UNITE-HERE, Local 11 (Biltmore Hotel)

National Labor Relations Board - Administrative Judge Opinions

Nov 23, 2010

21-CB-014893 (N.L.R.B. Nov. 23, 2010)

JD(SF)–45–10
Los Angeles, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
UNITE-HERE! LOCAL 11
(WHB Biltmore LLC
d/b/a Millennium Biltmore Hotel)
and Case 21–CB–14893
JULIO SEGURA, An Individual
Daniel Adlong, Esq. Los Angeles, California
for the General Counsel.
Kristin Martin, Esq. (Davis, Cowell & Bowe, LLP)
San Francisco, California, for the Respondent
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Los Angeles,
California on August 17, 2010, based on the charge filed on February 8, 2010, alleging UNITE
HERE! Local 11 (Respondent) violated Section 8(b)(1)(A) of the Act by threatening employees
because of their protected concerted activities, the amended charge was filed on April 30, 2010
and the Complaint (Complaint) and Notice of Hearing issued on May 27, 2010, by the Regional
Director for Region 21.
The Complaint alleges that UNITE HERE! Local 11 (Respondent) violated Section
8(b)(1)(A) of the Act by coercing unit employees in the exercise of their Section 7 rights by
telling employees they would lose benefits if they continued to circulate a petition against
changes in the health plan and by interrogating unit employees about the petition protesting the
changes in the health plan.
Respondent filed a timely answer to the complaint stating it had committed no
wrongdoing.
FINDINGS OF FACT
Upon the entire record herein, including the briefs from the General Counsel and
Respondent, I make the following findings of fact.
I. JURISDICTION
WHB Biltmore, LLC d/b/a Millennium Biltmore Hotel (Employer), a Delaware corporation,
with an office and place of business in Los Angeles, California, and engaged in the hotel
business, during the 12-month period ending March 17, 2010, derived gross revenues in excess
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of $500,000 and purchased and received at its Los Angeles, California facility goods valued in
excess of $50,000 directly from points outside the State of California.
Based on the above, the Employer has been at all times material, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
II. Labor Organization
Respondent admitted in its answer and I find that it is a labor organization within the
meaning of Section 2(5) of the Act.
III. The Alleged Unfair Labor Practices
A. The Threats and Interrogations
1. The Facts
This case involves an internal union dispute concerning changes that were made in an
employee health care plan which effected employees represented by Respondent at the
Biltmore Hotel in downtown Los Angeles. On about December 27, 2009,1 The Los Angeles
Hotel-Restaurant Employer-Union Welfare Fund notified employees covered under
Respondent’s negotiated health benefits that there were benefit changes in certain of the health
plans.
As a result of their displeasure with the changes in the health care plans, employees
Julio Segura (Segura), Cruz Macias (Macias), and Manuel Zeremeno (Zeremeno) circulated a
petition in January 2010 protesting the changes.2 The petition was mailed to Tom Walsh
(Walsh), Respondent’s president, on February 6, 2010 and received by Respondent on about
February 8, 2010.3 Nothing in the petition identified Segura, Macias, or Zeremeno as the
organizers of the petition. Their signatures were three of about 150 signatures on the petitions.
Segura, meanwhile, filed the charge with Region 21 in the instant case on February 8, 2010,
alleging Respondent violated Section 8(b)(1)(A) of the Act by threatening employees because of
their protected concerted activities.
On February 11, 2010, Respondent’s senior lead organizer, Manuel Roman (Roman),
Respondent’s lead organizer, Oscar Salazar (Salazar)4, and Respondent’s organizer, Jeffrey
Agerkop (Agerkop) went to the Biltmore Hotel to find out what the employees’ concerns were
regarding the health care plan. Respondent’s three organizers went to the hotel employees’
entrance and began speaking with employees about the health plan changes. There is a
considerable difference between the Respondent’s witnesses and General Counsel’s witnesses
as to the substance of the conversations that took place on February 11, 2010 at the hotel.

1 R. Exh. 1.
2 GC Exhs. 3 and 4.
3 GC Exhs. 5 and 6.
4 Respondent stipulated that Roman and Salazar were its agents within the meaning of the
Act.
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a. Julio Segura
Segura was employed by the Biltmore Hotel and was a member of Respondent. Segura
served on Respondent’s organizing committee to assist in recruiting employees to become
members of Respondent. Segura was also a member of the committee at the Biltmore Hotel
that Respondent organized to deal with the health care plans’ shortfalls. The Health Care Trust
had advised Respondent that the extant employer contributions to the trust under the provisions
of the collective bargaining agreement were insufficient to cover the costs of the health and
welfare plans. There either had to be increased employer contributions or reduced benefits.
Since the employers refused to increase contributions, the employee committees, including the
one at the Biltmore Hotel of which Segura was a member, were organized to come up with a
solution.
According to Segura, on February 12, 2010, Roman, Salazar and Agerkop spoke with
him in Spanish at his work station at about 10:30 a.m. Salazar told Segura he wanted him to
meet Roman and that he wanted to talk to Segura. Salazar said, ”Julio, how come you are
gathering signatures to put us against the union?” Segura admitted on cross examination that
Roman said that Segura was misinforming people. Roman then yelled at Segura and said,
“What you’re doing is illegal, all these signatures don’t indicate what this is for and that I’m going
to show you how things are done.” Segura said there was no need to scream and this ended
the conversation.
b. Cruz Macias
Macias is a banquet server at the Biltmore Hotel and a member of Respondent.
On February 11, 2010, at about 10:15 a.m. Macias met with Roman, Salazar and
Agerkop outside the employees’ entrance at the Biltmore Hotel. Macias is fluent in both English
and Spanish. Roman approached Macias and gave him his business card. Roman asked
Macias his name and Macias told him. Roman then said, “You’re the person I would like to
speak to.” Macias said he did not have time then because he had to go into work. A short time
later in the employees’ locker room, Roman, Salazar and Agerkop approached Macias and
Roman asked why Macias had signed the petition. Macias said he did not agree with the
decisions they were making on the benefit plan. Roman asked Macias if he had written the
petition and Macias replied that he had. Roman called Macias a liar and that he had lied to the
employees, saying, ”You told them that they were going to raise the dues to $80 instead of $47.”
Macias left the locker room and went to work in the banquet room.
In the kitchen near the ballroom Macias again saw Roman, Salazar, and Agerkop with a
few employees. Roman said to Macias, “You’re a liar, you lied to the people.” Roman added,
“If you guys continue with this petition, all you guys are going to do is end up losing your
benefits.”
c. Jeffrey Agerkop
Agerkop was unable to remember the day or month that he Roman, Salazar, and
Biltmore Hotel shop steward Agostin Herrera (Herrera) went to the Biltmore Hotel together to
talk to employees about the health benefits petition. The four went to the Biltmore after a
regularly held Thursday morning union stewards’ meeting that ended at noon. Agerkop said
they met employees at the employees’ entrance to the hotel. Agerkop is somewhat fluent in
Spanish. The four union representatives asked employees if they knew what they had signed
on that petition and tried to explain the changes in the health benefits plan. Agerkop saw
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Roman talking with Macias and Macias had raised his voice and said something about suing the
Union. Later Agerkop, Roman, and Salazar encountered Macias again in the banquet hall
service area. The union agents were speaking to employees about changes in the health plan.
Macias complained to Roman about the illegality of the changes to the health plan.
Agerkop said that he, Roman, and Salazar spoke to Segura around 1 p.m. at his work
station,. Roman asked Segura why he was passing this petition around. Agerkop in a very
vague and nonspecific manner said they asked Segura what he was telling people about the
petition. Agerkop denied Roman got angry or yelled at Segura. Agerkop denied that Roman
told Segura they were going to “show you how it’s done.” Agerkop also denied that
Respondent’s agents told Macias that employees would lose their benefits if they signed or
circulated the petitions. Agerkop denied being in the employees’ locker room that day.
