Holiday Inn Central

National Labor Relations Board - Board Decisions

Apr 8, 1970

181 N.L.R.B. 997 (N.L.R.B. 1970)

HOLIDAY INN CENTRAL 997
Holiday Inn Central and Minneapolis Local Joint
Executive Board , Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO.
Case 18-CA-2781
April 8, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 12, 1969, Trial Examiner A.
Norman Somers issued his Decision in the
above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged
in the complaint, and recommending that the
complaint be dismissed in its entirety, as set forth in
the attached Trial Examiner's Decision Thereafter,
the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's Decision with
supporting briefs, and Respondent filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated- its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'We agree with the Trial Examiner that since the Union had notice of
the proposed promulgation of the rule and neither interposed an objection
nor requested bargaining with respect thereto, no violation of Section
8(a)(5) has been made out In view of the basis of our decision, we find it
unnecessary to pass on whether Respondent in fact had the right under
section XI of the contract to institute and post a rule such as the one in
question without prior notice to the Union We note in this connection that
even if Respondent has such a right, there is nothing in the contract to
foreclose the Union from thereafter requesting bargaining with Respondent
concerning the merits and substance of the rule
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A. NORMAN SOMERS, Trial Examiner: This case, with
all parties represented, was heard before me in
Minneapolis, Minnesota, on August 20, 1969, on
complaint of the General Counsel issued June 25 on a
charge filed May 12, 1969' The issue litigated is whether
Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally instituting among its employees, who serve
food and beverages, a "guest check" rule imposing certain
discipline for loss or misplacement of guest checks Oral
argument was presented at various stages of the hearing,
and the General Counsel and Respondent have filed briefs,
which have been duly considered On the whole record and
my observation of the witnesses, I hereby make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Tennessee corporation, operates a
combined hotel, motel, bar, and restaurant in
Minneapolis, Minnesota, where it annually grosses more
than $500,000 and receives over $10,000 from suppliers:
outside the State It is not disputed and I find that'
Respondent is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, Minneapolis Local Joint Executive
Board, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO (hereafter the Union or
the Joint Board or the Local Joint Board ), is a labor
organization within the meaning of the Act. So too are its
three constituent locals - No 458 (for waiters,
waitresses , and cooks ), No 156 (for bartenders ), and No
665 (for utility employees , dishwashers , maids, etc )
III THE ALLEGED UNFAIR LABOR PRACTICES
A Issue
The dispute is over whether Respondent violated
Section 8(a)(5) and (1) of the Act in unilaterally
instituting among the employees a guest check rule
prescribing certain disciplines for loss or misplacement of
guest checks covering food or beverage to customers -
which disciplines included a requirement that the
employee pay a specified sum in reimbursement for each
check so lost or misplaced The defense is that the
contract with the Union empowers Respondent to
promulgate that rule without requiring prior notice to the
Union, and that in any event, Respondent gave the Union
adequate notice to enable the Union to request bargaining
concerning the rule, of which the Union did not avail
itself
B. The Facts
I The contract
The contract is between the association of hotels and
motels in the Minneapolis area, of which Respondent Inn
is a member, and the joint board, which is the policy
board having jurisdiction over the three local's (see part II,
above). The contract includes a "disciplinary action"
clause (article XI), which, requires that a discharge or
other discipline be for "just cause," and in that connection
prescribes, among other things, that "all rules used by the
The year is 1969 in all instances unless otherwise indicated
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer for disciplinary purposes" be conspicuously
posted, or otherwise adequately communicated to the
employees and that it "not be in conflict with any of the
terms or provisions of the [contract] "Z The contract also
has a management-prerogative clause (art I, sec 5) in
which the Union agrees not to hinder the employer in the
right to hire, suspend, discharge or lay off employees for
proper cause, with the understanding that the clause must
not be construed to alter or modify any other provision of
the agreement. The contract also has a
grievance-arbitration clause (art XII).
