Local 568, Hotel, Motel & Club Employees Union

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain collectively with that Union , upon its request, with respect to wages, hours, and other terms and conditions of employment , and if agreement is reached, sign a contract with that Union. TErrrrsco CORP., Employer. Dated ------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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. Employees may communicate directly with the Board's Regional Office, 7th Floor, Falls Building, 22 N. Front Street, Memphis, Tennessee , Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Local 568, Hotel, Motel & Club Employees Union, AFL-CIO and Sydney Axelrod and Warwick Hotel, Inc., Party to a Contract. Case No. 4-CB-800. March, 11, 1963 DECISION AND ORDER On October 18, 1962, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and had not engaged in others and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter Respond- ent and General Counsel filed exceptions to the Intermediate Report and briefs in support of their exceptions. 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 Interme- diate Report, the exceptions, the briefs, and the entire record in the case and finds merit in General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the following. 1. General Counsel alleged in his complaint that Respondent caused hotels in the Philadelphia area to refuse to employ Sydney Axelrod as an extra banquet waiter in violation of Section 8 (b) (2) of the Act by virtue of an unlawful arrangement, understanding, and practice between Respondent and the hotels requiring that such waiters be referred to jobs or cleared for employment by Respondent as a condi- tion of employment, and the refusal of Respondent either to refer Axelrod to jobs or approve his employment by the hotels. The Trial Examiner rejected this allegation and found that, although the hotels did generally use Respondent's facilities for recruiting extra banquet 141 NLRB No. 29. LOCAL 5 68, HOTEL, MOTEL & CLUB EMPLOYEES UNION 311 waiters and did refuse to employ Axelrod in the absence of referral by Respondent, the practice was not violative of Section 8(b) (2) because it was not "bilateral or caused by contractual compulsion, but was unilateral and voluntary, and was followed primarily because it suited the hotels' convenience." We do not agree. For many years prior to October 1959, Respondent and hotels in the Philadelphia area were parties to collective-bargaining agreements which provided specifically for a closed shop and exclusive hiring through Respondent. During this period, the hotels complied with the contract requirement and recruited extra banquet waiters in the first instance through Respondent's banquet department hiring hall. As the result of the Supreme Court's decision in Hotel Employees Local No. 255 et al. v. Leedom (Miami Beach, Hotel Assn.), 358 U.S. 99, the Board in July 1959 reversed its previous policy of not asserting jurisdiction over hotels and set forth the standards which would govern in the assertion of jurisdiction over such establishments.' Following this decision, Respondent and the hotels negotiated a new bargaining contract in October 1959 which eliminated the closed shop and exclu- sive hiring clauses and substituted therefor a statutory union-shop clause and a provision which reads : 2. When in need of employees, EMPLOYER may apply to the office of the UNION. Said UNION agrees, during the term here- of to, at all times, maintain an office in Philadelphia, which shall be open during ordinary business hours, and shall communicate to EMPLOYER the address of said office ... . In bargaining contracts with hotels which are not subject to the Board's jurisdiction, the pre-1959 closed shop and exclusive hiring provisions have been continued. Despite changes in the 1959 bargaining agreement, and except for a 3-month period of confusion which followed the signing of the 1959 contract, the hotels have continued their former practice of hiring extra banquet waiters, with the possible exception of Negro waiters, only if they have been requested from, and referred by, Respondent. Thus, when the Charging Party, Sidney Axelrod, an experienced extra banquet waiter and longtime union member, was suspended from union membership and denied referrals from Respondent's banquet department hiring hall for alleged "dereliction of duty, em- barrassment to the Union, causing internal strife, and publicizing the action of the Union to outsiders," several hotels refused to consider him for employment at his trade with the explanation that they ob- tained extra banquet waiters solely through Respondent. Notwithstanding the statements made to Axelrod by several hotels in refusing to consider his application for employment, the Trial 1 Floridan Hotel of Tampa, Inc., 124 NLRB 261. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner found that the pre-October 1959 exclusive hiring practice was no longer in effect. He predicated this finding on the testimony of Joseph P. Hoemig, general manager of five Philadelphia hotels, that there have been occasions since 1959 when at least two hotels have hired extra banquet waiters through the Committee on Human Rela- tions. However, the instances of hiring through the Committee in- volved only Negro waiters. Hoemig's testimony was nothing more than that on a few occasions such extra banquet waiters had been recruited through the Committee when the customer had specifically asked that such waiters be employed. There is not the slightest evidence that this relaxation of the preexisting contract requirement and practice has been otherwise extended. This single exception does not prove that the practice of exclusive hiring through the Union has been abandoned. In fact, Hoemig's testimony considered in its entirety is to the contrary .2 Accordingly, we find, contrary to the Trial Examiner, that except on several occasions as heretofore indicated, the hotels have since October 1959 continued their former practice of hiring extra banquet waiters in the first instance exclusively through Respondent.' The Trial Examiner also found that, assuming the hotels had con- tinued their former illegal practice of hiring exclusively through Respondent, the General Counsel had failed to establish that such rigid practice resulted from a bilateral understanding in which Re- spondent had participated or from pressure exerted upon the hotels by Respondent. In making this finding, the Trial Examiner relied upon the testimony of witnesses for the hotels and Respondent that there was no contractual obligation requiring the hiring of extra banquet waiters through Respondent. However, in order to estab- lish equal responsibility of Respondent with the hotels for the latter's illegal practice of hiring only through Respondent, it is not necessary to establish an explicit agreement for such hiring. An understanding, even though not articulated, is sufficient to make the union responsible with the employer for the unlawful practice. 