d. Oscar Salazar
Salazar recalled going to the Biltmore Hotel on the second Thursday in February 2010,
at about 1 p.m. with Roman, Agerkop, and Herrera to tell employees about the health and
welfare changes. Salazar speaks both Spanish and English. Salazar overheard Macias near
the employees’ entrance to the hotel speaking with Roman. Macias said, ” . . . [W]e work for
them and we don’t have the right to make changes on our health and welfare plan.” Macias
added, “ . . . we would not see who was going to win at the end because he would not sue us
because basically we work for him.” Macias’ voice was raised during this exchange. Salazar
said he did not see Macias in the employees’ locker room. Later Salazar encountered Macias in
the ballroom service area while speaking with employees about changes presumably to the
health plans. Macias came into the area and said the Union agents were not supposed to be
there and got within inches of Roman’s face. Salazar denied telling any employees in the
service area that if they circulated a petition they would lose their benefits.
Salazar said that on another unspecified date he, Roman, and Agerkop spoke to Segura
at his work station and asked if he understood the changes in the health plan and since he was
one of the most informed employees at the hotel about the changes, he should inform
employees how the changes came about. Union dues increases were mentioned and Segura
said he did not understand the increase.
e. Manuel Roman
After the shop steward’s meeting on February 11, 2010, Roman, Salazar Agerkop and
Herrera went to the Biltmore Hotel to find out what employees’ concerns were as a result of the
petition. Roman and the other union agents spoke to employees about the health care changes
near the employees’ entrance. Roman is fluent in both Spanish and English. While Roman was
having a conversation with an employee, Macias said, “Yeah, I’m not in favor of that.” Roman
introduced himself to Macias and said let’s talk. Macias became agitated and said, “What we
were doing was illegal, that we had no right to make these changes.” When Roman tried to
explain how the health fund worked and why the change to the health plan had to be made,
Macias said he did not want to hear any of that and said, “what you guys did was illegal, and by
the way you work for me.” Macias said something to the effect of “we’ll” see who wins in the
end.” Macias also said he was going to sue the Union.
Later Roman encountered Macias in the employees’ lockerroom. Macias was talking
with other employees and Roman tried to explain the reason for the changes to the health plan.
A little while later Roman again had contact with Macias in the service area of the ballroom.
Roman was talking with employees when Macias came up and told Roman he should get out
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and that Roman had no right to be there. Roman denied saying that if employees continued to
circulate the petition they would lose their benefits. Roman said that the health fund had more
money going out than coming in and if changes were not made, the fund would go broke and
that would affect employees’ benefits.
Roman said that on another unspecified date he, Salazar, and Agerkop spoke to Segura
at this workstation. Roman told Segura, “it’s not bad for you to be passing around the petition,
its just that explain to folks why these changes had to be made.” Roman denied telling Segura
it was illegal to pass out the petition. Roman admitted he asked Segura why he was gathering
signatures on a petition.
2. Analysis
a. Credibility
The context in which the Respondent’s representatives visited the Biltmore Hotel on
February 11, 2010, is significant. There is no dispute that the Los Angeles Hotel-Restaurant
Employer-Union Welfare Fund had indicated there was a crisis in the funding of employee
health plans and that Respondent dealt with this crisis by forming employee committees to
resolve the funding issue. Further, prior to February 11, 2010, the health care issue had been
resolved. After receiving the petition dealing with health care changes and the unfair labor
practice charge filed by Segura, Roman was told by Biltmore Shop Steward Herrera that he
signed the petition to avoid union dues being raised. Respondent had at no time considered a
dues increase. Clearly there was confusion by the Biltmore employees about the issue of
health care benefits and union dues, justifying Respondent’s representatives clarifying these
issues with their members at the Biltmore Hotel.
In assessing the credibility of Segura and Macias, it is significant that there is no
evidence of any threats or interrogation by Respondent prior to February 11, 2010. Yet the
charge filed on February 8, 2010, alleges threats by Respondent. That the charge was filed
before any of the alleged incidents, suggests fabrication. Moreover there was no corroboration
of any of the alleged threats or interrogations, other than those admitted by Respondent’s
witnesses, despite evidence that there were many employees present during the alleged threats
and interrogations. On other hand Respondent’s agents’ testimony was consistent and
corroborative of each other. Respondent’s alleged threats that employees would lose benefits if
they continued with the petition, is illogical. First, the changes to the health care benefits were a
fait accompli. Second, the petition was already completed as it had been signed and mailed to
Respondent. Third, Roman’s admitted statements to employees that if changes to the health
plan were not made, employees could lose benefits because fund would be bankrupt, is a more
likely explanation of what was said about employees losing benefits.
Likewise, the alleged interrogation of Macias by Roman about writing the petition is
unlikely since there is no evidence Respondent knew Macias had any part in preparing or
gathering signatures for the petition. In addition, Macias’ recollection is suspect. He claims that
the interrogation occurred on February 11, 2010 at 10:30 a.m. when the credible evidence
indicates the conversation could not have occurred until afternoon. Respondent’s witnesses
testified consistently that the meeting with employees at the Biltmore Hotel occurred after a
morning union steward meeting at the union hall that did not end until noon. Moreover, Segura
and Macias demeanor at the hearing seemed quite hostile. Macias admitted his hostility toward
Roman required intervention by another employee at the hotel.
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Accordingly, I do not credit the testimony of Macias that Roman asked Macias if he had
written the petition. Rather, I credit Roman’s testimony that while he was in the locker room he
was merely explaining the health benefits changes to employees. Further, I do not credit
Macias’ testimony that Roman told him, “If you guys continue with this petition, all you guys are
going to do is end up losing your benefits.” Rather, I credit Roman that he said the health fund
had more money going out than coming in and if changes weren’t made the fund would go
broke and that would affect employees’ benefits. This was simply an explanation of what had
transpired with the deficits to the health care fund.
On the other hand, since Segura’s name appeared on the unfair labor practice charge, it
is more likely that Respondent’s representatives would have reason to single him out and ask
him about the petition. Both Roman and Agerkop admitted asking Segura why he was involved
with the petition, so it is likely that Salazar also inquired of Segura about the petition. Moreover,
Salazar did not deny on February 11, 2010 asking Segura, “Julio, how come you are gathering
signatures to put us against the union?” I credit Segura in this regard.
b. The Complaint allegations
Complaint paragraph 7(a) alleges that on about February 12, 2010, Roman coerced unit
employees in the exercise of their Section 7 rights by telling employees they would lose their
benefits if they continued to circulate a petition against the changes in the health plan.
Having failed to credit Macias’ testimony, I find there is no credible evidence to support
this allegation and recommend it be dismissed.
Complaint paragraph 7(b) alleges that on about February 12, 2010, Roman interrogated
unit employees about a petition protesting the change to the health plan.
Roman and Agerkop both admitted asking Segura on February 11, 2010 why he was
passing this petition around or why he was gathering signatures on a petition.
Complaint paragraph 8 alleges that on February 12, 2010, Salazar interrogated unit
employees about the petition protesting the changes to the health plan.
The credible evidence indicates that on February 11, 2010 Salazar asked Segura, “Julio,
how come you are gathering signatures to put us against the union?”
The law is well settled that interrogations by union representatives should be examined
“in context in order to determine if under all the circumstances it would have a tendency to
restrain and coerce employees within the meaning of Section 8(b)(1)(A) of the Act.” Letter
Carriers Local 233 (Postal Service), 311 NLRB 641, 545 (1993); American Postal Workers
Union, 328 NLRB 281, 282 (1999). In American Postal Workers Union the interrogation by the
union representative was in the context of the union member’s request for assistance in filing
her grievance and an immediate inquiry into her membership in the Respondent Union. The
Board, in finding the interrogation coercive, noted that the questions, “. . .could only suggest that
the Respondent’s future handling of Johnson’s grievance may be affected by her lack of
membership in the Respondent.” Id. at 282.
