KNOLLWOOD COUNTRY CLUB

National Labor Relations Board - Administrative Judge Opinions

Jun 9, 2016

02-CA-150410 (N.L.R.B. Jun. 9, 2016)

JD(NY)-21-16
New York, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
KNOLLWOOD COUNTRY CLUB
And Cases 02-CA-150410
02-CA-150571
UNITE HERE LOCAL 100 02-CA-151405
02-CA-162251
Audrey Eveillard, Esq., for the
General Counsel
Jane Lauer Baker, Esq., counsel
for the Union
Craig Bonnist, Esq. and
Hugh Murray, Esq., counsel for the
Respondent
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this case in New York, New York
on March 7 and 8, 2016. The charges and amended charges were filed on April 16 and 21,
May 1, June 26, October 20, and December 14, 2015. The initial Complaint was issued on
September 30, 2015. A second Consolidated Complaint was issued on January 29, 2016. The
Complaint was again amended at and after the hearing. In substance, the allegations are as
follows:
1. That since on or about 2005, the Union has been recognized by the Employer, in a
multi-employer bargaining unit, as the representative of its cooks (second and third), pantry,
kitchen helpers, pot washers, dishwashers, waiters/waitresses, bussers, bartenders, and golf
course snack bar attendants but excluding all other classifications. It is further alleged that the
most recent collective-bargaining agreement runs from February 1, 2014 to January 31, 2018.
2. That from about February 11, 2015 until about November 11, 2015, the Respondent,
without giving notice to or an opportunity to bargain with the Union, subcontracted unit work to
Mack Staffing Services.
3. That the collective-bargaining agreement contains provisions whereby the
Respondent is obligated (a) to notify the Union at least one week prior to any contemplated
layoff or cutback within the kitchen, bar, dining room or allied departments and (b) to apply
seniority in the event of layoffs and/or recalls.
4. That on or about April 1, 2015, after a seasonal layoff, the Respondent failed to
continue the contract provisions described above by failing to recall full-time bargaining unit
employees to perform kitchen and dining room duties. It is further alleged that the Respondent
failed to comply with the seniority provisions of the contract by laying off bargaining unit
employees in or about September 2015. The General Counsel alleges that by failing to comply
JD(NY)-21-16
2
with the terms of the collective-bargaining agreement and in the absence of consent by the
Union, the Respondent violated Section 8(a)(5) and Section 8(d) of the Act.
5. That notwithstanding Article 3 of the collective-bargaining agreement requiring the
Respondent to deduct periodic dues, assessments and initiation fees from employee wages and 5
to remit them to the Union, the Respondent, in violation of Section 8(a)(5) and 8(d) has, since
August 26, 2015, failed to do so.
6. That since on or about August 14, 2015, the Respondent has failed and refused to
make contractually required contributions to the Unite Here Health Fund and the National 10
Retirement Fund on behalf of the bargaining unit employees. The General Counsel alleges that
inasmuch as these actions were undertaken in violation of the collective-bargaining agreement
and in the absence of union consent, the Respondent violated Section 8(a)(5) and 8(d) of the
Act.
15
7. That contrary to Article 20 of the collective-bargaining agreement the Respondent on
or about April 16, 2015, in violation of Section 8(a)(5) and 8(d), refused to allow representatives
of the Union access to its facility to perform functions relating to employee terms and conditions
of employment. As to this incident, it is further alleged that the Respondent interfered with
employee Section 7 rights by calling the police to have them removed from the facility. 20
8. That since on or about April 22, 2015, the Respondent has either refused to supply, or
has failed to completely supply, or has untimely supplied, the following information that was
requested by the Union.
25
(a) Events calendars for 2014 and 2015;
(b) Time cards for Local 100 bargaining unit employees for March and April
2015 and to the date of the Respondent’s response;
(c) Audited financial statements for 2014;
(d) Monthly profit and loss statements for the current and the past 3 fiscal 30
years;
(e) Disbursement Ledger for the current and the past 3 fiscal years;
(f) Any agreements for leases, including amendments thereto, relating to the
operation or management of Respondent, the land upon which Respondent is
located and/or the building in which Respondent is located in; 35
(g) Any agreements for construction, renovation or rehabilitation of any of the
facilities, premises and grounds for the current year and for the preceding 3
fiscal years;
(h) Respondent’s reports, financial or operations, provided to members of
Respondent in 2012, 2013, 2014. 40
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed, I make the following
Findings and Conclusions45
I. JURISDICTION
The Respondent admits and I find that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6) and (7) of the Act. It also is admitted and I find that the 50
Union is a labor organization within the meaning of Section 2(5) of the Act.
JD(NY)-21-16
3
II. ALLEGED UNFAIR LABOR PRACTICES
The employer operates a country club and golf course located in Elmsford, New York.
For a number of years it has recognized the Union as the collective-bargaining representative of 5
its food service workers, (cooks, waiters, busboys, bar tenders, etc.). As a member of the
Federation of Country Clubs, a multi-employer association created to bargain with the Union,
the Respondent is a party to a collective-bargaining agreement running from February 1, 2014
to February 1, 2018.1
10
At the time of these events the Respondent’s manager was Mauro Piccininni. Nelson
Soracco was the Chairman of the Board of Directors.
The Club, although open all year round, provides food services for its members from
around April 1 to January 2. (After New Year’s Day). It typically employs a crew of regular 15
kitchen, dining room and snack bar employees who are represented by the Union. As of 2014,
this consisted of 17 full-time regular employees.
In addition to its normal day-to-day food service functions, the Respondent offers its
facilities for parties such as weddings, birthdays, etc. When these are contracted for, the 20
regular employees are typically given the opportunity to work. If a function is sufficiently large,
the Respondent may hire additional temporary employees to supplement its regular work force.
The busiest time for the Respondent is from June to the end of August. Thereafter,
bargaining unit work diminishes in around October through November. The exceptions are 25
Thanksgiving, Christmas and New Year, when parties are held. Typically, the summer help gets
laid off first and then the regular full-time staff starts to get laid off, usually around November
and December. After January 1 and until March, the golf course is closed, as is the pool. There
are no member dining room services during this period of time, although the club is available for
parties, such as birthdays, bar mitzvahs, weddings, etc. In the past, when events take place 30
during this fallow season, the regular full-time employees have been offered the opportunity to
work at these events.
The regular full-time employees are normally called back to work in March and before
April 1. In the past, it has been the normal practice for the club to hire summer employees who 35
typically start after April 1. As noted above, if there were functions such as weddings that took
place between January 1 and April 1, the company offered these jobs to its regular full-time
staff.
The regular employees are paid in accordance with the pay rates and terms of the 40
collective-bargaining agreement. Thus, in addition to receiving the contractual hourly pay rates,
contributions are made on their behalf to the Union’s health and pension funds. The regular
employees are covered by a standard union security and check off clause and the Union’s
records shows that such monies have been deducted and remitted to the Union for many years.
45
The contract permits the company to employ persons for summer employment between
April 1 and October 31 in 2014, 2015 and 2017 and between March 20 and October 31 in 2016.

1
The attorney who assisted the Association in negotiating this agreement was Peter Pankin. The
evidence shows that representatives of the Respondent attended and participated in these negotiations.
JD(NY)-21-16
4
These summer employees are not required to become dues-paying members of the Union;
albeit they are required to pay an “agency fee.” Summer employees, although paid at the
contract wage rates, are not covered by the pension or health plans. Accordingly, the employer
is not required to make contributions to those plans on behalf of the summer employees. Also,
under the terms of Section 5.1 of the contract, summer employees are not entitled to vacation, 5
holiday pay, sick pay or seniority.
In reviewing this collective-bargaining agreement, it is obvious to me that the intent of
the parties was to allow the employer to hire persons for summer employment in order to
supplement but not replace the regular employees who are covered by the agreement. 10
There are a number of other contract provisions that are relevant to this case.