2 N.L R.B. v, Local 369, International Hod Carriers' Building and Common Laborers' Union of America, AFL (A. C Frommeyer Co ), 240 F. 2d 539 (C.A 3) ; Local 215 International Brotherhood of Electrical Workers, AFL-CIO (Eastern New York State Chapter etc.), 136 NLRB 1618; Nassau and Suffolk Contractors' Association, Inc, 118 NLRB 174 3 Respondent's president, Stoltz, testified that the hotels had, beginning in early 1960, resumed their former practice of recruiting through Respondent. The Trial Examiner refused to credit Stoltz because he found him not a credible witness and his testimony was not corroborated by hotel officials. However, the testimony as to the remarks made by hotel officials in refusing to consider Axelrod for employment does corroborate Stoltz. Hoemig's testimony, discussed above, treats of an exception; It does not serve to discredit the continuance of the preexisting practice. In these circumstances and for the reasons set forth, we believe Stoltz' testi- mony in this respect reflects the actual practice of the parties. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 313 In accepting at face value the disclaimers by the participants in the alleged illegal understanding, agreement, and practice, the Trial Examiner failed to give proper weight to certain implications in the adduced testimony. It is no doubt true that it was convenient for the hotels to have a single source of supply for extra banquet waiters. But it does not follow that it was equally convenient for a hotel to reject a qualified waiter who applied directly to the hotel for a job at a time when a job was available. Significantly, in refusing to con- sider Axelrod's application for employment, the hotels made clear that they did so not because there were no jobs then available, but because referral from Respondent was a condition precedent to em- ployment. Thus personal application for a job at any time, except in the contingency that Respondent could not supply necessary extra help, was a futility. In evaluating the basis for this practice, the Trial Examiner also neglected to consider the origin of the practice. For many years the hotels had been required by contract to hire exclusively through, and to employ only members of, Respondent. In deleting the closed-shop and exclusive hiring clauses from the 1959 contract, the parties in- serted a provision which obviously contemplates that Respondent would continue to operate a hiring hall. The hotels subject to the Board's jurisdiction must have been aware that purely local hotels were still required to do their hiring of extra banquet waiters through Respondent. There is no evidence that in deleting the illegal hiring clause, Respondent took any steps to assure the employers that the illegal hiring practice was in fact abolished and that the employers were free to recruit extra banquet waiters from any source, subject only to the lawful union-security requirement. When to these cir- cumstances there is added the fact that Respondent had a rule pro- hibiting its members from working with union or nonunion members not booked through its hiring hail,4 it is understandable why the hotels 4 The precise nature of the rule against working with other employees is in dispute. Axelrod and another witness for the General Counsel testified that at a union member- ship meeting in September 1961 a resolution was passed that members of the banquet department were not to work with nonunion members or with union members not booked through Respondent's hiring hall Stoltz, president of Respondent, testified that each year a resolution is passed that members shall not work with other members of the banquet department if they have not obtained their employment through Respondent's hiring hall. According to Stoltz, the no-work resolution does not apply to working with nonunion members or suspended members who may have obtained their employment through other sources. The Trial Examiner credited the Stoltz version of the rule in large part because of Hoemig's testimony as to the employment of Negro waiters discussed above. Contrary to the Trial Examiner, we credit the version of the rule testified to by the wit- nesses for the General Counsel. We do so because this version is more in accord with customary union practice , and because on two occasions , in the fall of 1961, extra banquet waiters supplied by Respondent refused to work with both union and nonunion waitresses not booked through Respondent, which is consistent with the General Counsel's version of the rule. ( The Trial Examiner refused to give probative weight to either of these in- 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should have continued substantially unchanged the illegal practice of hiring only extra banquet waiters referred by Respondent. We hold, contrary to the Trial Examiner, that the continuance after October 1959 of the hotels' practice of hiring extra banquet waiters in the first instance exclusively through Respondent was not solely volun- tary, but was caused by an agreement or understanding with Respond- ent to continue the preexisting practice which was reinforced by the knowledge that as a result of a union resolution waiters booked through Respondent would not work with waiters obtained elsewhere. We find, therefore, that by refusing for discriminatory reasons to consider Sydney Axlerod for referral as an extra banquet waiter, Respondent caused hotel employers to discriminate against him in hiring, thereby violating Section 8 (b) (2) and (1) (A) of the Act .5 2. The General Counsel also alleged that Respondent had independ- ently violated Section 8(b) (1) (A) of the Act by failing, in making job referrals, equally to represent Axlerod, a member of the bargaining unit for which Respondent was bargaining representative. The Trial Examiner found a violation substantially as alleged in the complaint. As we have found above that Respondent violated Section 8(b) (2) and (1) (A) of the Act, and the remedy for any further violation of Section 8(b) (1) (A) will be the same as for the violations already found, we consider it unnecessary to, and do not, pass upon this finding of an independent 8 (b) (1) (A) violation. THE REMEDY Having found that respondent engaged in certain unfair labor prac- tices violative of Section 8(b) (2) and (1) (A), we shall direct that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act 6 We shall direct that Respondent restore Sydney Axelrod to that position on the job roster of the banquet department to which he would be entitled if no discrimination had been practiced against him, and to refer him to jobs without discrimination. Respondent shall also make Axelrod cidents for reasons which we regard as invalid The incidents are considered here as evidence corroborative of the General Counsel's version of the disputed union resolution.) Even the Stoltz version of the rule would seriously handicap any hotel which tried to recruit waiters otherwise than through Respondent . This club over the hotels would be only slightly less potent in the Stoltz version than in the General Counsel version. Although there is no direct evidence in this record that the hotels were aware of the union resolution , such knowledge is interrible from the longstanding relationship between the hotels and Respondent, the public nature of the resolution , its existence for a number of years, and the work stoppages. B Local 215, International Brotherhood of Electrical Workers, AFL-CIO (Eastern New York State Chapter etc.), 136 NLRB 1618. 6 Member Rodgers, in addition to the provisions set forth in the Board's Order, would also specifically order the Respondent to cease and desist from continuing its unlawful hiring practices. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 315 whole for any loss of earnings suffered by him as the result of Respond- ent's unlawful conduct toward him by payment to him of a sum of money equal to that which he would have earned from on or about March 8, 1962, the date of the discrimination against him, until such time as his name is restored to the rosier of the banquet department and he is referred to available employment without discrimination? Loss of earnings shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to moneys due Axelrod to be computed in the manner set forth in Isis Pbumbing cC Heating Co., 138 NLRB 716.8 Additional Conclusion of Law By removing Sydney Axelrod's name from the roster of the banquet department and by thereafter refusing to refer him to jobs as an extra banquet waiter with employers seeking such employees, including, inter alia, members of The Philadelphia Hotel Association of Phila- delphia, Pennsylvania, Respondent caused such employers to discrimi- nate against him in violation of Section 8(a) (3) of the Act, and thus coerced and restrained employees in the exercise of rights guaranteed in Section 7 of the Act, thereby violating Section 8(b) (2) and (1) (A) of the Act. ORDER The Board adopts as its order the following in substitution for the Recommended Order of the Trial Examiner. Upon the entire record in the case and pursuant to Section 10 (c) of the Act, as amended, the National Labor Relations Board hereby orders that Respondent Local 568, Hotel, Motel & Club Employees Union, AFL-CIO, Philadelphia, Pennsylvania, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause employers in the Philadelphia area, including members of The Philadelphia Hotel Association of Philadelphia, Pennsylvania, to refuse employment to Sydney Axel- rod, or any other individual, in violation of Section 8(a) (3) of the Act. (b) In any other manner restraining or coercing employees of employers subject to the Act in the exercise of rights guaranteed in Section 7 of the Act. 7 If after referral , any hotel , for reasons not caused by Respondent, would have refused to hire Axelrod, Respondent will not be obligated to reimburse him for loss of earnings suffered thereby. 8 For the reasons stated in their dissenting opinion in I8ts Plumbing & Heating Co., Members Rodgers and Leedom would not award interest. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Restore Sydney Axelrod to the employment roster of the ban- quet department, refer him therefrom for employment as an extra banquet waiter on a nondiscriminatory basis, and make him whole for loss of earnings suffered as the result of the discrimination against him, in the manner indicated in the section of this Decision and Order entitled "The Remedy." (b) Post at its business offices and meeting and hiring halls in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 9In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " APPENDIX NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS AND TO EMPLOYEES OF MEMBERS OF THE PHILADELPHIA HOTEL ASSO- CIATION OF PHILADELPHIA, PENNSYLVANIA Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, you are notified that: WE WILL NOT cause or attempt to cause employers in the Phila- delphia area, including members of The Philadelphia Hotel As- sociation of Philadelphia, Pennsylvania, to refuse employment to Sydney Axelrod, or any other individual, in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL restore Sydney Axelrod to the employment roster of our banquet department and will refer him therefrom for employ- ment as an extra banquet waiter on a non-discriminatory basis. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 317 WE WILL reimburse Sydney Axelrod for loss of earnings suf- fered as the result of the discrimination we have practiced against him. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) 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. Anyone having any question concerning this notice or compliance with its provisions may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juni- per Streets, Philadelphia 7, Pennsylvania, Telephone No. Pennypacker 5-2612. INTERMEDIATE REPORT On March 15, 1962, Sydney Axelrod, an individual, filed charges against Local 568, Hotel, Motel & Club Employees Union, AFL-CIO, Philadelphia, Pennsylvania, herein called the Respondent. On May 11, 1962, the General Counsel' issued a complaint against the Respondent alleging that, at all times material, the Respondent and the Warwick Hotel, Inc., have been parties to, and have maintained and given effect to, an agreement, arrangement, understanding, and practice whereby all extra banquet waiters employed by the Warwick are referred, cleared, or approved by the Respond- ent for employment and that since on or about March 3, 1962, the Respondent has failed and refused to refer, clear, or approve Sydney Axelrod for employment as an extra banquet waiter with the Warwick, because of his "internal union activities as a member of Respondent." It is further alleged that since on or about March 3, 1962, the Warwick has failed and refused to employ Axelrod as an extra banquet waiter because of the agreement, arrangement, understanding, and practice described above and because the Respondent has failed and refused to refer, clear, or approve him for employment. It is alleged that such conduct violates Section 8(b) (1) (A) and (2) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Thereafter, the Respondent filed an answer denying most of the material allegations of the complaint, denying that it was a party to or maintained or had given effect to any agreement, arrangement, understanding or practice with the Warwick whereby extra banquet waiters employed by the Warwick are referred, cleared, or approved by Respondent for employment, alleging that the Warwick is free to hire as it chooses without referral, clearance, or approval by the Respondent, and alleging that Axelrod had been duly charged, tried, and suspended as a member of the Respondent. The answer further denies that the Warwick failed or refused to employ Axelrod because of any agreement, arrangement, understanding, or practice with the Respondent. The answer also avers that the Board is without jurisdiction to interfere in the Respondent's "internal union activities." Pursuant to notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr., on June 18, 21. 25, and 26, 1962, at Philadelphia, Pennsylvania. The General Coun- sel and the Respondent were represented? All parties were afforded an opportunity to participate fully in the hearing. At the hearing the General Counsel amended the complaint to allege that, at all material times, the Respondent and "various employers in the Philadelphia area including the Warwick and other members of [The Phila- delphia Hotel] Association [of Philadelphia, Pennsylvania]" have maintained and 1 The term "General Counsel" Includes the General Counsel of the National Labor Rela- tions Board and his representatives at the hearing. 2 Although the Warwick was served with a copy of the complaint and notice of hearing, it was not represented at the hearing. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given effect to an arrangement, agreement, understanding, and practice whereby extra banquet waiters employed by such employers must be referred, cleared, or approved by Respondent for employment; that since on or about March 3, 1962, Respondent failed and refused to refer, clear, or approve Axelrod for employment as an extra ban- quet waiter with any employer, including the Warwick and other Association members; that since on or about March 3, 1962, the Association and its members, including the Warwick, have failed and refused to employ Axelrod as an extra banquet waiter because of the agreement, arrangement, understanding, and practice referred to above. The Respondent thereupon amended its answer to deny that at any time the Respond- ent and various employers in the Philadelphia area including the Warwick and other members of the Association have been parties to or have maintained or given effect to any agreement, arrangement, understanding, or practice whereby all extra banquet workers employed by such employers must be referred, cleared, or approved by the Respondent in order to be employed. On the contrary, the amended answer avers that the employers in the Philadelphia area, including the Warwick and other members of the Association, are free to hire as they choose without referral, clear- ance, or approval by the Respondent. It further denies that the Association and its members, including the Warwick, failed or refused to employ Axelrod because of any agreement, arrangement, understanding or practice .3 At the close of the General Counsel's case-in-chief, and again at the close of the hearing, the Respondent moved to dismiss the complaint in its entirety . Rulings on these motions were reserved. Recommendations with regard to the disposition of these motions are made herein. On August 17, 1962, the Respondent and the General Counsel filed briefs, which have been duly considered. Upon the entire record in this case,4 and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BOARD'S JURISDICTION During times relevant to this case the Respondent was engaged in collective- bargaining relations with The Philadelphia Hotel Association of Philadelphia, Penn- sylvania, herein called the Association. The Association has as its members ap- proximately 13 hotels located in Philadelphia, Pennsylvania. One of its purposes is to represent its member hotels in collective bargaining with the Respondent. Warwick Hotel, Inc., herein called the Warwick, is a Delaware corporation which owns and operates a hotel in Philadelphia , Pennsylvania. It is a member of the Association. The Warwick annually receives more than $4,000,000 gross revenues from its hotel operations and annually receives goods and materials valued in excess of $50,000 from sources outside the Commonwealth of Pennsylvania. More than 75 percent of its guests are transients who remain for less than 30 days. In addition to the Warwick, the Philadelphia Sheraton Corporation, a Pennsyl- vania corporation , is a member of the Association and operates a hotel in Phila- delphia, herein called the Sheraton . I take official notice that the Sheraton grosses more than $500,000 annually and receives goods valued at more than $50,000 an- nually from sources outside the Commonwealth of Pennsylvania and that more than 75 percent of its guests are transients who stay for less than 30 days.5 It is not denied , and from the foregoing it is found , that the Association and each of its members is, and at all material times has been , engaged in commerce within the meaning of the Act, and that the exercise of the Board 's jurisdiction over its operations will effectuate the policies of the Act.6 II. THE RESPONDENT The answer admits, the Board has found,7 and it is now found that Local 568, Hotel, Motel & Club Employees Union , AFL-CIO , is, and at all material times has been , a labor organization within the meaning of the Act. 8 The Philadelphia Hotel Association of Philadelphia, Pennsylvania, was served with a copy of the amended complaint but did not enter an appearance at the hearing or file an answer 4 At the close of the hearing the Respondent moved to strike certain testimony of wit- ness Harry Davis. Ruling on this motion was reserved. The motion Is now denied 5 These were the findings of the Board In two cases in which the Respondent herein was a party. Motel, Hotel & Club Employees' anion, Local 568, AFL-CIO ( Sheraton Corporation of America), 130 NLRB 1069, at 1072: Philadelphia Sheraton Corporation, 136 NLRB 888. 6 Floridan Hotel of Tampa, Inc., 124 NLRB 261, at 264 7 See cases cited in footnote 5, above. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 319 III. THE UNFAIR LABOR PRACTICES A. Methods of recruiting extra banquet waiters At the outset, it might be profitable to describe the nature of the employment tenure of several types of waiters used by the hotels. Dining room and room service waiters are permanent employees of a particular hotel, assigned to dining rooms or coffee shops, or to room service. Their duties do not normally include serving for banquets,8 although in emergencies they may be called upon to do so. "Chain gang" waiters constitute a nucleus of waiters of a particular hotel who are available on call for banquet work. A hotel in need of banquet waiters for scheduled functions first exhausts its "chain gang" before seeking to recruit others. Thus "chain gang" waiters are permanent employees of a particular hotel, with no predetermined schedule of work. When the number of "chain gang" waiters available to a hotel is insufficient to meet its momentary needs for banquet waiters, it seeks additional help called extra banquet waiters. Their periods of employment encompass only a single func- tion at a time, lasting usually less than 4 hours; but during any particular day they may work for as many as two or even three different hotels. Thus they are casual or intermittent employees, and the frequency of their employment varies according to need and availability. Those extra banquet workers who have established an employment relationship of a continuing nature over a substantial period of time,, although intermittently, under Board precedent are considered as employees within the meaning of the Act.9 Should the number of chain gang waiters plus extra banquet waiters prove in- sufficient to provide normal service for any function (that is, a ratio of 1 waiter to each 15 guests) the hotel may, as a last resort, adopt several techniques to alleviate the temporary shortage, either alone or in combination: assign regular dining room or room service waiters to banquet work; hire additional banquet waiters directly, often from a list maintained by each hotel for that purpose; or stretch the ratio of waiters to guests beyond that usually considered adequate. For a number of years the Respondent has operated a system of booting waiters to extra banquet work in hotels which are members of the Association and to other employers utilizing banquet waiters. The employers, either in writing or by tele- phone, advise the Respondent at regular intervals of their specific needs for extra banquet waiters. The Respondent's banquet department io holds meetings twice a week all year, except during the slack months of July and August. The Respondent maintains a roster of available extra banquet waiters listed by number in order of seniority. At each meeting of the banquet department, work as extra banquet waiter is assigned to people on the roster who are physically present, in rotation. The number of the last one assigned a job is posted on a blackboard until the next meeting, and the booking is then resumed at the succeeding semiweekly session with the next number from the roster. Members of the banquet department are forbidden by the Respondent's rules to accept extra banquet work when not present at the appro- priate booking meeting; to seek work as an extra banquet waiter directly from an employer; or to work alongside any member who had obtained extra banquet work at that banquet in a prohibited manner.li At least since September 1961, no indi- vidual has been permitted either to appear on the roster or to attend meetings of the banquet department except members in good standing of the Respondent who have signed an application which contains, among other things, a commitment to be avail- able when needed for certain union duties, such as picketing at least an hour each week and distributing union literature. At all material times, the employers using the Respondent's booking services retained and exercised the right to reject as un- satisfactory any extra banquet waiter refered by the Respondent. Indeed, an employer could permanently "bar" any individual from its future employ by notify- ing the Respondent that he or she was not acceptable; thereafter the Respondent no longer assigned that particular person to work for that specific employer. This booking system has been used extensively for many years to fill a large number of banquet jobs. At all material times there has been in effect between the Respondent and the Association, on behalf of its members, a collective-bargaining contract covering, 8 The term "waiter" also includes waitresses. The term "hotels" Is used herein to describe collectively the Association's members. The term "banquet" is used herein to include breakfasts, luncheons , dinners, and similar functions. 9 State Packing Company, 137 NLRB 1420. 10 The banquet department membership constitutes only a small part of the Respondent's total membership of over 3,000. It includes , among other categories , extra banquet waiters. "These rules are designed to safeguard the integrity of the rotation system, 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among other employees, extra banquet waiters employed by the hotels.12 Up to October 1959, this contained a closed-shop clause, and also obligated the hotels, in the first instance, to hire exclusively through the Respondent. These provisions were followed and the Respondent was, during this period, the hotels' sole and exclusive source of supply for extra banquet waiters in the first instance. On or about October 1, 1959, the parties executed a contract effective until Septem- ber 30, 1963, and automatically renewable from year to year thereafter in the absence of 60 days' notice. The former closed-shop provision was omitted and in lieu thereof a 30-day union-security clause was inserted. The contract also omitted the former requirement as to exclusive hiring from the Respondent in the first instance. Among its provisions are a no-strike clause and the following pertinent clauses: ARTICLE I-RECOGNITION, ETC. 1. Employer recognizes Union as the sole and exclusive collective bargaining representative of the employees of the various hotels, parties hereto, [including waiters] . . . in all matters relating to wages, hours of work, working condi- tions, adjustment of grievances, etc.... . ARTICLE II-EMPLOYMENT * * * * * * * 2. When in need of employees, EMPLOYER may apply to the office of the UNION. Said UNION agrees, during the term hereof, to, at all times, maintain an office in Philadelphia, which shall be open during ordinary business hours, and shall communicate to EMPLOYER the address of said office ... . B. The suspension of Axelrod Sydney Axelrod began working as an extra banquet worker in the Philadelphia area in 1947. In 1958 and part of 1959 he was a chain gang waiter in the employ of an independent caterer. From May 1959 to May 1961, he was employed by the Respondent as an organizer. In May and June 1961, Axelrod resumed working as an extra banquet worker, being booked and securing jobs through attendance at meet- ings of the Respondent's banquet department, of which he was a member. In September 1961, Axelrod reregistered as a member of the banquet department, as was customary, and was assigned No. 37 on the roster of extra banquet waiters.13 Thereafter he received referrals to banquet work, in rotation, along with other members of the banquet department. At a regular meeting of the Respondent's full membership that month, Axelrod asked if disciplinary action would be taken against any member of the banquet department who dishonored his agreement to be avail- able for certain union duties. Lawrence Stoltz, the Respondent's president, replied: "Yeah, you don't work, and you can take that to the National Labor Relations Board." Late in February 1962 four members filed with the Respondent charges against Axelrod arising from matters other than nonpayment of dues. He was tried before a trial board of the Respondent on March 2, 1962, found guilty on all charges, and suspended from membership in the Respondent. On March 7, 1962, the action of the trial board in this regard was approved by the Respondent's members at a general membership meeting 14 On the following day, March 8, 1962, several officials of the Respondent refused Axelrod entry to the hall to attend a meeting of the banquet department, on the ground that he was a suspended member. Since that date Axelrod has not obtained any employment as extra banquet waiter through the Respondent's booking facilities. On March 9, 1962, Axelrod went to the Warwick and spoke to Paul J. McNamara, then manager of the hotel. Axelrod stated that he was applying directly to the hotel for work as an extra banquet worker, as he had been suspended from the Respondent. McNamara replied that the Warwick's sole source of supply for extra banquet waiters was the Respondent and that it did not obtain such waiters through any other channel. On the same day, Axelrod went to the Sheraton and conferred with Blaine Wilkinson, its personnel director. Axelrod told Wilkinson that he had been 12 At oral argument the Respondent took no definite position as to whether extra banquet waiters are covered Its brief concedes such coverage 13 Alexrod testified that in August 1961 he had been informed by the Respondent's treasurer that the Respondent's president had stated that Axelrod "can't work out of this Union anymore." 14The suspension has been appealed to the "joint board of the hotel and restaurant workers of the area." This appeal was still pending at the time of the hearing. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 321 suspended by the Respondent, and that he was applying directly at the hotel for work as an extra banquet worker. Wilkinson replied that it would not be feasible for the Sheraton to maintain a list of names to call each time a banquet was scheduled, and as a matter of convenience the hotel placed orders for extra banquet workers with the Respondent. On the same day, Axelrod also visited the Bellevue in search of work as an extra banquet waiter; what happened there will be described hereafter. C. The alleged violation of Section 8(b) (2) 1. The Warwick and the Sheraton The General Counsel's case that the Respondent violated Section 8(b)(2) of the Act-at least with regard to the refusals of the Warwick and the Sheraton to continue their employment of Axelrod as an extra banquet waiter after his suspension from the Respondent-is bottomed upon the allegation of the complaint that there was then in existence an agreement , arrangement, understanding, or practice between the hotels, on the one hand, and the Respondent, on the other, requiring the hotels to recruit extra banquet waiters, in the first instance, solely through the Respondent; or forbidding the hotels to employ extra banquet waiters not referred, cleared, or approved by the Respondent. The General Counsel does not question the validity of the present contract terms. But he maintains that the changes made in 1959 were "superficial" and "designed to avoid the impact of the Board's assumption of jurisdiction over hotels." 