Hotel, Motel & Club Employees, Local 6

HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 491 Hotel, Motel & Club Employees Union Local 6, Hotel & Restaurant Employees & Bartenders International Union , AFL-CIO (Domoc Corporation , d/b/a Hotel Commodore) and Eli Mallah. Case 2-C B-4233. May 9, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 29, 1966, Trial Examiner A. Bruce Hunt issued his Decision in the above-entitled proceeding, finding that the Respondent Union had engaged in and was engaging in certain unfair labor practices and recommending that the Respondent Union cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. This case involves the issue as to whether the Respondent Union violated Section 8(b)(2) and (1)(A) with respect to the part-time employment of Eli Mallah as an extra bartender at banquets held at the Hotel Commodore. In essence, the General Counsel alleges that Respondent Union, by Otilio Rodriguez, its agents and representatives, made a demand upon Michael Egan, the Hotel Commodore's banquet bar captain, that he refrain from giving employment to Mallah because he was not a member of the Respondent Union. The record shows a hiring procedure by the Hotel Commodore, pursuant to an understanding with the Respondent Union, whereby the Commodore hires employees for extra work as bartenders from the ranks of regular bartenders, from a list of "extras," or through referral by the New York State Employment Service, herein called NYSES. At the end of March, Betty Bentz, general organizer of the Respondent Union, instructed Rodriguez, who was employed as a bartender at the Commodore and who was also a department delegate for the Respondent Union, to "police" the personnel at the Commodore so that Rodriguez could provide her with information regarding the functioning of the hiring procedure. On April 7, upon learning that Mallah had filed charges alleging a discriminatory denial of work on April 3, Bentz called the NYSES and, as found by the Trial Examiner, "made it clear that NYSES should not refuse to refer Mallah to any hotel." Bentz then called Albert Formicola, assistant general manager of the Commodore, and again made clear her position that union membership should not be a factor in referrals by NYSES. Formicola thereafter talked' to hotel employees, including Egan, before the alleged discriminatory treatment of Mallah by Egan in May or June 1965, and explained the Commodore's hiring procedure, emphasizing the fact that management alone made employment decisions. The Trial Examiner found that Rodriguez was an agent of the Respondent Union. He reasoned that department delegates are important elected representatives in Respondent Union; that Bentz asked Rodriguez to "police the personnel" for the purpose of ascertaining the source from which the Commodore obtained its extra bartenders; and that Egan, a member of the Respondent Union, obviously believed that Rodriguez' authority to police personnel included the authority to demand that Mallah not be rehired. We do not agree with this finding. As a department delegate, Rodriguez did not have the authority to inject himself in employment matters at the Commodore, and there is no evidence that he had been clothed with such authority or had the apparent authority to do so.' In any event, the only testimony in this regard shows that, upon receiving instructions from Bentz, as noted above, Rodriguez informed Egan of Bentz' admonition that neither Mallah nor anyone else was to work at the Commodore except after referral by the NYSES.2 Subsequently, Bentz called NYSES and Formicola as already detailed. This is the extent of the conduct of Bentz and Rodriguez, and the conduct of Egan is hardly attributable to the Respondent Union. Therefore, we conclude that the General Counsel has failed to sustain his burden of proof in this matter for there is no basis in the record for finding that the Respondent Union unlawfully caused discrimination against Mallah. We shall, therefore, dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the ' As already noted, his "police" function meant gathering information regarding the functioning of the hiring procedure and Egan was even without knowledge that Bentz delegated this limited responsibility to Rodriguez 2 Clearly, this is not unlawful causation under the Act in the circumstances of this case 164 NLRB No. 65 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recommended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CHAIRMAN MCCULLOCH, concurring in part and dissenting in part: I do not agree with my colleagues' dismissal of the complaint. The Trial Examiner found that Rodriguez was Respondent's agent and that Respondent violated 8(b)(2) and (1)(A) when Rodriguez successfully demanded of the Hotel Commodore that the Charging Party, Eli Mallah, not be rehired. The Trial Examiner also found that Respondent had not taken prompt and sufficient steps to countermand Rodriguez' action and was therefore responsible for additional acts of discrimination against Mallah on the part of the Commodore. I believe that the Trial Examiner was correct in finding that Rodriguez was Respondent's agent for whose conduct in demanding that Mallah not be rehired it was responsible. Rodriguez was employed as a bartender at the Hotel Commodore. He was elected as department delegate by his fellow union members employed at the Commodore. According to the Respondent Union's bylaws, a department delegate is required "to cooperate with the vice- president, business agents and officers of the Union in the handling of grievances and in all other matters in which their efforts can best serve the membership of the Union." On March 30, 1965, Betty Bentz, Respondent Union's general organizer, held a conference with representatives of the Hotel Commodore for the purpose of drawing up a list for the hiring of extra bartenders for banquets. At that time, Bentz told Rodriguez that he "should police the personnel" and obtain "accurate information as to who was working on any given occasion" so that Respondent Union could know in what manner the extra bartenders for banquets were being obtained. Four days later Mallah sought work as a bartender at the Hotel Commodore. He spoke to Michael Egan, the banquet bar captain, who said that Bentz had talked with Rodriguez and that Mallah had been barred from work in the Hotel. At Egan's suggestion, Mallah spoke with Rodriguez who told Mallah that he had been advised by Bentz that Mallah was an expelled member of Respondent Union and therefore could not work at the Hotel Commodore anymore. On this evidence, it seems clear to me that, although selected by the employees, Rodriguez was the Union's steward on the job.3 Further, that under accepted agency principles, the Union was responsible for his conduct in demanding that the Commodore not rehire Mallah, even if he misunderstood his instructions from the Union. There are numerous Board and court decisions which have held unions liable for conduct of stewards similar to that of Rodriguez here on the theory that the steward was acting within the scope of his employment.4 Although I would find, in agreement with the Trial Examiner, that Respondent Union was responsible for the initial unlawful refusal to rehire Mallah, I would not adopt the Trial Examiner's further finding that Respondent Union did not take prompt and sufficient steps to countermand Rodriguez' action. The Trial Examiner did find that Bentz took such effective disavowal action as to the NYSES, but not as to the Hotel. I would find that the disavowal action was effective as to both the NYSES and the Hotel. On the very day that she spoke to the NYSES representative to make it clear that the NYSES should not be a factor in referrals by the NYSES. I would find that this notice of no discrimination to a high hotel official was adequate to absolve the Union of further responsibility for discrimination against Mallah. Accordingly, T would direct the usual remedies for the discrimination practiced against Mallah from on and after April 1, 1965, to April 7, 1965, when Bentz notified the NYSES and Formicola that union membership should not be a factor in hiring Mallah or other employees. ., Local 135, International Brotherhood of Teamsters (Capttal Paper Company), 117 NLRB 635 " See, e.g , International Brotherhood of Teamsters, etc , Local 249 (Lancaster Transporatton Company), 116 NLRB 399, enfd 249 F 2d 292 (C A 3), International Brotherhood of Teamsters, Local 182 (Lane Construction Co.), 111 NLRB 952, enfd 228 F 2d 83 (C A 2), Local 135, International Brotherhood of Teamsters (Capital Paper Company), supra, Local 657, International Brotherhood of Teamsters (Southwestern Motor Transport, Inc), 115 NLRB 981,986 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. BRUCE HUNT, Trial Examiner. This proceeding, in which the charge was filed on April 5, 1965, and the complaint was issued on June 30, 1965, involves allegations that the Respondent, Hotel, Motel & Club Employees Union Local 6, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. 29 U.S.C., Sec. 151, et seq.' On November 15, 16, and 17, 1965, I conducted a hearing at New York, New York, at which all parties were represented by counsel. Upon the entire record and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. DOMOC CORPORATION , D/B/A HOTEL COMMODORE Domoc Corporation , a New York corporation, does business in New York City under the name Hotel Commodore . It is not a party to this case . Its annual income exceeds $500,000, and during 1964 it purchased goods and materials , including food and beverages , valued in excess of $50,000, which were shipped to it directly from points outside the State of New York. During the same i The caption of the case is hereby amended to correctly state the name of the Respondent. HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 493 year, the Commodore rented more than 25 percent of its rental units to guests who remained less than 1 month, and received more than 25 percent of its rental income from such guests. There is no dispute, and I find, that the Commodore is an employer engaged in commerce within the meaning of the Act. II. THE RESPONDENT Hotel , Motel & Club Employees Union Local 6, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, is a labor organization which admits to membership employees of the Commodore. III. THE UNFAIR LABOR PRACTICES A. The Issues The principal issues are: (1) whether, about April 2, 1965, the Respondent, acting through its alleged agent, Otilia Rodriguez, demanded of the Commodore that the latter refrain from reemploying Eli Mallah, the Charging Party, because Mallah was not a member of the Respondent; (2) whether the Commodore complied with the alleged demand; (3) whether, if Rodriguez made the demand, the Respondent is responsible therefor; and (4) whether the Respondent took prompt and sufficient steps to countermand Rodriguez' alleged demand. B. The Charging Party Eh Mallah is a bartender who works irregularly for various hotels in New York City.2 He worked at the Commodore from time to time as an "extra" at banquets. Mallah, who was a member of the Respondent at one time, has had numerous controversies with it. He has opposed the leadership of the Respondent and he has picketed the Respondent's premises. He has also, as he testified, filed several charges against the Respondent, but has lost all the cases arising from such charges. As will appear, the Respondent and the hotels with which it has contractual relations use the services of the New York State Employment Service (NYSES) as a hiring hall for extra bartenders. During 1963, Mallah was referred by NYSES to the Gotham Hotel. Later during that year, upon perhaps a dozen occasions, that hotel hired Mallah directly by telephoning him at his residence. After the single referral by NYSES, the Respondent apparently knew nothing of Mallah's subsequent hires by the Gotham, and consequently the Respondent took no action to affect Mallah's employment there until Mallah challenged the Respondent to act. Mallah went to the union hall and said to the Respondent's business agent that he was working at the Gotham without having been referred by NYSES, and, as Mallah testified, he also said, "How come you did not knock me out of the Gotham yet? You have done it in every other place. You haven't reached me yet at the Gotham." The Respondent contacted the Gotham, ascertained the facts, and said that Mallah's hire, not having been through NYSES, was a breach of the collective-labor agreement . The hotel agreed and discharged Mallah, who promptly filed a charge against the Respondent. It was dismissed by the Regional Director. During September 1964, Mallah was expelled from the Respondent upon the ground that he had engaged in disorderly and improper conduct by "kicking in" the office door of a union official, that he had been warned for having done so, and that thereafter he attacked a union guard at the premises of the Respondent and had been convicted of assault and disorderly conduct. On September 29, 1964, soon after Mallah's expulsion from the Respondent, he was discharged by the Park Sheraton hotel. He filed charges against both that hotel and the Respondent. The Regional Director dismissed the latter charge. The Regional Director issued a complaint against the Park Sheraton, however, and a Trial Examiner found that Mallah had been invalidly discharged. Hotel Park Sheraton Corp., Case 2-CA-10431, TXD-406-65. issued on July 30, 1965. No exceptions were filed to the Decision, Mallah's controversies concerning employment have not been limited to hotels and the Respondent. Records of NYSES recite that prior to February 15, 1965, Mallah had made "accusations that the employment service had been responsible previously for his being barred from some hotels." C. Chronology; the Respondent's Relations With the Commodore; Mallah's Employment By That Hotel The Hotel Association of New York City, Inc., representing various hotels, is a party to a collective-labor agreement with New York Hotel Trades Council, AFL-CIO, representing various labor organizations including the Respondent. A part of the agreement provides, in substance, that when time permits the hotels shall hire new and irregular employees through NYSES. On January 25, 1964, Mallah was employed by the Commodore for 8 hours, having been referred by NYSES. He was referred there again on August 13, 1964. During September of that year, as already recited, Mallah was expelled from the Respondent. On December 5, 12, and 19, 1964, Mallah worked for the Commodore a total of 24 hours, having been hired directly by Michael Egan, the banquet bar captain.3 Commencing about January 1, 1965, representatives of the Respondent and the Commodore began discussions leading to the compilation of a list of extra bartenders who would be offered work at banquets prior to any call by the hotel to NYSES for the referral of bartenders. Testimony concerning these discussions was given by Betty Bentz, who was then a general organizer for the Respondent, and Albert A. Formilcola, then the hotel' s assistant general manager and earlier its personnel director. For reasons that will appear, I do not credit Bentz' testimony fully, but I have no reason to discredit Forimcola. He testified that for years it had been the hotel's practice to offer employment at banquets to the hotel's regular bartenders and that, if additional bartenders were needed, to offer employment to men who had worked regularly at banquets, and, if still more bartenders were needed, to call L At numerous places in the transcript , Mallah's name is spelled incorrectly Those errors are hereby corrected ' Mallah testified that sometimes Egan hired him when he went to the hotel to obtain a paycheck for work on an earlier day. Egan's testimony is that when he needed bartenders for banquets, he proceeded in the following order until enough men had been hired, he first offered employment to the hotel' s regular bartenders, next, he telephoned men who had worked at banquets in the hotel and whose names, addresses, and telephone numbers he had, next, he called the office of NYSES, and, finally, if that office was closed and he needed a man in an emergency, he called any bartender who lived nearby and whose telephone number he possessed. It is clear that during December 1964 Egan hired Mallah without utilizing the services of NYSES. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NYSES. He testified further that beginning in the latter part of 1964, largely because of changes in certain "key" personnel at the hotel plus "a new representative" of the Respondent "covering the hotel Commodore," it was believed to be desirable to make a list of bartenders who would be offered employment at banquets if men should be needed after offers had been made to the hotel's regular bartenders. Bentz testified that beginning about January 1, 1965, she had discussions with representatives of various hotels, including Formicola, W. E. Brill, the Commodore's personnel director, and perhaps J. Beckwith, the Commodore's food and beverage director. She testified further that the discussions involved the formulation of lists of extra bartenders and that the Respondent's interest was in having unemployed bartenders obtain work through being named on extra lists or through referral by NYSES in order to assure that all unemployed bartenders would have opportunities to work as extras. Some lists were formulated, and the one in use at the Commodore is described hereinafter. On January 24 and 26, 1965, NYSES referred Mallah for work at the Waldorf and, consistent with NYSES practice, it promptly notified the Respondent of those referrals as well as the referrals of other persons. On January 29 and February 13 Mallah worked a total of 10 hours for the Commodore, having been hired by Egan without referral by NYSES. On February 15, according to the records of NYSES, someone who identified himself as Egan telephoned NYSES and talked with a