At article 6, the contract provides that no regular employee who has completed his/her
probationary period shall be discharged, laid off, suspended, dispossessed or evicted without 15
just cause.
At article 8.2, the contract states; “The club may lay off employees by reason of business
or seasonal requirements. Except in the case of fire, the Club shall notify the Union office at
least one week prior to any contemplated regular or permanent layoff or cutback of personnel 20
within the kitchen, bar, dining room and allied departments. The employees scheduled for
layoffs . . . shall be likewise notified, and in the event of such layoffs, seniority shall prevail as
follows: the most senior regular full-time employee in each category or classification shall be the
last laid off and first re-employed after a layoff, except that the Shop Steward shall be the last
laid off and first re-employed after a layoff . . . provided the persons remaining have the ability to 25
do the work required. The Club shall notify the employees or the Union or pay one week’s
wages at the straight time rate in the event no notice has been given. Only written notice will be
considered sufficient.”
Article 17 deals with the subject of tips at special parties. Basically, article 17.1 provides 30
that where there is a party of at least 20 persons, the Club agrees that the waiters, waitresses,
busboys and bartenders will receive gratuities in the amount of 10% of the total party check.
Article 17.2 provides that wait persons, bus persons and bartenders who are hired as extras
from an agency to work at special contracted parties are not entitled to any gratuities.
35
Article 20 provides that official representatives of the Union shall be admitted to the
Club’s premises at reasonable times to observe the working conditions in connection with the
performance of the contract. It also provides that the Union is required to call at least 1 day
before arrival.
40
Article 22 is a management rights clause. In pertinent part, it states:
The rights of management which are not abridged by this Agreement, shall
include, but are not limited to: the Club’s right to determine the prices and terms
of providing services, quality and types of meals, methods of operation, to drop 45
or to add a particular service or operation; the right to determine and from time
to time to re-determine the number, location and types of its services or
operations and the methods, processes, materials, operations and services to
be employed or furnished, to discontinue, lease or relocate services of
operations in whole or in part, or to discontinue performance of services or 50
operations by employees of the Club, to determine the number or [sic] hours
JD(NY)-21-16
5
per day or per week services or operations shall be carried on, to select and to
determine the number of employees required, to determine the classification of
and number of employees in each classification (if any), to assign work to such
employees in accordance with the requirements determined by management, to
establish and change work schedules, or to layoff, terminate or otherwise 5
relieve employees from duty, to make and enforce rules for the maintenance of
discipline and safety and to suspend, discharge, or otherwise discipline
employees for any infraction of any rule of the Club or for any other just cause. .
. .
10
Article 28 contains a multi-step grievance/arbitration process. It provides that grievances
must be filed and move to each next stage within certain time limitations. In the event that no
resolution is made at the last step of the grievance process, either party has 30 days to submit a
grievance to binding arbitration in accordance with the rules of the American Arbitration
Association. 15
Article 29 contains what seems to be a somewhat unique provision. In substance, this
provision permits an employer/signatory to present to impartial arbitrator evidence that the wage
and hour scales “will work unusual hardship . . . and affect adversely the interest of the workers
therein.” It permits the arbitrator to allow an employer to modify the wage and hour scales of the 20
agreement.
It should also be noted that the word “subcontracting” is not used in any part of the
collective-bargaining agreement. That is, the contract neither contains any type of provision that
would explicitly permit or restrict subcontracting. In order for the Respondent to justify a 25
conclusion that the management rights clause waived the Union’s right to bargain over
subcontracting, we would have to construe other language as meaning that unrestricted
subcontracting was allowed.
The parties stipulated that for the years from 2013 to 2015, the compilation of the regular 30
full-time bargaining unit employees, numbering 17, was as follows:
Francisco Bendezu Iariel Burgos
Gavino Contreras Mauricio Diaz
Nicole Dixon Patricia Henry35
David Huanca Michael Locastro
Ian Mapp Walter Ortega
Gina Quintero Marcelino Quintero
Christian Recio Atdhe Tahiraj
Rosannis Perez Tejada Segundo Tejada40
Petula Williams
The evidence suggests that in late 2014, the Club was experiencing some financial
difficulties. Nevertheless, during negotiations for a renewed collective-bargaining agreement, no
one representing the Respondent made any claims of financial distress. The collective-45
bargaining agreement was ratified on November 19, 2014.2

2
Of course if the Respondent had claimed an inability to pay, during the negotiations, it would have been
required to turn over financial information, if requested,.
JD(NY)-21-16
6
In or about December 2014, the Respondent obtained the services of attorney Matthew
Persanis because it sought advice regarding what if any course of action it could take given its
asserted business problems.
On December 9, 2014, Persanis sent a letter to the Union advising that the Respondent 5
was requesting a meeting pursuant to the aforementioned article 29. He went on to state that
the Club had suffered a downturn in membership. He further asserted that; “if we do not hear
from you by December 15, 2014, we will assume you agree with our contention and we will
reduce payments to employees.”3
10
On December 9, union representatives had a telephone conversation wherein Persanis
stated that the Club was seeking relief under article 29 because it was losing members and
having financial difficulties. The Union, by Diaz, requested that it be provided with a list of the
bargaining unit employees, a list of the club’s membership, payroll records, and the schedule of
upcoming events. 15
On December 29, 2014, the Respondent provided some of the requested information. It
did not, however, provide its payroll records and schedules. Accordingly, Diaz sent an email to
Persanis complaining about the inadequate submission of information.
20
On January 2, 2015, in accordance with past practice, the Respondent closed for the
season. And by that time, all regular full-time employees had been laid off by the end of
December. The employees were not notified that these layoffs were intended to be permanent
or anything other than the normal seasonal layoffs.
25
The testimony of the Club’s manager, Piccininni, was that in January 2015, he was
instructed by Nelson Soracco to seek advice from Persanis as to how the club could save some
money.
On January 14, 2015, Persanis sent an advice letter to the Respondent. This letter, 30
which was not objected to, stated as follows:
This memo is written as a response to your questions regarding your staffing.
The first question was “Can you use outside vendors to staff an event?”35
The short answer is “yes.” According to your collective bargaining agreement,
page 14, Article 17, “special contracted parties” it talks about outside people
from an agency. So it would seem to give you the authority to hire an outside
agency to staff the party. 40
In addition, the “Management Rights” clause on page 16 specifically states that
unless a right is expressly and explicitly abridged by the agreement
management retains that right. I would argue that since nowhere in the
agreement does it prohibit the subcontracting of bargaining unit work you may 45
do so.

3
Although the letter states that there was a previous letter dated November 24, 2014, the Union’s
representatives testified that they never received such a letter and the Respondent did not offer evidence
of its existence.
JD(NY)-21-16
7
The next question had to do with layoffs; can you layoff the staff and just staff
on a temporary or summer only basis. Again, I think the answer is “yes.”
We must look at Article 8 on page 8, “Seniority and Layoff.” Section 8.2 gives
you the right to lay off employees by “reason of business or seasonal
requirements,” the only prohibition is that the employees must be laid off by 5
seniority. The article even talks about permanent layoff and goes on to describe
the method for laying off. Section 8.5 states that the “Club’s shall continue to
have the right to establish and change employee schedules.” Article 8.3 (d)
states that an employee loses his, her seniority after being laid off for 6 months.
Management Rights clause on page 16 allows you to “determine the prices and 10
terms of providing services, methods of operations, drop or add a service.
Therefore, laying off on a permanent basis is allowed.
Having answered these questions the last question left is “can you staff with
just summer employees?” the answer again is “yes.” Summer employees are 15
addressed in Article 5 on page 5. Summer employees may be hired between
April 1 and October 31, for 2015. If an employee is a summer employee you do
not need to pay welfare or pension contributions for that employee, you also do
not need to pay the vacation holiday, sick or seniority.
20
My advice in order to save money is to lay off your permanent employees, hold
out until April 1, 2015 to hire anyone and let them go by October 31, 2015 so all
you have is summer employees. You will save on all Fund payments, vacation,
sick time, holiday pay.
25
Instead of seeking arbitration pursuant to article 29, whereby the Respondent could have
presented evidence of financial hardship and asked for a reduction in wage rates, it chose
instead to follow the advice of Persanis. In this regard, the Club, without notifying the Union,
essentially went about substituting its regular full-time bargaining unit work force with either a
subcontractor and/or the hiring of people it chose to describe as summer employees, for whom 30
it would not make any health or pension contributions, nor make any union dues deductions.
In January 2015, Robert Mack of Mack Staffing Solutions became aware that Knollwood
was interested in utilizing a temporary service company to staff its facility. He testified that he
arranged for a meeting with Tara Fallon, the Respondent’s controller and that he met with 35
Knollwood’s management in late January. As a result of this meeting, Mack agreed to provide
the Respondent with temporary employees on an “as needed basis.”
On January 29, 2015, Mack sent a contract to the Respondent. Despite the fact that the
Respondent did not execute this agreement, Mack began to provide temporary workers to 40
Knollwood starting on February 7, 2015. The evidence shows that Mack continued to provide
temporary workers to perform tasks ordinarily performed by bargaining unit employees until
October 14, 2015.4 As a consequence, during the 2015 off season, Knollwood had a number of
parties and instead of offering these jobs to its regular full-time staff as it had done in the past, it
utilized Mack Staffing to provide people to do this work. In this regard, Patricia Henry testified 45
that on an occasion after January 1, 2015, she had a conversation with Piccininni about her
desire to work the parties scheduled in February and March 2015. She also testified that when

4
General Counsel Exhibits 7 and 8 comprise invoices from Mack Staffing Agency to the Respondent for
providing employees.
JD(NY)-21-16
8
she thereafter called Piccininni about working at one of the parties, he told her that she wasn’t
needed to work at these events and that the Respondent did not want to use any union staff.
As noted above, the normal past practice was that the regular full-time employees would
be recalled to work from March and prior to April 1 of each year. Thereafter, and in conformity 5
with the collective-bargaining agreement, the Respondent can and has hired summer
employees to supplement the regular full-time staff. In my opinion, there can be no reasonable
interpretation of the labor agreement that would entitle the Respondent to simply replace its
regular full-time staff with summer employees only.
10
On March 15, 2015, Shop Steward Mapp phoned Michael Aguilar, the executive chef,
and asked when he was supposed to return to work. Aguilar said he had no information as to
when the full-time staff would be recalled. Thereafter, on March 27, 2015, Mapp made a visit to
the club and when he spoke to Piccininni, he later said that the Board of Governors had not
given him any information about when the regular crew would be coming back. Mapp was then 15
given a letter stating that he had been indefinitely laid off.
It was stipulated that the 17 regular full-time employees previously listed, were not
recalled from their seasonal layoffs when the Respondent reopened its normal food service
operations in April 2015. Indeed, none of those employees were recalled to their former jobs 20
before August 7, 2015.
The parties further stipulated that on or about April 1, 2015, and thereafter, the
Respondent hired 34 other employees to perform bargaining unit work. With respect to this
group, the evidence showed that some had worked for the club during previous summers, 25
whereas some were newly hired employees. The evidence also showed that some of these
people continued to be employed until January 2, 2016.
The evidence therefore establishes that with the exception of a relatively small number
of the regular full-time employees who were recalled in August, September and November, the 30
majority of the people doing bargaining unit work during the 2015 season were either new hires,
or people who had worked only as summer workers in past seasons.5
In this respect, the evidence shows that in failing to recall its full-time bargaining unit
employees in March 2015, instead hiring other workers to do their jobs, the Respondent not only 35
changed its past practice but breached the seniority provisions of the collective-bargaining

5
On August 7, the Respondent recalled full-time employee Michael Locastro who resumed his
employment on August 14. On August 14, the Respondent recalled full time employee Ian Mapp and he
returned to work on August 26. On or about August 26, the Respondent recalled full-time employees
Patricia Henry, Gina Quintero and Christian Recio. It was stipulated that Henry returned to work on
September 2, but that Quintero and Recio did not return to work. On September 25, the Respondent
again laid off Henry and Mapp effective October 4. On October 28, the Respondent again recalled Henry
who returned to work on October 29. On October 30, the Respondent again recalled Mapp who returned
to work on November 6. On November 26, the Respondent recalled the following nine regular full-time
bargaining unit employees who worked between November 26 and December 2: Francisco Bendezu,
Nicole Dixon, Gina Quintero, Walter Ortega, Marcelino Quintero, Atdhe Tahiraj, Rosannis Perez Tejada,
Segundo Tejada, and Petula Williams
JD(NY)-21-16
9
agreement. (Article 8.2 states inter alia, that “the most senior regular full-time employee in each
category or classification shall be the last laid off and first re-employed after a layoff.”)
In addition to the above, It was stipulated that prior to 2015, the Respondent had, in
accordance with the collective-bargaining agreement, deducted periodic dues, assessments 5
and initiation fees from the wages of the 17 regular full-time bargaining unit employees and had
remitted such monies to the Union. The parties stipulated that in 2015, the Respondent ceased
deducting dues, assessments or initiation fees from the wages of bargaining unit employees.
Finally, it was stipulated that in July 2015, the Respondent ceased making payments on behalf
of any eligible employees for the contractually required contributions to the United Here Health 10
fund or to the National Retirement Fund.
The evidence shows that all of these changes in past practice, which also breached
express provisions of the collective-bargaining agreement, were taken without prior notification
to the Union and without obtaining the Union’s consent. 15
On April 6, 2015, the Union filed three grievances relating to employer’s failure to recall
the bargaining unit employees. And over the next week and a half, the Union tried, without
success, to arrange a meeting with the Respondent or its attorney.
20
On April 16, 2015, union representatives met with some of the regular employees at a
diner and after some discussion, the group decided to visit the club in order to talk about the
Club’s failure to recall them to work. When they arrived, Piccininni met them outside and when
union representative Diaz asked when the workers could return to work, Piccininni said that they
would not be returning and told the group that if they didn’t leave, he would call the police. At 25
this point, the two union representatives entered the premises and saw a group of workers
whom they didn’t recognize. When they went to speak to Piccininni in the latter’s office, they
said that they wanted to have a meeting about the grievances and were told that the meeting
was being held now. They demurred and said that they wanted to set up a proper meeting.
Piccininni responded that he had called the police. 30
After exiting the building, the group of employees stayed outside in the parking area and
when the police showed up, the union representatives explained that there was a labor dispute.
No one was arrested or forced to leave. Soon thereafter, the two union representatives again
went inside to talk to Piccininni and Soracco where Diaz asked when the workers were going to 35
return to work. Soracco stated that they were not returning and Piccininni said that summer
employees were doing the work. This was the first time that the Union or the employees were
advised that summer workers had been hired to replace them.
The collective-bargaining agreement at article 20, allows union representatives to be 40
admitted to the Respondent’s premises at reasonable time for a variety of purposes relating to
working conditions. Apart from an emergency, the contract requires the Union to notify the
company at least 1 day prior to arrival.
In the past, the 1-day notification provision has not always been followed. And in this 45
case, I would tend to characterize the refusal of the company to recall all of its full-time
employees as constituting an emergency.
On April 29, 2015, the Union requested information from the Respondent. In pertinent
part, the request was for the following: 50
JD(NY)-21-16
10
(a) Events calendars for 2014 and 2015;
(b) Time cards for Local 100 bargaining unit employees for March and April
2015 and to the date of the Respondent’s response;
(c) Audited financial statements for 2014;
(d) Monthly profit and loss statements for the current and the past 3 fiscal 5
years;
(e) Disbursement Ledger for the current and the past 3 fiscal years;
(f) Any agreements for leases, including amendments thereto, relating to the
operation or management of Respondent, the land upon which Respondent is
located and/or the building in which Respondent is located in; 10
(g) Any agreements for construction, renovation or rehabilitation of any of the
facilities, premises and grounds for the current year and for the preceding 3
fiscal years.
