Wyndham International, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 2000

330 N.L.R.B. 691 (N.L.R.B. 2000)

CONDADO PLAZA HOTEL & CASINO 691
Wyndham International, Inc. and Posadas de Puerto
Rico Associates, Inc. d/b/a Condado Plaza Hotel
& Casino and Asociacion de Empleados de Ca-
sinos de Puerto Rico. Case 24–CA–7992
February 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
BRAME
On May 5, 1999, Administrative Law Judge D. Barry
Morris issued the attached decision. The General Coun-
sel and the Respondent, Posadas de Puerto Rico Associ-
ates, Inc. d/b/a Condado Plaza Hotel & Casino, each filed
exceptions and supporting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2

1 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the National Labor Relations Act by unilaterally
discontinuing its past practice of withholding optional life and cancer
insurance premiums from employees’ paychecks, we reject the Re-
spondent’s argument that the Union did not request bargaining with the
Respondent about the announced change. Specifically, Victor Villalba,
employee and union president, testified without contradiction that when
he was notified by letter of the Respondent’s decision to eliminate the
insurance premium withholding as of May 1, 1998, he contacted the
Respondent’s personnel director, Eddie Ortiz, and asked Ortiz “if we
could find an alternative in order to resolve this situation” and sug-
gested as a possible solution that the moneys deducted from employees’
pay be forwarded to the Union, which would then make the premium
payments to the various insurance companies. Ortiz consistently re-
fused to discuss this or any other option during their conversation,
maintaining that he was unable to do anything about the decision be-
cause it had been made “higher up.”
2 In his recommended Order, the judge required the Respondent to
“use its best efforts” to restore the group insurance policies for unit
employees. The General Counsel has excepted to the judge’s failure to
provide a full remedy for the unfair labor practice he found. “Pursuant
to the Board’s established policy, in cases such as this involving a
violation of Sec. 8(a)(5) based on an employer’s unilateral alteration of
terms and conditions of employment, it is customary to order restora-
tion of the status quo ante to the extent feasible.” Detroit News, 319
NLRB 262 fn. 1 (1995). Accordingly, we find merit in the General
Counsel’s exception and shall modify the judge’s recommended Order
to include standard remedial language.
Member Brame would not modify par. 2(a) of the judge’s recom-
mended Order.
The General Counsel has also excepted to the judge’s failure to or-
der that the notice be posted in both the English and Spanish languages.
Bilingual notices are customary in Region 24, and we shall modify the
judge’s recommended Order accordingly. Hospital Del Maestro, 323
NLRB 93 fn. 2 (1997).
Finally, we shall modify the judge’s recommended Order to include
a provision requiring the Respondent to preserve records necessary for
the computation of backpay.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Posadas
de Puerto Rico Associates, Inc. d/b/a Condado Plaza Ho-
tel & Casino, San Juan, Puerto Rico, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraphs 2(a) and (c),
respectively.
“(a) On written request of the Union, resume its prac-
tice of making payroll deductions for the group cancer
and life insurance policies, restore those policies for unit
employees, and make the employees whole for any
losses they may have suffered as a result of the unilateral
change, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).
“(c) 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 re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.”
2. Insert the following as paragraph 2(c) and reletter
the subsequent paragraph accordingly.
“(d) Within 14 days after service by the Region, post at
its San Juan, Puerto Rico facility copies of the attached
notice marked ‘Appendix.’4 Copies of the notice in
Spanish and English, on forms provided by the Regional
Director for Region 24, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 14, 1998.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
330 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 692
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 unilaterally change the practice of with-
holding premiums for group cancer and life insurance
policies for our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on written request of Asociacion de Em-
pleados de Casinos de Puerto Rico, the Union, resume
our practice of making payroll deductions for the group
cancer and life insurance policies, restore those policies
for unit employees, and make the employees whole for
any losses they may have suffered as a result of the uni-
lateral change, with interest.
WE WILL bargain in good faith with the Union concern-
ing any changes in the group cancer and life insurance
policies for our unit employees. The appropriate unit is:

All croupiers, cashiers, waiters, slot cashiers and pit
clerks that work at the hotel casino, excluding all other
employees of the casino and hotel, guards and supervi-
sors, as defined in the Act.

