Birmingham Country Club

854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Birmingham Country Club and Bloomfield Open Hunt Club and The Detroit Club and Hotel , Motel and Restaurant Employees Union, Local 705, Hotel, Mo- tel and Restaurant Employees and Bartenders' Inter- national Union, AFL-CIO and Winton Blackwell. Cases 7-CA-9103(1), 7-CA-9103(2), 7-CA- 9103(3),' and 7-CB-2515 October 19, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 28, 1972, Administrative Law Judge 2 Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent Un- ion filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions, of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. 1 The three aforementioned cases were settled prior to the hearing, and, consequently, are not involved herein 2 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon a charge duly filed on November 15, 1971, by Winton Blackwell, an indi- vidual, herein called the Charging Party, the General Coun- sel of the National Labor Relations Board, herein referred to as the General Counsel I and the Board, respectively, by the Regional Director for Region 7 (Detroit, Michigan), issued its consolidated complaint dated January 4, 1972, 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. against Hotel, Motel and Restaurant Employees Union, Local 705, Hotel, Motel and Restaurant Employees and Bartenders' International Union, AFL-CIO, herein re- ferred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(b)(1)(A) and (2) and 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain alle- gations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held in De- troit, Michigan, on March 2, 1972, before me. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard , to produce, examine and cross-examine witnesses, and to introduce evi- dence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived . Briefs were re- ceived from General Counsel and Respondent on April 14, 1972. Upon the entire record in the case and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT I BUSINESS OF THE EMPLOYERS Birmingham Country Club, Bloomfield Open Hunt Club, and The Detroit Club are corporations duly organized under, and existing by virtue of, the laws of the State of Michigan. Each maintains its principal office and place of business in or near the City of Detroit, Michigan, where each is engaged in the operation of a private club providing, among other things, a restaurant, bar, and related services for its members. During the fiscal year ending September 30, 1971, which period is representative of its operations during all times material herein, each club, in the course and conduct of its business operations, provided and performed at its place of business services valued in excess of $500,000 and, during this same period of time, each club purchased and received at its place of business alcoholic beverages valued in excess of $50,000 from the Michigan Liquor Con- trol Commission, located in the State of Michigan, which liquor had been received by the Michigan Liquor Control Commission from sources directly located outside the State of Michigan. It is admitted and, accordingly, I find that each club is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6)(7) of the Act. II THE RESPONDENT UNION INVOLVED Hotel, Motel and Restaurant Employees Union, Local 705, Hotel, Motel and Restaurant Employees and Bar- tenders' International Union, AFL-CIO, is a labor organi- zation admitting to membership employees of the clubs heretofore mentioned. 199 NLRB No. 131 BIRMINGHAM COUNTRY CLUB III THE UNFAIR LABOR PRACTICES A. The Facts At all times material herein, Local 705 was a signatory to a contract with The Detroit Club, Bloomfield Open Hunt Club, and Birmingham Country Club, among other such establishments, which contained the following pertinent provisions: Section 3 Employee hiring. In order to facilitate the employment of necessary help and to assure qualified employees of an efficient system of locating employ- ment and insure the club of a regular source of avail- able employees, each of the Unions agrees to operate a job referral system in a nondiscriminatory manner for employees within their jurisdiction. All persons who are referred to the club by their respective Unions shall be identified by job referral slips issued by the referring union and delivered to the club by the individual being referred except as hereinafter provided. It is understood and agreed by the Unions that the operations of said job referral systems shall be on a nondiscriminatory basis and in accordance with the following terms, conditions and standards: (a) The club shall call the offices of their respective Unions for additional employees and for replacements in the job classifications covered by this agreement. (d) All extra employees in the job classifications covered by this agreement shall be hired in the manner above provided using the job referral systems operated by the Unions, provided the Unions are able to furnish them. Also at all times material herein, Winton Blackwell, the Charging Party here, has been and still is a member of the Local 705 and has been and still is employed by the three clubs aforementioned as an "extra" or "lineup" waiter. An "extra" or "lineup" waiter is one who is called in to work special parties, dinners, or events as distinguished from a regular waiter who has a steady position in a restaurant or club. Extras are called in only for special events as they occur. As an extra, during the year 1971, Blackwell was re- ferred by the employment office in the union hiring hall in accordance with the union's policy of "equalization" whereby the Union tried to refer each of the extras to ap- proximately 15 engagements per month. Blackwell knew of this policy and, during his testimony, volunteered the fol- lowing: A. First of all, not being employed in the Union, I don't know whether they made the attempt or not because there are many people who feel that had at- tempted-that attempt wasn't made. A. The policy was that they tried to give each person 15 jobs a month for insurance purposes. This