(h) Respondent’s reports, financial or operations, provided to members of
Respondent in 2012, 2013, and 2014. 15
On July 24, 2015, the Union sent a follow-up letter in response to the company’s
communication dated June 16. This letter stated:
1. Events calendars for 2013, 2014 and 2015 with all events listed. The event 20
calendars previously provided did not show all events, only some events;
2. Time cards, punch cards, or sign-in sheets showing the time that workers
reported to or began work and the time that the workers ceased working for
2013, 2014 and 2015 to date. Thus far, only payroll records were provided. The
employer is required to maintain accurate time records. If the employer does 25
not maintain time records, please provide information as to the manner and
method by which the employer accurately records the time worked of
employees.
3. According to your email of June 16, 2015, you claim to have provided in the
box you dropped at the Union's office, monthly profit and loss statements for 30
2013, 2014, and 2015, monthly income and expenses for 2013, 2014, and
2015. The general ledger, cash receipts and disbursements, and accounts
receivable ledger for 2013, 2014, and 2015. You claim in your email that the
same documents are responsive to each of those categories of requests. We
have not been able to identify the documents in your production that are 35
responsive to those requests. Please email me copies of the responsive
documents or at least email pages of the documents that you claim are
responsive so that we can determine whether they are included in the box and
are sufficient.
4. Our records also indicated that you have not yet provided responses to the 40
following requests made in my April letter to you:
a. Any agreements or leases, including amendments thereto, relating to the
operation or management of Knollwood, the land upon which Knollwood is
located and/or the building in which Knollwood is located in.
b. Any agreements for construction, renovation or rehabilitation of any of the 45
facilities, premises, and grounds of Knollwood including for improvements to the
facilities, premises, and grounds for the current year and for the preceding three
(3) fiscal years.
5. Also, please provide any report, financial or operational, provided to the
membership in 2012, 2013 and 2014.50
JD(NY)-21-16
11
The evidence shows that in response to the information requests, the Respondent,
starting in June 2015, provided some, but not all of the information requested. Also some of the
information was furnished substantially after the request.
After hiring a group of summer employees to replace most of the bargaining unit 5
members,6 the company made an arrangement for the employees to be placed onto the payroll
of Mack Staffing Solutions. In August 2015, Robert Mack visited the club for the purpose of
interviewing the employees then working. Thereafter, these employees, who had originally been
hired by Knollwood, were put on Mack’s payroll.
10
On August 13, 2015, attorney Persanis sent an email to the Union which set forth the
Respondent’s position as follows:
Please be advised that effective immediately Knollwood CC is exercising its
rights under the Collective Bargaining Agreement, Article 22, Management 15
Rights “. . . to discontinue, lease or relocate services of operations in whole or
in part, or to discontinue performance of services or operations by employees of
the Club, . . .” the services provided by those employees covered by the CBA
between Local 100 and Federation of Country Clubs. Knollwood CC had a staff
of 8, which was reduced to 6 employees who had been performing this work. 20
Knollwood will now seek to outsource this work using leased employees or an
outside vendor to provide these services. It is our position that this shall stop all
further back pay liability from accruing.
III. ANALYSIS25
The principle issues in this case involve the Respondent’s attempt to replace all or most
of the regular full-time bargaining unit employees either with what are described as “summer”
employees or by outsourcing their work to a subcontractor. This was done in an effort to save
money by essentially seeking to eliminate the requirement to pay the health and pension 30
benefits for full-time regular employees as required by the collective-bargaining agreement. (As
noted above, the contract, although requiring the company to pay summer employees at the
contract rates, does not require the company to make contributions on their behalf to the health
or pension funds. Nor are summer employees entitled to vacation pay, holiday pay, sick pay or
seniority.) Moreover, this was done without notification to the Union and without affording it an 35
opportunity to bargain.
With respect to some of the changes, the General Counsel contends that they were
made unilaterally and therefore violated Section 8(a)(5) of the Act. For example, the General
Counsel alleges that the Respondent violated Section 8(a)(5) by unilaterally and without offering 40
to bargain, subcontracting out bargaining unit work.
In other respects, the General Counsel alleges that certain of the unilateral changes
constituted mid-term modifications of the existing labor agreement and therefore were also
violative of Section 8(d) of the Act. For example, it is alleged that by failing to recall laid off 45
employees in order of seniority, or by laying off employees out of seniority, the Respondent
breached the seniority and the layoff/recall provisions of the collective-bargaining agreement.
Also, by failing to make payments to the Union’s pension and health care funds, it is alleged that

6
As previously noted, some but not all of the regular full-time bargaining unit employees were recalled
starting in August 2015.
JD(NY)-21-16
12
this too constituted an unambiguous mid-term modification of the collective-bargaining
agreement. Finally, it is alleged that by failing to deduct dues and remit them to the Union as
required by the contract, the Respondent also violated Section 8(d).
As to the changes alleged as mid-term contract modifications, the General Counsel 5
argues that the Respondent could not make these changes without first obtaining the Union’s
consent. That is, offering to bargain about the changes would not be enough.
Indeed, the General Counsel asserts that the Respondent, in effect, repudiated the
collective-bargaining agreement. 10
There is also the issue of whether or not the Respondent failed to furnish relevant
requested information to the Union.
Finally there is an issue relating to the events that took place when the Union and 15
employees visited the company on April 16, 2015.
The subcontracting allegations
With respect to subcontracting, there is no dispute that in January 2015, the Respondent 20
entered into an agreement with Mack Staffing Solutions to provide employees who would be
assigned to do bargaining unit work. There is also no dispute that the Respondent first started
using Mack to provide such workers on February 7, 2015 and continued to do so throughout the
remainder of 2015. The evidence shows that the Union was not notified of the Respondent’s
decision to subcontract unit work until August 2015 and it is undisputed that the Respondent 25
never offered to bargain about its decision to subcontract. 7
In Fibreboard Corp. v. NLRB, 379 U.S. 203, (1964), the employer, for legitimate
economic reasons, but without offering to bargain, displaced its existing maintenance
employees by subcontracting out their work to a third party. The Court stated; 30
The facts of the present case illustrate the propriety of submitting the
dispute to collective negotiation. The Company’s decision to contract out
the maintenance work did not alter the Company’s basic operation. The
maintenance work still had to be performed in the plant. No capital 35
investment was contemplated; the Company merely replaced existing
employees with those of an independent contractor to do the same work
under similar conditions of employment. Therefore, to require the employer
to bargain about the matter would not significantly abridge his freedom to
manage the business.40

7
The charge in 2-CA-150410 was filed on April 16, 2015, and it alleged that the Respondent failed and
refused to recall the entire bargaining unit from winter layoff upon the Club’s reopening; hired new
employees to replace bargaining unit members; and effectively repudiated the collective bargaining
agreement. Since the failure to rehire was caused at least in part by the company’s use of a
subcontractor starting on February 7, 2015, the complaint’s allegation that the Respondent unilaterally
subcontracted out bargaining unit work is closely related. And since the Answer filed on October 13, 2015
admits that the Respondent received this charge in April 2015, it is clear to me that it was timely filed
within the 6-month statute of limitations period set forth in Section 10(b) of the Act.
