Cooks and Assistants Local No. 33

COOKS AND ASSISTANTS LOCAL NO 33 Cooks and Assistants Local No. 33, Hotel and Res- taurant Employees and Bartenders, International Union, AFL-CIO (The Seattle Chapter of the Res- taurant Association of the State of Washington, Inc.) and Cecil Bowers. Case 19-CB-1459 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On May 14, 1970, Trial Examiner William E. Spen- cer issued his Decision in this proceeding, finding that the Respondent had not engaged in the alleged unfair labor practices, within the meaning of the National Labor Relations Act, as amended, and rec- ommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions and a brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. I We find it unnecessary to consider, and do not adopt, the findings, conclusions, and recommendations contained in the section of the Trial Examiner's Decision entitled "E Concluding Postscript " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM E. SPENCER, Trial Examiner. The complaint herein issued February 25, 1970, was based on a charge and amended charge filed, resepctively, October 3, 1969, and February 24, 1970, by Cecil Bowers, an individual, and alleged a violation by the Respondent herein of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended, hereinafter the Act The case was heard in Seattle, Washington, on April 21, 1970, with all parties represented and participating 415 Upon the entire record, including my observation of witnesses, and upon full consideration of the briefs filed with me by the General Counsel and the Respondent, respectively, I make the following: FINDINGS OF FACT 1. JURISDICTION The Seattle Chapter of the Restaurant Association of the State of Washington, Inc., herein called the Association, is an employer association composed of restaurants and related businesses, incorporated in the State of Washington, which exists, inter aka, for the purpose of negotiating collective-bargaining agreements with various labor organi- zations on behalf of its employer-members During the past year, a representative period, the employ- er-members of the Association in their totality did a gross volume of business in excess of $500,000, and caused to be transported and delivered to their respective places of business in the State of Washington, goods and materials valued in excess of $50,000 which were transported in interstate commerce directly from points outside Washing- ton, or from other enterprises located in Washington, each of which enterprisee received said goods and materials directly from outside the State of Washington iI. THE LABOR ORGANIZATIONS INVOLVED Cooks and Assistants Local No 33, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (The Seattle Chapter of the Restaurant Association of the State of Washington, Inc ), the Respondent herein, and The Local Joint Executive Board of the Hotel and Restau- rant Employees and Bartenders International Union, herein the Joint Board, consisting of representatives of Respondent and certain sister locals in Seattle, Washington area, are, each of them, labor organizations within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. The Issues The issues are whether the Respondent, in the operation of its hiring hall to be alluded to in detail presently, and in violation of Section 8(b)(2) of the Act, refused Cecil Bowers, the Charging Party, referrals because of his "intraunion" activities and other "arbitrary and unfair" reasons thereby causing employer-members of the Associa- tion to discriminate against him in violation of Section 8(a)(3) of the Act, and thereby operating a referral system in a discriminatory manner that restrained and coerced employees within the meaning of Section 8(b)(1)(A) of the Act. B The Hiring Hall Provisions of the Union's Contract With the Association At all times material the Union and the Association have had a bargaining contract, the validity of which is 185 NLRB No. 46 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not questioned here, which provides, inter alia.• The Employer shall hire all employees through the facilities of the Joint Board and the Unions, except in case of actual emergencies Selection of applicants for referral to jobs shall be on a non-discriminatory basis and shall not be based on, or in any way affected by union memberhsip , by-laws, rules, regulations, con- stitutional provisions , or any other aspect or obligation or union membership, policies, or requirement , or upon race, color, creed or national origin . The Employer retains the right to reject any job applicant, if not qualified The Unions shall furnish Employers Notice of Employment cards and Employers shall notify the Unions within seven (7) days of the employment of any new employees covered by this Agreement Pursuant to this agreement, the Union maintains a hiring hall where applicants for employment are regis- tered in their appropriate classifications and in the order in which they appear for registration. Harry Lewis Valenzuela, a dispatcher for the Union, testified that an out-of-work list was maintained at the hiring hall, and that every Monday registrations were taken by applicants in the various appropriate classifications determined by the dispatcher. Valenzuela testified that he generally dispatched applicants , according to their respective categories , in the order in which they were registered. Applicants are not required to remain in the hall after registering and as openings occur the dispatcher attempts to reach the applicants by phone. It is noted that in conformity with the bargaining agree- ments, employers, in emergency situations, may hire directly, and the hiree is thereafter referred to the Union for further processing according to the contract It was also the credited testimony of defense witnesses , that in the case of numerous applicants for employment , the applicants did not rely solely on referrals from the hiring hall but sought out, individually, job openings and were hired on their own initiative with appropriate notice to the dispatcher. C. Bowers' Employment Record Bowers, now employed in a Nevada casino as a cook, was at times material herein, registered with the Union's hiring hall under the classification of "fry cook." He joined a sister local of the Respondent Union some 27 years ago, and has been a union member ever since He first came to Seattle in 1946, took a relief cook job, and then was employed some 3 months in a local restaurant Following this employment he appears to have left Seattle, to return in 1953 when he was employed in local restaurants for 2 or 3 months after which he entered a new field, "gas conversion " In 1957, he was once more employed in Seattle as a cook for a period of some 3 or 4 months, a period of employment terminated when he moved to Portland after becoming afflicted with emphysema In 1968 he was employed once more in Seattle, this time as a cook in a local restaurant, for a period of about a month, after which he went to California On about June 29, 1968, he was employed by the Northern Lights Restaurant in Seattle, and worked there until about November 10, 1968, when, according to him, he became ill On leaving his employment at Northern Lights, he filed a grievance with the Union, claiming that by terms of the union contract he was entitled to I day's pay more than he was allowed, apparently on the grounds that the employer did not notify him that his employment was terminated at the close of the last shift on which he worked He attempted to collect for this day's pay both eventually told him to to "get the hell out of here " Subsequently, he filed a charge with the Regional Office of the Board This charge, filed February 17, 1969, alleged that the Union had violated his rights under Section 7 of the Act by "failing to adequately represent him in regard to wages." It does not appear that a complaint was issued on the basis of this charge but on being notified of its filing the Union agreed to collect the amount Bowers claimed was due him from Northern Lights, did collect it, and the charge was withdrawn The filing of this charge is the principal basis-in terms of motivation-for the General Counsel's present allegation that the Union discriminated against Bowers because of his "intraunion activities " Following the termination of his employment at Northern Lights, Bowers worked at a local restaurant one day on Christmas Eve at cooks' wages, and in the latter part of December 1968, was told by the Union 's business agent of an opening at Leo's Restaurant , and he obtained employ- ment there, continuing until February 1, 1969, when he was discharged. With the exception of one day's work on Christmas Eve, all Bower's employment in the jurisdic- tion of the Respondent Union was on advice of union agents or through referral from the Union 's hiring hall. According to Bowers, while employed at Leo's he worked six days a week, and once on a seventh day, but was paid only for straight time He complained to the Union for not being paid for overtime work , and the Union processed his grievance and obtained overtime pay for him. As on the prior occasion when he terminated his employment at Northern Lights, he claimed that he was due an additional day's pay because of the employer's alleged failure to advise him at the close of his final shift that his services were being terminated The Union did not collect for this extra day, presumably an additional basis for his original charge initiating this proceeding in which he alleged that the Union violated his rights under the Act by "failing adequately to represent him in regard to wages "i Following his discharge from Leo's on the ground of incompetency and vulgar language,' Bowers worked three days as a relief cook , and then was employed at Jim's Side Pocket Restaurant for some 2 weeks until the restaurant changed ownership His next employment in Seattle was with Gilbert's Restaurant, employment which he quit on June 27, 1969, to go to California. On August 3, back in Seattle, he was referred to the Valley Cafe where he worked 3 days before being discharged for alleged incompe- In his amended charge this was no longer alleged as a cause of action against the Union i Testimony of Leo's owner COOKS AND ASSISTANTS LOCAL NO. 33 tency He registered on the Union's out-of-work list on August 11. It is during the period August 11 until about October 7 when Bowers again left Seattle, that the General Counsel contends that Bowers was discriminated against in the matter of referrals. Admittedly, the only actual referral that was made during this period was a referral to Towne Motel, at his request, as a dishwasher, where he remained until he quit to return to California. Not registered as a dishwasher but as a fry cook, Bowers would not have been referred on a dishwasher job except that he overheard the dispatcher receiving a request for a dishwasher and asked for and received the referral. Bowers admitted, howev- er, that while working at Towne he learned that a cook was leaving and that he made no request to be referred to this job vacancy because at that time he had emphysema and the air-conditioning was bad. However, when some 3 or 4 days later a new cook was hired, he complained to the Union's dispatcher about this referral because he, Bowers, had been unable to get a referral as cook. According to his testimony, when the dispatcher told him that there were a couple of job openings he could see about, he replied: "Well, I have to give notice My emphysema has been bad. I am going to have to quit I am going to quit tonight and I will come in tomorrow and I want to go to work." The dispatcher replied, "I will see that you get out." According to Bowers, this exchange between him and the dispatcher occurred about two weeks after he started dishwashing at Towne's. Further, after giving Towne's notice of quitting, according to him the air-conditioning was repaired and he stayed on at Towne's until he was discharged on about October 7, after which he again left Seattle He testified that a business agent of the Union had called at Towne's just prior to his discharge, but this is the sole testimony from which any