Bohemian Club

National Labor Relations Board - Board Decisions

Nov 19, 2007

351 N.L.R.B. 1065 (N.L.R.B. 2007)

BOHEMIAN CLUB
351 NLRB No. 59
1065
The Bohemian Club and UNITE HERE! Local 2.1
Case 20–CA–32922
November 19, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH
The issue presented in this case is whether The Bohe-
mian Club (the Respondent) breached its duty to bargain
in good faith by assigning cooks to perform duties previ-
ously performed by stewards without first giving UNITE
HERE! Local 2 (the Union) notice and an opportunity to
bargain over those changes. For the reasons discussed
below, we find that the Respondent violated Section
8(a)(5) and (1) of the Act as alleged.2
I. FACTS
The facts, more fully laid out in the judge’s decision,
are as follows.
The Respondent is a private social club in San Fran-
cisco that serves meals to its members. Those meals are
prepared in two onsite kitchens. The smaller of those
two kitchens has operated only since September 2005.
Cooks and stewards in both kitchens are represented
by the Union. The Respondent and the Union have a 40-
year bargaining history, and were parties to a collective-
bargaining agreement that expired on July 31, 2005.
It is undisputed that cooks and stewards belonged to
separate crafts; the cooks belong to the food preparation
craft and the stewards to their own craft. Before Sep-
tember 2005, cooks were generally responsible for food
preparation, and stewards for cleaning. Although pri-
marily responsible for food preparation, cooks have rou-
tinely been required to clean up occasional spills, wipe
off their workstations, put away leftover food, and clean
their tools.
The expired collective-bargaining agreement contained
several provisions related to work assignment. The man-
agement-rights clause, contained in the preamble, stated
that “it is the sole right of the management to manage the
Club and to direct the working forces. Management of
the Club includes determination of the type and scope of
services and the methods, means, and procedures of pro-

1 We have amended the caption to reflect the disaffiliation of UNITE
HERE from the AFL–CIO, effective September 14, 2005.
2 On December 12, 2006, Administrative Law Judge Jay R. Pollack
issued the attached decision. The General Counsel filed exceptions and
a supporting brief. The Respondent filed an answering brief and the
General Counsel filed a reply 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, and conclusions only to the extent consistent with this Deci-
sion and Order.
viding services.” Section 30 provided that “[e]mployees
shall not be required to perform work which is not cus-
tomary to their craft, except in emergency such as fire,
flood, earthquake, or death.” Section 22(a) provided that
“[a]n employee may be assigned a position which com-
bines not more than two (2) classifications of work.” In
section 13, the parties agreed “to the continuation of all
practices as regards the interpretation and application of
their [previous] Agreements. . . . To the extent there is a
conflict between such a practice and an Agreement, the
practice shall prevail. By agreeing to this provision, it is
the intent of the parties to maximize job security for ex-
isting regular employees by continuing practices within
the Club which are designed to provide for flexibility of
work assignments while maintaining, to the extent prac-
ticable, historical jurisdictional lines.”
In September 2004, the executive chef assigned clean-
ing duties normally performed by stewards to the cooks.
The record does not indicate exactly which cleaning
tasks were assigned. Union Steward and cook Nate
Thomas protested, and the assignment of those duties
was rescinded the next day.
In September 2005, the Respondent transferred three
regular cooks (Ricardo Cabrera, Danny Hong, and Union
Steward Thomas) from the main kitchen to the newly-
operational small kitchen. Jose Luna, primarily assigned
to the main kitchen throughout, also began to help out in
the small kitchen. During their first shift in the new
kitchen, these cooks were told by Supervisor Kevin
Miller to wipe down the walls, counters, refrigerator
doors, and grills, and to pick up the rubber floor mats and
sweep the floor underneath. In total, these tasks took
approximately 30 minutes to complete; it took the cooks
between 5 and 7 minutes simply to collect the mats and
sweep the floor. It is undisputed that all of these tasks
were previously performed by stewards.
The Respondent did not notify the Union that it was
going to assign the cleaning work to cooks in the new
kitchen. The Union learned about the assignment 1 week
after the new kitchen opened and the cooks began to per-
form the cleaning tasks. The Union did not then request
bargaining on the work assignment. However, on March
7, 2006, the Union brought a grievance against the Re-
spondent alleging the change in cook duties violated the
terms of the collective-bargaining agreement. On March
9, 2006, the Union filed a charge with the Board.
In September 2006, the Respondent informed the
cooks that they no longer had to pick up the mats or
sweep the floors.
II. THE JUDGE’S DECISION AND EXCEPTIONS
The judge concluded that the Respondent did not vio-
late its 8(a)(5) and (1) obligation to bargain in good faith
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1066
with the Union concerning terms and conditions of em-
ployment by assigning additional cleaning work to
cooks. The judge found that although the assignment
amounted to a refusal to bargain about the affected con-
ditions of employment, the Union had effectively waived
its bargaining rights by failing to request bargaining over
the changed work assignment.
The General Counsel excepts to the judge’s finding
that there was no violation, arguing that the Respondent
presented the Union with a fait accompli, which rendered
any union request for bargaining futile. The General
Counsel also excepts to the judge’s failure to find the
assignment of new duties to the cooks to be a material,
substantial, and significant change. Finally, the General
Counsel argues that the assignment violated the expired
contract’s prohibition of cross-craft work assignments
except in the event of natural disaster or death, as well as
the contractual requirement to honor past practices.
The Respondent disputes the General Counsel’s asser-
tion that assigning the cleaning duties to the cooks repre-
sented a fait accompli. The Respondent also contends
that the Union waived its right to bargain over the change
in duties; that the change was not material, substantial,
and significant; and that, in any event, the assignment
was permitted under the terms of the expired agreement.
III. ANALYSIS
To prove that the Respondent’s assignment of cleaning
duties to the cooks violated Section 8(a)(5), the General
Counsel was required to show that the assignment consti-
tuted a material, substantial, and significant change in the
cooks’ work assignments. See, e.g., Peerless Food
Products, 236 NLRB 161 (1978). He also was required
to show that the assignment was made without giving the
Union advance notice and an opportunity to bargain be-
fore implementation. See, e.g., Tri-Tech Services, 340
NLRB 894, 895 (2003). We find that the General Coun-
sel made both showings and, accordingly, that the unilat-
eral change was unlawful.
A. Material, Substantial, and Significant Change
We agree with the General Counsel that the assign-
ment of cleaning duties was a material, substantial, and
significant change in the cooks’ terms and conditions of
employment.
It is undisputed that the cooks had to work an extra 30
minutes per day to accomplish their new cleaning tasks.
Indeed, one of the cooks had to stay after the end of his
shift and work overtime to perform his added cleaning
duties. The Board has found that adding more than a
minimal amount of cleaning duties to the tasks of non-
janitorial employees constituted a material, substantial,
and significant change in their terms and conditions of
employment. Fancy Dan’s Jet Inn Restaurant, 213
NLRB 709, 713–714 (1974) (requiring waitress to clean
restrooms constituted a material, substantial, and signifi-
cant change in her job duties); see also Ironton Publica-
tions, 313 NLRB 1208 fn. 3, 1211 (1994), enfd. mem. 73
F.3d 362 (6th Cir. 1995) (requiring pressmen to mop the
pressroom floor for 20 minutes per day “not an insignifi-
cant or trivial change in the job”). We make the same
finding here.
There is no merit in the Respondent’s contention that
the newly assigned cleaning duties were a “mere con-
tinuation” of the cooks’ traditional responsibilities. The
latter duties—cleaning up occasional spills, cleaning
their tools, wiping off their workstations, and putting
food away—are ancillary to the employees’ cooking
tasks. By contrast, the newly assigned duties—wiping
down the walls, counters, refrigerator doors, and grills,
moving the floor mats, and sweeping the floor—involve
heavier and more extensive cleaning tasks and accord-
ingly were previously assigned to stewards. Thus, the
new assignment was not a “continuation” of the cooks’
former duties, but an imposition of significantly different
tasks that the cooks had never performed before.3
B. The Change Was a Fait Accompli
We also find that the Respondent implemented its as-
signment of cleaning duties to cooks in the new kitchen
without giving the Union an opportunity to bargain. The
Respondent did not discuss the change with the Union
before implementation, and therefore the Union could
not have requested bargaining over the matter. The Un-
ion learned of the change 1 week after it happened. Even
if Shop Steward Thomas’ knowledge of the change is
imputed to the Union, he acquired that knowledge only
when he was assigned new tasks, by definition after the
change was implemented. Therefore, the Respondent
simply presented the Union with a fait accompli.

