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Council Rejects Woodfin Appeal

John VanLandingham
Connection Staff
September 2007

The Woodfin Hotel lost its back wages and sanctions appeal before the City Council Monday, August 27, in a lengthy hearing that included the hotel lawyer’s brief ejection and three top city administrators called as witnesses.

In a unanimous decision that some observers expect to be appealed in court, the council upheld City Manager Patrick O’Keeffe’s decision that the hotel by September 14th pay back wages to its housekeeping employees and penalties for failing to provide timely documentation of workers hours and duties, along with a fee for the city’s costs of investigation wage complaints under Measure C.

“We are tremendously disappointed that the city didn’t have the courage” to scrap the provisions of Measure C, said Woodfin attorney Bruno Katz after the council’s vote.

Asked what the next step would be, Katz said, “We’ll discuss that.”

Council member Ken Bukowski said in a subsequent interview that the lengthy and costly appeal demonstrates that the city needs to consider a way to revise Measure C.

Mayor Nora Davis spoke for the council when she said that four of the incumbents opposed Measure C when it was on the ballot in November 2005. “We saw the underlying flaws. However, the voters said yes and we are obligated to uphold it. The council must move forward,” she said, calling for a vote on Council member John Fricke’s motion to deny the appeal.

Hotel officials came in for strong criticism for playing hardball with both the city on its requests for documents showing whether the hotel was complying with the law and by laying off numerous workers during an investigation of their wage complaint.

Woodfin officials claimed they were undocumented workers who repeatedly refused to take steps to resolve their immigration status despite offers of paid time off to do so and the hotel could face drastic sanctions for hiring them.

Council member Dick Kassis noted that the immigration regulations were undergoing review and the sanctions cited by Woodfin officials were not in place.

Measure C requires that all Emeryville hotels pay time and a half to housekeepers who clean more than 5,000 square feet in an 8-hour shift. O’Keeffe said the city’s audit showed many workers were not paid that differential. The other three hotels in town all have complied with Measure C.

Katz came out swinging at the hearing’s onset, tangling with Davis and briefly getting ejected until he promised to abide by the council’s rules. Davis gaveled him down several times declaring him out of order when he stood up to speak during the time reserved for public comments.

Katz persisted in attempting to make an administrative point over Davis’s objections.

“Please sit down, you are out of order,” Davis repeatedly told Katz before asking, “Will someone escort him from the room?”

Police Chief Ken James and another officer escorted him from the chambers. Later James came back and privately told Davis that Katz wanted back in to the hearing, adding that Katz promised to obey the council’s rules. Moments later, he was back for the duration of the almost 4½-hour hearing.

At issue was O’Keeffe’s mid-June order for the hotel’s management to pay the housekeeping workers approximately $75,000 in back wages and over $67,000 in permit fees and city investigation costs, as mandated by Measure C.

Katz protested the investigation fees during questioning of City Attorney Michael Biddle and economics professor Charles Baird; who suggested that Woodfin should not have to reimburse the city if no wrongdoing was found.

He noted that the hotel has no way to budget for such costs and that any employee could trigger an investigation by filing a complaint, whether valid or invalid.

Baird, emeritus professor of economics at Cal State East Bay likened it to the Nazis forcing Jews to pay for their own persecution during the Holocaust. “I find it extraordinary. The whole idea of Measure C is that the defendant has to pay for his own persecution; it’s like charging the Jews for their persecution by the Nazis,” he said

“Measure C has no concern for economic vitality. It’s driving out entrepreneurs and it won’t produce needed jobs,” he added.

He called EBASE (East Bay Alliance for a Sustainable Economy), an early proponent of Measure C, “an activist group that will apply costs to any business that refuses to unionize.”

Vice Mayor Ruth Atkin later said that Emeryville is a very small city and can’t afford to absorb those costs itself.

Woodfin General Manager Hugh MacIntosh said he believed he had an agreement with city Revenue Division Manager Margaret O’Brien that the only work period for which documents were being sought was October to December 2006. O’Brien disputed that assertion saying she told MacIntosh that October 2006 was only “a starting point” and the review would extend back to December 2005 once more documents became available.

MacIntosh said several times that he never received requests from the city asking for documentation of room sizes or wages paid. Attorney Benjamin Stock, hired to assist the city’s investigation of the Woodfin and Measure C dispute, showed him letters from the city mailed to his predecessor.

Katz focused much of his energy challenging the legality of Measure C, saying it violated both state and federal law. Stock rebutted saying the federal courts rejected Woodfin’s earlier suit “with prejudice,” meaning it could not be resurrected.

Katz called two Woodfin housekeeping managers, who testified that the city didn’t understand Woodfin’s housekeeping system where managers routinely assisted with cleaning duties, turning mattresses and moving heavy furniture. So the claim that a worker exceeded the 5,000-square-foot threshold wasn’t always accurate.

It is unclear what the Woodfin’s next action will be, although it has exhausted its local administrative remedies.

John VanLandinghamis a writer for The Emeryville Connection. If you have a question or comment, please contact him at ecocnews@gmail.com