Mrs. Kathrane. The caller said that Mallah was continually asking for employment and that the caller "wouldn't mind putting him on sometimes" but that the caller was "not sure how he stands with the union." The caller asked whether Mallah was "in good with them." Kathrane replied that she "would rather that information came from the" Respondent "in view of [Mallah's] accusations that [NYSES] had been responsible previously for his being barred from some hotels."4 Thereafter, Kathrane spoke with a Mrs. Albano who is a liason representative of the Trades Council to NYSES. Albano informed Kathrane that she had not been told anything "officially" by the Respondent but that she had heard that Mallah had been "brought up on charges by the [Respondent] for disturbance and property damage on one occasion." On March 3 and 4, Mallah was referred by NYSES for work at the Manhattan and Vanderbilt hotels, respectively. As was customary, NYSES promptly notified the Respondent of such referrals. On March 5, Beckwith, the Commodore's food and beverage director, talked with NYSES about Mallah, saying that Mallah worked well and could be referred "anytime," and NYSES referred Mallah to the Commodore for a few hours work. Also on March 5, Beckwith prepared a memorandum for his superior, Brill, with a copy to Formicola, under the heading "Extra Bartenders," in which Beckwith listed the names of six men, all of whom had been employed by the Commodore prior to Mallah's initial employment by that hotel. Mallah's name was not on the list. Formicola testified credibly that the list was formulated by management, based upon its records; that the list was to be used in offering employment to extra bartenders before calls by the hotel to NYSES; and that the hotel notified the Respondent of the list. On March 11, Mallah worked a few hours for the Commodore. He was not referred by NYSES on that occasion. He may have been called in an emergency, according to Formicola. On March 12, Mallah again was referred by NYSES to the Commodore, and he worked there on March 13 and 14. He spoke briefly with Rodriguez, a bartender at the Commodore and one of the Respondent's delegates there, who is alleged to have caused the Commodore to discriminate invalidly against Mallah about 3 weeks later. On March 13 or 14, when Rodriguez noticed that Mallah was at work, Rodriguez inquired whether Mallah had a referral card from NYSES. Mallah replied that he did not have a card because he had received a telephone call from NYSES and had been directed to go to the Commodore immediately. According to Mallah, his reply satisfied Rodriguez. On March 18, NYSES agains referred Mallah to the Commodore and he worked there on March 21. He also worked there on March 26 and 27 without referral by NYSES, having been employed to work on those days by telephone calls from Egan or by talking with Egan when he went to the hotel to receive pay for earlier work. On March 30, Bentz, the Respondent's general organizer who had conferred with representatives of the Commodore concerning the formulation of a list of names of extra bartenders for banquets, attended a cocktail party at the Commodore. On or about that date, while at the hotel, she talked with Rodriguez concerning the employment of extra bartenders. Bentz testified that she told him that the delegates should "police the personnel" and give the Respondent "accurate information as to who was working on any given occasion" so that the Respondent would know whether extra bartenders were being obtained from the ranks of the regular bartenders, from the extra list, or from NYSES. Bentz denied that she asked Rodriguez to take any action against Mallah. Rodriguez was not a witness. As Bentz was leaving the Commodore on March 30, she happened to meet Mallah at the service entrance. He was coming to receive wages due him. He said to Bentz untruthfully that he was going to work at the Commodore that evening.5 Bentz returned to her office and telephoned Kathrane of NYSES, saying that she had met Mallah at the Commodore and that he had said that he was reporting for work after referral by NYSES. Kathrane replied that Mallah had not been referred to any hotel on that day. Bentz asked whether the Commodore had requested that Mallah be referred at any time, and Kathrane answered in the negative. On or about April 1, Rodriguez, the Respondent's delegate, talked with Egan, the banquet bar captain, about Mallah. The record does not contain reliable, probative evidence to establish fully what was said. Rodriguez was not a witness. Egan's testimony as a witness for the General Counsel is weakened because of variations between it and an affidavit which he executed for the General Counsel on April 8. Egan testified that Rodriguez said that Rodriguez had talked with Bentz and that Bentz ' There is no evidence other than NYSES records that Egan was the caller, and those records establish only that someone claiming to be Egan made the call Egan testified that he did not remember having made it. ' The finding that Mallah made such remark to Bentz is based upon her testimony On the other hand, Mallah acknowledged having seen Bentz at the hotel , but he denied that he spoke to her of his employment at the Commodore I credit Bentz' testimony because of her acts after she talked with Mallah and because I believe that Mallah would have sought to provoke Bentz by having her believe that he was reporting for work at the Commodore. HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 495 had said to Rodriguez that she did not want Mallah "or anybody else" to work at the Commodore except' after referral by NYSES. On the other hand, Egan's affidavit recites that Rodriguez told him that Bentz had said to Rodriguez that "she didn't like Mallah working here in the Commodore, and that Rodriguez had the right to pull Mallah off the floor," to which Egan replied, "O.K." Although Egan is a member of the Respondent and his affidavit, an ex parte document, may not be used to establish as fact the statements therein. On April 2, perhaps the day on which Egan and Rodriguez talked, the Commodore's personnel director, Brill, wrote to the Respondent after talking with Formicola. Brill's letter refers to "recent discussions concerning employment of Extra Bartenders" by the hotel and names seven men, "all of whom have been employed at Hotel Commodore for a number of years," who "will continue to be given first perference" before requests of NYSES to refer bartenders. The men named in Brill's letter coincide largely with those named in his memorandum of March 5 to his superior, Beckwith, the differences being that one name on the communication of March 5, J. Schneider, was dropped, and two names, J. Warde and G. F. Williams, were added. Warde's name was added in discussions between representatives of the Commodore and the Respondent. He was a full-time bartender at the hotel and he faced a layoff because the bar at which he worked was being closed. Williams' name was added in like discussions because he was an elderly man who had worked as an extra bartender at the Commodore for several years, and the Commodore agreed with the Respondent that Williams had not become too old to work. Upon an undisclosed date, Williams' name was stricken and Schneider's name was inserted in ink. All of the eight men had first worked for the Commodore earlier than Mallah had, and there is no evidence that the Commodore considered naming Mallah in the communication of March 5 or that of April 2; indeed, it is reasonable to infer from Formicola's testimony that consideration was not given to Mallah by the Commodore and that the hotel had no improper motive. On April 3, Mallah went to the Commodore seeking work. He talked with Egan who told him that Bentz had talked with Rodriguez and that Mallah had been barred from work in the hotel. Egan suggested that Mallah talk with Rodriguez.6 Mallah did so, and Rodriguez said that Bentz had told Rodriguez that Mallah was an expelled member of the Respondent. "Therefore," Rodriguez continued, "you [Mallah] can not work here anymore."7 On April 5, the next business day, Mallah filed the charge in this case. On April 6, someone who identified himself as Egan called Kathrane at NYSES and said that he had been notified officially by Bentz that Mallah was not to be allowed to work at the Commodore because he was not a member of the Respondent. The caller continued by saying that he was relieved to have a reason to advise Mallah that Mallah was not wanted at the Commodore, that Mallah was becoming a nuisance, and that Mallah had been "hanging around" daily demanding work and "trying to stir things up."8 Following the telephone conversation, Kathrane spoke of it to Albano, the liaison representative of the Trades Council to NYSES. On the next day. Bentz called Kathrane or vice versa. Bentz flatly denied having said that Mallah was not to be allowed to work at the Commodore because he was not a member of the Respondent. Bentz said also that the Respondent could not deny anyone the right to work, that union membership was not a prerequisite for working in hotels, and that the only "legal requirement" was previous experience in the hotels of the city. The records of NYSES which are in evidence leave no doubt that Bentz spoke emphatically to Kathrane and made it clear that NYSES should not refuse to refer Mallah to any hotel.9 On the same day, April 7, Bentz also talked with Formicola, the Commodore's assistant general manager. She telephoned him, but her testimony concerning her reason for having done so is not entirely truthful. The records of NYSES reflect that Bentz, in talking with Kathrane, had said that Egan's action in telephoning NYSES was "[a]n understandable and forgivable misconception. He is only a bartender and I don't know how he got mixed up in this." In this Decision reference has been made up to now to only one man named Egan, namely, Michael Egan, the banquet bar captain. There is another Egan who is connected with the Commodore, John C. Egan, its general manager during April and now its president. Bentz testified that, as of the time of the hearing, she had known Michael Egan for a period of 6 months to 2 years, but that as of April 7 when she talked with Kathrane she did not know that he worked for the Commodore. Consequently, according to Bentz, she assumed that any call to NYSES on April 6 by someone named Egan had been made by John C. Egan, and she telephoned that Egan's subordinate, Formicola, to discuss the matter. Formicola told her that he was confident that the hotel's general manager would not have called NYSES, and both Formicola and Bentz agreed that union membership or the lack thereof should not be a factor in referrals by NYSES. Formicola, a reliable witness, testified for the Respondent that he was shocked by Bentz' statement that John C. Egan was said to have telephoned NYSES, that it was "unheard of [for the Commodore] to "The findings concerning Egan's remarks to Mallah are based upon the latter's testimony. Although Mallah's hostility toward the Respondent is such that his testimony should be scrutinized and evaluated with great care, I credit it in this instance I point out, however, that Egan did not see or overhear Bentz talk with Rodriguez, and that Egan's remark to Mallah concerning Bentz is hearsay Turning to Egan's version of the conversation, he testified that there was no work for Mallah on that day and that he told Mallah that Rodriguez had said that Bentz did not want Mallah to work at the hotel except after referral by NYSES Egan testified also that he told Mallah to see Rodriguez On the other hand, Egan's affidavit recites that Mallah "came in that evening and asked about work There was no banquet work that weekend I told him that I also told him that Rodriguez had said he couldn't work here I sent him to speak to Rodriguez." T The findings concerning the conversation between Rodriguez and Mallah are based upon the latter's uncontradicted testimony Rodriguez was not a witness Mallah testified also that upon an earlier occasion Rodriguez had told him that all extra bartenders other than those on the extra list had to be referred by NYSES, but that Rodriguez did not make that remark on April 3 "Egan, as a witness, did not deny or admit that he made the call He repeatedly said, unconvincingly, that he could not remember The Respondent sought by cross-examination of Mallah to show that Mallah made the call That examination showed only that upon April 6 or another date Mallah told Kathrane that he had been barred from employment at the Commodore Mallah denied having told Kathrane that he should not be referred to that hotel Kathrane was not a witness B It may be noted that the collective-labor agreement between the Trades Council and the Hotel Association has a valid union- security provision and that this provision does not bar the referral of "extra" or temporary employees to hotels. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reject anyone for employment without having had some previous discussion," that Formicola "blew [his] top" and said to Bentz that it was "management's prerogative" to determine who should be discharged, that Bentz was as upset about the call to NYSES as he was, and that Bentz said to him that such a call should not have been made. On April 7, the day of Bentz' call to Formicola, the Commodore received from the Regional Office a copy of a charge in this case. On April 8, Oscar Gellman, counsel for the General Counsel, called upon Formicola prior to interviewing Michael Egan and obtaining an affidavit from Egan. Gellman explained to Formicola that the Commodore was not a respondent in the case, no charge having been filed by Mallah against the hotel, and Gellman also told Formicola that the charge arose from an incident between Michael Egan and Rodriguez. On or before April 10, Formicola held a meeting with Beckwith, the hotel's food and beverage director, and Michael Egan in order, as Formicola expressed it, "to restate emphatically the policy of management with respect to employment." Although Mallah was unknown to Formicola, the latter specifically mentioned Mallah to Beckwith and Egan. Both Beckwith and Egan said that they had not rejected anyone, including Mallah, for employment. Egan also said that he had not made the telephone call to NYSES on April 6. Egan told Formicola, however, that he had said to Mallah that Mallah could not work at the hotel and that he had so understood from a conversation with Rodriguez, but Egan did not tell Formicola that Rodriguez had given any reason why Mallah could not work there. Formicola, who believed that management alone had the authority to decide who should work for the hotel and that Rodriguez had no such authority, asked Egan "on what authority" Rodriguez would have made the statement that Mallah could not work in the hotel, and Egan replied that he did not know. Formicola advised Beckwith and Egan that the hotel followed certain procedures in hiring extra bartenders for banquets, namely, that first, the regular full-time bartenders were utilized during their regular working hours or on an overtime basis; that secondly, bartenders on the extra list were ultilized; that thirdly, if enough ;bartenders had not been secured for a banquet, a call to nyses would be made for additional men; and that finally, NYSES would be made for additional men; and that finally, in an emergency such as when the NYSES office was closed, the hotel "would utilize anyone [it] could find." 10 During April and thereafter, Mallah worked at a club and at several hotels that were under contract with the Respondent. He worked regularly at one for approximately 2 months. In some instances, he was referred by NYSES, but he was not referred to the Commodore although, during the period of April 2 to September 14, 11 bartenders were referred there upon requests by Michael Egan.ii In one or two emergencies during May or June, Egan telephoned an extra bartender, one McGittigan, whose name was not on the extra list, and offered him employment. Upon those occasions, Egan did not telephone Mallah although, according to Egan, in emergencies he always had telephoned Mallah first because Mallah lived closer to the hotel than any other bartender. 12 On September 18, a Saturday, Mallah worked 4 hours for the Commodore, having been called by Michael Egan on that day with the request that he work that night. During October, Mallah worked for the hotel a total of 22 hours on 5 days, and at one point the transcript indicates that he may have worked for the Commodore on a sixth day during that month. He also worked on at least 1 day November 14, which was the day before the hearing began. Michael Egan testified that upon each such occasion there had been an emergency which caused him to hire Mallah. Egan testified also that neither Rodriguez nor anyone else from the Respondent ever told him that Rodriguez' remarks to him on or about April 1 concerning Mallah were countermanded or were not to be followed. D. Conclusions The initial question involves the formulation of a list of extra banquet bartenders who are offered work at the Commodore prior to any call by that hotel to NYSES for the referral of such bartenders. Similar lists are in use at other hotels. The collective-labor agreement mentioned above between the Hotel Association and the Trades Council covers the period of June 1, 1962, to May 31, 1967, and sets forth working conditions for various classifications of hotel employees who are represented by the Respondent and seven other labor organizations. The agreement provides for lists of extra banquet waiters and waitresses, but it does not specifically provide for lists of extra banquet bartenders or other categories of banquet employees. Nevertheless, lists of extra bartenders and dishwashers for banquets have been formulated and there is testimony that some hotels have had such lists for a period of years before the effective date of the current agreement. I find that the