of regular employees in the beginning of April.
Section 8(a)(5) and (1) and Section 8(d) of the Act prohibit an employer from modifying terms and conditions of employment established...
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