connecticn between his discharge and union intervention could be inferred. It is not alleged that the Union caused his discharge from Towne's and I draw no such inference. The General Counsel in his brief cites five job openings between August 11 and October 7 to which, he contends, Bowers would have been referred absent discrimination These were referrals to the Mayfair Westwood Village Restaurant on August 13, Underground Restaurant August 14, Century House August 15, Top's 24 Coffee Shop August 21, Kansas City Steak House August 26 He refers also to openings at Mints Cafe on September 4 and Lotus Cafe on September 5 As to Mayfair Westwood and Top's 24 Coffee Shop, the defense testimony and argument is that these were Class B fry cook jobs which Bowers, being classified as a Class A fry cook, would not normally be referred to, it being contrary to the policy of the hiring hall to refer anyone to a lower classification, and consequently a lower salary, than the one in which he was registered As to the Underground Restaurant, the defense testimony is that it required a dinner cook, a position which Bowers, as a fry cook, was not qualified to fill. As to Century House and the Kansas City Steak House, it is Respondent's conten- tion that the men referred to these jobs were actually 417 higher on the referral list in the weeks in which the referrals were made, than Bowers. D. Concluding Findings As is true in almost any case of alleged discrimination, motive is the corpus delicti the absence of which is likely to embarrass the prosecution The General Counsel gives "intraunion activities" as the principal basis for the alleged discrimination here The only "intraunion activities" engaged in by Bowers, a longtime member of the Union, which conceivably could have given rise to such animus on the part of the Union as to cause it to discriminate against him in the matter of referrals, was his insistence on two occasions that the Union enforce his grievance against two employers, respectively, who, according to him, owed him a day's pay each for failure to notify him at the end of the last shift worked that his services were no longer required. I do not know of any theory on which the dispute between Bowers, the Union, and the respective employers about 1 day's pay could, without more, be con- strued as a basis for an unfair labor practice complaint, and that the Union chose to collect, or pay, a day's wages in the first incident rather than to be harassed in the matter is, in my opinion, of little moment in reaching the present issue of alleged discrimination, as was its refusal on a subsequent occasion to enforce Bowers' grievance against another employer. I do not profess to know the merits of either of these grievances and it is not a matter that properly concerns me, since it is not shown that the Union's handling of these two grievances exemplified disparate or arbitrary treatment accorded Bowers. For this agency to attempt to construe and enforce contractual requirements in such a situation, without more, would be plainly and solely intermeddling in the Union's internal affairs. The only really persuasive thing in either of the incidents is that in the first the Union did, at Bowers' request, process and process successfully his claim for over- time pay. It is true, as argued in the General Counsel's brief, that during the period August 11, to October 7, 1969, cooks were dispatched through the Union's hiring hall who were lower on the out-of-work register than Bowers and that the only actual referral that Bowers received during this period was that of dishwasher, a referral that he requested There are, however, several circumstances which militate against accepting the General Counsel's theo- ry that Bowers received discriminatory, disparate, and unfair treatment because of these referrals. First, as to motive. Admittedly, it was only during this period that Bowers even claims to have been discriminated against in the matter of referrals Admittedly, he was referred to jobs subsequent to the time he filed a charge of unfair labor practices against the Union, and was favored in other respects at such times as he was in the jurisdiction of the Union-an in-and-out affair. If he engaged in any intraunion activities whatever just preceding August 11 which conceivably could have aroused the ire of the Union, it has been kept a secret from this record. Why then, we must ask, did the Union on August 11 suddenly decide, contrary to prior practice, to accord him unfair, disparate, and discriminatory treatment? 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not intend to probe at length every instance occurring between August 11 and October 7 when referrals were given to cooks other than Bowers. I will mention only that there are several classifications of cooks in the Union's referral records, beginning with chef or dinner cook and descending through such categories as broiler cook, Class A fry cook, and Class B cook. Bowers was registered as a fry cook. There was testimony on the distinction between fry cooks and broiler cooks, and they do in fact fall into different pay classifications, but I accept Bowers' testimony that on occasion he served as a combination fry and broiler cook. It is also a fact that in recent referrals prior to August II, he was discharged for alleged incompetency while functioning, apparently, as a combination fry and broiler cook After these two discharges, the dispatcher may well have had some reservations about referring Bowers to the same or similar jobs And while I have some reservations about the dispatcher's explanations of why on several occasions, involving particularly the Underground Restaurant, the Mayfair Westwood, and Top's 24 Coffee Shop, respectively, Bowers was not dispatched, such reservations are inconclusive, the evidence being pretty well balanced, in my opinion, in each case The General Counsel argues that from the time he took on the job as dishwasher at his own request, Bowers was denied proper registration as a cook on the out-of-work lists It is noted that Bowers took the