formulation of such lists, particularly the list of extra banquet bartenders at the Commodore, was valid. Surely the parties to the agreement are not bound to a rigid interpretation of the agreement throughout its 5-year term, but may by mutual agreement formulate practices which are in the interest of the parties so long as such practices are not invalid. Here the Commodore's list of extra bartenders was formulated initially by management with particular attention to employees' length of service at that hotel. Two names were added, one later to be dropped, in conferences between the Commodore and the Respondent, and there is 10 The findings concerning Formicola's meeting with Beckwith and Michael Egan are based upon Formicola's testimony Beckwith was not a witness and Egan did not testify concerning the meeting Formicola testified that he did not recall whether Egan mentioned Bentz , and there is no evidence that Egan did mention her Formicola testified further that he could not recall whether he ever told Bentz of the conversation between Egan and Rodriguez, that he had told her on April 7 that union representatives had no right to determine discharges, that he was not concerned in the matter after having his conversation with Bentz and having restated management 's policy to Beckwith and Egan, and that he did not think that it was within the hotel's "jurisdiction to discuss with Miss Bentz any alleged behavior, good or bad, on the part of her representatives " 11 Egan did not work at the Commodore from about June 15 to August 11 Because no other supervisor of that hotel is alleged to have denied employment to Mallah, it follows that there was no discrimination against Mallah during that period 12 Egan also telephoned another bartender whose name is not on the list, one Diaz, but Egan did not use Diaz' services at a banquet upon those occasions The Commodore used Mallah's services as an extra banquet bartender only HOTEL, MOTEL & CLUB EMPLOYEES, LOCAL 6 497 no evidence that either of those parties sought to discriminate against Mallah in the formulation of the list.13 The next question is whether the Respondent is responsible for Rodriguez' conduct. As we have seen, Rodriguez told Mallah that he had talked with Bentz who had told him that Mallah had been expelled by the Respondent. Rodriguez also told Mallah that the latter could not work at the Commodore "anymore." Earlier, Rodriguez had talked with Michael Egan, the banquet bar captain, and Egan had told Mallah that Mallah had been barred from work in the hotel. Rodriguez is a "department delegate" at the Commodore, having been elected by fellow union members who work there to serve as a delegate for a period of 1 year. The Respondent's bylaws provide: It shall be the duty of the department delegates to cooperate with the Vice-President, Business Agents and officers of the Union in the handling of grievances and in all other matters in which their efforts can best serve the membership of the Union. The bylaws also provide: The Union membership of each [geographical] district shall elect a Vice-President, Business Agents and Assembly members, who, with the Department Delegates, shall comprise the District Council which shall be responsible to the members of the district. ... [T]he Business Agents of the district shall report to the District Council on their work in the hotels and motels within the district at each District Council meeting. Subject to the approval of the Executive Board and the Assembly, and District Council shall be the governing body of the district.... There is testimony for the Respondent that Rodriguez had authority to present minor grievances at a low level and that he did not have authority, acting alone, to demand the termination of anyone's employment. It is clear from the above quotations, however, that delegates are important elected representatives in the Respondent. In addition, Bentz asked Rodriguez to "police the personnel" in order, so she testified, to give the Respondent information to enable it to determine the source from which the Commodore obtained its extra bartenders. But Michael Egan, a union member, obviously believed that Rodriguez' authority to police personnel included authority to demand that Mallah not be rehired. I find that Rodriguez was the Respondent's agent for whose conduct the Respondent is responsible. The above discussion dictates the conclusion that the Respondent attempted to cause the Commodore to discriminate invalidly against Mallah, and that the Respondent thereby violated Section 8(a)(2) and (1)(A) of the Act. The question remains, however, whether the Respondent took prompt and sufficient steps to countermand Rodriguez' action and to assure that Mallah would not be rejected for employment under the hiring procedure laid out by Formicola to Michael Egan and Beckwith on or about April 10. I am satisfied that, insofar as referral by NYSES is concerned, Bentz took such steps in her conversation of April 7 with Kathrane. Her remarks to Kathrane were unequivocal. The argument that the steps were insufficient is that NYSES thereafter referred 11 bartenders to the Commodore, but did not refer Mallah. There is, however, no evidence that NYSES refrained from referring Mallah to the Commodore after Bentz' conversation with Kathrane. Insofar as appears , Mallah may not have been in line for referral to the Commodore, under whatever procedure NYSES follows, upon any of the dates that the 11 men were referred to that hotel. I cannot infer that an agency of the State distrusted and rejected Bentz' assurances that the law should be obeyed. With respect to the Commodore, however, we have a different situation . While it is true that Bentz' remarks to Formicola were clear and that Formicola thereafter spoke clearly to Michael Egan, Bentz knew when she called Formicola that the Egan involved was Michael Egan, a union member, not John C. Egan, the Commodore's general manager. Too, as an officer in the Respondent since 1942, Bentz was sophisticated in union matters. She must have realized that Michael Egan had not acted on his own initiative , but had been approached by Rodriguez. Yet the record does not reflect that anyone within the Respondent who is superior to Michael Egan or Rodriguez ever spoke to either of those men in an effort to countermand Rodriguez' statement to Egan that Mallah could not work for the Respondent again.14 The Respondent argues that Bentz' call to Formicola was all that the Respondent need have done, particularly in view of Formicola's directions to Egan. But Egan did not follow Formicola's directions. Upon one or two occasions during May or June, Egan Telephoned McGittigan when the extra list had been exhausted and there was insufficient time to seek the services of NYSES. Formerly, Egan had telephoned Mallah in such situations because Mallah lived closer to the hotel than any other bartender. As a union member, Egan has loyalty to the Respondent. As a witness, he was obviously unhappy to have been called to testify against his union and he gave untruthful testimony. It is reasonable to infer that Egan , in hiring McGittigan instead of Mallah, was motivated by loyalty to, or fear of, the Respondent and that he continued to follow Rodriguez' direction. I find that the Respondent caused and attempted to cause the Commodore to discriminate invalidly against Mallah and that the Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Respondent (1) notify the Commodore in writing, with a copy to Mallah, that the Respondent has no objection to the employment of Mallah by the Commodore or any other employer, and (2) make Mallah whole for any loss of pay he may have suffered as a ' i As has been recited, during 1963 the Respondent objected to Mallah's having obtained employment at the Gotham without referral by NYSES, and Mallah's charge against the Respondent was dismissed at the regional level According to the Respondent, that case differs from the instant one because the Gotham is a small hotel which does not have a list of extra bartenders During 1965, a general manager of that hotel wrote to counsel for the General Counsel that the Gotham's "list of extra banquet bartenders is not kept in written form, all of our bartenders are considered when we have a banquet and we make our choice from among those bartenders available for a specific date " i' In oral argument , counsel for the Respondent asserted that his client was unaware of Rodriguez ' conduct It is true that Rodriguez is not named in the charge His is named in the complaint , however, and it was issued on June 30, 1965 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result of the Respondent's having caused the Commodore not to hire him after April 1, 1965, by payment to him of a sum of money equal to that which he normally would have earned at the Commodore from the date of the discrimination against him to a date 5 days after notification by the Respondent to the Commodore and Mallah as provided above, the payment to be computed on a quarterly basis in the manner established in N.L.R.B. v. Seven-Up Bottling Co., Inc., 344 U.S. 344, with interest at 6 percent per annum, Phillip Carey Manufacturing Company v. N.L.R.B., 331 F.2d 720.15 Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is a labor organization , and the Commodore is engaged in commerce within the meaning of the Act. 2. By causing the Commodore to discriminate invalidly against Mallah , the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b)(2) and (1)(A) and Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that Hotel, Motel & Club Employees Union Local 6, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from; (a) Causing or attempting to cause Hotel Commodore to refuse to hire an employee in violation of Section 8(a)(3) of the Act or otherwise to discriminate against employees or applicants for employment in violation thereof. (b) In any like or related manner restraining or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Notify Hotel Commodore and Eli Mallah that the Respondent has no objection to the employment of Mallah, in the manner set forth in "The Remedy." (b) Make Mallah whole for any loss of pay, as set forth in the section of this Decision entitled "The Remedy." (c) Post in conspicuous places in all its offices and union halls, including all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix."16 Copies of said notice, to be furnished by the Regional Director for Region 2, after being /duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any material. (d) Promptly after receipt of unsigned copies of said notice from the Regional Director, return to him signed copies for posting, Hotel Commodore willing, at all places where notices to that hotel's employees are customarily posted. (e) Notify said Regional Director in writing within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.17 15 Backpay is limited to the occasions when Mallah was unemployed and would have been working at the Commodore absent the discrimination against him Is In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 1' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF HOTEL, MOTEL & CLUB EMPLOYEES UNION LOCAL 6 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Hotel Commodore to refuse to hire any employee because he is not a member in good standing of Local 6. WE WILL NOT cause or attempt to cause any employer to discriminate against any employee in any way that violates the National Labor Relations Act. WE WILL pay Eli Mallah the amount he lost in earnings as a result of our having caused Hotel Commodore not to hire him as a bartender. WE WILL notify Hotel Commodore that we do not object to Mallah's working for any employer. HOTEL, MOTEL& CLUB EMPLOYEES UNION LOCAL 6, HOTEL& RESTAURANT EMPLOYEES& BARTENDERS INTERNATIONAL 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. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 5th Floor, Squibb Building, 745 Fifth Avenue, New York, New York 10022, Telephone 751-5500.