2 The guest check rule issued April 28 and on May
22
Before April 28, Respondent had no written guest
check policy. Whether it had an oral one is a matter for
later consideration. Some time before April 28 a waiter
had during 2 to 3 weeks misappropriated about 10 guest
checks by pocketing for his own use the money collected
from customers (amounting to some $200 or $300), and
destroying the covering checks before Respondent could
learn about them. James Noulis, food and beverage
director to Respondent consulted with Floyd Mobley, the
controller, about instituting among the employees a rule
or policy making them accountable for food and beverage
checks issued to them, and among other disciplines,
requiring them to pay sums in reimbursement for any
checks issued to them that were lost or misplaced Noulis
and Mobley proposed the policy to John Connelly,
Respondent's Innkeeper (overall manager) Connelly
agreed to it, and he directed his two subordinates to
prepare a memorandum for his approval and for
distribution to the employees. About two days later, on
'Article XI, entitled "Disciplinary Action," reads
Section I No employee shall be discharged or suspended without pay or'
disciplined in any manner except for lust cause
a No employee shall be discharged for cause without first having
been given at least one warning notice in writing of management's
complaint or grievance against him, except that no such warning
notice need be given if the cause of discharge is dishonesty,
drunkenness while on duty, or the more serious violation of
Employer rules
b All rules used by the Employer for disciplinary purposes must
be posted conspicuously near time clocks or on employee bulletin
boards or in other manner made known to employees and such rules
shall not be in conflict with any of the terms or provisions of this
Collective Bargaining Agreement
c Copies of all warning notices and other notices of disciplinary
action given employees shall be given to the Union without undue
delay The Employer or his representative shall notify the Union
when an employee is discharged either in writing or by other means
Such notice shall be given without undue delay
'The memorandum of April 28 read
Due to the negligence of some employees in the handling of Food and
Beverage guest checks it is necessary to'establish the following policy, to
become effective May 1, 1969 (emphasis in original ), and it will become
a part of your agreement of employment with Holiday Inn Central
When food and/or beverage checks are issued to an employee, that
employee will be responsible in accounting for all of those checks If an
employee loses or misplaces a check , for whatever reason, it will be
viewed as negligence and the employee will (1) Receive a warning
notice to that effect, (2) Reimburse the Inn as follows for each check
lost
Pierre 's $1000
Little Foxes 800
Brandywine 500
Round Table 500
Starlite Room 1500
Room Service 800
April 28, Connelly approved and caused to be distributed
among the employees the memorandum reproduced in the
footnote below, which by its terms was to become
effective on May 1, 1969.'
On May 22 (after the Union filed the charge in this
case ), Respondent distributed a memorandum
substantially identical to the original one, except that it
eliminated the statement that the policy is part of each
employee's employment agreement and the requirement to
sign the document. It also changed the wording respecting
the consequences of losing a check a third time.' The
substance of the policy, both in the original and its
revision, is that loss or misplacement by an employee of a
guest check "for whatever reason . . will be viewed as
negligence ," for which the employee is to receive a
warning and, in addition, be required to reimburse the Inn
for each check lost or misplaced, in a sum ranging from
$5 to $15, depending on the room or lounge in which the
check was issued. Respondent's witnesses explained the
amount prescribed as an "arbitrary" one based on the
assumption of what a guest check would probably come to
in the kind of room or lounge in question
3 The sole communication with any union
representative concerning the policy
When there are any "major problems" or matters of
significance (such as, for example, contract modifications,
or grievances or problems of general application) the
discussions or negotiations are usually between the Joint
Board on the one hand, and Loyd MacAloon, the labor
relations representative of Respondent (and the other
hotels embraced by the contract), on the other. (However,
a hotel may also make direct contact with the Joint Board
or the officials of the constituent local or locals involved
in the situation.)
Respondent did not contact the Joint Board or any
union official, nor did it consult MacAloon, the labor
relations representative, for the purposes of calling the
policy to the Union's attention However, on April 28, the
day the guest check memorandum was ready for
distribution, Tony Cleary, a business agent of Local 458,
was in Manager Connelly's office in answer to a call by
and (3 ) If an employee loses three checks his employment here will be
terminated on the grounds of incompetence
It is required that you sign this in the space provided below to indicate
your complete understanding of it and the signed copy will become a
part of your personnel record
'The May 22 memorandum reads
Due to the negligence of some of our employees in handling of food &
beverage guest checks, it is necessary to establish the following rule
WHENEVER A FOOD AND/OR BEVERAGE CHECK IS ISSUED
TO AN EMPLOYEE, THAT EMPLOYEE WILL BE
RESPONSIBLE FOR THE ACCOUNTING OF THOSE CHECKS
TO HOLIDAY INN CENTRAL
If an employee loses or misplaces a check for whatever reason, this will
be viewed as negligence and that employee will 1) receive a warning
notice to that effect 2) reimburse the Inn as follows for each check lost
Pierre's $10.00
Little Foxes 800
Brandywine 500
Round Table 500
Starlite Room 15.00
Room Service 800
3) and if the employee loses three checks, further disciplinary action will
be taken on the grounds of incompetence
Your attention is directed to our memorandum of April 28 , 1969 by Mr
Floyd Mobley This memo rescinds the previous memo of April 28
HOLIDAY INN CENTRAL
management (Cleary, in regular course, comes to the
hotels in his bailiwick to talk to employees about
problems, or with management if management wishes to
present a problem )
In his visit on April 28, Cleary met with Connelly and
Noulis All three agree that during no part of that
discussion was any mention made of the guest check rule
Connelly and Noulis testified that was not why Cleary
was asked over, and that what they spoke about to Cleary
was a routine matter whose nature they could not even
recall.' Cleary testified that the two spoke about the
defalcating waiter and the Inn's chances of getting that
man to render enough service to work off the money he
had walked off with, if they could ever find him. At any
rate, at the conclusion of their business (lasting about a
half hour), when Cleary was about to leave, Connelly's
secretary happened to come in with the batch of xeroxed
copies of the guest check memorandum that management
was to distribute that day' Connelly and Noulis testified
that by way of "accident" or "afterthought," they handed
Cleary a copy Cleary testified that he told the
management representatives that the rule was "illegal"
and outside the scope of the contract, and that anyway
this was something beyond his province, and a matter for
the Joint Board or Union counsel ° Connelly and Noulis
testified they did not recall what if anything was said
between them and Cleary about the guest check
memorandum, except that Cleary raised no objection to it,
and that if he had voiced one, management would have
turned the matter over to MacAloon, the labor relations
representative The sense of the situation would indicate
that Cleary, not having been asked his opinion, made
none and left
Cleary, on returning to union headquarters, handed
over his copy of the memorandum to John Curtis, who is
secretary of the Joint Board and director of organization
of Local 458 (Cleary's local) At this point the Joint
Board took over. Cleary heard nothing further about the
memorandum until May 22, when, again at management's
request, he went to the Inn, and Connelly stated that the
memorandum had been revised in the manner previously
described (see supra, n 4) Cleary testified he had
assumed that this had been the outcome of discussion
between the respective representatives when there is a
"major problem" namely, one between the Joint Board
and MacAloon. That was not how it happened. Curtis,
secretary of the Joint Board, reported Respondent's
memorandum to the Joint Board (which meets twice a
month), and that body referred it to their counsel, who in
turn, on May 12, filed the charge in this case on behalf of
the Union. Respondent, on receiving from the Regional
Office the usual letter of notification and copy of the
'Connelly testified, " It is not unusual for us to discuss problems, minor
problems, with him (Cleary) "
'Cleary is not among the I I members comprising the Joint Board or a
participant in its meetings or councils His background , up to about a year
before this conversation, when he was made business agent, was as a waiter
in a hotel in the area where he had also been union steward He had also
been on the negotiating committee in connection with the existing contract,
first during the early stage of the negotiations when he was steward, and
then during their continuation , when he became business agent
Carroll Melloy, a member of the Joint Board and an officer of Local
458 (who preceded Cleary on the witness stand ) acknowledged on
cross-examination that it is "appropriate and within [Cleary's] authority to
comment on interpretation of the contract" and also "to discuss the
posting of a rule before it is posted " But Melloy added that Cleary's
function was confined to "minor problems " while "major problems" were
the function of the Joint Board
999
charge, turned it over to MacAloon. MacAloon wrote the
Regional Office, stating this was the first he had heard of
the guest check memorandum, and he enclosed a copy of
his revision of it (supra, fn 4), as previously described
Neither MacAloon nor Respondent gave the Union prior
notice of the revised memorandum, and as stated, the
contract concerning it consisted of Manager Connelly's
summoning Business Agent Cleary a second time and
informing him of the changes in the revised guest check
memo. Cleary did not comment on it (he being, as
previously mentioned, under the assumption that the
change was the outcome of discussion between the Joint
Board and the hotel or MacAloon) And the Union has to
the present time made no request to discuss or bargain
concerning the revised rule either Neither have there been
any grievances arising in connection with the rule The
record indicates Respondent has not yet enforced the rule
or imposed any discipline in the form of either
reimbursement requirement, discharge or warning.