JD(NY)-21-16
13
The issue of subcontracting and bargaining was obliquely revisited by the Supreme
Court in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). In that case, which
involved the employer’s partial closing of its business, the Court held that certain types of
managerial decisions could be made without bargaining about the decision, if the decision
involved a change in the scope and direction of the enterprise, even if it had a direct effect on 5
employment. The Court defined a test that balanced an “employer’s need for unencumbered
decision making with the benefit of collective bargaining for labor management relations.” At
footnote 22, the Court noted; “we of course intimate no view as to other types of management
decisions such as plant relocations, sales, and other kinds of subcontracting, automation etc.,
which are to be considered on the particular facts.” The Board in Dubuque Packing Co., 303 10
NLRB 386 (1991), set forth the criteria it would use to apply the Court’s First National
Maintenance decision. (Dubuque involved an employer’s decision to relocate).
In Torrington Industries, 307 NLRB 809 (1992), the employer subcontracted work which
resulted in the layoff of 2 bargaining unit employees who were replaced by independent 15
contractors. The Board concluded that subcontracting decisions similar to those in Fibreboard
were mandatory subjects of bargaining and did not require the burden shift test utilized in
Dubuque Packing Co., 303 NLRB 386 (1991), even if the decision was not motivated by labor
costs. That is, the Board concluded that based on the Supreme Court’s decision in First
National Maintenance, supra, the Court had already struck the balance in favor of finding that 20
decisions to subcontract required bargaining. Nevertheless, the Board did qualify its decision
and stated:
We agree that there may be cases in which the non-labor cost reason for
subcontracting may provide a basis for concluding that the decision to 25
subcontract is not a mandatory subject of bargaining. We do not reach that
issue here, however, because the Respondent’ reasons had nothing to do with
a change in the “scope and direction” of its business. Those reasons, thus
were not matters of core entrepreneurial concern and outside the scope of
bargaining. 30
Subsequent to its decision in Torrington, supra, the Board has continued to take the view
that employers are required to bargain about a decision to subcontract irrespective of whether
the decision was motivated by labor cost factors. For example in Acme Die Casting, 315 NLRB
202 fn. 1 (1994), the Board held that the Employer violated Section 8(a)(5) by not offering to 35
bargain about its decision to subcontract. It stated:
Contrary to the Respondent’s contention, the reasoning of Torrington
Industries . . . is not limited to situations in which employees are laid off or
replaced. Torrington simply recognizes the principle, applicable in this case, 40
that an employer’s decision to subcontract is a mandatory subject of
bargaining when what is involved is the substitution of one group of workers
for another to perform the same work and not a change in the scope and
direction of the enterprise. There is no evidence that the decision to
subcontract constituted a change in the scope and direction of Respondent’s 45
business. Indeed, the plant manager admitted that the subcontracting
permitted the Respondent to perform work of the same type done by unit
employees in the past while avoiding paying overtime to those employees.
JD(NY)-21-16
14
It is argued by the Respondent that the Union waived its right to bargain over the
decision to subcontract. In this regard, the Respondent cites article 17 and article 22 of the
agreement.
As to article 17, the Respondent claims that this permits the Club to utilize employees 5
who are hired as extras from an agency to work at special contracted group parties. But I don’t
construe this as giving the employer a blank check to hire only extras for group parties. This
entire provision relates to the subject of gratuities where there are parties with more than 20
guests. The point of the provision is that the regular bargaining unit employees who are
assigned to work at these parties will receive tips equal to at least 10% of the check and that if 10
extras are hired to augment the regular staff, those people will not share in the tips.
Article 22 is the management rights clause. It does not mention subcontracting, albeit it
does state that “the rights of management which are not abridged by this Agreement, shall
include, but are not limited to . . . to discontinue, lease or relocate services of operations in 15
whole or in part, or to discontinue performance of services or operations by employees of the
Club. . .”
I do not believe that a reasonable interpretation of this clause can be read to include an
unfettered right to subcontract out bargaining unit work. For one thing, I am not really sure what 20
this language means and it looks to me like an exercise in poor draftsmanship that occurred
many years ago and has been carried forward in successive contracts. For another thing, the
clause does not even mention subcontracting, which in the parlance of labor relations, is a term
of art and well understood by people who represent unions and employers. In my opinion, if the
parties at the bargaining table had meant to preclude bargaining over subcontracting, I think 25
they would have expressly said so.
The issue here is not which is the better interpretation of the contract. Rather, the
question is whether there are provisions in the contract that constitute a clear and unmistakable
waiver of the Union’s right to bargain over a decision to subcontract.30
In Embarq Corp., a wholly-owned Subsidiary of CENTURYTEL, Inc., d/b/a Centurylink,
358 NLRB 1192, (2012) the Board adopted the finding that an employer violated 8(a)(5) by
refusing to bargain over a decision to eliminate work classification and consequently to
discharge nine cashiers. A Board majority found that neither the management-rights clause nor 35
the layoff section of the collective-bargaining agreement constituted a clear and unmistakable
waiver. In this regard, the majority cited Provena St. Joseph Medical Center, 350 NLRB 808,
811-815 (2007) where the Board rejected the “contract coverage” theory of waiver.
In my opinion, the contract provisions cited by the Respondent do not constitute a clear 40
and unmistakable waiver of the Union’s right to bargain over a decision to subcontract unit work.
Nor is there any other evidence to suggest that during bargaining or at any other time, by any
other statements or actions of the Union, did it manifest an intention to waive its right to bargain
over a decision to subcontract.
45
I therefore conclude that by subcontracting out bargaining unit work commencing on
February 7, 2015, without notifying and affording the Union an opportunity to bargain about that
decision, the Respondent has violated Section 8(a)(5) and (1) of the Act.
50
JD(NY)-21-16
15
The Section 8(d) allegations
In Milwaukee Spring Division, 268 NLRB 601, 602 (1984), the Board stated:
Section 8(a)(5) and 8(d) establish an employer’s obligation to bargain in good faith with 5
respect to “wages, hours, and other terms and conditions of employment.” Generally an
employer may not unilaterally institute changes regarding these mandatory subjects
before reaching a good faith impasse in bargaining . . . Section 8(d) imposes an
additional requirement when a collective-bargaining agreement is in effect and an
employer seeks to “modify . . . the terms and conditions contained in” the contract: The 10
employer must obtain the union’s consent before implementing the change.
The Respondent argues that the Board does not have the authority to adjudicate claims
that a party to a collective-bargaining agreement has breached the terms of the agreement
because Section 301 puts that power in the Federal courts or where the parties have agreed to 15
binding arbitration. Citing NLRB v. Strong, 393 U.S. 357 (1969). Although acknowledging that
the Board may interpret a collective-bargaining agreement in the context of an unfair labor
practice case, the Respondent argues that it may not find a violation of Section 8(a)(5) when the
party accused of a contract breach has a “sound arguable basis” for its belief that the contract
sanctioned its action. Citing Bay Area Healthcare Group, 362 NLRB No. 94 (2015); Bath Iron 20
Works, 345 NLRB 499, 502 (2005); and Mine Workers v. NLRB, 257 F.2d 211, 214, 215 (D.C.
Cir. 1958). See also NCR Corp., 271 NLRB 1212 (1984).
The issue therefore is whether the provisions of the contract that are claimed to have
been breached were subject to reasonably differing interpretations or were unambiguous. See 25
for example, Daycon Products Co., 360 NLRB No. 54 (2014).
In Oakland Physicians Medical Center, LLC d/b/a Doctors’ Hospital of Michigan, 362
NLRB No. 149 (2015), a Board majority concluded that deferral to arbitration was inappropriate
and that an employer violated 8(a)(5) by changing, without the Union’s consent, health 30
insurance benefits, based on its finding that the changes constituted mid-term modifications
within Section 8(d). With respect to the deferral question, the majority reasoned that the
agreement unambiguously stated that the Respondent could not alter the contractually
mandated premium co-share schedule and that the Union had to be given notice of any plan
design amendments. The majority concluded that deferral was inappropriate because the 35
applicable provision was unambiguous.