again, is my imagination, because I don't know. s s s • 855 s Q. Do you know as a fact, Mr. Blackwell, employ- ees securing their own job, what effect that has on the equalization policy when the Union doesn't know? A. Well, some would get more work than others, I imagine. Also during the year 1971, at least, Blackwell devel- oped a propensity for securing or "booking" his own jobs without reference to the Union. This he accomplished by calling the various headwaiters at the clubs and asking if they had ajob for him or else these same headwaiters would call Blackwell and arrange for him to serve at some function at the club. Sometimes the headwaiter or Blackwell would clear this booking with the Union and sometimes they would not. Blackwell testified that during this period he was averaging two or three engagements per week at each of the three aforementioned clubs. The Union knew about some of these engagements but some of them they did not know of, especially as Blackwell frequently received his check for services rendered at the club involved and not through the Union. The union contract provides for payments of 40 and 45 cents per hour for each hour an extra works into the union health and welfare and pension funds. Periodically the Un- ion checks its referral orders against these insurance pay- ments. When these two accounts do not jibe it becomes obvious that all extras are not being referred through the union employment office. When these accounts get out of balance, Myra Wolf- gang, the secretary-treasurer of Local 705 and its head exec- utive officer, will order the business representatives to check. About August or September Wolfgang ordered Union President Mort Furay to check up with three named extras, Blackwell, McRipley, and Withers who were sus- pected of booking themselves without umon knowledge. Thereafter Furay spoke with McRipley and straight- ened out the matter. On September 28, 1971, Furay saw Blackwell picking up some checks at the union dispersing office.' Furay re- quested Blackwell to see him in his office. Blackwell refused. Furay thereupon went to the employment office across the hall and, in Blackwell's hearing, ordered Spinks, the em- ployment manager in charge of referrals, to take Blackwell's name off the referral list and not to refer Blackwell again until Blackwell conferred with Furay. Blackwell left the union hall purportedly because he had to get to the dog pound to get a shot for his dog. Spinks followed these orders and thereafter did not refer Blackwell again until December 15, 1971. 2 The usual practice is that the clubs will send payment checks to the union office where the extras will pick up the checks belonging to them. In Blackwell's case he testified that at The Detroit Club, for example, he usually picked up his hourly wage check at the club immediately after the party involved but sometimes would receive his gratuity check at the union hall the following week unless he happened to again be employed at the club on the day the gratuity checks were being sent to the Union In that event he would also pick up his gratuity check at the club. Somewhat the same procedure was followed at the other two clubs involved. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This actually did not bother Blackwell very much be- cause he acknowledged that during the month of October he succeeded in booking himself into engagements at The Detroit Club on 10 or 12 occasions at least. On November 11 Blackwell again telephoned Head- waiter James Pryor of the Birmingham Club for an engage- ment and was booked for a 6 p.m. dinner date for November 12. Blackwell had already booked himself to work a lunch at The Detroit Club on November 12 which he had also booked on his own without the knowledge of the Union. On the evening of November 11 Business Representa- tive Peggy Lukacs, having heard rumors that Blackwell and another extra named Withers were booking their own en- gagements in clubs under her jurisdiction, went out to the Bloomfield Club and asked a steady waiter there if these two extras had been working at the club. After receiving an affirmative answer, Lukacs ordered that thereafter all extras were to be booked through the Union. Lukacs then went to the Birmingham Club where she inquired of Maitre d' Pryor if he was using extras and, if so, if they were being booked through the Union. Pryor's an- swer was, .,occasionally." The union shop steward who was standing by admitted that he knew that extras were being booked at the club without being referred through the union hall. Lukacs then told them both, "Not from now on." Pryor acknowledged that he had booked Blackwell and some oth- er extras for the next evening, November 12, without having gone through the union hall. In characteristic style Lukacs retorted, "All are to be booked through the Union from now on." Lukacs left the club after telling Pryor that "all extras were to be booked through the union hall according to the terms of the contract." When Blackwell reported at The Detroit Club for his November 12 luncheon engagement, Maitre d' Calvin Young inquired as to what was wrong because he had heard from Pryor that Blackwell was not supposed to work ac- cording to the Union. Young also relayed the information to Blackwell that the Birmingham Club did not want Black- well to report for work the evening because of the informa- tion which Lukacs had given them the evening before. Young then telephoned to Spinks at the union hall and inquired about the matter. Spinks told Young that Black- well was not supposed to work until he had seen Furay and, in addition, that he had no orders for extras that day from The Detroit Club. Young relayed this information to Black- well and informed him that he could not work at Detroit that day either. Thus Blackwell worked neither at The Detroit Club nor the Birmingham Club on November 12. About December 12 Blackwell telephoned Spinks ask- mg for a December 15 appointment to see Furay. On De- cember 15 the appointment was kept. They talked about the equalization program and booking through the union