3. The "unwritten" guest check rule prior to April 28
Respondent claims the guest check policy conformed
with the practice in the industry (i e , the area embodied
by the contract) and the Respondent's written
memorandum (supra, fns. 3, 4) simply incorporated
Respondent's prior "unwritten" rule or policy in respect
to guest checks Noulis, for Respondent, indeed started his
testimony with the broad assertion that Respondent's
written memorandum "did not initiate anything that was
not there before" and that "this has been a practice in the
industry for many, many years." On the particulars, the
net of Noulis' somewhat rambling testimony, when taken
with the testimony of Respondent's Connelly and Mobley,
is to leave some question concerning whether Respondent
itself had an unwritten guest check policy of its own,
whatever the policy in the industry ' As to hotels in the
industry, Melloy, a member of the Joint Board (supra, fn.
6), acknowledged that some hotels in the area have guest
check rules and they vary with each hotel. Melloy further
testified that the hotels that establish such a rule do so
without prior consultation with the Union. This would
indicate that what he knows about such rules stems from
his experience concerning grievances regarding them after
the rule has been established Melloy testified that though
in some instances hotels do make the employee account
for loss of guest check, he could recall no prior instance
where employees were required to pay a monetary
reimbursement, and that as a maximum, if the employee
is at fault he is warned against it under pain of discharge
for incompetence for such laxity in the future Noulis
testified that under the procedure he claimed he followed
with Respondent and also before this with the
Sheraton-Ritz, another hotel in the area, where he had
held the same post, he indeed went fully into whether the
employee was to blame for the loss of a guest check,
'Noulis testified Respondent had such an oral policy but it was not "cut
and dry " Mobley, the controller , in whose name the guest check
memorandum of April 28 was distributed to the employees , testified that
Respondent had "no hard and fast rule," that he himself had never
theretofore spoken to employees about lost checks, but that "Mr Noulis
or someone in his department ( i e , one of the room managers ) had had
occasion to talk to a waitress or waiter about a missing check " Connelly,
when asked by Respondent 's counsel on direct, "whether or not this kind
of policy (as embodied in this now written memorandum) had been
enforced prior to April of this year," replied, " I could not say There was
no written policy on the record at that time as there is in a lot of matters
of the hotel business
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before he instituted a discipline. As to the discipline,
Noulis testified an employee could be let off with a
warning, as Melloy, of the Joint Board, had testified, or,
an employee could also be -asked to reimburse the loss, if
it was caused by his negligence Noulis testified that at the
Sheraton-Ritz, the reimbursement would not be taken out
of the paycheck but that the employee would be given the
"choice" of paying the reimbursement or be discharged
for incompetence 8 Noulis testified that during the period
preceding April 28, he had, when one or two waitresses
had not properly accounted for the loss of a guest check
entered in the debit sides of their ledgers charges for
reimbursement for the losses, but it was never collected
In one instance this was because the employee had left,
and as to the other, Noulis did not remember the reason it
was not collected. The record indicates two instances (one
indeed involving the Sheraton-Ritz, and the other a bar in
the adjacent area in St. Paul) where there were arbitration
proceedings based on the imposition of a monetary
reimbursement requirement It is not altogether certain
whether these involved loss of guest checks or simply
financial losses due to the claimed negligence of the
employee for other reasons What these two arbitration
proceedings do suggest is that instances do arise where
losses claimed to be the result of employees' negligence
are apparently treated as arbitrable matters
C. Discussion and Conclusion
What appears from the foregoing, as indeed from what
Melloy of the Joint Board acknowledged, is that under the
practice of the industry, a hotel, without prior
consultation with the Union, institutes a guest check rule
rendering an employee accountable for loss of guest check