job as dishwasher some two weeks after he registered August 11 on the out-of-work list, and while I accept his testimony that he let it be known to the dispatcher that he wanted a cook's job, by his own testimony he did not follow up on a vacancy in a cook's job at Towne's because of his emphysema and poor air-conditioning, and told the dispatch- er, when the latter mentioned a couple of job openings that he would first have to give a notice-in effect declining to follow through on the dispatcher's suggestion Finally, though Bowers testified that he registered on the out-of-work list every Monday, and spent most of his mornings at the hiring hall, he also relied on receiving referral messages when he was not at the hiring hall through phone calls to the hotel where he was registered.' There was but one phone in this hotel, in the office of the landlady, and some 100 tenants. It was the practice of the Union's dispatcher to attempt to reach those registered and not present in the hall as their numbers came up, through phone calls, and if the call was not completed the next one on the register would be given the referral. No records were kept of these phone calls and the dispatcher could hardly be expected to remember occasions when he tried, in vain, to reach a registered person by phone. The difficulty encountered in reaching Bowers by phone was exemplified by the credited testimony of the owner of the Valley Cafe that she attempted for hours to reach Bowers by phone before succeeding. Are we expected to conclude, without evidence, that when those lower on the ' I cannot help but doubt that, once he had taken a fulltime dishwasher lob, he spent much time in the Union hall awaiting a referral, or in fact registered on the out-of-work list out-of-work lists than Bowers were referred to cook jobs, no effort was made by the dispatcher to reach Bowers by phone? Unable as I am to pinpoint a discriminatory motive based on any incident occurring in time proximity to August 11, after a substantial period in which Bowers admits he was accorded fair treatment in the matter of referrals, or to find in this record any persuasive evidence of desire or intent on the part of the Union to accord Bowers disparate and unfair treatment," and considering the incon- clusiveness of any and all factors pointing to actual discrimi- nation in the order of Bowers' referrals, I can only conclude that there is no preponderance of evidence supporting the complaint in this case and accordingly must recommend its dismissal. E. Concluding Postscript This case, like many others that have come before me in the some 30 years I have served with this agency, is limited in scope and substance, and while I would not presume to criticize the General Counsel for authorizing the issuance of a complaint on such meagre and inconclusive evidence, I do question whether there is not some better way of adjudicating grievances of this nature than to call on the services of Trial Examiners, who are among the highest paid officials of government under civil service, and whose time and ability might be better applied to the adjudication of problems of greater consequence and more exacting in terms of their competence as administrative judges Increasingly, as our case load continues to expand, it appears to me that our services as Trial Examiners are required in matters which might as well, and I believe more effectively, be adjudicated through arbitration, without the delay that appears to be an unavoidable consequence of our procedures, and without cost to the government. In short, arbitration of any and all grievances arising under bargaining contracts, a mandatory subject of collective bar- gaining, should be encouraged and contracting parties should be encouraged to incorporate adequate arbitration provisions in their contracts This agency has, to some degree, encour- aged the recourse to arbitration but this occurs only in its decisions which follow litigations, sometimes with great delay. A more effective way of encouraging the settlement of any and all grievances arising under bargaining contracts through arbitration contractually arrived at, would be for Congress to deprive this agency of jurisdiction over any and all such grievances where there is recourse to arbitration, for as long as the grieving parties are afforded a choice between arbitration contractually arrived at and recourse to this agency, we will continue to be plagued and the Government will continue to be penalized, by long drawn ' I note the General Counsel's reference in his brief to testimony indicating that union agents considered Bowers something of a nuisance This may well be, and in the light of this entire record, is easily understood, but did not operate to prejudice him in the matter of referrals prior to August 11.-why thereafter? COOKS AND ASSISTANTS LOCAL NO. 33 out and costly litigation of issues-costly both to the Govern- ment and the parties engaged in the litigation-which might just as effectively, with as great a promise of just solutions, and with far more expediency, be settled through the process- es of arbitration.5 Were Congress to take this action, the case load of this agency, in my opinion, would be significantly reduced, with a resulting substantial savings to the Government, and without resulting prejudice to grieving parties-in fact, to the advantage of grieving parties and all concerned who are presently, unavoidably perhaps, greatly prejudiced ' Lest I be misconstrued, I emphasize that nothing I am suggesting calls for compulsory arbitration, as that term is commonly used There is nothing compulsory about arbitration arrived at through the processes of collective bargaining by the contracting parties 419 by the delays encountered in the processes of litigation before this agency CONCLUSIONS OF LAW The Association and its employer-members are employers within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. The Respondent Union has not engaged in unfair labor practices alleged in the complaint RECOMMENDED ORDER It is recommended that the complaint be dismissed.