Local 471, Hotel, Motel Union

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 471, Hotel, Motel and Restaurant and Barten- ders Union, AFL-CIO (Harry M. Stevens, Inc.) and Jean E. Malandrino. Case 3-CB-1853 FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY November 28, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 22, 1972, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: Upon a charge filed on April 19, 1972,1 by Jean E. Malandrino, an individual, the Regional Director for Region 3 of the National Labor Relations Board, herein called the Board, issued a complaint on June 9 against Local 471, Hotel, Motel and Restaurant and Bartenders Union, AFL-CIO, herein called the Respondent, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, herein called the Act In its duly filed answer to the complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. The hearing was held before me at Albany, New York, on July 18 and 19, at which all parties were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Counsel for the General Counsel and the Respon- dent presented oral argument but chose not to file briefs. Upon consideration of the entire record, and upon my personal observation of each of the witnesses as they appeared before me, I make the following: ' Unless otherwise indicated, all dates are in 1972 2 Harry M Stevens, Inc, 169 NLRB 806 Harry M. Stevens, Inc., (herein called Stevens), a New York corporation, with its principal office in New York City, is engaged in the sale and distribution of food and related products at facilities in various states of the United States. Stevens' restaurant at Saratoga Raceway, located at Saratoga Springs, New York, is the only facility involved in this proceeding. During the year preceding the issuance of the complaint, Stevens sold and distributed products valued in excess of $500,000. During this same period, Stevens shipped and transported products valued in excess of $50,000 from its place of business in New York directly to points in States other than the State of New York and received goods valued in excess of $50,000 transported directly to its place of business in the State of New York from points outside the State of New York. The complaint alleges, Respon- dent's answer admits, and I find, that Stevens is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that Respondent, the bargaining representative of Stevens' employees at Saratoga Raceway, and the exclusive source of referrals for employment by Stevens, in violation of Section 8(b)(1)(A) and (2) of the Act, refused to refer Jean E. Malandrino, Marion Cornell, and Grace Beatty for employment because said individuals engaged in protected concerted activities. The complaint further alleges that Respondent's business manager, Joseph Diliberto, threatened employees by stating to them he would not refer them for employment at Stevens' Saratoga Raceway facility because they were troublemakers. The Respondent's answer denies all unlawful activity. B. Background The Employer and the International Union, together with its local affiliates have maintained a bargaining relationship since at least 1948. The most recent contract between the parties, national in scope, is from January 4, 1971, through December 30, 1973. The bargaining unit covers all employees,3 with certain specified exclusions, at thoroughbred racing tracks and harness tracks where the International or one of its locals has been recognized as the bargaining representative. Stevens' restaurant operation at Saratoga Raceway, the installation involved herein, is one of the facilities covered by the contract. The contract 3 Included in the unit are waiters and waitresses 200 NLRB No. 82 LOCAL 471, HOTEL, MOTEL UNION includes a hiring hall referral provision. Article 8 of the contract provides: A. Within a reasonable time before the opening of each meet, the Employer shall furnish the Union with the names and/or numbers of regular crews desired to be utilized. B. All employees (regular and extra) who shall be required by Stevens in the categories stated in Schedule A shall be obtained from ajob referral system with the local Union, which the local Union shall operate, in compliance with the applicable laws, in order to facilitate the employment of new employees, to insure Stevens of a regular source of available skilled labor, to assure culinary craft employees an efficient system of locating employment and protecting job rights accrued while in the employ of Stevens. C. Stevens recognizes the local Union as a source of skilled, competent, experienced craftsmen and appren- tices and the Union in supplying applicants for employment shall take into account only the appli- cants' ability, experience, length of service in the industry, and irrespective of whether such applicant is or is not a member of the Union. D. In the event that the local Union cannot furnish a list of names of employees requested by Stevens within 72 hours of the request by Stevens, then Stevens may engage such employees from other sources. Stevens, within seven (7) days of the hiring of any employee shall notify the local Union having jurisdiction at the location of such employee's name, address, date of employment and category of employment. E. The aforesaid job referral system operated by the local Union shall be the exclusive source of hiring employees. Only such persons who have been referred to it by the respective local Union and identified by a referral slip issued by the referring local Union and delivered to Stevens by the individual being referred, shall be employed, except as hereinabove stated. Although the Respondent denied in its answer that it is the exclusive source of referrals, the provisions of the contract quoted supra, and the referral practice described infra, demonstrate the exclusiveness of the referral system and I so find. Article 8 further provides for a selection process based on certain priorities. First in the order of selection are: F. 1. Individuals in the order of seniority with Stevens who, within twelve (12) months immediately preceding the job order, have been employed by Stevens in the same or related classification requested. Persons employed as regular employees shall be so classified and obtain seniority accordingly (provided they have worked sixty (60) days in the preceding twelve (12) months in each local jurisdiction). 4 Both waiters and waitresses are employed at this facility For convenience and since the alleged dlscnminatees are women, any reference to the group generally, will be to waitresses 5 Because of snow, the track did not open until April 15 8 For opening day, the restaurant employed a substantial number of extras in addition to the basic regular crew because of an anticipated full dining room r The need was for only 12 on the dining hall floor at any given time but two relief waitresses were also considered regulars because the waitresses worked only 5 days and therefore employees were rotated 515 The three alleged discriminatees were not referred to Stevens by the Union as regular waitresses at the opening of the Saratoga Racetrack in April 1972 and it is this failure to refer which resulted in this proceeding. There are two categories of waitresses, regular and extra.4 Regulars work 5 days a week and gain seniority whereas extras normally work 3 days or less and do not have any seniority. The testimony shows that each year, within 2 weeks before the opening of the track, Stevens reports to the Respondent the number of waitresses it would need for opening day and the number of regulars it wanted for the season. The Union furnishes the names of the waitresses to be employed for opening day and also the names of the basic crew of waitresses to be employed as regulars for the season. As Eugene Strzesak, Stevens' manager for the past two seasons, testified, the employer has not concerned himself with whether the regular waitresses were properly referred in the order of seniority; its interest has been only whether they had worked previously at the restaurant. C. The 1972 Referrals On April 8, Stevens' Manager Strzesak met with Joseph Diliberto, Respondent's business agent, to discuss staffing the restaurant with waitresses and other categories of employees for the upcoming track season scheduled to open on April 14.5 Both Strzesak and Diliberto testified that 31 waitresses were ordered for opening day .6 But the witnesses differed as to the number of regulars to be furnished for the season. Strzesak, called as a witness by the General Counsel, testified that he ordered 14 regulars 7 and 14 were supplied by the Respondent.8 He further testified that he believed the same number of regulars were employed at the beginning of the 1971 season. According to Strzesak, although the 14 furnished by the Respondent had worked in the 1971 season he was uncertain as to whether they all had been regulars in 1971.9 Diliberto, on the other hand, testified that the total number of regulars ordered by Strzesak for 1972 was 12. Strzesak told him that because of operating costs, Stevens was reducing the number of regulars to 12. Diliberto's recollection was that there were 16 regulars in the 1971 season. Diliberto's testimony concerning the specific individuals supplied to Strzesak as regulars for the 1972 season corresponded with that of Strzesak, except for Kidd and Salmari10 whom he said were referred as extras." Although the testimony is in conflict as to the number of regulars employed in 1972 and in 1971, it is undisputed that the three alleged discriminatees, Malandrino, Cornell, and Beatty were regulars in 1971 but were not included among the regulars referred by Respondent in 1972, regardless of whether the total number was 12, as Diliberto 8 Strzesak stated that the 14 following named waitresses were furnished by Diliberto as regulars for the 1972 season Bradley, Capone, Dominick, Gross, Hurd, Kidd, Lambert, Manno, Marchione, Provo, Puorto, Ravena, Salman, and Scarano 9 Strzesak was not asked specifically to name the waitresses who were regulars in the 1971 season 10 See fn 8, supra 11 Extra waitresses, as distinguished from relief waitresses who were considered regulars, were also furnished by Respondent at the beginning of the season and on an as needed basis during the season 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, or 14 as Strzesak recalled. I find it unnecessary to resolve these discrepancies in numbers for the reasons stated infra Diliberto has been handling referrals to Stevens since 1948. He testified that seniority was the basis for his selection of individuals as regular waitresses at Stevens' restaurant Stevens did not maintain nor did it furnish to the Respondent any seniority roster.12 To determine seniority, Diliberto relied on information appearing on the individual's union card or his personal recollection of the individual's status. This is how he determined who to refer for the 1972 season as regulars. First preference was given to those who were current in their dues, regardless of their relative seniority. Gross was the only