and subject to some kind of discipline The point of
departure is whether the discipline extends to the
requirement of a monetary reimbursement by the
employee. So, if the guest check rule had been one where
the disciplines were limited to the kind acknowledged by
Melloy there would presumably have been no charge filed
with the Board even if the Respondent had not given prior
notice to the Joint Board. The case arises only because the
discipline imposed by this rule extends to a monetary
reimbursement requirement And the institution of the
guest check rule is attacked as a "unilateral" change in
conditions of employment, in which the violation consists
not only in Respondent's not having previously notified
and bargained with the Union concerning it (par 9) but
also (par. 10) in that Respondent thereby "failed and
refused and continue[s] to fail and refuse to bargain with
the Union regarding the guest check policy "' The obvious
answer to the accusation that Respondent has failed and
refused to bargain concerning the rule is that the Union
has failed and refused to request bargaining concerning it
'Business Agent Cleary , who had been a waiter at the Sheraton-Ritz
(indeed during a time when Noulis had been food and beverage director
there ) testified to an occurrence there when a couple walked out without
paying the check , and on demand of a room manager , Cleary paid $10
However, the next day, the general manager returned the money to Cleary,
stating, "We don't have that routine in this hotel " The ambiguity
concerning this last statement - whether it meant a waiter is not fined
when he is clearly blameless as Cleary was (for this was a case not even of
a guest check loss) or was not required to reimburse even if a waiter had
negligently lost a guest check - was not cleared up Yet, the step taken by
the room manager in imposing a fine, would suggest the existence of some
monetary reimbursement requirement of an employee who is at fault in
causing the loss
'The complaint alleges
9 Commencing on or about May I and May 22, 1969 , and at all
material times thereafter , Respondent unilaterally, and without notifying
As to whether there was in fact a failure to notify the
Union, if Respondent's volunteering to Business Agent
Cleary on April 28, a copy of the guest check
memorandum is to be regarded as insufficient notice, one
can hardly ignore the fact that when Cleary turned over
his copy to Secretary Curtis of the Joint Board,
Respondent's policy memorandum had at least until May
I before it was to take effect. Indeed, the complaint
alleges Respondent's violation to have begun not on April
28, when the memorandum was distributed, but on May 1
when it took effect So it is not the kind of case where the
mere announcement of a change in terms is so injurious
by its very nature as to be beyond repair by ensuing
bargaining, as for example, the cases falling under the
doctrine of the Supreme Court's decision in Katz 10 There
a change in conditions during negotiations for a contract,
without notice or prior opportunity to bargain concerning
it, was held in itself to violate the employer's bargaining
obligation, for the announcement of the change itself
tended to undermine the Union's prestige and to be an
obstruction to the bargaining process
So even if one were to assume Respondent was wrong
in distributing the April 28 notice that day, no harm was
done, which could not have been undone by later
bargaining it the Union had requested it Further, if the
Union could not by May I formulate a position it had
only to get in touch with Innkeeper Connelly to ask for
time to formulate a position and ask that the effectiveness
of the document be further postponed until negotiations
could begin Better still, the Union could have contacted
Labor Relations Representative MacAloon, who had
himself yet to learn that Respondent had distributed such
a memorandum and who by that token would himself
have wanted the memorandum suspended until he had a
chance to study it before speaking to the Union
concerning it.
All of the above assumes that the memorandum did
change existing conditions and hence in allegedly failing to
notify the Union of it, Respondent violated Section
8(a)(5) " The change in condition here claimed is that the
disciplines in Respondent's newly written guest check rule
included a monetary fine Yet a guest check rule, whose
disciplines do not include a monetary fine, is also a
change in conditions in that it puts the employees under a
restraint of which they had theretofore been free
(Compare the new rules in Miller Brewing, supra, n 11.)
Yet Melloy of the Joint Board acknowledged that under
the practice of the industry, such guest check rules are
established without prior notification to the Union
Insofar as the guest check rules provides for a monetary
reimbursement requirement, it is a discipline nonetheless,
and once a hotel may, as part of its normal operations,
institute a guest rule without prior notice, the Union that
claims that the guest check rule has gone too far is under
the logical necessity of instituting bargaining overtures
concerning it
or bargaining with the Union , instituted a guest check policy changing
existing terms and conditions of employment, which applied to various
unit employees described in paragraph 6 above, including waiters,
waitresses , bartenders , and cashiers
10 Since on or about May I, 1969, Respondent has failed and
refused, and continues to fail and refuse, to bargain with the Union
regarding the guest check policy described in paragraph 9 above
"N L R B v Katz, 369 U S 736
"Respondent points to Mason & Hughes , Inc, 86 NLRB 848, 850,
when the Board held the employer did not violate Section 8 (a)(5) in merely
posting, without consulting the Union, rules that were already in existence
The General Counsel points to Miller Brewing Company, 166 NLRB 831,
HOLIDAY INN CENTRAL 1001
The burden of the Union to come forward and raise
objection because of the scope of the rule inheres not only
in the practice of the industry but under the "disciplinary
action" clause of the contract (supra, n. 2). In respect to
rules of discipline, the employer (par 1(b) of that clause)
is called on to do nothing more than post or otherwise
inform the employees of the rule, which it is not disputed
the employer here did. Paragraph 1(c) of the clause
provides that "copies of all warning notices and other
notices of disciplinary action shall be given to the Union
without undue delay," and further that the employer must
"without undue delay" notify the Union of actual
discharge The guest check policy here has not reached the
stage of any discharges or warning of discharge. Yet even
in that instance, the requirement under 1(c) of article XI,
is not that the Union be notified in advance but only that
it be done "without undue delay " It would follow that a
disciplinary rule, as provided in l(b) of that clause, which
looks merely toward future warnings of the disciplines (if
it calls at all for notice to the Union) calls for no earlier
notice than one where the rule has reached the point of
actual enforcement in the form of a discharge or warning
thereof So when Respondent handed a copy of the guest
check memorandum to Business Agent Cleary on April
28, before it became effective by its very terms, it was
notifying the Union "without undue delay " This is so
whether Cleary is to be deemed the spokesman for the
Union under his responsibilities as described (supra, n 6),
or the Union's natural emissary in that situation, for, as
appears, he handed the copy over to the Secretary of the
Joint Board after he left the hotel
The General Counsel observes that the amounts of the
prescribed reimbursements (supra, n 3, 4) are tidy sums
compared with the employee's wage scale under the
contract, and thus the reimbursement requirement is to be
equated with a change in the wage scale The equation
falls short in a vital respect. A reduction or raise in wages
or benefits, as such, concerns itself with the compensation
provided for the employee's services A monetary
reimbursement requirement as a discipline for negligent
loss of a guest check is intended to assure care by the
employees in avoiding these losses In that respect the
monetary reimbursement requirement has the same
purpose as the disciplines in the guest check rule
conforming with Joint Board Member Melloy's
acknowledged conception of the practice in the industry.
This is not to say that the disciplines however harsh are to
be accepted for no other reason than that they are
disciplines It is only to say that as a rule of discipline,
management, in posting or otherwise informing the
employees of the guest check rule and indeed in giving the
Union a copy "without undue delay," has discharged its
obligation up to this point Whether or not it will also
have discharged its bargaining obligation if and when the
Union requests bargaining is a matter which awaits the
Union's request for bargaining, which the Union has not
yet done
enfd 408 F 2d 12 (C A 9) There the employer published a manual which
consisted in the main of rules already in existence , but it also included two
rules that were new (one that prohibited employees from refusing to work
overtime and the other that barred employees from making collections in
the plant ) The invalid "unilateral " action there consisted not only of the
employer's publishing the manual but in the employer's rejection of the
union 's request to bargain concerning the manual Further, there, unlike
here, there was no contract provision or practice of the industry calling on
the employer to do no more than post or inform the employees of a
particular kind of rule , namely those relating to rules of discipline
At the hearing , the General Counsel' s position was that
with notification to the Union and an adequate
opportunity to the Union to bargain concerning it,
Respondent would have met its requirements under