Counsel for the General Counsel also cites Peninsula Shipbuilders Assn., 237 NLRB
1501 (1978); Aristocrats Inns of America, 146 NLRB 1599 (1964); Amalgamated Clothing &
Textile Workers, Local 990, 174 NLRB 1148, fn. 1 (1969); and Service Employees Local 399
(City of Hope), 333 NLRB 1399 (2001) for the proposition that various interrogations by union
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agents violated Section 8(b)(1)(A) of the Act. In each of these cases, the union agents
accompanied their interrogations by threats of job loss, suggestions that the union’s processing
of a grievance was dependent upon the member answering their questions, and by the
presence of the employer during the questioning.
Respondent argues that the questions asked of Segura by the Union’s representatives
were not coercive but were permitted inquiries. Respondent cites Randell Warehouse of
Arizona, 347 NLRB 591, 595 (2006), where
The Board has held that it is not objectionable conduct for a union to solicit employees
noncoercively to support it and to maintain a written record of how employees respond.
Direct personal solicitation and polling are the primary means by which unions
effectuate the policies of the Act by affording employees the right to “self-organization, to
form, join, or assist labor organizations, [and] to bargain collectively through
representatives of their own choosing.”
See also Fessler & Bowman, Inc., 341 NLRB 932, 934 (2004).
In Springfield Hospital, 281 NLRB 643, 692–693 (1986), where the union asked
employees whether they were for or against union and recorded responses, the administrative
law judge found:
Here, the Employer has not shown that either the questioning of employees by prounion
employees or by the Union's agents or the Union's use of charts to record the
employees' sentiments or the discussion of individual employees' sentiments at union
meetings occurred in a context of threats of reprisal or other coercive conduct
attributable to the Union or to its supporters .
In Graham Engineering, 164 NLRB 679, 695 (1967), the union questioned an employee
concerning his support of a rival union. The Board affirmed the administrative law judge who
found the questioning coercive where the interrogation occurred against the background of the
union’s threat at a union meeting of reprisals against adherents of District 50.
Likewise in Retail Clerks Locals 698 and 298 (Skorman’s, Inc.), 160 NLRB 709, 710
(1966), in the context of ongoing surveillance by the union, questioning employees about their
de-authorization activities and threatening to keep them under surveillance, the Board found the
union violated Section 8 (b) (1) (A) of the Act.
Finally in Stokely-Bordo, 130 NLRB 869, 873 (1961), employees who were summoned
individually to the plant office where they were interrogated by Thomas, the vice president of the
Chemical Workers International, in the presence of other union representatives and employer
officials were found to have been coerced and the Board found that the union violated Section 8
(b) (1) (A) of the Act by interrogating employees about their participation in circulating a petition
protesting representation by the Chemical Workers.
In each case where the Board has found the union’s interrogation coercive and violative
of Section 8(b)(1)(A) of the Act, there has been additional conduct by the union that made the
interrogation coercive. Thus the union has questioned employees in the presence of the
employer, the union has threatened to withhold representation in the grievance procedure, the
union has threatened surveillance, the union has threatened employees with unspecified
reprisals or the union has threatened employees with loss of jobs.
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Such examples of coercion are absent in the instant case. I have found that
Respondent did not threaten Macias or other employees with loss of benefits if they continued
to circulate the petition. Respondent’s interrogation of Segura occurred in the context of
confusion about whether the petition involved increased union dues or changes in the health
plan. Certainly the Union, in its duty of representation to members at the Biltmore Hotel, had a
legitimate interest in finding out why the employees were unhappy and what changes they were
unhappy about. Asking the person who filed the unfair labor practice charges and who
prepared the petition why he had circulated the petition, in the absence of any evidence of
coercive conduct by Respondent, did not violate Section 8(b)(1)(A) of the Act. I will recommend
that the complaint allegations 7(b) and 8 be dismissed.
Conclusions of Law
1. WHB Biltmore, LLC d/b/a Millennium Biltmore Hotel is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent Union has been a labor organization within the meaning of Section
2(5) of the Act.
3. Respondent did not violate Section 8(b)(1)(A) of the Act and the Complaint is
dismissed.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.5
ORDER
The complaint is dismissed.
Dated, Washington, D.C.
_______________________
John J. McCarrick
Administrative Law Judge

5 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.