one in this category. The remaining I 1 he referred were all suspended members because of delinquency in dues and they were referred according to their respective seniority , as he determined it by the method described above.13 At the time he prepared this list, he was of the opinion that the I1 all had more seniority than Malandrino, Cornell, and Beatty who had also been suspended because of dues delinquency. Accord- ing to Diliberto, all those referred by him had been regulars in the 1971 season. This stands uncontradicted. As noted earlier, Strzesak was not certain whether they had all been regulars in the previous season . He was not asked to refer to payroll records for verification. Considerable testimony was adduced regarding the seniority of those referred by the Umon,14 and also of Malandrino, Cornell, and Beatty I do not believe it necessary to determine with any degree of accuracy the seniority standing of each individual.15 Obvi- ously, the method used by Diliberto was susceptible to error. This was further demonstrated when, after the instant charge was filed, he made inquiry of Stevens as to the starting dates of a number of individuals. The information received from Stevens, in some respects, did not correspond to the dates shown on his union cards. Moreover, it is questionable whether the seniority provi- sions of article 8, Fl, cited above, were applied correctly. It appears that Malandrino and Cornell and probably Beatty had more seniority than one or more of those referred by Respondent, e.g.,Marino, who Diliberto thought started in 1968 actually started in 1969. But this is hardly determina- tive of the issue involved in this case . There is no issue in this case with regard to the lawfulness of the employment provisions of the contract or of the referral practice, as it existed generally. The narrow issue to be determined is whether Diliberto deliberately did not refer Malandrino, Cornell, and Beatty because of their participation in protected concerted activity in the prior season. This was made clear by the General Counsel during the course of the hearing and in his oral argument On March 6, a local general membership meeting was held. At this meeting, the members voted on a dues 12 This is corroborated by Strzesak 13 According to Diliberto, had the alleged discrimmatees been current in their dues, which they were not, they would not have been considered suspended and would have been referred ahead of the 11 he did refer regardless of their lower seniority standing 14 Including Kidd and Salmari 15 A study of the oral testimony and the exhibits received would show this to be guesswork to a large extent I cannot disagree with Respondent's increase . Diliberto testified that at this meeting he also told the membership he anticipated a cutback in personnel at Stevens' restaurant for the 1972 season and not as many employees would be working. 16 In past years, normally another meeting, limited to Stevens' employees was held shortly before the season opening but this year none was held because Diliberto was out of town . Individuals were informed shortly before the opening that they had been referred. On April 14, Malandrino, Cornell, and Beatty not having received any notice of referral , came to the restaurant where they were told by Anthony Stone, Respondent's steward, they were not on the list to work. They then inquired of Strzesak if he had requested their names be taken off the list. He replied that he had not. The three then went to the union office but Diliberto was not there. That evening, Malandrino called Mike Shinas, Respon- dent's president, to ascertain why they had not been referred. Shinas said he didn't know but would check into it and Malandnno was to call him the following day. The next day, Shinas told her all he knew was that the three had been suspended for nonpayment of dues and therefore were not on the list. Malandrino protested that others were likewise delinquent in dues and yet were referred . Shinas said an executive board meeting was to be held the following Tuesday, April 18 and he would find out more details. At his request, she furnished him names of other delinquent members. On Tuesday night, April 18, accord- ing to Malandnno , she met Shlnas who told her that the executive board had decided to support Diliberto and that they could not work because they were suspended for dues delinquency; they would have to pay a reinstatement fee and go to the bottom of the ltst.17 The following morning she filed the instant charge. In the meantime, on Monday, April 17, Cornell and Beatty met with Diliberto at the union hall and inquired why they were not on the list of regulars referred to Stevens. According to Cornell and Beatty, Diliberto said that technically, they were not referred because they were delinquent in dues and were out of the union . According to Cornell, when Beatty asked what the real reason was, Diliberto "looked right at me and says, I'm tired of your creating trouble ; you're nothing but troublemakers and he said that no matter whenever he went up to the track, we always complained about everything . If it wasn't the silverware, the checkers, the busboys, the bathroom, anytime I ever came up to the track , I always heard your big mouth. . . . He said that no s.o.b . was going to run his Union; he worked too hard for this Union and if Mr. Morris got any idea there was trouble in the Union, the Union would be out of the raceway." 18 Diliberto allegedly also said that he had been looking to have something on them (referring to the dues delinquency). After further discussion regarding dues, they paid the $3 reinstatement counsel who conceded that "Mr Dilibertojust did a sloppyjob of preparing this seniority list " is Corroborated by Cornell 17 Diliberto admits that Shmas did inquire and he told Shmas they were not referred because they did not have senionty and had been suspended Shinas did not testify 18 Morris is manager of the raceway The Union does not have a bargaining relationship with the raceway LOCAL 471, HOTEL, MOTEL UNION 517 fee and Diliberto said the executive board would have to pass on their reinstatement and they would go to the bottom of the seniority list.19 They were told to call his office on April 19 to find out the results of the board meeting. This was the last conversation they had with Diliberto. Diliberto's version of this conversation is in sharp conflict with that of Cornell and Beatty. Diliberto testified that he told them they were not on the list because they did not have seniority and had been suspended for nonpay- ment of dues - 2 months in arrears and a member is automatically suspended . He told them they could be reinstated by payment of a $3 reinstatement fee which he accepted from them. When they complained that others had been referred who were also in arrears and had less seniority, he said he would check into the seniority and let them know . He specifically denied making any reference to their being troublemakers , their complaints about the working conditions at the restaurant , or that he had been looking for an opportunity to get rid of them. Malandrino testified she also had a conversation with Diliberto, this on Wednesday afternoon , April 19. Her testimony was that on that Wednesday morning she placed a long distance call to Respondent's union office in Saratoga Springs from a public phone in Albany and left word with the operator for Diliberto to return the call to Cornell, Beatty, or herself at their homes. She said the call was returned to her home that afternoon. Diliberto purportedly repeated the same criticisms he had made 2 days earlier to Cornell and Beatty. Diliberto is reported to have said he resented their going over his head to management .20 The record shows that she did not report this conversation to her two confreres, Cornell and Beatty, although they were at their respective homes all evening. Diliberto denies having had any conversation with Malan- drino.2i The heart of the General Counsel 's case rests on the alleged statements made by Diliberto to the three individu- als. If their versions are to be credited , this lends substantial support to a finding that they were not referred because of their activities more fully described below. On the other hand , without such favorable resolution, the evidence falls far short of support for such theory. For reasons appearing below, I credit Diliberto's version of his conversation on April 17 with Cornell and Beatty and also credit his denial of any conversation with Malandrino on April 19 Malandrino, Cornell, and Beatty had been employed as regulars for several years; Malandrino and Cornell since 1968 and Beatty since 1969. Considerable testimony was adduced by the General Counsel as to complaints they voiced to management and the union representatives regarding their working conditions . They complained at times about the lack of 'silverware, insufficient checkers, inept busboys, and poor bathroom facilities . The General Counsel contends that - these complaints were protected concerted activities and because of their participation in such activities, Respondent refused to refer them. The witnesses stated that whenever they registered complaints to Stone, Respondent's steward in the restaurant, they received no satisfaction-all he would ever say was they should quit if they didn't like it there. Malandrino referred specifically to an incident where she complained strongly to management about a busboy and she refused to allow him at her station.22 Malandrino and Cornell also testified about their attempts to improve the bathroom facilities in the 1971 season. In this regard, the record shows that the waitresses did not have access to the public bathroom until 6:00 p.m. when it was opened to the public. Waitresses reported for duty at 4:30 p.m. and until 6:00 the only bathroom available to them was one which they considered dirty and otherwise inadequate . Most all the waitresses had complained to Strzesak, Stone, and Dihberto about this but nothing was done . Finally in late July or August the employees selected Malandrino to prepare a To Whom It May Concern letter complaining about the bathroom accommodations . She prepared such letter and, after showing the letter and receiving approval from the other girls, gave copies to Strzesak and Stone . The letter was unsigned . Together with Cornell, she then saw Fitzimmons, assistant general manager of the racetrack . She gave him a copy of the letter and voiced her displeasure at the existing bathroom condition . She testified that Fitzimmons was very cordial and said he would check into it. Three days later, Fitzimmons made the public bathroom available for their use at 4:30 p.m. Cornell testified that in the fall of 1971 several of the waitresses including herself discussed electing Malandrino as steward to replace Stone but this movement never got beyond the discussion stage . The record does not reveal any knowledge by Respondent of this aborted attempt to replace Stone. It should be noted too, that the steward is appointed by Respondent , rather than elected. Although the record shows that the three alleged discriminatees had registered complaints at various times as described above, the record also discloses that all the waitresses were constantly complaining about the lack of silverware, the bathroom, etc. Malandrino testified that all the waitresses complained to Diliberto . She recalled complaining twice to him about the bathroom but Diliberto said there was nothing he could do about it. As Malandrino testified further on direct examination: Q. (Mr. Miller): Have you ever gone to perhaps Mr. Stone, anyone from the Union, for any specific reason ; to the Employer perhaps? A. You know, like you can go down 15 times a week with a complaint of some kind; I mean , I can't say that I didn't go to the Employer with the complaint because I probably did. There were a hundred times when we were out of silver, 10 or 15 times when a bus boy was playing cards somewhere when we needed him. Q. What happened to the silver? 19 Beatty substantially supports Cornell's version of what was said Saratoga Spring office most of the afternoon 20 This apparently referred to a bathroom complaint discussed below . 22 However, this occurred in the 1970 season Nonetheless she was 21 A statement from the telephone company (Resp Ex 17) does not referred in 1971 disclose any call to Malandrino's home in N Chatham Diliberto was in the 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Many times there wasn't enough Q. What did you do as a result of that? A. We would go to Mr. Stone, who is our shop steward, and he didn't get it and then we had to run to the office. Q Who is the we? A. Any waitress on the floor, short of silver, Marion or myself or Barbara, anyone that was there. Barbara Kidd, called by the General Counsel, testified the bathroom accommodations were a source of dissatis- faction to all the waitresses and she herself had complained to Stone. Cornell testified that all the waitresses registered the same complaints as she did. Beatty also testified regarding registering complaints, even in prior years. As she stated every year there were constant complaints by all the waitresses. I find it unnecessary to decide whether all of the activities engaged in by the alleged discriminatees fall within the sphere of protected concerted activity for, at the very least, the efforts of Malandrino and Cornell to improve the bathroom situation constituted protected activity 23 As stated earlier, I have credited Diliberto and find that he did not make the remarks to Cornell and Beatty about their activities or that they had been troublemakers. I also find that he had no conversation with Malandrino on April 19. These conclusions are reached after having observed the conflicting witnesses and having taken into consideration other factors appearing in the record Apart from the alleged remarks by Diliberto, there is no evidence to show that Respondent, through Stone24 or Diliberto harbored any resentment or animosity towards Malandrino, Cornell, or Beatty because of their com- plaints. It appears that Stone supported, rather than resented, the employees' efforts to improve the bathroom facilities. Malandrmo testified on cross-examination that when she presented a copy of the unsigned To Whom It May Concern letter to Stone, he remarked that it was a good letter and "he thought it was what we needed. His 23 The General Counsel would include Beatty as the three were known as the Three Musketeers because of their close relationship-one for all and all for one and thus the Respondent would have had them all accountable 24 1 find Stone was Respondent's agent despite Respondent's denial Stone, an addition to being the steward on the job, is a member of the executive board 21 It should be remembered that the bathroom activity took place in late wife had to use the same facilities. . . . Mr. Stone said that we should do what we thought was best as long as Mr. Diliberto couldn't do anything." With respect to the bathroom as well as the other complaints, the record discloses that such complaints cropped up constantly and all the waitresses voiced their displeasures, even in past years. Yet, in past years, the three had been referred. It would seem to me that during the course of the 1971 season, had Diliberto been annoyed at the activity of the three in particular, he would have made his displeasures known long before the 1972 season opening.25 But such did not occur. In arriving at the above findings, I have not been unmindful of Respondent's position regarding seniority and suspension for dues delinquency. But whether Respondent improperly applied the seniority or incorrectly decided on the suspensions is not for me to resolve. The record as a whole does not estab- lish that Respondent failed to refer Malandnno, Cornell, or Beatty because of activities protected by the Act Nor did Diliberto threaten them with loss of referral to Stevens because of such activities. In view of the foregoing findings, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW I The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3 Respondent has not engaged in the unfair labor practices alleged in the complaint. Upon all the foregoing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 26 ORDER It is hereby ordered that the complaint herein be dismissed in its entirety. July or early August 1971 and the season did not end until mid-November 26 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, 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