POSADAS DE PUERTO RICO ASSOCIATES, INC.
D/B/A CONDADO PLAZA HOTEL & CASINO

Virginia Milan-Giol, Esq. and Efrain Rivera-Vega, Esq., for the
General Counsel.
Edwin J. Seda-Fernandez, Esq. and Maria Ubarri-Rodriguez,
Esq. (Axtmayer Adsuar Muniz & Goyco), of San Juan, Puer-
to Rico, for the Respondent.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case was
heard before me in San Juan, Puerto Rico, on January 26 and
27, 1999. On a charge filed on April 23, 1998,1 a complaint was
issued on July 31, and amended at the hearing, alleging that

1 All dates refer to 1998 unless otherwise specified.
Posadas de Puerto Rico Associates Inc. d/b/a Condado Plaza
Hotel & Casino (Respondent or Condado Plaza)2 violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act, as
amended (the Act). Respondent filed an answer denying the
commission of the alleged unfair labor practice.
The parties were given full opportunity to participate, pro-
duce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Briefs were filed by the parties on April
9, 1999.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a wholly-owned subsidiary of Wyndham Inter-
national, Inc. (Wyndham), is a Delaware corporation operating
a hotel in San Juan, Puerto Rico. Respondent has admitted, and
I find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. In addition, it
has been admitted, and I find, that Asociacion de Empleados de
Casino de Puerto Rico (the Union) is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
1. Alleged unilateral change
In 1978 Respondent took out a group life insurance policy
with Maccabees Mutual Life Insurance Company (Maccabees)
to enable its unit employees to obtain life and cancer insurance
at group rates. For 20 years Respondent made payroll deduc-
tions for the premiums from its employees’ paychecks and
made the payments to Maccabees. Respondent also facilitated
its employees obtaining cancer and life insurance policies from
other companies, making the payroll deductions from the em-
ployees’ paychecks and paying the premiums as it did with the
Maccabees policy. Respondent made no contributions, but,
instead, withheld the requisite amounts from the employees and
made a single payment to the insurance companies at group
rates.
On April 14, 1998, Respondent notified the insurance com-
panies that effective May 1 it would no longer make the payroll
deductions for the policies and on April 15 Respondent so noti-
fied the employees. Also on April 15 Respondent notified Vic-
tor Villalba, president of the Union, that effective May 1 it
would no longer make the payroll deductions. By letter dated
April 22 from Krans Associates, a general insurance agency
which represented several of the insurance companies, Respon-
dent was urged to extend the May 1 effective date “in order to
allow present participants to secure their individual coverage.”
The Krans request was not granted and the effective date of the
change in the withholding practice was May 1.
The law is well settled that unilateral changes of “wages,
hours and terms and conditions of employment” by an em-
ployer obligated to bargain with a representative of its employ-
ees in an appropriate unit, violates Section 8(a)(1) and (5) of
the Act. NLRB v. Katz, 369 U.S. 736, 747 (1962); Master Slack,
230 NLRB 1054 (1977), enfd. 618 F.2d 6 (6th Cir. 1980). Uni-
2 The complaint originally named Patriot America Hospitality Group
as a Respondent. The parties stipulated that the caption should be
amended as indicated.
CONDADO PLAZA HOTEL & CASINO 693
laterally changing health and welfare benefits, without bargain-
ing with the Union, is unlawful. Hen House Market No. 3, 175
NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir. 1970); Exxon
Co., U.S.A., 315 NLRB 952, 955 (1994). Respondent argues
that since cancer and life insurance benefits were not covered in
the collective-bargaining agreement, any unilateral change
would not be unlawful. However, Respondent’s practice of
withholding such payments was in effect for approximately 20
years. A unilateral change of an established “past practice”
constitutes a violation of Section 8(a)(5). Dow Jones & Co.,
318 NLRB 574, 576 (1995). In addition, Respondent contends
that it did not eliminate a “benefit” by discontinuing its practice
of withholding, since the insurance plans were noncontributory
and Respondent merely made deductions from employees’
paychecks. In unrebutted testimony, Elsie Santana, a Krans
representative, credibly testified that group policies are less
expensive than individual policies. I believe that Respondent’s
withholding premium payments so that the unit employees
were able to participate in a group plan constitutes a benefit
which Respondent eliminated unilaterally, without offering the
Union the opportunity to bargain concerning the change. This
constitutes a violation of Section 8(a)(1) and (5) of the Act.
2. Liability of parent
As noted above, Respondent is a wholly-owned subsidiary of
Wyndham International, Inc. While Respondent’s counsel
agreed that the caption be amended to include Wyndham, he
specifically stated at the hearing that he did not concede the
liability of the parent. The General Counsel maintains that
Wyndham should be included in the order remedying the unfair
labor practice. For a parent to be liable for the unfair labor prac-
tices of its subsidiary, there must be a showing of the parent’s
“direct participation” in the unlawful conduct. Swift Independ-
ent Corp., 289 NLRB 423, 429 (1988); Esmark, Inc., 315
NLRB 763, 767 (1994). Villalba testified that Eddie Ortiz,
Respondent’s human resources director, told him that the
change in withholding policy came from “higher up” and that
Ortiz could not do anything about it. The General Counsel ar-
gues that this testimony shows Wyndham’s “direct participa-
tion.” I disagree. The record does not show what was meant by
the term “higher up.” Ortiz was human resources director. He
clearly was not the highest officer of Respondent. The term
“higher up” could have referred to an official higher up in the
corporate structure of Respondent, Condado Plaza. Accord-
ingly, I find that the General Counsel has not satisfied its bur-
den of showing the direct participation of the parent, Wyndham
International, in the unfair labor practice. My finding, however,
does not preclude the General Counsel from establishing
Wyndham’s role, if any, in a supplementary proceeding.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By making a unilateral change without affording the Un-
ion an opportunity to bargain concerning the change, Respon-
dent has engaged in an unfair labor practice within the meaning
of Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practice constitutes an unfair
labor practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair labor
practice, I find it necessary to order Respondent to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
Respondent, having ceased withholding payments for the
group cancer and life insurance policies, I shall order that, upon
the Union’s written request, Respondent resume its withholding
practice and use its best efforts to have the group cancer and
life insurance policies reinstated. Respondent shall reimburse
unit employees for any expenses ensuing from the unilateral
change, as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), as com-
puted in the manner stated in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Posadas de Puerto Rico Associates, Inc.
d/b/a Condado Plaza Hotel & Casino, San Juan, Puerto Rico, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing the practice of withholding premi-
ums for group cancer and life insurance policies for unit em-
ployees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) On written request from the Union, resume its practice of
making payroll deductions for the group cancer and life insur-
ance policies, use its best efforts to restore said policies for unit
employees and make the employees whole for any losses they
may have suffered as a result of the unilateral change, with
interest, in the manner set forth in the remedy section.
(b) Bargain in good faith with the Union concerning any
changes in the group cancer and life insurance policies for unit
employees. The appropriate unit is:

All croupiers, cashiers, waiters, slot cashiers and pit clerks
that work at the hotel casino, excluding all other employees of
the casino and hotel, guards and supervisors, as defined by the
Act.

(c) Within 14 days after service by the Region, post at its fa-
cility in San Juan, Puerto Rico, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 24, after being signed by
the Respondent’s authorized representative, shall be posted by

3 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 pur-
poses.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not 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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 14, 1998.
(d) 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 the
Respondent has taken to comply.