office in accordance with the existing contract. Some sort of an amicable arrangement appears to have been reached be- tween the two, although there seems to have been some disagreement as to just what that arrangement was. After the conference Furay had Spinks put Blackwell's name back on the extra list and since that date the Union has been referring Blackwell as usual. B. Conclusions As note heretofore, the evening before the hearing in the instant case the three clubs settled their dispute to the satisfaction of the Regional Director so that the case as presented and heard before me only involves the dispute between Blackwell and Local 705. As such the instant case is a pure intra-union squabble. The complaint against the Union alleges that the Un- ion violated Section 8(b)(1)(A) and Section 8(b)(2) which read as follows: Section 8(b): It shall be an unfair labor practice for a labor organization or its agents- (1) To restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7: Provid- ed, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with re- spect to the acquisition or retention of membership therein; (2) To cause or attempt to cause an employer to discriminate against an employee in violation of sub- section (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of ac- quiring or retaining membership. It is quite true that, when Blackwell refused to confer with Furay about his practice of booking engagements with various employers on his own, Furay ordered that the Un- ion no longer refer Blackwell under the hiring hall clause of the collective-bargaining agreement existing between the Union and the clubs at least until Blackwell conferred with Furay on the matter. It is also true that on November 11 Business Representative Lukacs ordered the employers that thereafter they were to hire extras only through the union referral hall in accordance with the terms of that collective- bargaining agreement. It is also true that on November 12 both The Detroit Club and the Birmingham Club cancelled previously made bookings with Blackwell because of Lu- kacs' insistance that thereafter all extras were to be hired through the union hall in accordance with the terms of the collective-bargaining agreement in existance. In his brief the General Counsel states that these ac- knowledged events prove a "clear" violation of the sections of the Act cited above. I cannot agree. A collective-bargaining agreement between an employ- er and a union binds not only the signatory parties thereto but also the individual members of the Union.' Thus, when Blackwell commenced soliciting or accept- mg bookings through personal contacts with the headwait- ers at the various clubs without going through the union employment office as required by the existing collective- bargaining contract, Blackwell, as well as the employer clubs, was in violation of the existing contract. Blackwell, as a member of the Union or as one who was, when it was convenient for him, taking advantage of the services of the Union's nondiscriminatory hiring hall, was not only breach- ing a contract binding upon him but was also deliberately 3 See Kellogg Company v. N L R B, decided March 22, 1972 (C A. 6) BIRMINGHAM COUNTRY CLUB 857 taking advantage of his fellow union members and those who, like himself, were making use of the union's employ- ment office for their engagements . Thus Blackwell was play- ing both sides of the street for his own personal advantage. As soon as the Union discovered that Blackwell was consistantly breaching the collective -bargaining agreement to which both he and it were bound, by making his own bookings in total disregard of the hiring hall clause of that contract and to the detriment of his fellow union members, the Union sought to force Blackwell , as a union member to live up to his commitment under that agreement as well as his commitment as a union member . This the Union had a perfect right, if not the duty to its other members, to do. The doctrine of fair representation required no less from the Union. To knowingly permit one-or three-members to breach the existing contract to the decided disadvantage of all other union members would convict the Union of unfair, invidious representation of its members. Through Furay the Union sought to correct Blackwell's breach of the contract and injustice by talking the matter over with Blackwell . Blackwell refused . Furay thereupon ordered Employment Manager Spinks to take Blackwell's name off the union referral list at. least until Furay had the opportunity to talk Blackwell into abiding by the existing contract and play fair with his fellow union members. The Union was not "discriminating" against Blackwell for any exercise of Section 7 rights which Blackwell had. Looked at realistically, Blackwell's only complaint here is that the Un- ion was depriving him of an unfair advantage which he had acquired for himself by breaching the existing contract by booking his own jobs without reference to the union hinng hall whereas the other extras were abiding by that referral agreement to their detriment . Such an unfair advantage cannot be classified as a Section 7 right. Certainly the Union had the right to expel or suspend Blackwell from member- ship for deliberately breaking the existing collective-bar- gaining agreement for his own personal benefit under the proviso of Section 8(b)(1)(A). To the employing industry the Union, through Busi- ness Representative Lukacs, required that it also live up to the terms of the existing agreement by hiring only through the Union employment office as the collective-bargaining agreement required . Here also the Union was policing its agreement for the benefit of all its members, perhaps with the exception of Blackwell . By so policing its agreement on November 11, the Union was not causing or attempting to cause the employer "to discriminate" against Blackwell "in order to encourage or discourage union membership." The Union was forcing the employers to abide by the existing agreement and hire extras only through the union hinng hall as required by the