3 Member Kirsanow observes that the kitchen the cooks were told to
clean is very small—4 feet by 15 feet—and that the cooks already
performed some cleaning as part of their regular duties. Moreover, the
fact that the Union waited nearly 6 months before grieving this change
suggests that it viewed the change as minor. Were the Board writing on
a clean slate, Member Kirsanow would be inclined to find the unbar-
gained assignment of these cleaning tasks too trivial to amount to an
unfair labor practice. Viewing the change in this case alongside other
unbargained changes that have been found unlawful, however, Member
Kirsanow concurs in finding the change at issue sufficient to impose a
duty to bargain. See, e.g., Verizon New York, Inc., 339 NLRB 30
(2003) (finding 8(a)(5) violation for unilateral termination of twice-
yearly practice of permitting employees to donate blood during work-
time), enfd. 360 F.3d 206 (D.C. Cir. 2004); Rangaire Co., 309 NLRB
1043 (1992) (finding 8(a)(5) violation for unilateral withdrawal of extra
15 minutes for Thanksgiving lunchbreak), enfd. mem. 9 F.3d 104 (5th
Cir. 1993).
BOHEMIAN CLUB 1067
The judge erred in finding that the Union waived its
right to bargain by failing to demand bargaining after the
unilateral change was made. Although a union may
waive its right to bargain if it receives advance notice of
a proposed change and fails to request bargaining, there
is no waiver when an employer implements a change
without giving the union advance notice and an opportu-
nity to bargain. Such an implementation—as here, a fait
accompli—makes any demand for bargaining futile. Tri-
Tech Services, supra at 895. “[A] union does not waive
its right to bargain over unilateral changes by failing to
engage in the futile act of trying to turn back the clock
and bargain over an action the employer has already
taken.” Id. at 903 (citing Gulf States Mfg. v. NLRB, 704
F.2d 1390 (5th Cir. 1983).4
C. The Respondent’s Defenses Are Without Merit
1. The 2004 assignment
The Respondent contends that the Union waived its
right to bargain over the 2005 assignment of cleaning
duties because it acquiesced in the 1-day assignment in
2004. That contention fails because there was no acqui-
escence. The 2004 assignment was specifically opposed
by Union Steward Nate Thomas and was immediately
rescinded. At no point thereafter did the Union indicate
its approval of that assignment.5
2. Contract-based defenses
The Respondent also attempts to justify its unilateral
assignment of new duties by arguing that the action was
sanctioned by certain provisions contained in the expired
contract and (with one exception) surviving as terms and
conditions of employment at the time of the unlawful
change. These contract-based defenses are not properly

4 The cases cited by the judge in dismissing the complaint are inap-
posite, as in every one the union was notified of the impending change
prior to implementation. Salem College, 261 NRLB 327 (1982) (10–15
days notice); Citizens National Bank of Willmar, 245 NLRB 389
(1979), enfd. mem. 644 F.2d 39 (D.C. Cir. 1981) (5–6 days notice);
City Hospital of East Liverpool, 234 NLRB 58 (1971) (23 days notice);
American Buslines, Inc., 164 NLRB 1055 (1967) (8 days notice).
5 Contrary to the Respondent, the Union’s failure to file a grievance
over the 2004 assignment does not indicate that the Union acquiesced
in the action. There was no need to file a grievance because the Re-
spondent rescinded the action immediately upon the Union’s protest.
