Fort Pierce Jai-Alai

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 728 (N.L.R.B. 1992)

729
308 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall modify the judge’s remedy to require that backpay be
computed as prescribed in Ogle Protection Service, 183 NLRB 682
(1970). In addition, we shall substitute a new notice that conforms
to the judge’s recommended Order.
2 Specifically, at art. XVI, sec. 4(c), the collective-bargaining
agreement provides:
3 The hearing dates were scheduled for August 28 and September
10 and 11, 1991.
4 In its exceptions, the Respondent claims that it was the Union’s
attorney who first conveyed the information concerning the Re-
spondent’s financial status to the arbitrators. The record shows, how-
ever, that Hogg was the first to contact the arbitrators with the infor-
mation.
5 Although Hogg discussed the Respondent’s financial problem
with the Union’s attorney, the discussion amounted to a simple relay
of information. Hogg in no way indicated that the Respondent was
seeking to open talks on the subject.
6 In Member Oviatt’s view, the Respondent did not meet its bur-
den of defense concerning its financial inability to meet its contrac-
tual obligations. At a minimum under the standard Member Oviatt
would apply, the Respondent was required to show that its inability-
based failure to pay accrued prize money and to go forward with
arbitration was followed by a request to meet with the Union to dis-
cuss and resolve the financial problems. See Member Oviatt’s dis-
senting opinion in Zimmerman Painting & Decorating, 302 NLRB
856 (1991).
7 See generally 3 State Contractors, 306 NLRB 711 (1992).
WJA Realty Limited Partnership d/b/a Fort Pierce
Jai-Alai, Miami Jai-Alai, Ocala Jai-Alai,
Tampa Jai-Alai, and World Jai-Alai Players
and International Jai-Alai Players Association-
UAW Local 8868, AFL–CIO. Case 12–CA–
14733
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 8, 1992, Administrative Law Judge Steven
M. Charno issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in response.
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
The Respondent has excepted, inter alia, to the
judge’s finding that it violated Section 8(a)(5) and (1)
of the Act by failing to abide by the arbitration provi-
sion of the collective-bargaining agreement. For the
reasons set forth below, we agree with the judge.
The parties’ collective-bargaining agreement pro-
vides that a grievant or the Union may submit a griev-
ance to arbitration and that the clear loser of the arbi-
tration must pay the arbitrator’s fees and expenses. The
contract further provides that in the absence of ‘‘a
clear loser,’’ the parties share the arbitration costs.2
The arbitrator’s fee and expenses shall be paid by
the losing party if there is a clear loser. If the ar-
bitrator rules partially for one party and partially
for the other, the arbitrator’s fees and expenses
shall be paid one-half by each party.
By letters dated August 16, 1991, and by telephone
conversations thereafter, the Respondent’s attorney,
Jesse S. Hogg, informed the two arbitrators already
scheduled to hear grievances3 that the Respondent was
experiencing financial difficulties and might not be
able to pay for their arbitration services and expenses.4
The arbitrators responded that it would be inappropri-
ate to go ahead with the hearings until they could be
assured of complete payment. The Respondent never
contacted the Union to negotiate a plan to recommence
the arbitration process.5 No arbitration hearing has
been held since August 16, 1991. As of the date of the
Board hearing, there were a minimum of 15 outstand-
ing grievances waiting to be heard by an arbitrator.
The Respondent argues that it did not violate Sec-
tion 8(a)(5) and (1) of the Act because it never refused
to submit to arbitration and that it acted in good faith
by not misleading the arbitrators about its ability to
pay their expenses and fees. We find no merit to the
Respondent’s argument.
Although the Respondent acted in good faith by not
misleading the arbitrators about its financial status, we
do not find that the Respondent fulfilled its statutory
obligation to bargain in good faith with the Union.