Section 8 (a)(5). The Union's position was that this was
not enough and that even with full opportunity to bargain
Respondent would still be violating Section 8 (a)(5) unless
the Union agrees to the monetary reimbursement
requirement . This predicates the violation not on whether
Respondent has given the Union an opportunity to
bargain - and, as Respondent has stated at the hearing it
still is willing to bargain with the Union concerning it if
requested - but on what appears in the guest check rule
however willing the Respondent may be to bargain
concerning it The Union has filed no brief, but its
position necessarily rests on the proviso of the
"disciplinary action" clause which states that "such rules
shall not be in conflict with any of the terms or provisions
of [the contract ] " Under the Union's interpretation, the
employer would have to anticipate the invalidity of the
very disciplinary rule that it is posting , thus rendering
meaningless the very permission given the employer to
post a disciplinary rule. In the instant case, the claim that
the rule conflicts with the terms of the contract rests
solely on the fact that monetary reimbursement
requirement pro tanto involves a lessening of the take
home pay at the time the discipline is incurred iz This may
have such an incidental result but it is not its purpose
Whether, on balance, that monetary requirement is a
reasonable one or so excessive as in effect to be an actual
change in the wage scale, is a matter which is appropriate
for the bargainers to at least explore at the bargaining
table But it would be premature as a matter of policy to
undertake to determine on which side the balance here
falls, when the Union has not yet made the overtures
toward bargaining which could help resolve that issue
between themselves
At this stage , it is enough to say that sufficient unto the
day will be the Union's request for bargaining The parties
may well reach the stage of dispensing with the need for a
decision concerning whether a monetary reimbursement
requirement does or does not offend the terms or
conditions of the contract They may well agree upon a
guest check rule which accomplishes the same purpose as
the monetary reimbursement requirement and thus
dispense with that particular discipline altogether , or they
may agree that the fine is so harsh as to call for some
mitigation , or they may arrive at an impasse If that stage
is reached it will be time enough, should the issue be
presented before us , to determine whether we should carry
the contract dispute to ultimate decision as a subject
arising under Section 8 (d) of the Act, under the doctrine
of C & S Industries , Inc, 158 NLRB 454 Or as an
alternative, since the details seem to be the gust of the
grievance- arbitration process within the industry , it might
then be appropriate to consider whether under the special
circumstances here, it would better effectuate the policies
of the Act to refer the parties to the grievance-arbitration
procedure provided by their own contract
"My own thought would have been that insofar as the disciplines are
incurred for loss of a guest check "for whatever reason" it could raise a
question of its consistency with "just cause," which under the "disciplinary
action" clause, is the condition of any discipline The point has not been
raised and the fair sense of the record as a whole is that the discipline
contemplated actual negligence At any rate , the issue as presented is
whether disciplines imposed on employees for loss of a guest check even if
negligently caused by the employee may properly include a monetary
reimbursement requirement
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the above is in the lap of the future. I conclude
under the facts of this case that the Respondent has not
offended that aspect of its obligation under Section 8(a)(5)
which calls for an adequate opportunity to the Union to
bargain concerning the guest check rule And that is all
that we are here now called upon to decide i'
RECOMMENDED ORDER
On the basis of all of the foregoing , I recommend that
the complaint be dismissed.
The Board has the power to interpret the contract as an incident of
deciding whether an unfair labor practice has been committed As in
NLRB v C & C Plywood Corp, 385 U S 421, even where an
employer' s conduct is "arguably " within the "unilateral" action permitted
by the contract, the Board is not divested of its power to interpret the
contract in order to determine whether the employer has discharged its
obligation under the Act to bargain collectively concerning the conduct in
question Further , the Board is not required to defer to the
grievance-arbitration procedure of a contract (Carey v Westinghouse
Corp , 375 U S 261 ), and whether it does so is within the discretion of the
Board as a matter of policy Also, as a matter of policy, the Board will
pass upon whether given conduct is a "modification " of the contract as
prohibited by Section 8(d) of the Act (C & S Industries. supra ) even where
the contract provides for a grievance-arbitration procedure Cf W P /brie
& Sons, 165 NLRB No 2 The point here is that we are not at that stage
of decision This is because the subject matter fairly abounds with the need
for the one who is here complaining about the content of the rule to make
the first overtures to the other side concerning it, which it has not yet
done