The Board’s decision in American Diamond Tool, 306 NLRB 570,
571 (1992), cited by the Respondent, is not to the contrary. There, the
Board found that a union waived its right to bargain over a change in
terms and conditions where the union had an opportunity to request
bargaining about an earlier identical change in terms and conditions but
“failed without excuse to do so, and expressly signaled its willingness
to permit such conduct in the future.” Id. at 571. Here, by contrast, the
Union vigorously—and successfully—opposed the 2004 change and
never indicated that it would permit similar changes in the future.
before us.6 But in any event, we find no merit in any of
the Respondent’s contentions.
The Respondent argues that the expired contract’s
management-rights clause allowed for the assignment of
new duties. We reject this argument for two reasons.
First, any purported waiver of a union’s right to bargain
in a management-rights clause does not survive the expi-
ration of the agreement, absent evidence of the parties’
intention to the contrary. See, e.g., Beverly Health &
Rehabilitation Services, 335 NLRB 635, 636 (2001),
enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003);
Paul Mueller Co., 332 NLRB 312, 313 (2000). As there
is no evidence that the parties intended the management-
rights clause to continue in effect after the contract ex-
pired, any such purported waiver expired with the con-
tract. Second, even if the clause survived, its general
language would not operate as a waiver of the Union’s
right to bargain over new cross-craft assignments, which
are not mentioned in the clause.7 Bozeman Deaconess
Hospital, 322 NLRB 1107, 1108 (1997); Johnson-
Bateman Co., 295 NLRB 180, 184 (1989).
The Respondent next contends that the contractual
provision permitting it to assign workers to positions
formed from two job classifications allowed it to assign
steward work to the cooks. This contention is not sup-
ported by the record. There is no evidence that the cooks
were placed in a position that combined two classifica-
tions. Instead, they apparently remained classified as
cooks, while being assigned stewards’ work.
The Respondent suggests that the very act of assigning
stewards’ duties to the cooks created a position formed
from the two job classifications. This argument is re-
futed by the contract’s express prohibition of cross-craft
work assignments except in cases of fire, flood, earth-
quake, or death.
The Respondent also cites the contract’s “Past Prac-
tices” clause, in which the parties agreed “to the con-
tinuation of all practices as regards the interpretation and

6 The judge rejected the Respondent’s defense that the terms of the
expired labor contract permitted the unilateral assignment and dis-
missed the complaint on the sole ground that the Union failed to request
bargaining. Although the Respondent reiterates its contract-based
defenses in its answering brief, it did not except to the judge’s failure to
dismiss the complaint on the additional ground that the contract permit-
ted the assignment. The Board’s Rules and Regulations do not permit a
party to assert cross-exceptions in an answering brief. Accordingly, the
Respondent waived its contract-based defenses. See White Electrical
Construction Co., 345 NLRB 1095 (2005).
In rejecting the Respondent’s contract-based defenses, Member Kir-
sanow relies solely on their not being properly before the Board.
7 The clause stated: “It is the sole right of the management to man-
age the Club and to direct the working forces. Management of the Club
includes determination of the type and scope of services and the meth-
ods, means, and procedures of providing services.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1068
application of their agreements,” with the intent of
maximizing job security and “continuing practices within
the Club which are designed to provide for flexibility of
work assignments.” The Respondent argues that its prac-
tice is sometimes to make cooks do additional cleaning
and sometimes not, and cites the 2004 incident as evi-
dence of this practice. But there was no such past prac-
tice. As found above, the 2004 work assignment lasted
only 1 day, was promptly opposed by the Union, and was
immediately rescinded and not reinstated until September
2005.
CONCLUSION OF LAW
By assigning steward duties to cooks Cabrera, Hong,
Thomas, and Luna in September 2005 without giving the
Union prior notice and an opportunity to bargain con-
cerning that assignment, the Respondent violated Section
8(a)(5) and (1) of the Act.
REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist and to immediately rescind unlawfully imple-
mented changes to the employees’ terms and conditions
of employment. Generally, the Board orders employers
that have implemented unlawful unilateral changes to
make employees whole for any loss of wages or other
benefits they may have suffered as a result of the unlaw-
ful conduct. See, e.g., Southside Hospital, 344 NLRB
634, 635 (2005). We find it unnecessary to order such a
remedy here because the employees’ wages and benefits
were not affected by the Respondent’s unlawful action.
ORDER
The National Labor Relations Board orders that the
Respondent, The Bohemian Club, San Francisco, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing changes in the terms and conditions
of employment of bargaining unit employees, including
the assignment of stewards’ duties to cooks, without first
notifying the Union and affording it an opportunity to
bargain over the proposed changes.
(b) In any like or related manner interfering with, re-
straining, or coercing 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) Rescind the unlawfully implemented assignment of
stewards’ duties to cooks.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All employees at Respondent’s San Francisco facility
performing work covered by the terms of the collec-
tive-bargaining agreement between Respondent and the
Union effective for the period from August 1, 2000, to
July 31, 2005.
(c) Within 14 days after service by the Region, post at
its San Francisco, California facility copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
20, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September 1,
2005.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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
violated 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

8 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.”
BOHEMIAN CLUB 1069
Choose not to engage in any of these protected
activities.
WE WILL NOT implement changes in the terms and
conditions of employment of bargaining unit employees,
including the assignment of stewards’ duties to cooks,
without first notifying UNITE HERE!, Local 2 and af-
fording it an opportunity to bargain over the proposed
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the unlawfully implemented assign-
ment of stewards’ duties to cooks.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:
All employees at our San Francisco facility performing
work covered by the terms of the collective-bargaining
agreement between ourselves and the Union effective
for the period from August 1, 2000, to July 31, 2005.
THE BOHEMIAN CLUB
Shelly Brenner, Esq., for the General Counsel.
William F. Terheyden, Esq. (Littler Mendelson), of San Fran-
cisco, California, for the Respondent.
Kim C. Wirshing, Esq., of San Francisco, California, for the
Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. This case was
tried in San Francisco, California, on October 4, 2006. On
March 9, 2006, UNITE HERE!, Local 21 (the Union) filed the
charge in this case against The Bohemian Club (the Respondent
or the Employer). On May 12, 2006, the Regional Director for
Region 20 of the National Labor Relations Board (the Board)
issued a complaint against Respondent. The complaint alleges
that Respondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by assigning additional work
duties to its cooks without prior notice and bargaining with the
Union. The Respondent filed a timely answer in which it de-
nied that it had violated the Act.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. Upon the entire record, from my obser-
vation of the demeanor of the witnesses, and having considered
the briefs submitted by the parties, I make the following2

1 The name of the Union appears as corrected at the hearing.
2 The credibility resolutions herein have been derived from a review of
the entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB v.
Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses testi-
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California corpo-
ration, engaged in the operation of a private social club in San
Francisco, California. Respondent, in conducting its business
operations described above, during the calendar year ending De-
cember 31, 2005, purchased and received goods at various facili-
ties in California valued in excess of $5000 directly from sources
outside the State of California. Further, during the same time
period, Respondent derived gross revenues in excess of $500,000
from the sale of food, beverages, and service to its members and
their guests. Accordingly, the parties stipulated and I find, Re-
spondent is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The parties stipulated that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. FACTS
Since at least 1966, the Union has been the exclusive collec-
tive-bargaining representative of an appropriate unit of Re-
spondent’s food service employees in San Francisco, Califor-
nia. The most recent collective-bargaining agreement between
the parties was effective by its terms from August 1, 2000,
through July 31, 2005. The bargaining unit covered by the
agreement is:
All employees at Respondent’s San Francisco facility per-
forming work covered by the terms of the collective-
bargaining agreement between Respondent and the Union ef-
fective for the period from August 1, 2000, to July 31, 2005.
As stated above the parties’ collective-bargaining agreement
expired July 31, 2005. Bargaining over a successor bargaining
agreement was still ongoing at the time of the instant hearing.
The last bargaining session was conducted on February 13,
2006. As of the trial, agreement on a successor contract had
not yet been reached.
Respondent operates a private club in San Francisco that
provides meals to its members, including a continental break-
fast, lunch, and evening buffets. In September 2005, Respon-
dent opened a new small kitchen on the first floor to be used
primarily for lunches. The new kitchen is small, much smaller
than the old kitchen (the main kitchen) on the second floor
which has been in existence for many years. The Union repre-
sents the cooks and stewards assigned to both kitchens. These
employees report to the sous chef and executive chef.
In September 2005, when Respondent opened the first floor
kitchen, three regular cooks were reassigned from the main
kitchen to the first floor kitchen. These cooks were Ricardo
Cabrera, Danny Hong, and Nate Thomas, the union steward. A
fourth cook, Jose Luna, continued to work in the main kitchen
but at times would help out in the first floor kitchen.
Thomas, Cabrera, and Hong all testified that prior to the
opening of the new kitchen, the only cleaning tasks they were

fying in contradiction to the findings herein, their testimony has been
discredited, either as having been in conflict with credited documentary or
testimonial evidence, or because it was in and of itself incredible and
unworthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1070
required to perform were to clean up an occasional spill during
their shift and, after meal service ended to wipe off the area
where they worked with a damp cloth or hot towel, put away
leftover food, and clean and put away their tools. Occasionally
they would use a broom to clean up food that had fallen on the
floor. The normal duties of cleaning the kitchen and sweeping
the floors were performed by the stewards.
When the new kitchen opened in September 2005, Sous Chef
Kevin Miller ordered the cooks to clean the first floor kitchen.
The cooks were told by then General Manager Matt Oggero to
scrub down the kitchen, including the stainless steel walls and
counters, the refrigerator doors, and grills. Oggero also in-
structed the cooks to pick up the floor mats and sweep the
floors. On the second day of the operation of the new kitchen,
then Executive Chef Richard Brandenburg demonstrated to the
cooks how he wanted the first floor kitchen cleaned at the end
of the shift. Brandenburg then instructed the leadman for the
stewards that the stewards were not to clean the first floor
kitchen except to mop the floors and to take care of the gar-
bage. Prior to this time, the cleaning duties assigned to the
cooks had been performed by the stewards.3 The cooks testified
that these cleaning duties took approximately 30 minutes to
perform. Danny Hong who would otherwise have left work 30
minutes earlier than his colleagues needed to work approxi-
mately 30 minutes of overtime to perform the cleaning duties
with the other cooks.
The cooks performed these new cleaning duties from Sep-
tember 2005 until September 2006. In September 2006, Re-
spondent’s new executive chef informed the cooks that they no
longer had to pick up the kitchen mats and sweep the floors.
The cooks still performed the other cleaning duties to which
they were assigned in September 2005.
Union Representative Alphonse Pines testified that Respon-
dent did not notify the Union of this change in the cooks’ du-
ties. Pines first learned of the change from Union Steward Nate
Thomas, approximately a week after the cooks had begun per-
forming the additional duties. The Union did not request bar-
gaining over the changes. On March 7, 2006, Pines filed a
written grievance against Respondent alleging a violation of the
contract articles entitled “combination jobs and job descrip-
tions.” Pines met with Respondent’s human resources director,
Al Bowen, but nothing was resolved. The Union did not follow
up on the grievance. The instant charge was filed on March 9,
2006.
The parties’ expired collective-bargaining agreement classi-
fies stewards and cooks as belonging to separate crafts. Section
30. Job Descriptions of the agreement states:
Employees shall not be required to perform work which is not
customary to their craft, except in emergency such as fire,
flood, earthquake or death.
Section 22. Combination Jobs of the agreement states in perti-
nent part:

3 The General Counsel and the Union offered evidence that in all the
other unionized private clubs in San Francisco, these cleaning duties
are performed by stewards or porters and not cooks.
An employee may be assigned a position which combines not
more than two (2) classifications of work. Said employee
shall be paid at the rate of the higher classification, provided
he or she works in that classification for one hour. . . .
Respondent’s defense
Respondent argues that the Union had notice of these
changes in September 2005 but never requested bargaining.
Secondly, Respondent argues that the new cleaning duties “had
no material, substantial or significant impact on the cooks’
working conditions.” Third, Respondent argues that these
changes were de minimis. Finally, Respondent argues that the
collective-bargaining agreement allowed Respondent to assign
the additional cleaning duties.
The preamble to the agreement provides:
It is mutually agreed that it is the sole right of the
management to manage the Club and to direct the working
forces. Management of the Club includes determination of
the type and scope of services and the methods, means,
and procedures of providing services. The Employer has a
right to establish and enforce reasonable rules and regula-
tions governing the employment relationship. Finally, the
parties recognize the success of the Cub’s operations de-
pends, in large part, on the personal responsibility of each
employee to provide service to the best of his/her ability
and to cooperate with management in insuring the overall
success of the organization.
Section 13. Past Practices
Except as specifically modified by the negotiations re-
sulting in this Agreement, the parties agree to the con-
tinuation of all practices as regards the interpretation and
application of their Agreements, including, but not limited
to, the hours and working conditions for all workers em-
ployed by the Club at either of its facilities. To the extent
there is a conflict between such a practice and an Agree-
ment, the practice shall prevail. By agreeing to this provi-
sion, it is the intent of the parties to maximize job security
for existing regular employees by continuing practices
within the Club which are designed to provide for flexibil-
ity of work assignments while maintaining, to the extent
practicable, historical jurisdictional lines.
III. CONCLUSIONS
The Unilateral Implementation
Section 8(a)(5) and (d) require an employer to bargain in
good faith with its employees’ representative concerning
wages, hours, and other terms and conditions of employment of
bargaining unit employees. It is well settled that unilateral
action by an employer without prior discussion with the union
amounts to a refusal to negotiate about the effected conditions
of employment. NLRB v. Katz, 369 U.S. 736 (1962). More-
over, a showing of subjective bad faith on the employer’s part
is unnecessary to establish a violation. Id.
However, the Board has noted that not every unilateral
change constitutes a breach of the bargaining obligation. The
change unilaterally imposed must be a “material, substantial,
and significant” one. Peerless Food Products, 236 NLRB 161
BOHEMIAN CLUB 1071
(1978); Millard Processing Services, 310 NLRB 421, 425
(1993); Crittenton Hospital, 342 NLRB 686 (2004). In Berk-
shire Nursing Home, 345 NLRB 220, 221 (2005), the Board
found that the mere fact that an employee is “disadvantaged”
by a change, although perhaps relevant to the test (of whether a
change is material, substantial and significant), is not alone
sufficient to satisfy the test. The Board held that the change is
measured by the extent to which it departs from the existing
terms and conditions affecting employment. See also Southern
California Edison Co., 284 NLRB 1205 fn. 1 (1987), enfd.
mem. 852 F.2d 572 (9th Cir. 1988); Crittenton Hospital, 342
NLRB 686 (2004).
In this case, there has been unilateral action by Respondent
without prior discussion with the Union, in assigning the cooks
cleaning duties which historically had been performed by the
stewards’ craft. The collective-bargaining agreement states that
employees shall not be required to perform work which is not
customary to their craft, except in emergency. I find that Re-
spondent’s conduct amounts to a refusal to bargain about the
effected conditions of employment. See Ironton Publications,
313 NLRB 1208 fn. 3 (1994) (violation to unilaterally assign
pressman duties which were the job of custodial staff for many
years); and Woods School, 270 NLRB 171, 176 (1984) (viola-
tion to unilaterally assign cooking and cleaning duties to house
parents, work which had previously been performed by pantry
workers and cleaning personnel).
In such cases, the Board looks to whether a change has been
implemented in conditions of employment. It simply deter-
mines whether a change in any term and condition of employ-
ment has been effectuated, without first bargaining to impasse
or agreement and condemns the conduct if it has. Daily News of
Los Angeles, 304 NLRB 511 (1991), remanded 979 F.2d 1571
(D.C. Cir. 1992), decision supplemented 315 NLRB 1236
(1994), enfd. 73 F.3d 406 (1996), cert. denied 519 U.S. 1090
(1997).
Respondent contends that the Union failed to request bar-
gaining over the changed work assignment of the cooks. A
union that has had notice of an employer’s proposed change in
a term or condition of employment must timely request and
diligently pursue bargaining if it wishes to preserve its right to
bargain over that subject. Salem College, 261 NLRB 327, 328
(1982); City Hospital of East Liverpool, Ohio, 234 NLRB 58
(1971); American Buslines, Inc., 164 NLRB 1055 (1967). The
union cannot be content with merely protesting the action or
filing an unfair labor practice charge over the matter. Citizens
National Bank of Willmar, 245 NLRB 389, 390 (1979); Ameri-
can Buslines, Inc., supra at 1055–1056.
In Citizens National Bank of Willmar the change announced
by the respondent-bank was that tellers would no longer be
excused from working Monday evenings when scheduled to
work Friday evenings. This new policy was to become effective
and in fact became effective the following Monday, November
28. It is undisputed that, prior to its announcement or imple-
mentation, respondent did not bargain with the union concern-
ing the decision or the effects of this change.
On either November 23 or 24, the union’s attorney and busi-
ness agent was informed by the bank of the announced change.
Thereafter, on November 29, at the next contract negotiating
session held between the parties, the business agent told the
respondent’s attorney and negotiator, that he objected to the
recent change made by respondent. Respondent’s attorney re-
sponded that he was unaware of the change and that he would
investigate the matter. Later during the session, respondent’s
attorney informed the business agent that he had investigated
the matter and that the respondent’s position was that the
change made was consistent with its past practice of scheduling
employees to work up to 40 hours per week, when necessary.
Subsequent to this meeting, on December 15, the union filed
an unfair labor practice charge alleging, inter alia, that the
change in employees’ work schedules made by the respondent-
bank violated Section 8(a)(5) and (1) of the Act. However, the
Board found that other than the November 29 conversation
referred to above, the union did not have any discussion with
the respondent-bank concerning such change, did not request
that the bank rescind the change, and did not request that the
bank bargain with the charging party-union concerning this
change in scheduling hours.
The Board held that although the charging party-union ob-
jected at the November 29 negotiations session to the bank’s
previously announced change in the employees’ work sched-
ules and thereafter filed an unfair labor practice charge, it ad-
mittedly did not seek bargaining over the matter. In fact, when
the bank explained its actions, the union accepted the explana-
tion without additional comment. The Board therefore con-
cluded that, having failed to exercise its right to demand bar-
gaining over the issue, the charging party could not in the un-
fair labor practice case effectively claim that the bank unlaw-
fully refused to bargain.
In the instant case, the Union’s steward, Nate Thomas, was
aware of the unilateral change upon its implementation in Sep-
tember 2005. Union Representative Alphonse Pines first
learned of the change from Thomas approximately a week after
the cooks had begun performing the additional duties. On
March 7, 2006, Pines filed a written grievance against Respon-
dent alleging a violation of the contract articles entitled combi-
nation jobs and job descriptions. Pines met with Respondent’s
human resources director, Al Bowen, but nothing was resolved.
The Union did not follow up on the grievance. The instant
charge was filed on March 9, 2006. There is no evidence that
the Union ever demanded bargaining over this unilateral
change. Bargaining had been going on since August 2005 and
there had been a bargaining session in February 2006. How-
ever, the Union never requested bargaining about the change in
the duties of the cooks. Thus, I find that the Union cannot ef-
fectively claim that Respondent refused to bargain. Negotia-
tions were taking place, but the Union did not request bargain-
ing on this issue. More than 5 months after learning of the
change the Union filed a grievance, which it did not pursue, and
an unfair labor practice. As stated above, the Union cannot be
content with merely protesting the action or filing an unfair
labor practice charge over the matter. Citizens National Bank
of Willmar, 245 NLRB 389 (1979); American Buslines, Inc.,
164 NLRB 1055 (1967).
In sum, I find that Respondent unilaterally changed the terms
and conditions of employment of the cooks in the bargaining
unit but that the Union did not request collective bargaining
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1072
over that subject matter. Accordingly, I cannot find that Re-
spondent violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
[Recommended Order for dismissal omitted from publica-
tion.]