After the Respondent effected the arbitrators’ suspen-
sion of the two previously scheduled hearings by in-
forming the arbitrators about its precarious financial
condition and potential inability to pay their fees and
expenses, the Respondent was obligated, at a mini-
mum, to bargain with the Union concerning re-
commencement of the hearings or other resolutions of
the pending grievances. The record indicates that the
Respondent had some options that it could have dis-
cussed with the Union. For instance, the Respondent
eventually had some funds that it used to pay off its
prize money obligations; it could have negotiated with
the Union about apportioning some of those funds to-
ward arbitration. Furthermore, the parties stipulated
that some of the claims that were to go to arbitration
were de minimis. Negotiations between the parties
might have resolved some of these claims without arbi-
tration. The Respondent, therefore, had issues and al-
ternatives to discuss with the Union.6 Accordingly, we
find that the Respondent’s failure to initiate negotia-
tions concerning a plan to recommence the hearing
process or otherwise resolve the grievances set for ar-
bitration amounted to a refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.7
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the outset of the hearing, I granted General Counsel’s motion
to sever and remand Cases 12–CA–14825 and 12–CA–14828 to the
Regional Director for Region 12.
2 It was agreed that the following employees constitute an appro-
priate unit for the purpose of collective bargaining:
All full-time and regular part-time jai-alai players, including sea-
sonal players, employed by Respondent at its Fort Pierce,
Miami, Ocala and Tampa, Florida facilities; excluding office
clerical and professional employees, guards and supervisors as
defined in the Act, and all other employees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, WJA Realty Limited Part-
nership d/b/a Fort Pierce Jai-Alai, Miami Jai-Alai,
Ocala Jai-Alai, Tampa Jai-Alai, and World Jai-Alai
Players, Fort Pierce, Miami, Ocala, and Tampa, Flor-
ida, its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except that the
attached notice is substituted for that of the administra-
tive law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT fail or refuse to bargain with Inter-
national Jai-Alai Players Association-UAW Local
8868, AFL–CIO as the exclusive collective-bargaining
representative of the employees in the bargaining unit
described below by unilaterally deferring payment of
contractually required prize money to jai-alai players,
and by failing and refusing to guarantee payment of ar-
bitration costs:
All full-time and regular part-time jai-alai players,
including seasonal players, employed by us at our
Fort Pierce, Miami, Ocala, and Tampa, Florida fa-
cilities; excluding office clerical and professional
employees, guards, and supervisors as defined in
the Act, and all other 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 make whole all our unit employees by
making all payments of prize money that have not
been paid, and by paying interest on all prize money
payments that were deferred in September and October
1991.
WE WILL arbitrate the grievances formerly scheduled
to be heard by Arbitrators George Bennett and George
Ostrow, and any other grievances in accordance with
the procedures in the collective-bargaining agreement.
WJA REALTY LIMITED PARTNERSHIP
D/B/A FORT PIERCE JAI-ALAI, MIAMI
JAI-ALAI, OCALA JAI-ALAI, TAMPA JAI-
ALAI, AND WORLD JAI-ALAI PLAYERS
Eduardo Soto, Esq., for the General Counsel.
Jesse S. Hogg, Esq. (Hogg, Allen, Norton & Blue, P.A.), of
Coral Gables, Florida, for the Respondent.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In re-
sponse to charges timely filed, a complaint was issued on
December 24, 1991, alleging that WJA Realty Limited Part-
nership, doing business as Fort Pierce Jai-Alai, Miami Jai-
Alai, Ocala Jai-Alai, Tampa Jai-Alai and World Jai-Alai
Players (Respondent), violated Section 8(a)(1) and (5) of the
National Labor Relations Act, by failing and refusing to bar-
gain collectively with the International Jai-Alai Players Asso-
ciation-UAW Local 8868, AFL–CIO (Union). Respondent’s
January 7, 1992 answer denied the commission of any unfair
labor practice.
A hearing was held before me in Miami, Florida, on
March 26, 1992.1 Under due date of April 30, 1992, General
Counsel and Respondent filed posthearing briefs.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida partnership engaged in the oper-
ation of jai-alai frontons in Fort Pierce, Miami, Ocala, and
Tampa, Florida. In the course of its business operations in
Florida, Respondent annually (1) has gross receipts in excess
of $1 million, (2) earns gross revenues in excess of
$500,000, and (3) purchases and receives goods valued in ex-
cess of $50,000 at each of its facilities from points outside
the State. It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of the
Act.
The Union is admitted to be, and I find is, a labor organi-
zation within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Certain background facts have been admitted by Respond-
ent. Since September 1990, the Union has been the exclusive
collective-bargaining representative of Respondent’s jai-alai
players.2 Respondent’s recognition of the Union in this ca-
pacity was embodied in a collective-bargaining agreement
dated September 23, 1990. That agreement, which is to re-
main in effect until December 31, 1993, provides for the
payment of (1) prize and performance-related bonus money
to the players and (2) arbitrators’ fees and expenses. Both
types of payment relate to terms and conditions of employ-
ment and are mandatory subjects for collective bargaining.
It is uncontested that Respondent experienced significant
financial hardship during the period of July 1991 through
731FORT PIERCE JAI-ALAI
3 Counsel for General Counsel confirmed this fact in response to
a question from the bench.
4 Respondent’s controller so testified without controversion.
5 The tabulated findings are based on the unrebutted testimony of
Respondent’s controller.
6 The fact that the agreement does not specify the time at which
prize money should be paid appears irrelevant in view of Respond-
ent’s historical practice. See NLRB v. Northeast Oklahoma City
Mfg., 631 F.2d 669 (10th Cir. 1980), enfg. 236 NLRB 1358 (1978).
7 The memorandum was received in evidence without objection.
8 This finding is based on the credited, uncontroverted testimony
of the Union’s grievance coordinator.
9 The parties stipulated as to the scope of distribution.
10 The parties so stipulated.
11 The complaint alleged that Respondent had failed and refused
‘‘to pay arbitrator fees and expenses.’’ The formulation set forth in
text was adopted by counsel for General Counsel at the close of the
hearing.
12 The agreement is in evidence.
13 The parties stipulated the contents of this conversation.
14 The letters were received in evidence without objection.
15 The parties stipulated that Respondent was generally known as
‘‘World Jai-Alai.’’
16 The stated desire of Respondent’s counsel not to be held respon-
sible for Respondent’s financial obligations appears well-founded.
On August 23, 1991, Arbitrator Haemmel filed an award from an
earlier arbitration and submitted a bill for $9412 to Respondent. Re-
spondent made a $2662 payment on the bill on December 3, 1991,
but did not pay the balance until March 9, 1992.
17 The parties so stipulated.
18 The Union’s letters were received in evidence without objection.
19 The parties so stipulated.
20 The Union’s grievance coordinator credibly so testified.
21 Respondent’s counsel stipulated that at least some of the grieved
matters were not de minimis.
March 1992.3 During July and August 1991, Respondent
lacked sufficient cash flow to pay its bills and its principal
lender refused to provide further credit.4 As a result, Re-
spondent failed to meet the following obligations:5
Bills Due But Unpaid October 1991 March 1992
State permit taxes for
July–September 1991 $560,000 $0
Property taxes for 1990 500,000 500,000
Vendors and services 410,000 200,000
Interest due lenders 462,000 71,000
Management salaries 108,000 73,000
Player prize money 260,000 144,000
Total $2,300,000 $988,000
B. Failure to Pay Accrued Prize Money
Article IX of the collective-bargaining agreement deals
with the topic of prize money but does not specify the time
of payment. Historically, any prize money earned during 1
month was paid on or about the 15th of the following
month.6 By memorandum dated September 10, 1991, Re-
spondent’s General Partner informed the partnership’s jai-alai
players that their ‘‘Prize & Championship money due for
September and October must be deferred . . . with an expec-
tation that all amounts due will be paid during the months
of November and December, 1991.’’7 Without prior notice to
the Union and without affording the Union an opportunity to
bargain,8 Respondent distributed this memorandum to all
players who were due prize money.9 As of March 18, 1992,
Respondent still owed its players at least $143,588 in ac-
crued prize money.10 When the Union grieved the decision
to defer the payment of prize money, Respondent admitted
its contractual obligation to pay but asserted that it was un-
able to do so because of insufficient funds.
C. Failure to Assure the Payment of Arbitrators’ Fees
and Expenses11
Section 4 of article XVI of the collective-bargaining agree-
ment provides that a grievant or the Union may submit a
grievance to arbitration and that the arbitrator’s fees and ex-
penses shall be paid by the losing party if there is a clear
loser, otherwise that those expenses shall be shared.12 During
a telephone conversation with the Union’s attorney to sched-
ule two arbitration hearings, Respondent’s attorney indicated
that his client was having serious financial difficulties and
suggested that the arbitrators should be made aware of the
situation. The Union’s attorney said that he would discuss
the matter with the arbitrators when he informed them of the
selected hearing dates.13 On August 16, 1991, Respondent’s
attorney authored letters to the two arbitrators, both of which
stated as follows:14
I feel obliged to make you aware that World Jai-
Alai15 is currently experiencing serious financial dif-
ficulties. There exists a possibility that World will be
unable to pay any statement for services and expenses
that you may submit as an arbitrator in this matter. Our
firm does not assume responsibility for payment in that
event.16
I have made the Union’s attorney, Mr. Daniel Liv-
ingston, aware of World’s financial situation, and have
suggested that this hearing . . . be postponed until that
situation is clarified. His reaction is that he will respond
to you.
Both arbitrators thereafter spoke with Respondent’s attorney
and informed him that they felt that it was inappropriate to
go ahead with the hearings until they could be assured of
prompt and complete payment.17 On September 11, 1991, the
Union’s attorney wrote to both arbitrators18 as follows:
I have been informed by a representative of World
Jai Alai that their financial position remains unchanged
as of this date. Thus, it would not be prudent to re-
schedule the arbitration hearing at this time. I will keep
you apprised of the situation.
No grievance has been heard by an arbitrator since August
16, 1991.19 As of March 26, 1992, there were a minimum
of 15 outstanding grievances waiting to be heard;20 at least
some of these concerned significant matters.21
D. Discussion
General Counsel alleges that Respondent failed to pay ac-
crued prize money to bargaining unit members without prior
notice to the Union and without giving the Union an oppor-
tunity to negotiate. This allegation is amply supported by the
record, and I so find. Because Respondent’s failure related
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 I find the settlement correspondence which took place between
counsel for Respondent and counsel for the Union after the com-
mencement of this proceeding to be irrelevant to the issue of wheth-
er Respondent failed to bargain with the Union in September 1991
concerning the terms and conditions of employment of bargaining
unit employees.
23 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
to the terms and conditions of employment of bargaining unit
employees, I conclude that Respondent failed to bargain col-
lectively with the exclusive bargaining representative of its
employees.22 I further conclude that this failure to bargain
violated Section 8(a)(1) and (5) of the Act.
General Counsel contends that Respondent’s failure to
guarantee the payment of the arbitrators’ fees and expenses
constitutes a failure to abide by the arbitration provision of
the collective-bargaining agreement. At the time the arbitra-
tors called Respondent’s attorney, two things were clear: (1)
the communication of Respondent’s financial difficulties to
the arbitrators had caused the suspension of all arbitration
under the collective-bargaining agreement, and (2) arbitration
under the agreement would not recommence until Respond-
ent guaranteed payment of the associated costs. I believe that
this combination of facts created an obligation on the part of
Respondent to take affirmative action in order to ensure ef-
fectuation of the provisions of agreement requiring arbitra-
tion. Accordingly, I find that Respondent’s failure to guaran-
tee payment of the arbitrators’ fees and expenses amounted
to a failure to honor the arbitration provision of the agree-
ment. The remaining issue before me is whether the Union’s
letters evidence an agreement with Respondent to indefinitely
postpone further arbitration under the collective-bargaining
agreement. I find that they do not. Fairly read, the letters do
not indicate agreement with Respondent’s course of conduct,
merely acceptance of a fait accompli. Accordingly, I find that
Respondent did not bargain with the Union before taking ac-
tion which constituted a failure to abide by the provisions of
the collective-bargaining agreement. I conclude that this fail-
ure to bargain violated Section 8(a)(1) and (5) of the Act.