15 In short, his view seems to be that there is an implicit understanding between the parties that the exclusive referral practice would be continued, and that the 1959 changes would be disregarded. In support of this contention the General Counsel urges that the situation existing before the changes-that the Respondent was the employers' sole source of supply of extra banquet workers in the first instance-continued unabated after the changes were made. The record shows otherwise.16 Thus, Joseph P. Hoemig, vice president and general manager of five hotels which are Association members, testified without contradiction that there have been occasions since 1959 when at least two Association members (the Bellevue Stratford and Benjamin Franklin hotels) have hired extra banquet waiters, in the first instance, through the Committee on Human Relations, herein called the Committee. It is accordingly found that on this record the General Counsel has failed to prove that, at all times since October 1959, the Respondent has continued to be the hotels' sole or exclusive source, in the first instance, of extra banquet waiters. But even assuming, contrary to the above, that after October 1959, all the hotels continued their former practice of hiring extra banquet waiters, in the first instance, exclusively through the Respondent, that fact alone would not establish the existence of an arrangement requiring this method to be followed. The burden would then be on the General Counsel to show that such a rigid practice arose from a bilateral understanding, in which the Respondent had participated. Credible testimony indi- cates the contrary. Every witness who testified on the subject unequivocally declared that the hotels were not under any contractual obligation , but were free to recruit extra banquet waiters from any source. Hotel officials explained that it would not be feasible for each hotel to maintain a list of available extra banquet waiters and to contact each of them directly every time a banquet was scheduled. Indeed, Wilkinson testified that in order to proceed in this cumbersome fashion "I would probably have to hire a few additional girls just to contact these people. I would probably have to have a couple extra telephone lines installed. It would [be] pretty inconvenient and expensive to the hotels to do this." By contrast, the Respondent provided an easily accessible and dependable pool of qualified workers. I am therefore convinced, and find, that the hotels' practice of using the Respondent for recruiting extra banquet 16 It was only after the Supreme Court's decision in Hotel Employees Local No 255, Hotel Restaurant Employees and Bartenders International Union, AFL-CIO ( Miami Beach Hotel Assn.) v. Boyd Leedom, 358 U.S. 99, that the Board took jurisdiction over hotels outside the District of Columbia. And there can be no doubt on the record in the instant case that the Hotel Employees' decision and the decision in Floridan Hotel of Tampa, Inc, supra, were the proximate cause of the contract changes under discussion 10 Stoltz testified that, during the last 3 months of 1959 ( after the contract changes were adopted ), the hotels hired extra banquet waiters "directly from the street or from ,the state employment" rather than from the Respondent , but that beginning in early 1960 they resumed their former system of recruiting through the Respondent I do not rely upon this testimony because Stoltz did not impress me as a credible witness and his testi- mony in this regard was not corroborated by hotel officials . In any event, the temporary situation which prevailed for a few months in 1959 is of questionable materiality here. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD waiters in the first instance was not bilateral or caused by contractual compulsion, but was unilateral and voluntary, and was followed primarily because it suited the hotels' convenience. The General Counsel maintains that the Respondent's "members are instructed not to work with people that aren't booked through the Union [and] that an em- ployer very realistically does it at his peril," in short, that the hotels are "on notice that they risk work stoppages in the event they used people not booked or approved through the Union." Axelrod and one other witness for the General Counsel testi- fied to the existence of such a union rule; Stoltz denied it. The resolution of this conflict is aided by the uncontradicted and credited testimony of Hoemig that, on occasions since 1959, extra banquet waiters recruited in the first instance through both sources (the Respondent and the Committee) have worked side by side at the same banquet.17 As the Respondent appoints a shop steward for each banquet whose duties include "to see who works," it is reasonable to assume, and I find, that the Respondent knew that some extra banquet waiters were being hired by the hotels, in the first instance, through the Committee. Yet the record shows neither protest by the Respondent to the hotels nor attempts by the Respondent to dissuade its mem- bers from serving under such circumstances. It is accordingly found, contrary to the General Counsel's contention, that after 1959 the Respondent did not prohibit its members from working side by side with nonmembers at banquets in hotels which were Association members. To show that the hotels were frightened into their refusals to hire Axelrod directly, the General Counsel introduced evidence of two specific events. Presumably the purpose was to demonstrate that the Respondent had, in the past, intimidated the hotels. The first of these events took place in October 1961. Harry Davis, an inde- pendent caterer, was catering a banquet in the Drake Hotel, using his own chain gang plus extra banquet waiters supplied by the Respondent. The Respondent's members who were present refused to work with waitress Lucille Kessler either because she had not attended the appropriate booking meeting of the banquet de- partment or because she was delinquent in paying dues to the Respondent and had lost her good standing. Davis removed Kessler from the floor and the others re- turned to work The incident is of no probative value because- (1) it was not dem- onstrated that Davis' operations were subject to the Board's jurisdiction; (2) no official or agent of the Respondent was shown to have made any demand on Davis, and the action of the other waiters may well have been spontaneous (indeed, waiter James O'Reilley, who was there, so testified); (3) Davis testified credibly and with- out contradiction that on other occasions he has taken a nonunion employee into a hotel and worked him alongside extra banquet workers supplied by the Respondent, without incident; and especially (4) employees of Davis, not of the Drake, were involved-the Drake was merely a landlord, not a caterer, in this instance and there is no evidence that the Drake ever learned of it Moreover, if this constituted an "actual work stoppage," as the General Counsel argues, it was directed against Davis and not against any hotel. The second event took place at a banquet later in the fall of 1961 at the Adelphia Hotel, a member of the Association. The extra banquet waiters assigned to this function refused to work, so long as waitress Grace Pugglisi was on the floor, because Pugglisi (then a steady employee at the Adelphia) had not been present at the booking meeting of the banquet department and "because there were too many girls that were sent home that didn't have any work at the Union hall " One of the Respondent's members who was present telephoned to James Clark, apparently a temporary official of the Respondent, and Clark directed Pugglisi to leave the floor. She did so and the others then worked the banquet. It is signifi- cant that neither Clark nor any other official of the Respondent communicated directly with the Adelphia's management. And while it may reasonably be assumed that Pugglisi, when she left the floor, informed her employer, the Adelphia, that she was doing so, any finding that she said she was acting on orders from the Respond- ent, or that she explained to the Adelphia's management the basis for the Respond- ent's action, would constitute unwarranted conjecture. Accordingly, I am persuaded, and find, that the General Counsel has failed to establish that the management of the Adelphia learned the details of the incident related above, and has failed to prove any communication between the Respondent and the hotels, or any pressure, threat, or hint of reprisal, whereby the hotels were intimidated. Moreover, the contract contained a no-strike clause, which afforded the hotels a measure of protection against walkouts. I conclude that on this record there has not been shown to have been in existence at any material time any agreement, arrangement, understanding, or practice, either 17 See also the somewhat similar testimony of Harry Davis, described below. LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 323 express or implied, between the hotels on the one hand and the Respondent on the other, requiring the hotels to hire extra banquet waiters, in the first instance, solely through the Respondent; or forbidding the hotels to employ extra banquet waiters not referred, cleared, or approved by the Respondent. Nor is there evidence that the Respondent placed any impediment in the path of the hotels or attempted to inhibit them from hiring extra banquet waiters from other sources. To the extent that the hotels utilized the Respondent as their source of supply of such workers, they did so voluntarily. Finally, it is found that the refusals of the Warwick and the Sheraton to continue to employ Axelrod were not shown to have been inspired or caused by any action of the Respondent.18 On the contrary, they were due to the independent voluntary acts of these two hotels, solely for reasons of their own convenience. 2. The Bellevue Stratford On the General Counsel's case-in-chief, Axelrod testified that he had gone to the Bellevue Stratford Hotel on March 9, 1962, and talked to Harry O'Brien, then its general manager. According to Axelrod, he told O'Brien that he had been suspended from the Union and therefore was applying directly to the hotel for work as an extra banquet waiter and O'Brien replied that the Bellevue ordered all its extra banquet waiters from the Respondent, therefore Axelrod could get a job only if he "came through them." He further testified: Q. And, is that all that transpired between you, what you said to him and what he said to you? A. I think so. Q. And, no further conversation? A. Not, no, not at that time. The Respondent, as part of its defense, introduced evidence that Axelrod had been employed as an extra banquet waiter at the annual dinner of the Pennsylvania Manu- facturers' Association, herein called the PMA, at the Bellevue on February 27, 1962. According to the testimony of Vincent DeFinis, the Bellevue's director of catering, on the day after the PMA banquet O'Brien told DeFinis that an official of PMA had complained that Axelrod had sought from him permission "to pass the plate at the end of the meal" 19 and O'Brien instructed DeFinis that Axelrod's services were not to be utilized in the future at the Bellevue. O'Brien followed this oral instruc- tion with a written memo to DeFinis; the latter relayed the directive to the banquet headwaiter. On rebuttal, Axelrod denied that he had asked any official of the PMA for per- mission to take up a collection, and testified as to the close association which existed between officials of the PMA and officials of the Respondent. He further testified that at a meeting of the banquet department on March 4, 1962, the Respondent's treasurer read to the members a letter from O'Brien to the Respondent asking that Axelrod not be referred to any further work in the Bellevue because he had asked a customer for permission to take up a collection. According to Axelrod, he then went to see O'Brien and asked O'Brien if he thought Axelrod had done such a thing; O'Brien replied: "No, I couldn't even believe it"; when Axelrod asked: "Well, where did it come from?" O'Brien shrugged his shoulders and said: "I was told to send it." Axelrod again related his conversation with O'Brien after he (Axelrod) had been suspended from the Respondent. This time he testified that on that occasion (March 9, 1962) he additionally asked O'Brien, "In the event that I get the suspen- sion straightened out from the Union, could I work at the Bellevue Stratford?" and that O'Brien replied: "You can work here any time you want. You disregard that letter." O'Brien did not testify.20 When the testimony regarding the PMA incident first came into the record, the General Counsel took the position that it should be excluded as "collateral to the case . . . it doesn't have anything to do with the basic case." At oral argument the General Counsel took the further position that Axelrod's being barred from the "In this connection it is not without significance that the Respondent did not even notify any employer of Axelrod's suspension. The Warwick and the Sheraton learned of this event only through Axelrod himself. is This testimony was not received for the purpose of determining the truth or falsity of the PMA. official's accusation against Axelrod. 