In Mike-Sell's Potato Chip Co., 361 NLRB No. 23, (2014) an employer decided that
increases in health insurance deductibles and decreases in reimbursement rates and health
savings account contributions were needed to help save costs. It sent the Union a reopener 40
letter before the time period specified for reopeners in the existing contract. The company met
with the Union over the proposed changes but nevertheless implemented the changes without
the Union’s consent. The Board found that the Employer violated Section 8(a)(5) by
implementing changes during the middle of the contract term without obtaining the Union's
consent and without following the procedures set forth in the agreement’s reopener clause.45
The General Counsel alleges that the Respondent unilaterally changed and therefore
breached the following provisions of the collective-bargaining agreement in violation of Section
8(d). (1) The obligation to recall and/or lay off employees in order of seniority; (b) the obligation
to make payments on behalf of bargaining unit employees to the Union’s health and pension 50
JD(NY)-21-16
16
funds; (c) the obligation to deduct and remit union dues; and (d) the obligation to permit union
representatives to visit the premises.
There is no question that in 2015, the Respondent failed to recall its regular full-time staff
that had been laid off at the end of the 2014 season. Instead, the Respondent engaged a 5
subcontractor to provide employees for parties held during the winter and then hired a group of
other employees to replace the bargaining unit employees. Thereafter, after recalling some but
not all of the regular full-time employees starting in August, it laid them off again before the end
of the season, while retaining other employees who had less seniority. In my opinion, the
contract provisions relating to layoffs and recalls clearly and unambiguously call for the 10
application of seniority. This was not done in this case, and the Respondent’s breach of the
contract was clear and unambiguous. I therefore conclude that in this respect, the Respondent
violated Section 8(d) and 8(a)(5) of the Act.
Moreover, even if for some reason it could be argued that the contract language is 15
subject to interpretive differences, the failure to recall and/or lay off the regular full-time
bargaining unit employees in order of seniority, was a substantial change from past practice. As
this was undertaken without notice or bargaining with the Union, I conclude that this unilateral
change violated Section 8(a)(5) and (1) of the Act.
20
There is, in my opinion, nothing ambiguous about the provisions of the contract that
require the Respondent to make contributions on behalf of bargaining unit employees to the
Union’s health and pension funds. The Respondent points out that under the collective-
bargaining agreement, it is not required to make such payments for “summer employees.” This
is true, but those types of employees should not have been hired in the first place to displace 25
the regular full-time employees and to deprive the latter of their contractual seniority recall
rights. As I have concluded that the 17 full-time employees should have been recalled in March
2015, their entitlement to backpay would include any withheld contributions to the Union’s health
and pension funds. I therefore conclude that in this respect, the contract is unambiguous and
that the Respondent violated Section 8(d) and 8(a)(5) of the Act. 30
With respect to the dues check-off provisions of the contract, it is admitted that the
Respondent decided to cease making such deductions and to stop remitting those moneys to
the Union. The Respondent contends that it could do so because the contract requires
employees to sign authorizations permitting such deductions. Again this may be true, but the 35
record shows that for many years, the Respondent has deducted and remitted dues for its
regular employees. There is no requirement in the contract that employees reauthorize their
check-off authorizations on any periodic basis. These employees have worked at the
Respondent for a long time and some have worked there for almost 18 years. Because the
Respondent has deducted and remitted dues and/or other periodic fees to the Union for such a 40
long time, I shall presume, in the absence of evidence to the contrary, that those employees for
whom dues and fees have been deducted and remitted, have authorized the Respondent to do
so. Accordingly, I shall conclude that in this respect, the Respondent has violated Section 8(d)
and 8(a)(5) of the Act.
45
The General Counsel contends that by refusing access to union representatives on April
16, 2015, the Respondent breached the access provisions of the contract. In this regard, the
collective-bargaining agreement permits union representatives to visit the facility for a variety of
purposes related to representation. Nevertheless, the contract requires, in the absence of an
emergency, that the Union give a 1- day notice of an impending visit. The General Counsel 50
argues that by past conduct, the Respondent has waived the notice requirement. And it might
JD(NY)-21-16
17
also be argued that the failure to recall the regular employees constituted an emergency.
Nevertheless, those arguments relate to the interpretation of the contract and a reasonable
argument can be made that the contract requires prior notice which was not given by the Union.
Accordingly, in this respect, I shall recommend that this allegation of the Complaint be
dismissed. 5
However, having found that the Respondent’s representative told employees that he had
called the police because they congregated outside of the facility, I conclude that in this respect,
it violated Section 8(a)(1) of the Act. These long term employees clearly had a right, pursuant to
Section 7 of the Act, to concertedly ask when they were going to be recalled to work. Therefore,10
they had a right to be present outside of the Respondent’s facility to engage in this concerted
activity, even if it occurred on private property. As such, it is my opinion that a threat to call the
police to thwart this activity violates Section 8(a)(1) of the Act. Roger D. Hughes Drywall,
344 NLRB 413, 415 (2005); ITT Industries Inc. v. NLRB, 413 F.3d 64 (D.C. Cir. 2005).
15
The General Counsel alleges that the Respondent “repudiated” the collective-bargaining
agreement. As shown above, the evidence indicates that the Respondent sought to make
substantial mid-term modifications in the collective-bargaining agreement and that in other
respects, such as dues check-off and health and pension funds it sought to nullify those
provisions. Nevertheless, the evidence does not suggest to me that the Respondent withdrew 20
recognition from the Union and I cannot say that I would go so far as to conclude that it
attempted to completely repudiate all of the terms of the contract.
Having found that the Respondent has violated Sections 8(a)(5) and 8(d) with respect to
various provisions of the contract and having concluded that an appropriate remedy should be 25
issued, I don’t think that anything would be added to this case by a conclusory finding that the
Respondent also repudiated the contract.
The refusal to furnish information
30
The General Counsel argues that the information sought by the Union relates to the
Employer’s notification that it would rely on article 29 to seek a reduction in wage rates due to
economic distress.
On December 9, 2014, the Respondent advised the Union that it was requesting a 35
meeting pursuant to article 29 of the collective-bargaining agreement. This clause permits a
signatory to the multi-employer agreement, to go before an arbitrator who can reduce the
contract wage rates upon a finding that the company is in sufficient financial distress. The letter
went on to state that the Club had suffered a downturn in membership and that; “if we do not
hear from you by December 15, 2014, we will assume you agree with our contention and we will 40
reduce payments to employees.”
On April 22, 2015, the Union and the Respondent held a meeting with their respective
lawyers present. The Respondent stated that the company was experiencing financial difficulties
because it had lost membership and had to make cutbacks and adjustments. The Union’s 45
attorney asked if finances were so bad, how come the Club was building new facilities and
making other renovations. She asked how much money was being spent on renovations. In
response, the Respondent asserted that the costs of renovations were not relevant and that the
Union was not entitled to such information. Regarding the possibility of an article 29 proceeding,
the Union asked if the employees could be recalled while that proceeding was taking place. The 50
Respondent replied in the negative. The Union’s counsel stated that if there was going to be an
JD(NY)-21-16
18
article 29 proceeding, the Union would need information and pointed out that the Respondent
had not yet provided all of the information that had been requested in December 2014. She
stated that a new list would be prepared and this was sent on April 29, 2015, with a follow-up
letter in July.
5
Notwithstanding the employer’s notification that it would seek Article 29 relief, it never
followed through. Instead, deciding to throw caution to the winds, it engaged in self-help. And
in response to the Respondent’s actions of hiring replacement workers and subcontracting
bargaining unit work, the Union did not follow through on its own set of grievances. Instead, the
Union, as was its right, filed the instant unfair labor practice charges. Therefore, at this point in 10
time, the information requested is no longer useful for the purpose of any contract enforcement
procedure, either by the Union or the Company. That is, with both parties having foregone
arbitration, the information can no longer be utilized for the purposes sought. Nevertheless,
despite the current state of mootness, the issue before the Board is whether the Respondent, at
the time of the requests, failed to timely furnish requested information that was relevant for 15
some legitimate purpose. Postal Service, 359 NLRB No. 4, slip op. at 4 (2012).