Respondent contends that the conduct complained of in
this proceeding was solely the result of its adverse financial
situation. While Respondent has undergone significant eco-
nomic hardship, its financial condition cannot excuse its fail-
ures to notify or bargain with the Union concerning the part-
nership’s noncompliance with the collective-bargaining
agreement. ‘‘The Respondent’s claim that it is financially un-
able to make the required payments does not constitute an
adequate defense to an allegation that an employer has vio-
lated Section 8(a)(5) and (1) and Section 8(d) of the Act by
failing to abide by a provision of a collective-bargaining
agreement.’’ Nick Robilotto, Inc., 292 NLRB 1279 (1989).
Similarly, the failure to honor the arbitration provision of a
collective-bargaining agreement cannot be justified by a
claim of financial hardship. St. Marys Foundry Co., 284
NLRB 221, 233 (1987), enfd. 860 F.2d 679 (6th Cir. 1988).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time jai-alai players, in-
cluding seasonal players, employed by Respondent at its Fort
Pierce, Miami, Ocala, and Tampa, Florida facilities, exclud-
ing office clerical and professional employees, guards and
supervisors as defined in the Act, and all other employees,
constitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. The Union is now, and at all times material has been,
the exclusive representative for the purpose of collective bar-
gaining of the employees in the aforesaid unit within the
meaning of Section 9(a) of the Act.
5. By failing to give notice to and bargain with the Union
concerning the failure to pay accrued prize money and the
failure to assure payment of arbitrators’ fees and expenses,
Respondent has engaged and is engaging in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Inasmuch as Respondent has engaged in unfair labor prac-
tices, I shall order it to cease such practices and to take af-
firmative action designed to effectuate the purposes of the
Act. Such affirmative action shall include making whole
those unit employees who lost backpay due to Respondent’s
failure to pay accrued prize money. Backpay shall be cal-
culated in accordance with the formula set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted 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 recommended23
ORDER
The Respondent, WJA Realty Limited Partnership d/b/a
Fort Pierce Jai-Alai, Miami Jai-Alai, Ocala Jai-Alai, Tampa
Jai-Alai, and World Jai-Alai Players, Fort Pierce, Miami,
Ocala, and Tampa, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the International Jai-Alai
Players Association-UAW Local 8868, AFL–CIO (the
Union) as the exclusive collective-bargaining representative
of the employees in the bargaining unit by unilaterally defer-
ring payment of contractually required prize money to jai-alai
players, and by failing and refusing to guarantee payment of
arbitration costs. The appropriate unit is:
All full-time and regular part-time jai-alai players, in-
cluding seasonal players, employed by Respondent at
its Fort Pierce, Miami, Ocala and Tampa, Florida facili-
ties; excluding office clerical and professional employ-
ees, guards and supervisors as defined in the Act, and
all other employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
733FORT PIERCE JAI-ALAI
24 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
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.’’
25 Because posting would be meaningless at a time when no unit
employees are at a fronton, posting should take place during the sea-
son. See Trident Seafoods Corp., 293 NLRB 1016 fn. 1 (1989).
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole its unit employees by abiding by the prize
money provision of the collective-bargaining agreement, by
making all payments of prize money that have not been paid
and by paying interest on all payments that were deferred in
the manner set forth in the remedy section of this decision.
(b) Arbitrate the grievances formerly scheduled to be
heard by Arbitrators George Bennett and George Ostrow, and
any other grievances in accordance with the procedures in
the collective-bargaining agreement.
(c) Preserve and, on 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
amounts due under the terms of this Order.
(d) Post at its facilities in Fort Pierce, Miami, Ocala and
Tampa, Florida, copies in English and Spanish of the at-
tached notice marked ‘‘Appendix’’24 Copies of the notice, on
forms provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent at each of its frontons at
the beginning of each fronton’s season or at least 60 days
before the end of each fronton’s season,25 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.