2O The Respondent introduced evidence that, at the time of the hearing , O'Brien was residing in New York. 708-006-64-vol. 141-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bellevue was the result of collusion between the PMA and the Respondent. His brief is silent on the subject. In considering this incident, one fact stands out at the threshold: Axelrod had been an employee of the Bellevue theretofore,21 but ceased to be one thereafter. The issue is whether his loss of employee status was caused by the Respondent 22 It may be that Axelrod was "framed" by an official of the PMA. But, if so, the Respondent can only be held responsible if its representatives acted in collusion with the PMA in seeking to obtain the discharge. It is true that Stoltz had exhibited a strong personal animosity toward Axelrod-he had publicly called Axelrod demean- ing names-and that this antipathy might have been shared by other officials of the Respondent. It is likewise true that, at the time of the Bellevue incident, charges were pending against Axelrod and he may have been persona non grata so far as the Respondent was concerned. And it is also indicated in the record that, in the past, the PMA and the Respondent had on occasion closely cooperated with one another regarding certain political and economic goals. But it cannot reasonably be inferred from these facts that the Respondent acted in collusion with the PMA to "frame" Axelrod. Conclusions should not and cannot properly be rested upon such a vague, flimsy, and speculative foundation. It is accordingly found that Axelrod ceased to be an employee of the Bellevue on about March 4, 1962, and that the General Counsel has failed to establish on this record that this severance of the employer- employee relationship was caused by any act of the Respondent. D. The violation of Section 8(b) (1) (A) The General Counsel maintains that the Respondent, as the recognized exclusive bargaining agent for all employees in the appropriate unit, is under a duty to mem- bers and nonmembers alike to afford them equal treatment in referring them to jobs as extra banquet waiters. He further contends that the Respondent's failure to treat Axelrod the same after his suspension as it had done before his suspension con- stitutes a violation of Section 8(b) (1) (A) of the Act. Article I, section 1, of the contract of October 1, 1959, quoted above, which is still in effect, clearly shows that the Respondent was recognized as the sole and exclusive bargaining representative of the employees covered therein. As such, the Respondent assumed the responsibility of representing all employees in the unit equally, vis-a-vis their employers. Thus, in a case decided more than 17 years ago, the Board said: We have conceived it to be our duty to see to it that any organization certified under Section 9(c) as the bargaining representative acted as a genuine repre- sentative of all the employees in the bargaining unit. [Emphasis supplied.] 23 Some years later the U.S. Supreme Court expressed the same rule: That the authority of bargaining representatives, however, is not absolute is recognized [citation omitted] . . Their statutory obligation to represent all members of an appropriate unit require them to make an honest effort to serve the interests of all of those members, without hostility to any. [Emphasis supplied.] 24 And the Board elaborated, as follows: To hold otherwise, in view of the language of Section 9, would be to allow the exclusive position of the representative obtained through the authority of 21 See State Packing Company, supra. n I do not, and need not, decide whether Alexrod requested an official of the PMA to take up a collection. 23Larus 8 Brother Company, Inc, 62 NLRB 1075, 1082. This principle has equal validity whether the union has been certified by the Board or voluntarily recognized by the employer. u Ford Motor Company v Huffman, 345 U S 330, 337. Compare N L R B. v. Gaynor News Company, Inc, 197 F. 2d 719, 722 (C.A 2), affd. 347 U S. 17, where the Court said: "The union here . . . was the exclusive bargaining agent for the plant. Accord- ingly, it could not betray the trust of non-union members." See also the recent decision in International Union of Electrical, Radio and Machine Workers, AFL-CIO, Frigidaire Local 801 (General Motors Corp.) v. N.L R.B., 50 LRRM 2403 at 2406 [307 F. 2d 679] (C A D.C.) where the court said: "The Union is bound by law to represent all employees in the bargaining unit." LOCAL 568, HOTEL, MOTEL & CLUB EMPLOYEES UNION 325 the Act to be used in a manner detrimental to the very employees the statute is designed to protect 25 Applying this principle, the Board in the Hughes case held that the presentation and adjustment of grievances constitutes an activity subject to this requirement of non- discriminatory representation by the majority-supported union on the ground that it "constitutes the actual administration of a collective-bargaining contract." 26 Turning again to the contract in the instant case, article II, section 2, contains a commitment by the Respondent to operate a hiring hall. This obligation was under- taken by the Respondent in its capacity as representative of, and on behalf of, all employees in the unit. The operation of the banquet department's booking of extra banquet waiters to Association members, at least after October 1, 1959, was in effectuation of this duty imposed by the contract, and therefore constituted "the actual administration of a collective-bargaining contract." It follows under the doctrine of the Hughes case that, in the circumstances here present, the Respondent was required to book available work as extra banquet waiter in a nondiscriminatory manner, according equal treatment to all members of the bargaining unit regardless of union status. This it failed to do in Axelrod's case, after his suspension. The Respondent contends, however, that its refusal to book Axelrod after his sus- pension was "clearly protected" by the proviso to Section 8 (b) (1) (A) because the suspension "falls within `rules with respect to acquisition or retraction of member- ship therein.' " I cannot agree. Unquestionably the Respondent did not violate the Act by suspending Axelrod. But the gist of the Respondent's violation was its subsequent disparate treatment of Axelrod regarding booking. This was no mere matter of internal union administration; on the contrary, it involved effectuation of a provision of the current collective-bargaining contract. As such, it did not fall within the protection of the proviso to Section 8(b)(1)(A) of the Act.27 I conclude that, by refusing since March 8, 1962, to refer Axelrod to work as an extra banquet waiter in hotels which were members of the Association (other than the Bellevue) the Respondent restrained and coerced employees of these hotels in the exercise of rights guaranteed in Section 7 of the Act, specifically the right to refrain from maintaining membership in the Respondent. Such conduct violated Section 8 (b) (1) (A) of the Act. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Philadelphia Hotel Association of Philadelphia, Pennsylvania, and each of its members is, and at all material times has been, engaged in commerce within the meaning of Section 2(6) of the Act. 2. Local 568, Hotel, Motel & Club Employees Union, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees of members of the above-named Asso- ciation in the exercise of the rights guaranteed in Section 7 of the Act the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The above-described unfair labor practices tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Sydney Axelrod had ceased to be an employee of the Bellevue Stratford Hotel prior to the commission of the unfair labor practices described above, but was at that time an employee of the other hotels which were members of the above-named Association. 6. The General Counsel has failed to establish that the Respondent has engaged in or is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. [Recommended Order omitted from publication.] zs Hughes Tool Company, 104 NLRB 318, 325, 28 Hughes Tool Company, supra, at page 326. 27Peerless Tool and Engineering Co., 111 NLRB 853, 857-858, enfd. 231 F. 2d 298 (CA. 7), cert. denied 352 U.S. 833. See also International Union, United Automobile, Aircraft, Agricultural Implement Workers of America, AFL-CIO (John I. Paulding, Inc.), 137 NLRB 901.