Asseo v. Bultman Enterprises, Inc.
| Decision Date | 07 December 1995 |
| Docket Number | Civil No. 95-1907 (SEC). |
| Citation | 913 F. Supp. 89 |
| Parties | Mary Zelma ASSEO, Regional Director for Region 24 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. BULTMAN ENTERPRISES, INC. d/b/a Le Rendezvous Restaurant, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
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Efraín Rivera-Vega, National Labor Relations Board, Hato Rey, PR, for Petitioner.
Anibal Lugo-Miranda, Shapiro & Lugo, San Juan, PR, for Respondent.
This case is before the Court upon a petition for injunctive relief filed on July 20, 1995 by the Regional Director for the Twenty-Fourth Region of the National Labor Relations Board ("the Board"), pursuant to Section 10(j) of the National Labor Relations Act, as amended (61 Stat. 149; 29 U.S.C. § 160(j)) ("the Act"). The injunctive relief requested is to be in effect until final disposition of the matters involved herein, now pending before the Board on complaint by the General Counsel, based on a charge and amended charge filed by Union Gastronomica de Puerto Rico Local 610, HEREIU, AFL-CIO ("the Union"). The Union claims that Bultman Enterprises d/b/a Le Rendezvous Restaurant ("Respondent") has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(1), (3) and (5) of the Act (29 U.S.C. § 158(a)(1), (3) and (5)), which sections prohibit an employer from interfering with, restraining or coercing employees in the exercise of their right to engage in union and/or concerted activities; from discriminating against employees because of their membership in a labor organization; and from failing or refusing to bargain collectively in good faith with the representative of its employees in an appropriate unit.
The charge in Case No. 24-CA-7129 was filed by the Union on February 13, 1995. It was subsequently amended on April 28, 1995. Following its investigation of the charges, the Board issued a Complaint and Notice of Hearing pursuant to Section 10(b) of the Act, alleging that Respondent violated the National Labor Relations Act as set forth above. A hearing was held on these claims before Administrative Law Judge Benjamin Schlesinger in San Juan, Puerto Rico from August 28 to 30, 1995. The ALJ's decision is pending.
On motion by the Board, this Court granted leave to submit affidavits and other properly supported documentary evidence in lieu of a full evidentiary hearing on its petition for interim relief. See Aguayo v. Tomco Carburetor Co., 853 F.2d 744, 750 (9th Cir. 1988); Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir.1987); Fuchs v. Hood Industries, Inc., 590 F.2d 395, 397 (1st Cir.1979). The parties have therefore submitted the case on the transcript and exhibits presented at the administrative hearing, and on supplemental affidavits submitted to the Court.
Respondent, a Puerto Rico corporation, is engaged in the operation of a restaurant in the Ambassador Plaza Hotel & Casino, a Radisson Plaza Hotel ("the Hotel") located in Condado, Puerto Rico, providing food, beverages and related services. Specifically, the Board alleges that on or about November 30, 1994 Respondent leased and/or subcontracted the food and beverage outlets of the Hotel known as the Howard Johnson's Restaurant and Ice Cream Parlor, and since then has continued to operate said outlets in basically unchanged form.
In essence, the Board claims that Respondent threatened its employees with discharge due to their status as union members; refused to consider for employment and/or failed and refused to hire several employees because they were members of the Union, in order to discourage these employees from engaging in union activity; unilaterally reduced wages and otherwise modified the terms and conditions of employment of its employees, without prior notice to the Union and without affording the Union an opportunity to bargain with respect to these matters; refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit; and refused to furnish the Union with information relevant to its function as collective-bargaining representative.