parties' agreement. However the General Counsel in his brief argues as follows: ANALYSIS AND CONCLUSION Respondent-Union's claim that Blackwell refused to discuss the referral matter with Furay on September 28, 1971 is clearly without merit . For the record specifi- cally discloses that Blackwell was not told and had no idea of what Furay wanted to discuss,4 and surely de- clining to speak with Furay on an unspecified matter, when others were waiting for Blackwell, could not jus- tify the Union's conduct. We are thus left with Respondent -Union's remain- mg reason for its conduct, i.e. because, in the Union's view, Blackwell had in the past violated the contract by obtaining work by himself rather than via the Union's referral system. The question then becomes , if Black- well had in the past violated the contract as contended by the Union, does this justify Respondent -Union's conduct in causing Blackwell 's discharge from various Employers, or in refusing to refer him to available work. The answer is that such conduct is not justified and clearly violates the Act. The case law indicates that a union cannot impose such sanctions. For, although "a union may be within its rights in seeing to it that an employee on a job holds that job in accordance with a valid referral agreement, when, however, it seeks to remove an employee from a job because of a past in- fraction of the referral agreement , having nothing to do with his present employment, then it is seeking to apply punitive sanctions rather than merely seeking enforce- ment of the referral agreement"5 Local Union No. 18, International Union of Operating Engineers , AFL-CIO, 141 NLRB 512, 519.6 And although a union may be able to discipline a member for past infractions, said discipline must not affect the right of the member to secure or retain a job. But, violating this principle, Re- spondent-Union did - from September 28, 1971 to De- cember 15, 1971 mete punishment, not for present infraction (for the September 29, 1971 job at the Bloomfield Open Hunt Club had been cleared with the Union) 7 but for past infractions, and by doing so viola- ted the Act. It is axiomatic that a part of a union's duty is to police its collective-bargaining agreements. In cases where those agreements contain exclusive referral clauses , as here, it becomes incumbent on the Union to police not only the request even after hearing Furay order Blackwell's name off the referral list; the patently weak excuse Blackwell gave for this action at the hearing, i e, his children were waiting in the car and his dog had to get a shot, and his subsequent obstinate continuation of that refusal to confer even knowing that his name was off the list and he was not being referred , as well as Blackwell's knowledge of his own illegal booking arrangements, that, even though Furay did not specify the subject matter of the proposed conference, Blackwell well knew what the subject matter was to be 5 The above quotation then continued as follows- This is not to say that the Union may not still discipline its member for his past infraction, but whatever internal sanctions are imposed (e.g. fine, suspension, expulsion), these must not affect the right of the mem- ber to retain his job. 6 This is the only case cited by General Counsel. It is inapposite as shown by the Trial Examiner's concluding paragraph, as short formed by the Board, which reads as follows For all of the foregoing reasons, I find the preponderance of evidence supports the allegation in the complaint that Respondent caused the discharge of Paul Lewis because he was a member of a group that was opposed to, and sought to unseat, the incumbent union leadership and, hence, that Respondent thereby violated Section 8(b)(2) and (1)(A) of the Act Hence the above quotation is, at best, dicta only and inapplicable to the instant case for the reason that here there was no intervening political moti- vation . The instant case deals solely with the member's breach of the referral system. 7 Even if we accept the testimony to this effect by Blackwell, there is no dispute but that Blackwell's bookings for November 12 were both obtained 4 An inference arises, here drawn, from Blackwell's curt refusal of Furay's in violation of the referral agreement. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actions of the employers but also those of its own members and others using the hiring hall. Here the Union policed both when it became obvious that the referral system was being bypassed. The method used by the Union here was to talk to the parties at fault. In this it was successful with the employers and, apparently, with at least one member, McRipley. The method chosen proved ineffectual with Blackwell through no fault of the Union. In his brief General Counsel states that from September 28 to December 15 the Union "did-mete punishment" to Blackwell for his past breaches of the agreement. If Blackwell was, in.fact, "punished" as General Counsel would lead us to believe, then he has no one to blame therefor except himself because of his own adamant refusal to confer with the Union about his own continual breaching of the referral provisions as he well knew the Union desired to do and because he possibly believed he could do better financially by continuing to beat the system as he had been doing. Under the circumstances the method adopted by the Union to police its contract was legitimate-and considerably less drastic than a fine, sus- pension, or expulsion would have been. Therefore I here conclude that, in the instant case, the Respondent-Union was merely legitimately policing and enforcing the terms of a valid collective-bargaining agree- ment against both the employers and Blackwell as it had not only the right but the duty to all its members to do. Consequently, I recommend that the complaint herein be dismissed in toto.8 8 In the event no exceptions are filed as provided by Sec 102.46 of Rules and Regulations of the National Labor Relations Board , the findings, con- clusions, and recommended Order herein shall , as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes