Palmer House Hilton

National Labor Relations Board - Administrative Judge Opinions

Jun 27, 2008

13-CA-044223 (N.L.R.B. Jun. 27, 2008)

JD(ATL)–22–08
Chicago, IL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
PALMER HOUSE HILTON
and CASE 13–CA–44223
MOHAMAD SAFAVI, an Individual
UNITE HERE, LOCAL 1
and CASE 13–CB–18772
MOHAMAD SAFAVI, an Individual
Jeanette Shrand, Esq., for the General Counsel
N. Elizabeth Reynolds, Esq. (Allison,
Slutsky & Kennedy), for the Respondent Union
Kyle B. Johansen, Esq. (Franczek Sullivan P.C.),
for the Respondent Employer
BENCH DECISION AND CERTIFICATION
Statement of the Cases
KELTNER W. LOCKE, Administrative Law Judge: I heard this case on May 14, 2008 in
Chicago, Illinois. After the parties rested, I heard oral argument, and on May 15, 2008, issued a
bench decision pursuant to Section 102.35(a)(1) of the Board’s Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance with Section 102.45 of the Rules
and Regulations, I certify the accuracy of, and attach hereto as “Appendix A,” the portion of the
transcript containing this decision.1 The Conclusions of Law, Remedy, Order and Notice

1 The bench decision appears in uncorrected form at pages 231 through 253 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–22–08
2
provisions are set forth below.
Respondent Union’s Estoppel Argument
On May 15, 2008, shortly before I issued the bench decision, the Union submitted a 5
“Motion of Respondent UNITE HERE, Local 1, to Dismiss Complaint Based on Estoppel.”
Thereafter, the General Counsel submitted a Response in Opposition. Respondent Union’s
Motion and the General Counsel’s Response have been considered carefully. For clarity, this
discussion of the Union’s Motion will begin with a review of the relevant facts.
10
For the reasons discussed in the bench decision, I have concluded that Respondent Union
violated Section 8(b)(2) of the Act by accepting Charging Party Safavi’s belated tender of past
dues (even though it was after the specified deadline) but nonetheless continuing to seek his
discharge for nonpayment of those dues. Because Safavi tendered the dues after the deadline,
the Union had the choice either of refusing to accept the tender and pressing its demand that the 15
Employer discharge him, or of accepting the late tender and abandoning its demand that Safavi
be terminated. Under established Board precedent, the Union lawfully could have chosen to do
either, but it could not lawfully do both.
However, one fact does complicate the situation described above. Instead of paying the 20
full amount of his dues arrearage, Charging Party Safavi and the Union entered into a “payment
plan” and, on the same day Safavi signed this plan, he gave the Union a “down payment”
towards the total amount he owed. When other employees had entered into such payment plans,
the Union had treated them as sufficient to satisfy the dues obligation. Both Safavi and the
Union executed the payment plan agreement, which I concluded was tantamount to tender of the 25
full amount of the dues arrearage.
In other words, if Safavi had entered into the payment plan agreement with the Union
before the deadline for paying his back dues, there is no doubt that the Union would have
accepted this agreement, along with the down payment, as sufficient, and would have withdrawn 30
its demand for Safavi’s discharge. It had done so with other members. Accordingly, I treated
Safavi’s execution of the payment plan, together with down payment, as having the same effect
as a tender of the full amount.
After Safavi learned that the Union persisted in demanding his discharge, he continued to 35
make the payments required by the payment plan. Based on Safavi’s testimony at hearing, the
Union concluded that a Board agent’s advice prompted Safavi to be faithful to the payment plan.
The Union argues that the words attributed to the Board agent estop the General Counsel from
proceeding in this case. Specifically, the Union’s Motion states, in part:
40
At the hearing in this matter on May 14, 2008, the Charging Party was asked on direct
examination by Counsel for the General Counsel why he made the payments under the
payment plan on August 23, September 23 and October 23, 2007. The Charging Party
testified in response. . .that he made the payments because the Board Agent who spoke
with him about the instant unfair labor practice charge. . .advised him to do so.45
* * *
The General Counsel is estopped from proceeding against the Union based on its
failure to refund the July 25 payment – in particular, as the General Counsel argued, its
JD(ATL)–22–08
3
failure to offer a refund in response to the filing of the charge – because the Board’s
agent caused the Charging Party to make a second payment under the payment plan the
day after the charge was filed. The charge was filed in this case on August 22, and the
Charging Party made an installment payment at the Board Agent’s direction on August
23. There would be no conceivable reason for the Union to respond to the charge by 5
offering a refund of the July 25 payment, when the Charging Party had appeared at the
Union office and paid his next installment immediately after filing the charge. The
Charging Party’s conduct of continuing to make timely payments on the payment plan
immediately after filing the charge was consistent with the Union’s understanding that
Safavi had entered into a payment plan for a lawful purpose and that the Union was 10
entitled to receive payment from him under the plan. The Board Agent’s advice to Safavi
foreclosed any possibility that the Union might reconsider the propriety of retaining
Safavi’s payments in light of the filing and investigation of the charge.
* * *
The equitable principle of estoppel, recognized by Board law, requires that the 15
complaint be dismissed. See, e.g., Wise Alloys, LLC,, 347 NLRB No. 117
(2006). . .Union–Tribune Publ’g Co., 2001 WL 1598680 (ALJ Opinion and Order, July
27, 2001)(where alleged transgression was committed at charging party’s request,
“General Counsel is estopped from prevailing in a case like this lest a form of entrapment
occur.”)20
The language quoted immediately above suggests that Respondent Union is arguing that
the Board agent’s purported advice to the Charging Party led to a “form of entrapment.” The
logic of this argument escapes me.
25
Before addressing the Union’s argument in detail, it may be helpful to examine Safavi’s
testimony concerning what the Board agent supposedly told him. As the General Counsel’s
Opposition notes, Safavi quoted the Board agent as saying that it was “better to pay.” However,
the discussion below does not turn on whether the Board agent told Safavi it was “better to pay”
or that he “should pay” or used other words to convey a similar message.30
Respondent Union hasn’t shown how the statement attributed to the Board agent would
be improper in any way. The Union cannot possibly be arguing that the Board agent urged
Safavi to pay the Union money which Safavi did not owe. To the contrary, the Union
consistently has taken the position that Safavi did owe the money. Moreover, the Union has 35
argued that because Safavi owed the Union the back dues, it could have gone into court and sued
him to recover.
Indeed, it appears clear that the Union could have sought to recover the back dues
through litigation and could have based such litigation on two separate contractual obligations. 40
First, Safavi incurred a legal obligation by joining the Union and the obligation continued while
he was a member of the Union. The Union could go into court to recover the unpaid dues which
accrued during Safavi’s membership even absent a payment plan agreement.
Moreover, the payment plan agreement itself presumably constituted a legally–45
enforceable agreement. My conclusion that Safavi tendered his back dues by signing the
agreement and making a down payment rests on the assumption that it was a legally binding
contract which Safavi was obliged to satisfy fully. Thus, the payment plan agreement provided
another contractual basis for a lawsuit against Safavi.
JD(ATL)–22–08
4
Respondent Union has not explained how it would have been improper, in any way, for a
Board agent to advise Safavi to pay a debt he legally owed and for which he could be sued.
Likewise, Respondent Union has not identified how such advice could possibly constitute
“entrapment.”5
The logic of the Union’s estoppel theory does not become visible from any angle, except,
perhaps, when viewed upside–down. Thus, suppose for the sake of argument that the Board
agent had said to Safavi the exact opposite of the words attributed to him. Suppose that the
Board agent had told Safavi it was better not to make the payments due under his agreement with 10
the Union.
Further suppose, also contrary to fact, that Safavi had followed such hypothetical advice
and failed to make the payments. If Safavi had thus defaulted on the payment plan agreement,
then, supposedly, the Union lawfully could have continued to seek his discharge.15
Or so, apparently, the Union reasons. However, it isn’t necessary for me to speculate
about what the Union might lawfully have done if the facts had been different. The issue here
concerns the validity of the Union’s argument that what a Board agent supposedly told the
Charging Party estops the General Counsel from proceeding. It may be observed with 20
considerable confidence that a Board agent’s failure to give bad advice does not work any kind
of estoppel.
Neither does a Board agent’s statement of the obvious, that it is better for a person to pay
his debts. Even assuming the Board agent said what Safavi attributed to him, it would not estop 25
the General Counsel from proceeding in this matter. See generally Christine Kelley v. N.L.R.B.,
79 F.3d 1238 (1st Cir. 1996). Accordingly, I deny the Union’s motion.
The 8(a)(3) and (1) Allegations30
In general, Section 8(a)(3) of the Act prohibits an employer from encouraging or
discouraging membership in any labor organization by discrimination in regard to hire or tenure
of employment or any term or condition of employment. See 29 U.S.C. § 158(a)(3). When an
employer complies with a union’s request to fire an employee because of that person’s failure to 35
support the union in some way, that action powerfully encourages membership in a labor
organization. Other employees reasonably would hasten to support the union after seeing what
happened to their fellow worker who did not.
A proviso to Section 8(a)(3) carves out a narrow exception allowing an employer and a 40
union which is the exclusive bargaining representative to enter into a collective–bargaining
agreement requiring union membership as a condition of employment. Other provisions limit
this exception. For example, union membership cannot be required for the first 30 days of
employment (a shorter period applies in the construction industry, see 29 U.S.C. Sec. 158(f)) and
union membership cannot be required where prohibited by state or territorial law. See 29 U.S.C. 45
Sec. 164(b).
JD(ATL)–22–08
5
Significantly, when a union demands that an employer discharge an employee, the Board
doesn’t routinely assume that the union’s conduct somehow falls within the exception to the rule.
Such an assumption would vitiate the protections of Section 7, and the Board takes precisely the
opposite approach. Under established Board precedent, “whenever a labor organization ‘causes
the discharge of an employee, there is a rebuttable presumption that [the labor organization] 5
acted unlawfully because by such conduct [it] demonstrates its power to affect the employees’
livelihood in so dramatic a way as to encourage union membership among the employees.”
Acklin Stamping Co., 351 NLRB No. 90 (December 28, 2007); citing Graphic Communications
Local 1–M (Bang Printing), 337 NLRB 662, 673 (2002),
10
A union’s successful effort to cause a discharge necessarily begins with a request or
demand, and that initial request or demand constitutes part of the union’s conduct which enjoys
no presumption of legality. Accordingly, such a request does not arrive at the employer’s office
stamped indelibly with the words “presumed lawful.”
15
When an employer receives such a discharge request from a union representing its
employees, three factors militate in favor of caution. First, by seeking an employee’s discharge,
the union is urging the employer to act in a manner which would be unlawful unless it happened
to fall within the statute’s narrowly–crafted exception.
20
Second, should the union be seeking the employee’s discharge for any reason except the
one allowed by the narrow statutory exception, the employer’s compliance with this request will
result in significant exposure to liability under the Act.
Third, the employer’s knowledge of the union’s true motive may be limited or 25
nonexistent. In most 8(a)(3) discharge cases, an employer’s own motivation plays the crucial
role in determining liability. An employer can avoid committing an unfair labor practice by
making sure that improper considerations did not enter into the decision–making process.
Managers obviously know their own true reasons for deciding to discharge someone, and if those
motives are tainted, they can stop before acting. However, the managers do not have similarly 30
intimate access to the minds of the union officials who send a discharge request.
In drafting the Act, Congress stopped short of requiring managers to be mind readers. If
a union requested the discharge of a bargaining unit employee ostensibly for the lawful reason –
the employee’s failure to pay the regular and uniform dues – and the employer had no reasonable 35
way of knowing that the union’s real reason was otherwise, then the employer would not violate
Section 8(a)(3) if it complied with the discharge request.
Congress actually worded this “escape clause” in a slightly different way, making it
unlawful for the employer to discharge an employee if the employer does have a reasonable basis 40
for doubting the union’s ostensibly legal reason. The exact language appears in Section 8(a)(3),
in two provisos which immediately follow the exception allowing the discharge of an employee
for failing to maintain union membership:
Provided further, That no employer shall justify any discrimination against an 45
employee for nonmembership in a labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the employee on the same terms and
JD(ATL)–22–08
6
conditions generally applicable to other members, or (B) if he has reasonable grounds for
believing that membership was denied or terminated for reasons other than the failure of
the employee to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership. . .
5
That standard – “reasonable grounds for believing” – will be applied here in determining
whether Respondent Employer violated the Act by carrying out the Union’s discharge request.
An “or” separates the two provisos and the General Counsel does not have to prove both. Here, I
will focus particularly on proviso (B), examining the evidence to determine whether Respondent
Employer had reasonable grounds for believing the Union had denied or terminated Safavi’s 10
membership “for reasons other than the failure. . .to tender the periodic dues. . .uniformly
required as a condition of. . .retaining membership.”
For the reasons stated in the bench decision, I have concluded that Safavi remained an
employee of Respondent Employer until the Union notified the Employer on July 30, 2007, that 15
it could go ahead and “process” the discharges. The record establishes that by this date, when
the Employer terminated Safavi’s employment, it already knew that Safavi had entered into a
payment plan with the Union to satisfy his dues obligation.
Safavi credibly testified that when he went to work on July 28, 2007, he spoke with a 20
secretary who asked whether he had proof that he had paid his Union dues. He showed her the
payment plan agreement and the secretary made a copy of it. Based on this credited testimony, I
find that two days before the Employer discharged Safavi, it had notice that he had satisfied the
dues obligation.
25
The testimony of Respondent Employer’s human resources manager, Arelis Morales, also
establishes that the Employer knew of Safavi’s payment plan agreement with the Union before it
discharged him on July 30, 2007. Four days earlier, Morales had telephoned the Union’s office
manager, Tara Advani, concerning the Union’s letter requesting the discharge of certain
employees, including Safavi. On cross–examination, Morales admitted that during this July 26, 30
2007 conversation, Advani had informed her that Safavi had executed a payment plan:
Q BY MS. REYNOLDS: Good afternoon, Ms. Morales. In your
conversation, your first conversation with Tara Advani on July 26th, Ms.
Advani said to you that Mr. Safavi has signed a payment plan, but that 35
she did not, she had not received it back from him, correct?
A Right.
Q And, so why was Mr. Safavi terminated by the hotel?
A Because the Union dues were not paid or brought up to date with the
Union.40
Q By any particular time?
A By the 20th of July.
Based on this testimony by Respondent Employer’s human resources manager, I
conclude that before the Employer discharged Safavi on July 30, it knew that Safavi had entered 45
into a payment plan with the Respondent Union. (Indeed, as noted above, Safavi’s credited
testimony establishes that the Employer received a copy of this plan on July 28, 2007.)
Notwithstanding this knowledge that Safavi had executed the payment plan, the Employer
JD(ATL)–22–08
7
discharged Safavi because his Union dues had not been paid by July 20.
Although the record clearly establishes that the Employer discharged Safavi after it had
learned that he had entered into the payment plan, it remains unclear whether the Employer also
knew that the Union had accepted and retained Safavi’s initial payment under the plan. The 5
payment plan itself bears the handwritten notation “$100.00 today,” and the Employer received a
copy of the plan two days before it discharged Safavi. That “$100.00 today” notation certainly
suggests Safavi made a payment, but it falls short of stating that the Union received $100 from
Safavi. No evidence establishes conclusively that the Employer knew Safavi had tendered $100
as the first installment under the payment plan and that the Union had accepted the money.10
To prove that the Union violated Section 8(b)(2) as alleged, the General Counsel had to
establish that the Union received and kept Safavi’s tender. However, because of the “reasonable
grounds for believing” standard, the government can establish the alleged 8(a)(3) violation
without having to prove that Respondent Employer knew for a fact that the Union had held onto 15
Safavi’s payment.
The record suggests that it was a common practice for the Union to enter into payment
plans with employees who owed past dues. No evidence suggests that the Union had a practice
of agreeing to a payment plan and then refusing the employee’s tender of payment or of 20
accepting it and then giving it back later.
It would not be logical for the Union to enter into a payment plan with a member if it had
no intention of accepting and keeping the payment. Indeed, it would make no sense at all for the
Union to sign a binding legal document to which it did not intend to be bound. Likewise, it 25
would defy common sense for the Union to agree that a member could make payments while
harboring a private intention of not accepting such payments.
Respondent Employer had no reason to believe that the Union would not accept the
payment it had sought. Therefore, I conclude that the Employer reasonably would believe that 30
both Safavi and the Union would conform to the terms of their agreement.
In sum, Respondent Employer had reasonable grounds to believe that the Union was
continuing to demand the discharge of Safavi even after he had satisfied his dues obligation in a
manner similar to that which other employees had used, and to which the Union had agreed. 35
Because the Union persisted in seeking Safavi’s discharge even after the back dues problem had
been solved, the Employer had reasonable grounds to believe that the Union must have some
other, impermissible motivation.
The Union declared that Safavi was not a member in good standing. However, if he was 40
not a member in good standing even after he had tendered, and the Union had accepted, his back
dues, then logically, the termination of his membership must have been for some reason “other
than the failure of the employee to tender the periodic dues. . .” Respondent Employer did not
have to know this actual reason. Respondent Employer only had to have reasonable grounds for
believing it existed.45
Because I conclude that Respondent Employer had reasonable grounds for believing that
JD(ATL)–22–08
8
Safavi’s membership had been terminated for some reason other than the failure to tender his
periodic dues, I further conclude that the Employer acted unlawfully in discharging him.
Therefore, I recommend that the Board find that Respondent Employer violated Section 8(a)(3)
and (1) of the Act, as alleged.
5
REMEDY
Having found that the Respondents have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice to employees and members 10
attached hereto as Appendix B.
Additionally, Respondent Employer must offer Mohamad Safavi immediate and full
reinstatement to his former position, or, if that position no longer exists, to a substantially
equivalent position.15
The Respondent Union must notify both the Respondent Employer and Charging Party,
in writing, that it does not object to the Charging Party’s reinstatement, without loss of seniority
or other rights and privileges, and has fully withdrawn its previous objection to the Charging
Party’s employment.20
Both Respondent Employer and Respondent Union bear responsibility for making Safavi
whole, with interest, for all losses he suffered because of the unfair labor practices the
Respondent’s committed.2 However, Respondent Union’s backpay liability will be tolled 5 days
after it notifies Respondent Employer and Charging Party Safavi, in writing, that it has no 25
objection to Safavi’s reinstatement. Grassetto USA Construction, 313 NLRB 674 (1994).
CONCLUSIONS OF LAW
1. Respondent Employer, Palmer House Hilton, is an employer engaged in 30
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Union, UNITE HERE, Local 1, is a labor organization within the
meaning of Section 2(5) of the Act.
35
3. Respondent Employer encouraged membership in a labor organization by
discriminating in regard to the tenure of employment and terms and conditions of employment of
employee Mohamad Safavi, by discharging him on July 30, 2007, thereby encouraging
membership in a labor organization in violation of Section 8(a)(3) and (1) of the Act. Thereafter,
Respondent continued to discriminate against Safavi in violation of Section 8(a)(3) and (1) of the 40
Act by failing and refusing to reinstate him.

2 Backpay shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).
JD(ATL)–22–08
9
4. On or about July 30, 2007, Respondent Union attempted to cause, and did cause,
Respondent Employer to discharge employee Mohamad Safavi notwithstanding that membership
in Respondent Union had been denied or terminated on some ground other than his failure to
tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership. 5
5. Respondent Union, by the conduct alleged in paragraph 4 above, violated Section
8(b)(2) and Section 8(b)(1)(A) of the Act.
6. The unfair labor practices described above are unfair labor practices affecting 10
commerce within the meaning of Section 2(6) and (7) of the Act.
7. Respondents did not engage in any unfair labor practices alleged in the consolidated
complaint not specifically found herein.
15
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended3
ORDER
20
A. Respondent Palmer House Hilton, its officers, agents, successors and assigns,
shall:
1. Cease and desist from:
25
(a) Encouraging or discouraging membership in a labor organization
by discharging an employee, or otherwise discriminating against an employee in regard to hire or
tenure of employment or any term or condition of employment.
(b) In any like or related manner interfering with, restraining or 30
coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies
of the Act.
35
(a) Offer Mohamad Safavi immediate and full reinstatement to his
former position or, if his former position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privileges previously enjoyed, and
expunge from his personnel file all references to his discharge.
40
(b) Make Mohamad Safavi whole, with interest, for all losses he
suffered because of his unlawful discharge.

3 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–22–08
10
(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 amount of backpay
due under the terms of this Order.
5
(d) Post at its facility in Chicago, Illinois, and at all other places where
notices customarily are posted, copies of the attached notice marked “Appendix B.”4 Copies of
the notice, on forms provided by the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places where 10
notices to employees customarily are 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.15
B. Respondent UNITE HERE, Local 1, its officers, agents, successors and assigns,
shall:
1. Cease and desist from:20
(a) Causing or attempting to cause the Employer, Palmer House
Hilton, to discharge or otherwise discriminate against employee Mohamad Safavi, or any other
employee, for reasons other than the failure of the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of acquiring or retaining membership.25
(b) In any like or related manner restraining or coercing employees in
the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies 30
of the Act.
(a) Notify the Employer, Palmer House Hilton, and the Charging
Party, Mohamad Safavi, in writing, that it has no objection to the employment of Mohamad
Safavi and requests that the Employer reinstate him.35
(b) Make Mohamad Safavi whole, with interest, for all losses suffered
because the Union unlawfully requested his discharge and because the Employer unlawfully
complied with this request. Respondent Union’s obligation to make Safavi whole shall be
subject to the limitation set forth in the Remedy section of this Decision.40

4 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read,
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–22–08
11
(c) Post at its facility in Chicago, Illinois, and at all other places where
notices customarily are posted, copies of the attached notice marked “Appendix C.”5 Copies of
the notice, on forms provided by the Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous places including all places where 5
notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days from the
date of this Order what steps the Respondent has taken to comply.10
Dated Washington, D.C., June 27, 2008.
15
____________________________________
Keltner W. Locke
Administrative Law Judge
20
25
30
35
40

5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice
reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read,
“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(ATL)–22–08
12
APPENDIX A
Bench Decision
After accepting an employee’s belated tender of back dues required by a lawful union–5
security clause, a union continued to seek the employees discharge. The Union thereby violated
Section 8(b)(1)(A) and 8(b)(2) of the Act, and the Employer which granted the union’s request
thereby violated Section 8(a)(1) and 8(a)(3) of the Act.
Procedural History10
This case began on August 22, 2007, when the Charging Party, Mohamad Safavi, an
individual, filed his initial charge against the Respondent Employer, Palmer House Hilton, in
Case 13–CA–44223, and his initial charge against Respondent Union, UNITE HERE Local 1, in
Case 13–CB–18772. The Charging charges.15
On November 30, 2007, after investigation of the charges, the Regional Director for
Region 13 of the National Labor Relations Board issued a Complaint and Notice of Hearing,
which I will call the “Complaint.” In issuing this complaint, the Regional Director acted on
behalf of the General Counsel of the Board, whom I will refer to as the “General Counsel” or as 20
the “government.”
On May 14, 2008, a hearing opened before me in Chicago, Illinois. Also on May 14,
after the parties had presented evidence, counsel argued the case orally. The General Counsel
and Respondent Union also submitted prehearing briefs.25
Today, May 15, 2008, I am issuing this bench decision pursuant to Section 102.35(a)(10)
and Section 102.45 of the Board’s Rules and Regulations.
Admitted Allegations30
Based upon the admissions in the Respondents’ Answers and stipulations received at the
hearing, I conclude that the General Counsel has proven the allegations raised in Complaint
paragraphs I(a), I(b), I(c), I(d), II(a), II(b), II(c), III, IV(a), IV(b), V(a), V(b) and V(c).
35
Overview of the Facts
At all material times before his discharge, Charging Party Safavi worked for Respondent
Employer as a server, in a bargaining unit represented by Respondent Union. Because of a
lawful union–security clause in collective bargaining agreements between the two Respondents, 40
Safavi was required, as a condition of employment, to pay certain specified periodic dues. He
fell behind in this obligation, and, as of July 25, 2007, owed the Union more than $800.
The Union sent Safavi notices informing him that if he did not pay the arrearage or enter
into a payment plan by July 20, 2007, it would seek his discharge pursuant to the union–security 45
clause. Safavi did not make such a payment or agree to such a payment plan before the July 20
deadline.
JD(ATL)–22–08
13
For reasons to be discussed later, I credit Safavi’s testimony. Based on it, I find that on at
least two occasions before the deadline, he went to the Union offices and tried to see the Union’s
office manager, Tara Advani, who was responsible for collecting the back dues. However, he
did not see her on either occasion.5
After the July 20 deadline, and before Safavi met with the Union’s business manager on
July 25, the Union told the Employer to discharge him. Safavi met with the business manager on
July 25, entered into a payment agreement acceptable to the Union, and paid the Union $100
towards his back dues.10
The testimony of Safavi and Advani conflicts regarding what Advani told him before he
signed the payment plan agreement. Advani testified that she informed Safavi that his signing of
the agreement would not result in the Union dropping its demand that the Employer discharge
him. However, Safavi emphatically testified that neither Advani nor any other Union 15
representative told him, before he signed the agreement, that the Union would persist in seeking
his termination.
Crediting Safavi for reasons discussed later in this decision, I find that neither Advani nor
other Union representative informed him, before he signed the agreement, that it would not result 20
in the Union withdrawing its discharge demand.
On July 26, 2007, Office Manager Advani sent the Employer’s human resources manager
a letter stating “Please be advised that Mohamad Safavi is eligible for rehire – he has made a
payment plan to bring his dues account current. . .”25
In other words, the Union was stating that if the Employer wished to employ Safavi, it
would have to hire him again, resulting in the loss of his seniority. Presumably, Safavi would
also have to pay another Union initiation fee.
30
The Union’s letter, however, ignored one fact. Safavi continued to work for the
Employer. The evidence establishes the Union’s knowledge of this fact because, on July 26, it
told the Employer to put processing of the terminations on “hold.” Then, on July 30, the Union
notified the Employer it could go ahead with processing the terminations. For reasons discussed
later in this decision, I conclude that the Respondent Employer discharged Safavi on July 30, and 35
not earlier.
Further Discussion of Disputed Facts
Because the case turns on credibility, it is appropriate to examine the facts in greater 40
detail, even if it entails some repetition.
1. What Was Safavi Told Before Signing the Payment Plan?
The Union contends that before Safavi signed the payment plan, the Union told him that 45
he could not be reinstated, that the Union would only notify the Employer that he was eligible for
rehire as a new employee, and that it was up to the Employer whether to rehire him or not. The
JD(ATL)–22–08
14
Union’s argument rests on the testimony of Tara Advani, the Union’s office manager. However,
I do not credit that testimony, which conflicts with Safavi’s in a number of important areas. To
the extent that Advani’s testimony conflicts with Safavi’s, I credit the latter.
On July 25, 2007, Safavi signed an agreement, also signed by Advani, requiring him to 5
pay the Union a total of $882.00 in the following way: That day, Safavi paid the Union $100.
He also obligated himself to pay the Union $260.80 on August 25, 2007, again on September 25,
2007, and again on October 25, 2007. Additionally, the payment agreement obligated him to pay
monthly dues of $37.60. In other words, each month for 3 months, Safavi had to pay a total of
$298.40.10
It is difficult, indeed next to impossible, to believe that Safavi would have signed an
agreement obligating himself to pay these substantial amounts if he had first been told that he
would not be allowed to keep his job if he signed. The testimony makes clear that Safavi already
felt the Union was not providing service equal to the dues charged for it. Likewise, the record 15
indicates that Safavi was not shy about standing up for his interests. My observations of his
demeanor persuade me that he wasn’t likely to mince words if he believed someone was taking
advantage of him.
It would seem quite out of character for Safavi to be told that signing a document 20
obligating him to pay upwards of $1,000 would not result in the Union withdrawing its demand
that he be discharged and for him not to react to that. In fact, I find it nearly impossible to
believe. Therefore, crediting Safavi, I find that neither Advani nor any other Union official told
him, before he signed the plan, that he could not keep his job because of it.
25
2. What Did Safavi Reasonably Believe?
It isn’t necessary for me to decide whether – to borrow a phrase used by counsel during
oral argument – the Union was playing a game of “gotcha” and set out to trick Safavi. The
Complaint doesn’t raise such an allegation. However, I do conclude that Safavi signed the 30
payment plan while reasonably believing that doing so would result in the Union’s allowing him
to retain his job.
The Union argues that the payment plan resulted in other benefits. However, the credited
evidence does not indicate that Advani or any other Union official tried to “sell” the payment 35
plan to Safavi, that is, tried to convince him to sign it, by extolling such other benefits.
In sum, I conclude it was reasonable for Safavi to believe that signing the plan would
result in the Union abandoning its request to discharge him.
40
3. When Did Safavi’s Employment Terminate?
The record leaves little doubt about some of the material facts. Uncontradicted evidence
establishes that the Union sent Safavi written notices informing him that he owed back dues in
specified amounts, and stating that the Union would request his discharge if he didn’t these 45
amounts, or arrange a payment plan, by July 20, 2007.
JD(ATL)–22–08
15
The Union’s prehearing brief correctly predicted that the evidence would establish that
“Safavi entered into a three–month payment plan with the Union for his delinquent dues on July
25, five days after the deadline.”
The credited evidence also supports certain other findings anticipated by Union’s 5
prehearing brief. Thus, the Union’s brief stated, “The Hotel contacted the Union’s Office
Manager on Thursday, July 26 and inquired whether it was all right to process the terminations
of Safavi and the other employees. . .” Further, the Union’s brief stated that “The Union’s Office
Manager told the Hotel to hold off on processing the terminations. . .” Moreover, the brief stated
that “On Monday, July 30 the Union notified the Hotel that it could process the terminations of 10
Safavi and the others.”
Based on the record, I find that Safavi was still an employee of Respondent Employer
when he entered into a payment plan with the Union on July 25, 2007. I find that on the
following day, July 26, the Union’s Office Manager did tell the Employer to “hold off on 15
processing the terminations” and that on July 30, the Union notified that hotel that it could
“process” the terminations.
These findings, however, contradict the Union’s suggestion that Safavi already had been
discharged at the time he signed the payment plan on July 25. Likewise, these findings cast 20
doubt on the Union’s claim that on July 25, “At the time when the payment plan was made, the
Union believed in good faith that Safavi had already been terminated by the hotel on July 20.”
Sometimes, when labor lawyers are in a mood to speak figuratively, they will refer to
discharge as being the industrial equivalent of the death penalty. Such an analogy may be 25
instructive here.
Suppose, for example, that after a convict is moved to death row, a court orders the
warden to “hold off on processing” the death warrant while the court considers the convict’s
appeal. Suppose further that the court ordered this stay of execution on July 26. Then, four days 30
later, the court decides the appeal lacks merit and tells the warden that he can “process” the death
warrant. In other words, the court lifts the stay and allows the execution to proceed.
Could anyone seriously argue that the convict is already dead on July 26 because the
death warrant already had been signed? That would certainly be a surprise to the convict. 35
Likewise, it is impossible to conclude that the Employer discharged Safavi on July 20 when, as
the Union’s brief itself states, on July 26 the Employer asked the Union if it was all right to
“process the terminations of Safavi” and the other employees. Obviously, the Employer would
not have asked that question if Safavi already had been fired.
40
Moreover, the Union’s response, instructing the Employer to “hold off,” undermines its
assertion that it believed, in good faith, that Safavi already had been discharged. By analogy,
would a judge issue a stay of execution if he believed, in good faith, that the prisoner already had
been executed?
45
Thus, the facts asserted by the Union cast considerable doubt on the Union’s argument.
The addition of one other fact topples it completely. Safavi worked for the Employer on two
JD(ATL)–22–08
16
different days after the July 20 deadline. One of those days came before the Union’s July 26
instruction to “hold off on processing the terminations” and the other came after that instruction.
Far from figuratively being dead, Safavi was alive and well and working. The Employer didn’t
“throw the switch” on Safavi’s employment until July 30.
5
The Union attaches significance to language on the discharge memorandum that it was
effective July 20. Returning for a moment to the death penalty analogy, suppose the warden told
the prisoner, “I’m executing you right now effective last Monday.” If the coroner heard the
warden make that statement, would it change the date of death recorded on the death certificate?
10
In sum, I find that the Union asked the Employer to “hold off” and that accordingly the
Employer did not discharge Safavi until July 30. Further, I find that the Employer then
terminated Safavi’s employment because the Union stated that it was all right to “process the
terminations.”
15
This instruction reactivated the Union’s earlier request that Safavi be discharged and thus
itself was tantamount to a discharge request. Clearly, when the Union gave the Employer this
instruction on July 30, it already knew that Safavi had entered into a payment plan because the
Union itself was a party to that agreement.
20
The Union asserts that such payment plans are legal obligations enforceable by lawsuit in
small claims court. The Union recognizes the signing of such a legally binding document,
accompanied by payment of part of the arrearage, as sufficient tender, and indeed, the dues
delinquency notices which the Union sent to Safavi specifically mentioned the option of entering
into a payment plan rather than paying the full arrearage in one lump sum.25
Accordingly, I conclude that on July 30, when the Union effectively renewed its request
for Safavi’s discharge, the Union already knew that Safavi had satisfied his dues obligation.
Such knowledge rules out the possibility that the Union acted against Safavi on July 30 because
he had failed to tender the periodic dues required as a condition of retaining union membership. 30
He had already done so and the Union, as a party to the payment plan, knew it.
The Union argues that the General Counsel must do more than simply show that the
Union acted for some reason other than a member’s failure to tender the periodic union dues.
Thus, in its prehearing brief, the Union argued, “Unless the General Counsel can show that the35
Union harbored some unlawful reason for pursuing the discharge – a reason other than Safavi’s
failure to pay his delinquent dues by the July 20 deadline – there is no violation. There is no
such evidence.”
In effect, the Union’s argument would impose upon the General Counsel a burden not 40
unlike that implicit in proving a Section 8(a)(3) violation, namely, the requirement of
establishing, either by direct evidence or by inference, that a specific unlawful intent was a
motivating factor. To determine whether Section 8(b)(2) requires similar proof on intent, it is
appropriate to begin by examining the statutory language.
45
Section 8(b)(2) provides that it shall be an unfair labor practice for a Union “to cause or
attempt to cause an employer to discriminate against an employee in violation of subsection
JD(ATL)–22–08
17
(a)(3) [of subsection (a)(3) of this section] or to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated on some ground other
than his failure to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership. . .” 29 U.S.C. Section 158(b)(2).
5
This language provides two separate bases for finding a Section 8(b)(2) violation. First,
it makes it unlawful for a Union to cause or attempt to cause an employer to discriminate against
an employee in violation of Section 8(a)(3). The Union’s argument – that establishing an 8(b)(2)
violation requires the government to prove an unlawful motive – makes sense in this context,
because proving an 8(a)(3) violation requires proof of unlawful motive.10
However, Section 8(b)(2) describes a second type of violation which does not refer to
Section 8(a)(3). After the word “or,” the statutory language goes on to make it an unfair labor
practice for a union to cause an employer “to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated on some ground other 15
than his failure to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership. . .”
In other words, the “or” signifies that Congress was establishing two separate ways in
which a Union could violate this section of the Act. It follows that each of these alternatives has 20
its own requirements, and that the elements required to establish one type of 8(b)(2) violation
differ from those necessary to prove the other.
The statutory language describing the second type of violation does not require proof that
a union caused or tried to cause an employer to violate Section 8(a)(3). Stated another way, it 25
does not require proof that a union caused an employer to encourage or discourage union
membership by discriminating in terms and conditions of employment, which is the unfair labor
practice prohibited by Section 8(a)(3).
Rather, the second type of 8(b)(2) violation only requires proof that a union caused an 30
employer “to discriminate against an employee with respect to whom membership in such
organization has been denied or terminated on some ground other than his failure to tender the
periodic dues. . .” This careful language does not refer to a union’s intent in causing an
employer to discriminate. Rather, it describes a class of employees which this particular section
of the Act protects. A union places an employee in this class by denying or terminating his or 35
her union membership for a reason other than failure to tender periodic dues and initiation fees.
This analysis of the statutory language leads me to conclude that to establish the second
type of Section 8(b)(2) violation, the General Counsel must prove two things. The government
must prove that a union has caused or tried to cause an employer to discriminate against an 40
employee. Also, the government must prove that the Union has denied or terminated the
employee’s membership for a reason other than the failure to pay the periodic dues and initiation
fees.
In a sense, the statutory language appears to place on the General Counsel the burden of 45
proving what the Union’s motivation was not, rather than what it was. In the present case, the
record clearly establishes that the Union has denied Safavi union membership. In fact, the Union
JD(ATL)–22–08
18
admits that Safavi is not a member in good standing. Based on the credited evidence, I further
conclude that the General Counsel has proven that, at the time the Union sought Safavi’s
discharge on July 30, it had denied him such membership for reasons other than the failure to
tender his dues. That conclusion flows from the fact that Safavi already had tendered the dues by
entering into the payment plan.5
4. Applicable Case Precedent
The General Counsel and Respondents differ concerning which Board precedent should
be applied. The General Counsel cites Colgate–Palmolive Co., 138 NLRB 1037 (1962). 10
Respondent Union, however, argues that General Motors Corp., 134 NLRB 1107 (1961), states
the applicable legal principles.
The present facts bear a marked similarity to those in Colgate–Palmolive, and I conclude
that it is more apposite. It presents squarely the central issue in this case, whether the Union may 15
lawfully accept the tender of back dues while continuing to seek the employee’s discharge.
Moreover, because Colgate–Palmolive is the more recent case, its principles will control.
The General Counsel cites Colgate–Palmolive for the proposition that a union cannot
both accept a member’s tender of past dues and continue to request that the employer discharge 20
him. Respondent Union counters that the principle relied upon by the General Counsel comes
from a plurality opinion, signed by only two of the five Board members, and therefore provides
shaky support for the proposition. Thus, the Union’s prehearing brief stated, in part (with
citations omitted) as follows:
25
In finding a violation in Colgate–Palmolive, the deciding vote, Member
Fanning’s concurrence, relied heavily on facts unique to that case. As he discussed in his
concurring opinion, after paying her delinquent dues the employee was required to appear
at a hearing before a union committee to seek restoration to membership in good
standing. . .The committee apparently had discretion [to] approve or deny the employee’s 30
request, and it was the employer’s practice to abide by the union committee’s
decision. . .The concurring opinion therefore concluded that “under the practice of the
parties, the union–security clause in the contract has been administered to require, not
only the payment of dues, but also the maintenance of membership in good standing in
the Union as a condition of employment” . . . Thus. . .the enforcement of the union 35
security clause was not based on whether the employee made the required dues payments,
but on whether the union chose in any given case to restore the employee to membership
after the delinquency was repaid. In the present case, by contrast, the Union acted based
solely on whether the employees cured their dues delinquencies by the July 20 deadline.
40
The Union’s brief accurately describes an important distinguishing fact. However, in my
view, Member Fanning’s concurring opinion does not reject the principle that a union may have
its cake, as it were, by continuing to seek the employee’s discharge, or may eat the cake by
accepting the post–deadline tender of the dues, but it may not do both. Indeed, Member
Fanning’s concurring opinion concludes as follows:45
The Act permits a union, which has obtained a valid union–security provision in its
contract, to demand either an employee’s dues payment or his job. It does not give it the
JD(ATL)–22–08
19
right to demand both.
Colgate–Palmolive Company, 138 NLRB at 1043. Thus, in Colgate–Palmolive, a majority of
the Board, and not just a plurality, supported this principle.
5
Although the Board’s Colgate–Palmolive decision is almost 50 years old, counsel have
not cited any case overruling it and my own research has found none. Accordingly, I conclude
that it remains good law.
Respondent Union also seeks to distinguish Colgate–Palmolive by arguing that in the 10
present case, “the Union’s office manager expressly told Safavi that paying his dues would not
result in his being reinstated to his job,” and did so before Safavi signed the payment plan
agreement. However, Respondent bases this argument on the testimony of Office Manager
Advani, which I have not credited. To the contrary, crediting Safavi’s testimony, I find that no
Union agent or representative informed him, before he signed the payment plan, that the Union 15
would continue to seek his discharge.
Additionally, I have credited Safavi, rather than Advani, concerning the dates on which
he visited the Union’s offices and what occurred when he did. Thus, I find that at least twice
before the July 20 deadline, Safavi came to the Union’s offices, spoke with the receptionist, Vera 20
Manning, and unsuccessfully requested to see Office Manager Advani.
Respondent Union did not call Manning as a witness, and nothing in the record
contradicts Safavi’s testimony concerning his conversations with Manning. The Union had the
opportunity to call Manning during its case in chief, and it also could have called her as a 25
surrebuttal witness to respond to the testimony Safavi gave on rebuttal. However, the Union did
not call her, and did not assert that she was unavailable as a witness. No credited evidence
would support a finding that Safavi failed to come to the Union office before the July 20, 2007
deadline had passed and, likewise, no credited evidence supports a finding that Advani or any
other Union representative informed Safavi, before he signed the payment plan, that the Union 30
would continue to seek his discharge.
Respondent Union also relies upon Advani’s testimony in arguing that other cases should
be distinguished. Respondent cites these cases (as distinguishable): Teamsters Local 200 (State
Sand & Gravel Co.), 155 NLRB 273 (1965), Cramp Shipbuilding & Drydock Co., 151 NLRB 35
504 (1965), UAW Local 1772 (Kuhlman Electric Co.), 210 NLRB 798 (1974) and Larkins v.
NLRB, 596 F.2d 240, 247 (1979), in connection with its argument that the Union’s decision to
keep the money Safavi tendered did not waive its right to pursue his discharge.
In its prehearing brief, the Union argues that “the Board and the Seventh Circuit looked 40
to the union’s subjective understanding and intent in order to determine whether its handling of
the belated tender waived its right to enforce the union security clause.” The Union thus asserts
that a finding that a union has waived its right to seek an employee’s discharge must be based
squarely on the facts of the case.
45
However, the credited evidence in the present case does not favor the Union’s argument.
To the contrary, the credited evidence establishes that the Union knew, or reasonably should
JD(ATL)–22–08
20
have known, that Safavi was still an employee of Palmer House Hilton on July 25, 2007, when
he entered into the payment plan agreement. Indeed, the Union’s own brief describes a
telephone call the Employer made to the Union the next day, asking whether the Employer
should proceed with the requested discharges. It also refers to the Union’s answer, that the
Employer should “hold off” for the time being. Four days later, when the Union told the 5
employer to proceed with the discharges, it clearly had knowledge that Safavi remained an
employee at the time he signed the payment plan agreement. The credited evidence hardly
provides a basis for distinguishing the cited cases.
Although counsel, and some of the case precedents, use the term “waiver,” the term 10
“election” may be more apt. The principle that a union may not have its cake and eat it, too –
that is, may not accept a member’s belated tender of past dues and also continue to request his
discharge – would appear to reflect a policy choice arising from basic notions of fairness.
Indeed, it may be reasoned that the General Counsel need not invoke either the principles 15
of waiver or election to establish a violation. A literal reading of Section 8(b)(2) would suggest
that it is unlawful for a union to attempt to cause the discharge of an employee except upon the
ground that he had failed to tender the periodic dues and the initiation fees uniformly required as
a condition of acquiring or retaining membership. Once this lawful reason ceases to exist, it may
be argued, a union’s continued effort to cause the discharge necessarily must be for some 20
impermissible reason.
In other words, it may be assumed that a labor organization, which exists to represent
employees, would not seek the discharge of an employee for no reason at all. The absence of a
permissible reason gives rise to an inference of an impermissible one. Or so it might be argued.25
Even assuming that the government must establish that the Union waived its right to seek
Safavi’s discharge, and assuming further that a finding of waiver turns on facts about a union’s
knowledge and/or intent, as the Union argues, the credited evidence fully supports a conclusion
that the Union’s acceptance of Safavi’s dues tender waived its right to pursue his discharge.30
5. Respondent Union’s Estoppel Argument
During the hearing yesterday, Respondent Union raised for the first time the argument
that the conduct of the General Counsel’s agents estop the government from proceeding. Today, 35
shortly before the hearing began, the Union’s counsel submitted a memorandum on this issue.
So that it may be given careful consideration, I will address the estoppel argument in the
Certification of Bench Decision.
Summary40
In sum, I conclude that Respondent Union violated Section 8(b)(2) and 8(b)(1)(A) by
seeking and causing the discharge of Safavi after accepting and keeping his tender of back dues.
Respondent Employer had sufficient reason to question the legitimacy of the Union’s 45
discharge request based upon the conversations between the Union’s business manager and the
Employer’s human resources director. Moreover, the Charging Party also communicated with
JD(ATL)–22–08
21
the Employer.
I conclude that Respondent Employer violated Section 8(a)(3) and (1) of the Act by
discharging Safavi at the Union’s request.
5
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
Remedy, Order and Notice. When that Certification is served upon the parties, the time period
for filing an appeal will begin to run.10
Throughout the hearing, I have been very impressed with the quality of all counsel’s
advocacy and even more so, with the high degree of professionalism and civility that has
consistently been shown. Now, I appreciate that very much.
15
The hearing is hereby closed.
JD(ATL)–22–08
22
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT encourage membership in a labor organization by discharging or otherwise
discriminating against an employee, notwithstanding that a labor organization has requested that we
discharge the employee for nonpayment of dues, if we have reasonable grounds for believing that
membership was not available to the employee on the same terms and conditions generally applicable to
other members, or for believing that membership was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
WE WILL NOT, in any like or related manner interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
JD(ATL)–22–08
23
WE WILL offer Mohamad Safavi immediate and full reinstatement to his former position, or to a
substantially equivalent position if his former position no longer is available, and WE WILL make him
whole, with interest, for all losses he suffered because of our unlawful discrimination against him.
PALMER HOUSE HILTON
(Respondent Employer)
Dated: ___________________ By:_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret–ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604–1219
(312) 353–7570, Hours: 9:30 a.m. to 6:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (312) 353–7170
JD(ATL)–22–08
24
APPENDIX C
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board had found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT cause or attempt to cause an employer to discriminate against an employee in
violation of subsection (a)(3) of the Act, or to discriminate against an employee with respect to
whom membership in such organization has been denied or terminated on some ground other
than his failure to tender the periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
WE WILL NOT accept and retain a member’s tender of back dues and/or initiation fees but
nonetheless request that an employer discharge this member for nonpayment of such dues and/or
initiation fees.
WE WILL NOT, in any like or related manner, restrain or coerce employees in the exercise of
rights guaranteed by the Act.
WE WILL provide written notice to Mohamad Safavi and to his employer, Palmer House Hilton,
stating that we do not object to his employment and requesting that the employer reinstate him.
JD(ATL)–22–08
25
WE WILL make employee Mohamad Safavi whole, with interest, for all losses he suffered
because we unlawfully requested that his employer discharge him.
UNITED HERE, LOCAL 1
(Respondent Union)
Dated: ___________________ By:_______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret–ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
The Rookery Building, 209 South LaSalle Street, Suite 900, Chicago, IL 60604–1219
(312) 353–7570, Hours: 9:30 a.m. to 6:00 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER (312) 353–7170