Standards under Section 10(j)
Section 10(j) of the NLRA authorizes the NLRB to seek, and the United States district courts to grant, interim relief pending the NLRB's resolution of claims of unfair labor practices. Efraín Rivera-Vega v. ConAgra, Inc., 70 F.3d 153, 157-158 (1st Cir.1995). In considering a petition for interim relief under 10(j), our inquiry is limited to (1) whether the NLRB has shown "reasonable cause" to believe that the employer has committed the unfair labor practices alleged, and (2) whether injunctive relief is "just and proper." Id. at 157-158; Asseo v. Centro Médico Del Turabo, Inc., 900 F.2d 445, 450 (1st Cir.1990). In considering the Board's petition for relief, we need not determine whether an unfair labor practice actually occurred; rather our role is limited to deciding only whether the NLRB's position is "fairly supported by the evidence." See ConAgra, Inc., 70 F.3d at 158. Similarly, we are not called upon to resolve contested issues of fact, but are to defer instead to the NLRB's version of the facts, as long as they are "within the range of rationality." Id. See also, Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d 953, 958 (1st Cir. 1983).
Since at least 1991, the Union has been the exclusive collective bargaining representative of a unit of food and beverage employees at the Hotel. The Union has been recognized as such by the Hotel, as embodied in successive collective bargaining agreements, the most recent of which was effective from June 1, 1991 to May 31, 1994. About May 12, 1994, the Hotel and the Union commenced bargaining for a new collective bargaining agreement. On May 12 and October 4, 1994, the Hotel informed the Union of its intention to contract out the operation of the restaurant at the Hotel. Although the parties included this topic in their negotiations, no agreement was reached regarding this matter. Accordingly, on November 18, 1994, the Hotel notified the Union that effective November 30, 1994, it would be providing the food and beverage services by means of a new concessionaire, Bultman Enterprises. On November 23, 1994, employees were informed that the Hotel would be closing its food service operations, and a concession would be given to Respondent. The notification letter invited them to apply for employment with the concessionaire, whose representative would be receiving applications and interviewing interested candidates beginning November 28, 1994. Notwithstanding this invitation, at least 36 of those former food and beverage employees who did submit applications for employment with Respondent never even got an interview.
As these events unfolded, several supervisors told employees that it was a shame that "such good employees would be left out on the street" because Respondent did not want the Union. These comments were made by Dining Room Supervisor José Cruz in August and November of 1994 and by Food and Beverage Manager Noel García on several occasions. These sentiments were echoed by Supervisors Moisés Brignoni and Roberto Burgos.
At some point prior to taking over the operations of the restaurant on November 30, 1994, Respondent prepared and submitted to the Hotel a confidential memorandum describing the manner in which the management transition of food and beverage operations from the Hotel to Respondent would be accomplished. The memo outlines several specific recommendations on how to deal with employees and personnel related matters, including language on how to maintain a non-union environment even while retaining a number of current union employees.
On November 30, 1994, Respondent signed a "Concession Agreement" with the Hotel, whereby the Hotel granted Respondent a concession of its restaurant and ice cream parlor for a period of five years, with an additional five-year option, at the Hotel's discretion. On December 1, 1994, Respondent began operating the restaurant, providing only food service to the Hotel itself until December 12th, when it opened to the general public. The operations of the restaurant are essentially the same as they were under Hotel management. Respondent offers the same services, to the same clients, at the same location, with the same equipment. Respondent also retained six of the eight supervisors of its predecessor, and hired three new supervisors. Respondent did make offers of employment to twelve (12) out of a total of fifty-five (55) former union employees of the Food and Beverage department, subject to a pay cut in their hourly wages.
Upon learning that Respondent was to take over the operation of the restaurant at the Hotel, the Union requested that Respondent recognize the Union as the exclusive collective bargaining representative of the restaurant employees. The Union included with its request, a list of employees covered by the agreement between it and the Hotel "who should maintain their jobs." Respondent rejected the Union's claim. Respondent specifically refused to recognize the Union as the exclusive bargaining representative, stating that as an independent concessionaire, the new management had hired its own employees to operate its business.
Finally, by letter of March 14, 1995, Respondent refused to provide the Union with requested information related to its employees, as well as a copy of the contract or lease between Respondent and the Hotel.
Section 7 of the Act guarantees employees "the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual...
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