Where an employer, either in response to union bargaining demands or in support of its
own proposal, makes a claim of inability to pay, a union is entitled to request and review the
employer’s financial records to assess and substantiate the employer’s representations about its 20
financial condition. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Dover Hospitality Services,
358 NLRB 710, (2012); North Star Steel Co., 347 NLRB 1364, 1369–1370 (2006); R.E.C. Corp.,
307 NLRB 330, 332–333 (1992).
As of December 9, 2014, the Union had reason to assume that the Respondent would 25
invoke arbitration under Article 29 based on an assertion that is equivalent to a claim of inability
to pay the contract wage rates. The possibility of an article 29 proceeding was further
discussed at a meeting on April 22, 2015. Accordingly, in preparation for the possibility of such
a proceeding, the Union was entitled to find out the degree to which the Respondent’s financial
distress claims were valid and to what extent, if any, the company’s actual finances would 30
support an argument to an arbitrator that its request for relief should be granted.
The complaint sets forth those information requests that were either not provided, were
partially provided, or provided late. These were as follows:
35
In the April 29, 2015 letter, the Union requested the events calendars for 2013, 2014 and
2015. The General Counsel posits that these calendars would show the events that took place
at the club during each month of each of those years and would tend to show whether, over
time, there was a diminution of this type of work. It is conceded that the Respondent provided
the calendars for 2014 and 2015, but the Respondent did not provide the calendar for 2013. It is 40
also asserted that calendars for the months of January in 2014 and 2015 were not provided.
Union attorney Barker testified that the Union sought these calendars in relation to the
company’s claim of economic hardship and that the calendars would be useful in either
confirming or disproving that claim. 45
With respect to the calendars, I think that there is some limited relevance to the Union’s
request in light of the employer’s inability to pay contention. I therefore conclude that because
the Respondent did not fully comply with the request, the Respondent violated Section 8(a)(5)
and (1) of the Act. 50
JD(NY)-21-16
19
The complaint alleges that the Respondent failed to fully respond to the Union’s request
for the time cards for its bargaining unit employees from March and April 2015. As to this
information request, the General Counsel asserts that the time cards would show how much the
Respondent was spending on labor. Although one would think that the company’s audited
financial statements would be a good deal more revealing as to its financial health, I suppose 5
that this request could have some bearing on the company’s expenses and therefore would be
relevant to its inability to pay claim. Accordingly, I conclude that in this respect, the Respondent
violated Section 8(a)(5) of the Act.
By letter dated April 29, 2015, the Union requested the audited financial statement for 10
2014. It also asked for financial or operations reports that are provided to the Club’s members
for the years 2012, 2013 and 2014. And by letter dated July 24, the Union requested the
monthly profit and loss statements for the current and the past 3 fiscal years.8
The evidence was that the Respondent, in May 2015, provided a copy of its 201315
financial statement. Thereafter, in September, the Respondent provided a draft copy of its
annual financial statement for 2014. It ultimately provided the final draft of its 2014 financial
statement on February 29, 2016. The Respondent did not provide the Union with a copy of its
2012 financial statement.
20
Assuming that these union requests encompassed audited financial statements for the
years, 2012, 2013 and 2014, it seems that the Respondent failed to supply the 2012 statement,
but did supply the 2013 report in a timely fashion. As to the 2014 financial statement, it may be
that this statement had not been prepared by the company’s accountants until September 2015
and was not fully completed until early 2016. But the Respondent did not proffer evidence 25
suggesting that this was the problem and in its absence, I shall conclude that in this respect it
violated Section 8(a)(5) of the Act. I also conclude that by failing to furnish the 2012 financial
statement, the Respondent violated Section 8(a)(5) and (1) of the Act.
The April 29 letter requested disbursement ledgers for the current year and for the 30
preceding 3 fiscal years. In response, the company provided its disbursement reports for 2013,
2014 and 2015. It did not provide the 2012 report. As I shall assume that these documents
describe company payments made over each of the years covered, they would be relevant to its
claim of inability to pay. It seems to me that these reports did not require the gathering of
information in order to compile a yearly summary. Therefore, it does not appear that providing 35
the disbursement ledger for 2012 would have been onerous. Accordingly, I conclude that in
failing to provide the disbursement ledger for 2012 the Respondent violated Section 8(a)(1) of
the Act.
At the meeting of April 22 and by letter dated April 29, the Union requested: (a) 40
agreements for leases relating to the operation or management of the Respondent, the land
upon which it is located and/or the building in which the Respondent is located in; and (b) any
agreements for construction, renovation or rehabilitation of any of the facilities, premises and
grounds for the current year and for the preceding 3 fiscal years.
45
As to the first of these requests, I frankly don’t see what relation there is between the
ownership of the land and any leases to the Respondent’s inability to pay claim. Does the

8
I am going to assume for purposes of this proceeding that any financial and/or operation reports that are
made available to the Club’s membership would be the same or equivalent to its audited annual financial
reports.
JD(NY)-21-16
20
Union contend that the company’s financial problem could be solved by selling the 18th hole? In
any event, the General Counsel’s Brief does not address this request and I shall assume that
this claim is dropped.
As to the second of these requests, attorney Barker testified that the Union asked for 5
information about construction and/or renovation projects because it didn’t seem that the
company’s inability to pay claim was consistent with what looked like its construction projects. In
this respect, I can see how the Union’s request for this type of information could be relevant to
the Respondent’s claim of financial distress. Therefore to the extent that the company did not
provide this information, I conclude that it violated Section 8(a)(5) of the Act. 10
CONCLUSIONS OF LAW
1. By subcontracting out bargaining unit work, without notice to the Union or affording it
an opportunity to bargain over the decision, the Respondent violated Section 8(a)(5) and (1) of 15
the Act.
2. By failing to recall regular full-time employees in accordance with the seniority
provisions of the collective-bargaining agreement, the Respondent has unilaterally modified the
provisions of its collective-bargaining agreement during its term, and having done so without the 20
Union’s consent, it has violated Section 8(a)(5) & (1) and Section 8(d) of the Act.
3. By failing to abide by the seniority provisions of the collective-bargaining agreement
when laying off employees, the Respondent has, without the consent of the Union, unilaterally
modified the contract during its term, and has violated Section 8(a)(5) and (1) and Section 8(d) 25
of the Act.
4. By unilaterally and without offering to bargain with the Union, failing to recall
employees in order of seniority and by laying off employees without regard to seniority, the
Respondent violated Section 8(a)(5) and (1) of the Act.30
5. By refusing to deduct union dues on behalf of bargaining unit employees, and failing
to remit them to the Union, the Respondent, in the absence of the Union’s consent, has
modified the collective-bargaining agreement during its term, and has violated Section 8(a)(5)
and (1) and Section 8(d) of the Act. 35
6. By refusing to make contributions on behalf of bargaining unit employees to the
Union’s health and pension funds, the Respondent, in the absence of the Union’s consent, has
modified the collective-bargaining agreement during its term, and has violated Section 8(a)(5)
and (1) and Section 8(d) of the Act.40
7. By threatening to call the police and then calling the police when employees visited
the Respondent’s facility in order to concertedly protest the failure to recall them to work, the
Respondent violated Section 8(a)(1) of the Act.
45
8. By failing to fully and timely respond to the Union’s request for financial information in
response to the Respondent’s claim of inability to pay, the Respondent violated Section 8(5)0
and (1) of the Act.
9. The aforesaid violations affect commerce within the meaning of Section 2(6) and (7) 50
of the Act.
JD(NY)-21-16
21
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to 5
effectuate the policies of the Act.
With respect to the subcontracting issue, it is recommended that the Respondent be
ordered to cease and desist from engaging in subcontracting of bargaining unit work, absent
good faith bargaining with the Union. It is also recommended that to the extent that bargaining 10
unit employees were not offered employment for various functions, or recall to employment, or
were laid off as a result of such subcontracting, these employees must be made whole for any
loss of earnings and other benefits suffered. Backpay shall be computed in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 15
NLRB 6 (2010). Additionally, the Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar quarters and shall also
compensate these employees for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year. Don Chavas, LLC d/b/a
Tortillas Don Chavas, 361 NLRB No. 10 (2014). 20
As to the failure to utilize contract seniority to recall regular full-time employees or to lay
off such employees, they must be made whole for any loss of earnings and other benefits
suffered. In this respect, backpay would run from the dates in March 2015 that employees
would reasonably have been expected to be recalled, until the dates that they were actually 25
recalled. Also, to the extent that employees were laid off out of contractually defined seniority in
the autumn of 2015, the backpay period would be the dates of their layoffs to the dates that they
normally would have been laid off or until December 31, 2015, which is the date that the season
normally ends. Backpay for this set of employees shall also be computed in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons 30
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010). Additionally, the Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar quarters and shall also
compensate these employees for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year. Don Chavas, LLC d/b/a 35
Tortillas Don Chavas, 361 NLRB No. 10 (2014).
With respect to the failure to make contributions on behalf of employees to the Union’s
pension and welfare funds, the Respondent must make these contractually required payments
in accordance with the terms of the collective-bargaining agreement. As to this aspect of the 40
Remedy, the make-whole remedy shall be computed in accordance with the practice set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus daily
compound interest as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Further, if any employees have incurred losses because of the Respondent's termination of
payments to the Welfare Fund, or if the Union has paid such employee claims, it is 45
recommended that the Respondent reimburse, with interest, either the employee or the Union
for such losses. See Kraft Plumbing & Heating, 252 NLRB 891, fn. 2 (1980), enfd. mem., 661
F.2d 940 (9th Cir. 1981); Oakland Physicians Medical Center, LLC, d/b/a Doctors’ Hospital of
Michigan, 362 NLRB No. 149 (2015); and Brooklyn Hospital Center, 344 NLRB 404 (2005).
50
JD(NY)-21-16
22
With respect to the failure to deduct union dues and fees and to remit such moneys to
the Union, the Respondent must make these contractually required payments to the Union, with
interest in accordance with the practice set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus daily compound interest as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). However, if the Respondent can prove at 5
the compliance stage of this proceeding, that any of the employees for whom dues were not
deducted had never signed a dues check-off authorization, then the Respondent would be
excused from making such payments on behalf of those particular persons. It should be kept in
mind that it is the Respondent that would have the burden of proof.
10
Regarding the failure to furnish information violations, the Respondent shall be ordered
to cease and desist from refusing to furnish financial information, if in the future, it makes a
claim of inability to pay wages or other terms and conditions of employment. However, the claim
in this case, is essentially moot. This claim of inability to pay was made in December 2014 and
repeated in April 2015 in connection with the Respondent’s assertion that it might seek 15
arbitration pursuant to article 29 of the contract. This provision allows an arbitrator to lower the
contractual wage rates upon a showing of undue financial hardship. Notwithstanding the
company’s notification that it might initiate that procedure, it never actually did so. And since the
Union’s need for financial information was tied to the company’s intention to utilize the article 29
procedure, that need no longer existed after it became clear that the Respondent did not, in fact, 20
intend to initiate that procedure. When the company took self-help action, the Union filed these
unfair labor practice charges, which put the issues and the remedy within the sole jurisdiction of
the Board. And if the General Counsel needs to acquire any information for purposes of
determining backpay, she has the means to do so.
25
In light of this unusual set of circumstances, I do not think that the information requested
is any longer relevant to the purpose for which it was sought. Therefore, despite issuing a
cease and desist order, I shall not require the Respondent to furnish this information to the
Union at this time.
30
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 9
ORDER
35
The Respondent, Knollwood Country Club, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Making mid-term modifications in its collective-bargaining agreement with Unite Here, 40
Local 100 by (i) failing to make contributions to the Union’s pension and welfare funds; (ii) by
failing to check off and remit to the Union, dues from employees within the bargaining unit; and
(iii) by refusing to use seniority as required by the collective-bargaining agreement with respect
to layoffs and recalls.
45
(b) Subcontracting out bargaining unit work without prior notification to the Union and
without offering to bargain with the Union.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(NY)-21-16
23
(c) Refusing to furnish in a complete and timely manner, the financial information
requested by the Union where the Respondent has claimed an inability to pay the wages and
benefits set forth in the collective-bargaining agreement.
5
(d) Threatening to call the police and calling the police when employees concertedly visit
the Respondent’s premises in order to protest their failure to be recalled to work.
(e) In any like or related manner interfering with, restraining or coercing employees in the
rights guaranteed to them by Section 7 of the Act. 10
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
(a) Resume making contributions to the Unite Here Local 100 pension and welfare funds15
as required by the collective-bargaining agreement.
(b) Resume checking off and remitting dues and other fees to the Union in accordance
with the check off provisions of the collective-bargaining agreement with Unite Here Local 100.
20
(c) Resume utilizing seniority as set forth in the aforesaid collective-bargaining
agreement for all purposes including layoffs and recalls.
(d) Make whole in the manner set forth in the Remedy section of this Decision, any
employees who have suffered a loss by virtue of the failure to make contractually required 25
contributions on their behalf to the Unite Here Local 100 pension and welfare funds.
(e) Make whole in the manner set forth in the Remedy section of this Decision, any
employees who have suffered a loss by virtue of the unilateral subcontracting of bargaining unit
work. 30
(f) Preserve and, within 14 days of a request, make available to the Board or its agents
for examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount of
backpay due under the terms of this Order.35
(g) Within 14 days after service by the Region, post at its facilities in Elmsford, New
York, copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms
provided by the Regional Director for Region 2, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and 40
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 altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its 45

10 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(NY)-21-16
24
own expense, a copy of the notice to all current employees and former employees employed by
the Respondent at any time since February 7, 2015.
(h) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that 5
the Respondent has taken to comply.
Dated: Washington, D.C. June 9, 2016
_____________________10
Raymond P. Green
Administrative Law Judge
15
JD(NY)-21-16
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected concerted activities.
WE WILL NOT make mid-term modifications in our collective-bargaining agreement with Unite
Here, Local 100 by (i) failing to make contributions to the Union’s pension and welfare funds; (ii)
by failing to check off and remit to the Union, dues from employees within the bargaining unit;
and (iii) by refusing to use seniority as required by the collective-bargaining agreement with
respect to layoffs and recalls.
WE WILL NOT subcontract out bargaining unit work without prior notification to the Union and
without offering to bargain with the Union.
WE WILL NOT refuse to furnish in a complete and timely manner, financial information
requested by the Union where we have claimed an inability to pay the wages and benefits set
forth in the collective-bargaining agreement.
WE WILL NOT threaten to call the police or call the police when employees concertedly visit our
premises in order to protest their failure to be recalled to work or to engage in other protected
concerted activity.
WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the
rights guaranteed to them by Section 7 of the Act.
WE WILL resume making contributions to the Unite Here Local 100 pension and welfare funds
as required by the collective-bargaining agreement.
WE WILL resume checking off and remitting dues and other fees to the Union in accordance
with the check off provisions of our collective-bargaining agreement with Unite Here Local 100.
WE WILL resume utilizing seniority as set forth in the aforesaid collective-bargaining agreement
for all purposes including layoffs and recalls.
WE WILL make whole any employees who have suffered a loss by virtue of the failure to make
contractually required contributions on their behalf to the Unite Here Local 100 pension and
welfare funds.
JD(NY)-21-16
WE WILL make whole any employees who have suffered a loss by virtue of the unilateral
subcontracting of bargaining unit work.
Knollwood Country Club
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 9:00 a.m. to 5:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02-CA-150410 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (212) 264-0346.